## Facts

- Robert T. Shaw, a lifelong nonsmoker, worked as a long-distance truck driver in an enclosed truck cab.
- Shaw’s regular driving partner smoked Raleigh cigarettes manufactured by Brown & Williamson Tobacco Corporation.
- Shaw alleged prolonged exposure to environmental tobacco smoke (ETS) in the truck cab caused him to develop lung cancer.
- Shaw and his wife sued the manufacturer, alleging it knew of ETS hazards but concealed or misrepresented those dangers and failed to provide adequate warnings.
- The complaint asserted multiple theories, including battery, strict products liability (design and manufacturing defect), negligence, negligent and intentional misrepresentation, breach of warranty, abnormally dangerous activity, and loss of consortium.

## Issues

1. Whether a cigarette manufacturer can be liable for battery to a nonsmoker exposed to ETS from a third party’s smoking.
2. Whether the manufacturing-defect claims were pleaded with sufficient factual specificity to state a plausible claim.
3. Whether cigarette manufacture, marketing, and distribution could constitute an “abnormally dangerous activity” supporting strict liability.
4. Whether breach-of-warranty claims were time-barred under Maryland’s limitations period.
5. Whether negligence and misrepresentation theories based on ETS exposure (including failure to warn and concealment) were adequately pleaded and whether they were preempted by the Public Health Cigarette Smoking Act of 1969 (PHCSA).

## Decision

- The court granted in part and denied in part the manufacturer’s Rule 12(b)(6) motions.
- Dismissed: battery; manufacturing defect (under strict liability and negligence theories); strict liability for abnormally dangerous activity; breach of warranty (as untimely).
- Allowed to proceed: negligent failure to warn regarding ETS; intentional misrepresentation theories centered on concealment of ETS dangers (and related adequately pleaded misrepresentation theories).
- Held that the surviving ETS-based failure-to-warn and concealment-based intentional-misrepresentation claims were not preempted by the PHCSA because they were not framed as challenges to cigarette advertising or promotion and concerned secondhand smoke exposure.

## Legal Principles

- Battery under Maryland law requires intent to cause harmful or offensive contact; manufacturing and selling cigarettes, without facts showing intent to cause contact through a third party’s smoking, is too remote to satisfy intent.
- A manufacturing-defect claim must allege facts indicating the product deviated from the manufacturer’s intended design; conclusory assertions of defect are insufficient.
- Strict liability for abnormally dangerous activity requires allegations showing the activity is abnormally dangerous in relation to where and how it is carried on; absent facts tying the defendant’s activity to the location/circumstances of injury or control of the premises, the claim fails.
- Maryland breach-of-warranty claims are subject to a four-year limitations period that generally accrues at sale; claims filed outside that period are barred.
- PHCSA preemption targets state-law requirements “with respect to” cigarette advertising and promotion related to smoking and health; state tort claims framed around ETS harms and non-advertising conduct (such as failure to warn nonsmokers or concealment of ETS risks) may proceed at the pleading stage.

## Conclusion

The court narrowed the case to ETS-focused theories, rejecting attempts to reframe cigarette manufacture and sale as battery or an abnormally dangerous activity and dismissing conclusory manufacturing-defect and time-barred warranty claims, while permitting negligent failure-to-warn and concealment-based intentional-misrepresentation claims to proceed and finding them outside PHCSA preemption as pleaded.


Shaw v. Brown & Williamson Tobacco Corp., 973 F. Supp. 539 (D. Md. 1997)