* Judge of the U.S. Court of International Trade, sitting by designation. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 00-40252

____________

JO A. HARRIS; ET AL.,

Plaint iffs,

JO A. HA RRIS; FRANCIS WAYNE O’CONNOR; ALFREDO G.

QUINTANILLA,

Plaintiffs - Appellants,

versus

PHILIP MORRIS INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court

For the Southern District of Texas

November 16, 2000

Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, District Judge. *

EMILIO M. GARZA, Circuit Judge:

Jo A. Harris, et al. (“Plaintiffs”) appeal the dismissal of their claims against Philip Morris1 Section 82.001(2) defines “products liabilit y action” as “any action against a

manufacturer or seller for recovery of damages arising out of personal injury, death, or propert y

damage allegedly caused by a defective product where the action is based in strict tort liabilit y, strict

products liabilit y, negligence, misrepresentation, breach of express or implied warranty, or any other

theory of combination of theories.”

-2- Incorporated (“Philip Morris”) for civil assault under Texas Penal Code § 22.01(a). The district court

held t hat Texas Civil Practice and Remedies Code § 82.004(a) barred the Plaint iffs’ claims. We

affirm.

The Plaint iffs filed a diversity action alleging that they su ffered physical and psychological

harm from smoking Philip Morris’ cigarettes. They claim that Philip Morris committed a civil assault

under Texas law by producing and selling products that induce nicotine addiction. Philip Morris thus

allegedly intentionally, knowingly or recklessly caused the Plaintiffs’ harm.

The district court granted Philip Morris’ motion for judgment on the pleadings, ruling that the

Texas Product Liability Act (as codified in T EX

. C IV

. P RAC

. & R EM

. C ODE § 82.004) precluded the

Plaint iff s’ claims. The statute protects manufacturers and sellers of “inherently unsafe” products,

including tobacco, from products liability suits. Section 82.004(a) states that:

In a products liability action, a manufacturer or seller shall not be liable if:

(1) the product is inherently unsafe and the product is unknown to be unsafe

by the ordinary consume r who co nsumes the product with ordinary knowledge

common to the community; and

(2) the product is a

common consumer product intended for personal

consumption, such as...tobacco....

T EX

. C IV

. P RAC

. & R EM

. C ODE § 82.004(a). 1 The statute does not relieve manufacturers and sellers

of liability for actions based on manufacturing defects or breach of express warranties.

We review a judgment on the pleadings de novo

. S ee St. Paul Ins. Co. v. Afia Worldwide Ins.

Co.

, 937 F.2d 274, 278-79 (5th Cir. 1991). The Plaint iffs challenge the district court’s decision on2 We note that this Court has rejected nearly identical arguments in previously

unpublished opinions. S ee Cornelius v. Philip Morris, Inc.

, No. 00-10352 (5th Cir. Sept. 27, 2000);

Lopez v. R.J. Reynolds Tobacco Co.

, No. 00-40247 (5th Cir. June 26, 2000); Perez v. Philip Morris,

Inc. , 00-40146 (5th Cir. June 23, 2000).

-3- several grounds. All of them lack merit. 2 We examine each of the grounds below.

First, the Plaint iffs argue that § 82.004’s immunit y provisio n violates public policy by

encouraging or condoning the criminal act of assault. However, § 82.004 itself represents the state’s

public policy. The Texas legislature’s enactment of the Texas Product Liability Act represented the

state’s policy preference to limit manufa ct urers’ liability for injuries caused by their products.

Accepting the Plaintiffs’ argument would only encourage artful and creative pleading.

Second, we must reject the Plaint iffs’ constitutional challenge against § 82.004. The Plaintiffs

contend that it violates the Texas Constitution’s “open courts” guarantee, which provides that “[a]ll

courts shall be open, and every person for an injury done him...shall have remedy by due course of

law.” T E X

. C ONST

. art. I., § 13. The “open courts” guarantee has been i nterpreted to deny the

Texas legislature the power to abrogate common law remedies against intentional wrongs. S ee Rose

v. Doctors Hosp.

, 801 S.W.2d 841, 845 (Tex. 1990) (holding that the “open courts” guarantee does

not extend to the abrogation of statutory remedies). But the Plaintiffs have filed a statutory cause

of action under § 22.01 of the Texas Penal Code. The “open courts” guarantee simply does not apply

here.

Even if the Plaint iffs had pleaded a comm on law act ion, they could not rely on the “open

co urts” guarantee because the Texas Product Liability Act does not preclude all remedies. The

statute allows suits based on manufacturing defect and express warranty defect claims. Furthermore,

the Plaint iffs must show that their claims are “well-established” to succeed on an “open courts”3 Section 82.004(1)’s “common knowle dge” standard is, as the S anchez majority

recognized, “known to be unsafe.” We believe that “known to be addictive,” the “common

knowledge” standard advocated by the Plaint iffs, is subsumed under the statutory standard “known

to be unsafe.” The logic of the “known to be addictive” st andard makes this clear: only those

addictive products that are unsafe are the subject of personal injury claims. The products are simply

more unsafe because they are addictive.

-4- challenge. S ee Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 617,

637 (Tex. 1996). We have never accepted an “assault” claim based on personal injury from smoking.

Third, the Plaint iffs claim that § 82.004 does not apply because the addictive nature of

nicotine is not “common knowledge” as required by the statute. This court expressly considered and

rejected that argument in Sanchez v. Liggett & Myers, Inc. , 187 F.3d 486, 490-91 (5th Cir. 1999).

We held that “the only requirement of §82.004(a) as to common knowledge is that the product be

‘known to be unsafe.’” Id. at 490. We found that this test was met as a matter of law as to tobacco.

See id. (citing Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996)). Thus, §

82.004(a) bars the Plaint iffs’ claim, even t ho ugh they based their suit on the addictive effect of

tobacco. 3

The Plaint iffs point out that American Tobacco Co., Inc. v. Grinnell , 951 S.W.2d 420, 429

(Tex. 1997) contains language suggesting that the addictive nature of tobacco was not widely known

at least in 1952. They urge this court to follow the Texas Supreme Court’s opinion in G rinnell

. The

Plaint iffs’ reliance on Grinnell is misplaced. We are bound by stare decisis to follow this circuit’s

opinion in Sanchez. Furthermore, the analysis in G rinnell does not apply here because the suit in that

case was filed before the Texas Product Liabilit y Act came into force. See Sanchez, 187 F.3d at 490-5-

(noting that Grinnell was filed before the effective date of the Texas Product Liabilit y Act and thus

“the Texas Supreme Court’s decision was governed by common law, not by § 82.004(a)”).

Fourth, the Plaint iffs maintain that § 82.004 does not bar their claims because the statute

applies only to claims predicated upon product defect. The Fifth Circuit rejected this argument in the

so-called Hulsey cases. S ee Hulsey v. American Brands, Inc.

, 1997 WL 271755 (S.D. Tex. 1997),

aff’d 139 F.3d 898 (5th Cir. March 2, 1998) (unpublished), c ert. denied, 525 U.S. 868 (1998);

Oglesby v. American Brands, Inc.

, 1997 WL 881214 (S.D. Tex. 1997), aff’d

, 139 F.3d 898 (5th Cir.

March 2, 1998) (unpublished), cert. denied, 525 U.S. 868 (1998); Whirley v. American Brands, Inc.

,

1997 WL 881215 (S.D. Tex. 1997), aff’d

, 139 F.3d 898 (5th Cir. March 2, 1998) (unpublished), cert.

denied, 525 U.S. 868 (1998).

In the Hulsey cases

, the plaint iffs claimed that tobacco companies knew that nicotine caused

addiction among smokers, but concealed this knowledge intentionally, knowingly, recklessly,

malicio usly, fraudulently, negligently, gross n egligently and assaultingly. S ee Hulsey

, 1997 WL

271755 at *1. The district court expressly rejected the H ulsey plaint iffs’ assertion that § 82.004 did

not apply because their claims were not predicated on a product defect, and found these claims barred

under § 82.004. See id. at *5. It noted that § 82.001(2) and § 82.004 intended to preclude claims

based on injuries sustained as a result of the undisclosed addictive nature of cigarettes.

As in the Hulsey cases, the Plaint iffs here seek to recover damages for personal injuries

suffered as result of nicotine’s addictive qualities. We find H ulsey’ s reasoning persuasive and reject

the Plaintiffs’ argument that § 82.004 does not apply here.

The Plaint iffs attempt to circumvent § 82.004(a)’s bar by characterizing their claims as based

on assault, not products liabilit y. Our holding in S anchez disposes of this argument. In S anchez, the-6-

plaint iff denied that his action was premised on products liabilit y, and instead raised claims of fraud,

conspiracy, and violation of the Texas Deceptive Trade Practices Act. S ee Sanchez

, 187 F.3d at 491.

We held that, while Sanchez’s claims might not have been “traditional” products liabilit y claims, “the

definition in § 82.001(2) plainly foreclose[d] the argument.” I d. We noted that § 82.001(2) defined

“products liabilit

y action” broadly to include any action arising out of personal injury or death from

a defective product, regardless of the theory or combination of theories under which t he claim is

brought. S ee id. (citing §82.001(2)). Because Sanchez’s claims arose from the allegedly wrongful

death caused by smoking cigarette s, “all t heo ries of recovery asserted by the Sanchez Family are

covered, with the exception s o f manufacturing defect and breach of warranty.” I d. (citing §

82.004(b)).

Notwithstanding the Plaint iffs’ legal labels and conclusory characterizations, we hold that the

Plaint iffs’ claims are based on “products liabilit y,” and are thus barred by the Texas Product Liabilit y

Act. S ee Hulsey

, 1997 WL 881214 at *5 (finding claims of injuries suffered as a result of addictive

properties of cigarettes to be “products liability” claims under §82.001(2)).

AFFIRMED.