* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 00-10352

(Summary Calendar)

_________________

WANDA CORNELIUS, on behalf of The Estate of Robert C

Cornelius De ceased; SAMUEL CORNELIUS, SR; MARY

CORNELIUS; ERICA CORNELIUS

Plaintiffs - Appellants,

versus

PHILLIP MORRIS INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court

For the Northern District of Texas

DC No. 99-CV-2125-G

September 27, 2000

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM: *

Appellants Wanda Cornelius, et al. (“plaintiffs”), appeal from the district court’s dismissal of

their claims against appellee Phillip Morris Incorporated (“Phillip Morris”) for civil assault under Tex.

Penal Code Ann. § 22.01(a). The district court found that the plaintiffs’ claims were barred by Tex.1 Only actions based on manufacturing defects or breach of express warranties are

exempted from the § 82.004(a) bar. See id. § 82.004(b).

-2- Civ. Prac. & Rem. Code § 82.004(a). We affirm.

The plaint iffs sought damages for Robert C. Cornelius’s death, which they allege was caused

by Philip Morris cigarettes to which he was addicted. They claim that Phillip Morris committed a civil

assault under Texas law by producing and selling products containing nicotine which caused nicotine

addiction. Philip Morris thereby allegedly intentionally, knowingly, or recklessly caused the plaintiffs’

harm.

The district court found that the plaintiffs’ claims are barred by § 82.004 of the Texas Civil

Practice and Reme dies Code, which relieves manufacturers and sellers of “inherently unsafe”

products, including tobacco, from liabilit y in products liabilit

y actions. Adopted in 1993, § 82.004(a)

reads:

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

(1) the product is inherently unsafe and the product is known to be unsafe by

the ordinary consumer w ho consumes the product with the ordinary knowledge

common to the community; and

(2) the product i s a co mmo n consumer product intended for personal

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

Tex. Civ. Prac. and Rem. Code § 82.004(a). 1 Adopted at the same time, § 82.001(2) defines a

“products liability action”:

“Products liabilit

y action” means any action a gainst a manufacturer or seller for

recovery of damages arising out of personal injury, death, or prope rt y damage

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

strict products liabilit y, negligence, mis-representation, breach of express or implied

warranty, or any other theory or combination of theories.

Id. § 82.001(2).

The plaint iffs raise several challenges to the district court’s decision that their lawsuit was-3-

precluded by § 82.004. We consider these challenges in turn.

First, the plaintiffs claim that it is contrary to the public policy of Texas to create immunit y

under § 82.004(a) when doing so rewards or con do nes t he commission of an offense defined as a

crime in Penal Code § 22.01(a)(1). However, § 82.004 itself represents the public policy chosen by

the Texas legislature. Based on prior cases dealing with nearly identical facts, we are persuaded that

it intends to preclude the plaintiffs’ claims, and we therefore decline the plaintiffs’ suggestion that,

based on their creative pleading, § 22.01 provides a public policy sufficient to preclude application

of § 82.004(a) here.

Second, the plaint iffs claim that § 82.004 does not apply because their claims are predicated

on the addictive nature of nicotine contained in cigarettes and the addictive nature of cigarettes is not

“common knowledge” as required by the Code. We expressly considered and rejected this argument

in Sanchez v. Liggett & Myers, Inc. , 187 F.3d 486, 490-91 (5 th 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 satisfied as a matter of law as to tobacco. S ee id. (citing

Allgood v. R.J. Reynolds Tobacco Co.

, 80 F.3d 168, 172 (5 th Cir. 1996); American Tobacco Co., Inc.

v. Grinnell , 951 S.W. 2d 420, 429 (Tex. 1997)). Therefore, even though Sanchez’s claims were

based on the addictive effect of tobacco, § 82.004(a) was satisfied. S ee Sanchez

, 187 F.3d at 490-91.

Sanchez precludes the plaintiffs’ second argument.

Third, the plaint iffs claim that the § 82.004 bar is inapplicable to the present suit because the

plaint iffs’ claims do not require proof of a product defect. This general argument was rejected in the

so-called Hulsey cases, which we affirmed after oral argument. S ee Hulsey v. American Brands, Inc.

,

1997 WL 271755 (S.D.Tex. 1997), aff’d

, 139 F.3d 898 (5th Cir.) (unpublished), cert. denied , 525-4-

U.S. 868 (1998); Oglesby v. American Brands, Inc.

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

, 139

F.3d 898 (5th Cir.) (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.) (unpublished), cert. denied

,

525 U.S. 868 (1998). Seeking to recover for injuries sustained smo king cigarettes, the H ulsey

plaint iffs asserted that tobacco companies knew that nicotine causes addiction in persons who use

tobacco products and concealed this knowledge intentionally, knowingly, recklessly, m aliciously,

fraudulently, negligently, grossly negligently, and assaultingly. See Hulsey, 1997 WL 271755, at *1.

The district court found that these claims were barred under § 82.004 and expressly rejected the claim

that § 82.004 did not apply because the plaint iffs’ claims were not predicated on a product defect.

See id. at *5. It noted that the plaintiffs so ught t o recover for injuries sustained as a result of the

undisclosed addictive nature of cigarettes, and it found that this was the type of claim intended to be

covered by § 82.001(2) and § 82.004. See id.

Here, as in the H

ulsey cases, the plaint iffs seek to recover damages for personal i njuries

sustained as a result of the addictive properties of nicotine. We are persuaded by Hulsey ’s reasoning

and decline to find § 82.004 inapplicable because civil assault claims are not predicated o n the

existence of a product defect.

The plaint iffs argue that § 82.004(a) does not apply to their actions because it applies only

to “products liabilit y” claims and their claim is for assault. In S anchez , the plaintiff raised claims of

fraud, conspiracy, and violation of the Texas Deceptive Trade Practices Act, and claimed that these

were not “product liabilit y claims” subject to § 82.004. See Sanchez

, 187 F.3d at 491. We found

that, while Sanchez ’s claims might not be “traditional” products liability claims, “the definition in §

82.001(2) plainly forecloses this argument.” I d. We noted that “products liability action” as defined2 We note that we have already rejected nearly identical arguments to those raised by

the plaint iffs here in two prior cases. See Lopez v. R.J. Reynolds Tobacco Co.

, No. 00-40247 (5 th

Cir. June 26, 2000); Perez v. Philip Morris Inc. , No. 00-40146 (5 th Cir. June 23, 2000).

-5- in § 82.001(2) includes any action arising out of personal injury or death from a defective product

regardless of the theory or combination of theories under which the claim is brought. S ee id. (citing

§ 82.001(2)). Because Sanchez’s claims arose from his allegedly wrongful death caused by smoking

cigarettes, “all theories of recovery asserted by the Sanchez Family are covered, with the exceptions

of manufacturing defect and breach of warranty.” Id. (citing § 82.004(b)).

As in Sanchez

, the plaint iff s ’ claims here arise out of personal injuries allegedly caused by

smoking addictive cigaret tes. Sanchez clearly implies that such claims are covered by § 82.004

regardless of how they are pled, and we are persuaded that this was the intent of the broad definition

of “products liabilit

y claim” contained in § 82.001(2). See also Hulsey , 1997 WL 881214, at *5 (also

finding claims for injuries sustained as a result of addictive properties of cigarettes to be “products

liability” claims under § 82.001(2)).

Finding the plaint iffs’ arguments to be without merit, we AFFIRM 2 the final judgment of the

district court dismissing their claims.