## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 9 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID BURTON, Plaintiff - Appellee, v. R.J. REYNOLDS TOBACCO COMPANY, Defendant - Appellant. No. 02-3262

Appeal from the United States District Court

for the District of Kansas (D.C. No. 94-CV-2202-JWL)
Robert H. Klonoff, Jones Day, Washington, D.C. (Pau l R. Reichert, Jones Day, Washington, D.C., and M. Warren McCamish, Williamso n & Cubbison, Kansas City, Kansas, and Sydney McDole and Catherine L. Bj orck, Jones Day, Dallas, Texas, with him on the briefs) for Defendant-Appell ant. Kenneth B. McClain (Donald H. Loudon, Jr., and Scott B. Hall, with him on the brief), Humphrey Farrington & McClain, P.C., Indepe ndence, Missouri, for Plaintiff-Appellee.

Before EBEL , McKAY , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.- 2 -

David Burton (“Burton”) sued R.J. Reynolds Tobacco Co. (“Reynolds”) alleging that it caused the loss of his legs by fra udulently concealing, failing to warn of, and failing to test for the dangers of cig arette smoking. After a thirteen day trial, the jury found in Burton’s favor on thre e of his claims for relief, authorized punitive damages, and awarded Burton $19 6,416 in compensatory damages. Subsequently, the court awarded Burton $1 5 million in punitive damages. Reynolds appeals the jury verdict and awa rd of compensatory and punitive damages. We exercise jurisdiction pursuan t to 28 U.S.C. § 1291, and
REVERSE the jury’s verdict on liability in part, REVERSE the dependent award of punitive damages, and AFFIRM other aspects of the judgment.
I In 1950, around the same time he quit high school t o help support his mother, brothers, and sisters, plaintiff David Burt on began to smoke Camel and Lucky Strike cigarettes. He was 14 or 15 years old . For the next 43 years, Burton continued to smoke because, as he explained, he enj oyed the taste. Burton did not go to physicians for check-ups and claimed to have never been sick. It was not until the summer of 1993, when Burton began to deve lop problems walking due to poor circulation, that he went to see a physician. His treating physician informed him that his circulation problems were caused by hi s cigarette smoking and advised him to “stop smoking or his legs were going to rot off.” Doubting- 3 -

whether cigarettes were causing his leg problems, B urton sought two other medical opinions, both of which confirmed the initi al diagnosis. The third doctor recommended vascular bypass surgery in order to res olve his circulatory problems. In the meantime, despite his doctors’ warnings, he did not initially attempt to quit smoking. In the fall of 1993, Burt on underwent the recommended bypass surgery, which was unsuccessful, and shortlythereafter both of his legs were amputated below the knee. He stopped smoking while he was admitted to the hospital but started again after he was dischar ged. Burton finally quit smoking when, as he recounts, his physician warned him: “If it took your legs, it will take your arms.” Following the amputation of his legs, Burton brought this products liability action in 1994 against Defendants, Reynolds, the ma nufacturer of Camel cigarettes, and The American Tobacco Co. (“American ”), the manufacturer of Lucky Strike cigarettes. Basing his complaint on t he fact that he had been addicted to cigarettes and that cigarette smoking c aused his peripheral vascular disease (“PVD”), he alleged numerous claims under K ansas law, including defective design, negligent failure to warn, neglig ent failure to test, breach of express warranty, fraudulent concealment, conspirac y to conceal, and fraudulent misrepresentation.- 4 -

In 1995, the district court granted defendants’ joi nt motion for summary judgment in part, and dismissed Burton’s fraudulentmisrepresentation and breach of express warranty claims. Burton v. R.J. Reynold s Tobacco Co. , 884 F. Supp. 1515, 1527-28 (D. Kan. 1995). The court also dismi ssed any claims based on a post-1969 failure to warn as preempted by the Publi c Health Cigarette Smoking Act of 1969 (“1969 Act”). 15 U.S.C. §§ 1331-1340; Burton , 884 F. Supp. at
1521. Proceeding to trial on the remaining claims in 2002 , a jury returned a verdict for Burton on his fraudulent concealment, p re-1969 negligent failure to warn, and negligent failure to test claims. Burton v. R.J. Reynolds Tobacco Co. , 205 F. Supp. 2d 1253, 1255 (D. Kan. 2002). In awarding compensatory damages in the amount of $ 196,416 against Reynolds and $1,984 against American, the jury also authorized an award of punitive damages against Reynolds based on Burton’s fraudulent concealment claim. Id. Pursuant to this authorization, the district court awarded Burton punitive damages in the amount of $15 million. Id. Defendants’ motion for judgment as a matter of law and, in the alternative , for a new trial, having been denied, Burton v. R.J. Reynolds Tobacco Co. , 208 F. Supp. 2d 1187, 1214 (D. Kan. 2002), Reynolds now appeals.
II- 5 -

With regard to the jury’s verdict on Burton’s fraud ulent concealment claim, Burton v. R.J. Reynolds Tobacco Co. , 205 F. Supp. 2d 1253, 1255 (D. Kan. 2002), Reynolds argues, first, that Kansas courts w ould not recognize a claim for fraudulent concealment under the facts of this case , and, second, that the verdict is not supported by sufficient evidence. Because w e agree with Reynolds’ first contention, we need not address the second.
A We review a district court’s interpretation of stat e law de novo. Blackhawk-Cent. City Sanitation Dist. v. Am. Guar. & Liab. Ins. Co. , 214 F.3d 1183, 1188 (10th Cir. 2000). Under Kansas law, to establish fraudulent concealment, or “fraud by silence,” the plaintiff m ust prove by clear and convincing evidence that: (1) the defendant had kn owledge of material information the plaintiff did not have and could no t have discovered through the exercise of reasonable diligence; (2) the defendanthad a duty to communicate that information to the plaintiff; (3) the defendan t deliberately failed to communicate the information to the plaintiff; (4) t he plaintiff justifiably relied on the defendant to communicate the information; and ( 5) the plaintiff was injured by the defendant’s failure to communicate the infor mation. Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman , 978 P.2d 922, 932 (Kan. 1999).- 6 -

Not every nondisclosure is a fraudulent concealment . Robinson v. Shah , 936 P.2d 784, 790 (Kan. Ct. App. 1997). Nondisclos ure becomes fraudulent only when it violates a duty to disclose. See id. “A party has a duty to disclose material facts if the party knows that the other is about to enter into the transaction under mistake as to such facts, and that the other, because of the relationship between them . . . would reasonably expect disclosure of such facts.” OMI Holdings, Inc. v. Howell , 918 P.2d 1274, 1300-01 (Kan. 1996). Such relationships giving rise to the duty to disclose m ay include certain kinds of disparate contractual relationships, as well as fid uciary relationships. See DuShane v. Union Nat’l Bank , 576 P.2d 674, 679 (Kan. 1978) (holding that a duty to disclose may arise “between two contracting part ies when there is a disparity of bargaining powers or of expertise,” or “[i]f the pa rties to a bargain are in a fiduciary relationship to one another”); Flight Con cepts Ltd. P’ship v. Boeing
Co. , 38 F.3d 1152, 1158 (10th Cir. 1994) (“The duty to disclose arises under Kansas law when there is a fiduciary relationship w hich may be created by contract or may arise from the relationship of the parties.”). Burton does not suggest that Reynolds was bound by a contractual relationship creating a fiduciary duty, but does ar gue that Reynolds owed him a fiduciary duty nonetheless. Kansas courts have ide ntified the following principles to consider in determining whether a non-contractua l fiduciary relationship exists:- 7 -

A fiduciary relationship imparts a position of pecu liar confidence placed by one individual in another. A fiduciary i s a person with a duty to act primarily for the benefit of another . A fiduciary is in a position to have and exercise, and does have and ex ercise influence over another. A fiduciary relationship implies a c ondition of superiority of one of the parties over the other. Generally, in a fiduciary relationship, the property, interest or a uthority of the other is placed in the charge of the fiduciary. Denison State Bank v. Madeira , 640 P.2d 1235, 1241 (Kan. 1982) (emphasis added). Cautioning against an approach to fiduciary relationships that would “convert ordinary day-to-day business transactions into fiduciary relationships where none were intended or anticipated,” id. at 1243, Kansas courts have warned that: “one may not abandon all caution and respons ibility for his own protection and unilaterally impose a fiduciary relationship on another without a conscious assumption of such duties by the one sought to be h eld liable as a fiduciary.” Id. at 1243-44 (holding no fiduciary relationship exist ed between bank and debtor). Moreover, we have noted that under Kansas law a fid uciary duty must be consciously assumed. Rajala v. Allied Corp. , 919 F.2d 610, 615 (10th Cir. 1990) (applying Kansas law). Because no Kansas authority has determined whether an ordinary consumer transaction for the sale of a product creates a fid uciary relationship between the product manufacturer and the consumer, we must dete rmine how Kansas courts would decide the issue. See United States v. DeGas so , 369 F.3d 1139, 1145-46 (10th Cir. 2004) (federal courts predict state court interpretations in light of state- 8 -

appellate court opinions, decisions from other juri sdictions, statutes, and treatises). Applying Kansas law, however, a federa l district court has stated: A buyer/seller relationship does not create a fiduc iary duty because the parties are dealing at arm’s length and seeking for themselves the best advantage. . . . Since it almost goes without saying that the seller of a product will likely know more about its featur es and capabilities than would the buyer, this superior knowledge is hardly a basis for grounding a fiduciary relationship. Ritchie Enterprises v. Honeywell Bull, Inc. , 730 F. Supp. 1041, 1053-54 (D. Kan. 1990) (internal quotations and alterations omitted) . In general, other courts recognize that the relationship between a product b uyer and seller does not of itself create a fiduciary obligation. See 37 C.J.S. Fraud§ 6 (2003) (“Most business or contractual relationships, such as thos e between buyer and seller . . . do not of themselves create fiduciary obligations.” ); 63A Am. Jur. 2d Products Liability§ 892 (2003) (“Absent a confidential relationship between seller and buyer, the product seller has no duty to speak, whi ch is necessary to make silence the equivalent of fraudulent concealment.”); State v. Parris , 578 S.E.2d 736, 742- 43 (S.C. Ct. App. 2003) (collecting cases). Without focusing on the specific requirements neces sary to establish a “duty to disclose” as a predicate for finding fraud ulent concealment under Kansas law, the district court relied on Tetuan v. A.H. Ro bins Co. , 738 P.2d 1210 (Kan. 1987), to support the claim for fraudulent concealm ent. In Tetuan , the court upheld a verdict finding that the manufacturer of h er prescription intrauterine1 Kansas also recognizes that manufacturers have a p ost-sale duty to warn

purchasers who “can be readily identified or traced ” by the manufacturer. Patton , 861 P.2d at 1313. - 9 - device, fraudulently misrepresented and/or conceale d the dangers of the device. Id. at 1216, 1228-32. As we read the case, however, T etuandoes not eliminate the necessity of proving either a special or fiduci ary relationship that creates the duty to disclose in a fraudulent concealment claim To the extent that Tetuanendorsed a fraudulent concealment claim against manufacturers of prescription medical devices in a product liability lawsuit, we do not believe that Kansas courts would extend that en dorsement to fraudulent concealment claims against a manufacturer of cigare ttes. Tetuaninvolved an “ethical” (i.e., prescription) device, a fact we fi nd significant for two reasons. First, Kansas recognizes that ethical drug and devi ce manufacturers owe a continuing, post-sale duty to warn of product dange rs, whereas manufacturers of other products generally owe a duty to warn of prod uct dangers only at the time of sale. 1 See Patton v. Hutchinson Wil-Rich Manufacturing Co. , 861 P.2d 1299, 1309 (Kan. 1993); Richter v. Limax Int’l, Inc. , 45 F.3d 1464, 1467 n.3 (10th Cir. 1995). Accordingly, the sale of an ethical drug ordevice establishes a continuing relationship between the manufacturer and the patie nt, a relationship which does not exist between a cigarette manufacturer and purc haser.- 10 -

Second, patients who receive medical prescriptions necessarily trust others to act in their best interest. Authority and contr ol over the patient’s medical wellbeing is placed in the hands of another – namely, t he patient’s physician, pharmacies, and the pharmaceutical companies charge d with apprising physicians and patients of the information necessary for the s afe and effective administration of the product and follow-up. Accordingly, the rel ationship imparts a “peculiar confidence placed by one individual in another” and is therefore reasonably considered a “fiduciary” relationship under Kansas law. See Denison State Bank , 640 P.2d at 1241. The same cannot be said, however , of non-prescription products chosen exclusively by the consumer. Cf. OMI Holdings , 918 P.2d at 1301-02 (suggesting that Tetuan ’s holding may be limited to situations involving learned intermediaries or ethical products). In li ght of the cautionary approach to fiduciary relationships mandated by the Kansas courts, and in light of the weight of core authority holding that the relationship between a product buyer and seller is not fiduciary in nature, we conclude that ordina ry transactions for the sale of cigarettes do not, as a matter of Kansas law, creat e such fiduciary relationships. Because a fiduciary relationship does not arise, cl aims that a cigarette manufacturer has not warned of known product danger s are generally not cognizable as fraudulent concealment claims under K ansas law. Rather, they are cognizable as failure to warn claims. See Hamner v. BMY Combat Sys. , 869 F.- 11 -

Supp. 888, 893 (D. Kan. 1994) (applying Kansas law) . To hold otherwise would convert all product manufacturer’s duty to warn cla ims into fraud claims. We do not believe Kansas courts would intend such a resul t. Cf. Bonin v. Vannaman , 929 P.2d 754, 764-65 (Kan. 1996) (holding that evenif all elements of fraudulent concealment are satisfied, plaintiff has no fraudul ent concealment claim against physician for what is in essence a medical malpract ice claim). In apparent recognition of these problems, Burton claims that his purchase of cigarettes from Reynolds was not an ordinary con sumer transaction because Reynolds affirmatively led consumers to believe that Reynolds was diligently investigating the harmful effects of its products a nd would promptly disclose health and safety information to the public. In support of this argument, Burton points to Reynolds’ publication in 1954 of the Fran k Statement to Cigarette Smokers . In the Frank Statement , Reynolds and other tobacco companies stated that “[w]e accept an interest in people’s health as a basic responsibility, paramount to every other consideration in our busin ess,” and pledged “aid and assistance to the research effort into all phases o f tobacco use and health.” To this end, the Frank Statement announced the creation of the Tobacco Industry Research Council, composed of representatives of th e various tobacco companies. Burton appears to argue that the Frank Statementinduced Burton’s reliance on Reynolds to provide health and safety information t o him, thereby creating a- 12 -

fiduciary duty that extended beyond a manufacturer’ s ordinary duty to warn of product dangers. Burton’s apparent argument is belied by his clear t estimony that he did not learn of the Tobacco Industry Research Council or t he Frank Statementuntil initiation of this litigation. Thus, he could not have reliedon that organization or that publication in making his decision to smoke Ca mel cigarettes, and no duty to him thereby could have been created. We leave for another day the question whether Reynolds’ publication of the Frank Statemen t may have created a fiduciary duty running from Reynolds to other smoke rs who actually relied on the Frank Statement in making a decision to smoke. Burton has pointed to no evidence, however, that Reynolds owed hima fiduciary duty as a result of the Frank Statement . His purchases of Camel cigarettes were no more t han “ordinary day-to-day business transactions” that we will not convert into fiduciary relationships. See Denison State Bank , 640 P.2d at 1243. In sum, we decline to recognize a theory of fiducia ry duty and fraudulent concealment which is unlike any yet recognized by t he Kansas courts. “Federal court is not the place to press innovative theories of state law.” Villegas v. Princeton Farms, Inc. , 893 F.2d 919, 925 (7th Cir. 1990). We hold that Kansas courts would not recognize Burton’s claim for fraud ulent concealment because, on the record before us, Burton failed to establish that Reynolds owed him a- 13 -

fiduciary duty. Accordingly, because Burton has fa iled to state a claim for fraudulent concealment under Kansas law, the jury’s verdict on this claim must be reversed. Furthermore, because we reverse the juryverdict on fraudulent concealment, it is unnecessary to consider Reynolds ’ contention that the fraudulent concealment verdict is not supported by sufficient evidence. We therefore REVERSE the jury’s verdict on Burton’s fraudulent concealm ent claim and remand for entry of judgment as a matter of law in favor of Reynolds on this claim.
B Because we have reversed the jury’s determination o n fraudulent concealment, the trial court’s award of $15 million in punitive damages, premised solely on the jury’s finding for Burton on the frau dulent concealment claim, must be reversed as well. Burton , 205 F. Supp. 2d at 1255. It is thus unnecessary to address the constitutionality of the district court ’s award of punitive damages.
III The jury also rendered a verdict in Burton’s favor on his pre-1969 negligent failure to warn claim. Burton , 205 F. Supp. 2d at 1255. In seeking reversal, Reynolds argues that: (1) the statute of limitatio ns bars Burton’s addiction based failure to warn claim, and (2) the jury’s verdict o n Burton’s PVD based failure to warn claim is not supported by sufficient evidence. We reject both arguments.- 14 -

Applying the substantive law of Kansas in this dive rsity case, we review denials of motions for a directed verdict and for ajudgment as a matter of law de novo, construing the evidence in the light most fav orable to the non-moving party, and “applying the same legal standard as the distri ct court.” Hampton v. Dillard Dept. Stores, Inc. , 247 F.3d 1091, 1099 (10th Cir. 2001). Given our traditional deference to jury verdicts, judgment as a matter of law is appropriate only when “the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party’s position.” Id. Construing the evidence and inferences therefrom in the light most favorabl e to Burton with regard to the failure to warn claim, we AFFIRM

. A We first evaluate Reynolds’ statute of limitations defense. Review of the district court’s application of the statute of limi tations is de novo. Gibraltar Cas. Co. v. Walters , 185 F.3d 1103, 1104 (10th Cir. 1999). Under Kans as law, Reynolds, as the defendant, bears the burden of pro ving that the statute of limitations bars the action. Slayden v. Sixta , 825 P.2d 119, 122 (Kan. 1992). The appropriate limitations period for personal injury actions is two years from the time that the injury becomes “reasonably ascertaina ble” to the injured party. Kan. Stat. Ann. § 60-513(a)(4). Determination of whethe r an injury is “reasonably ascertainable” requires application of an objective standard to the pertinent- 15 -

circumstances to determine when a plaintiff obtains knowledge of an injury. Hall v. Miller , 36 P.3d 328, 333 (Kan. App. 2001). In Kansas, wh en the evidence is in dispute as to when substantial injury first becomes apparent or reasonably ascertainable, resolution of the issue is properly submitted to the trier of fact. City of Wichita v. United States Gypsum Co. , 72 F.3d 1491, 1498 (10th Cir. 1996). In order to resolve the statute of limitations issu e the jury was asked first to determine the applicable scope of the term “addicti on,” and second, when this “addiction” injury was “reasonably ascertainable.” At trial Reynolds attempted to broadly define “addictive,” as meaning “hard or dif ficult to quit,” which would presumably bar Burton’s claims. Burton, on the oth er hand, presented expert testimony on the classical definition of an “addict ive” drug, which would allow a jury to find that his injuries were not reasonably ascertainable at a time which would bar his action. The jury found for Burton, i mpliedly adopting the more scientifically rigorous meaning of the word “addict ion.” On appeal, Reynolds does not contest this determination, but rather foc uses on the issue of whether Burton’s addiction claims are time-barred because t hey were “reasonably ascertainable” prior to May 25, 1992, two years bef ore he filed his claim. Regarding the jury’s second inquiry, it was uncontr overted that Burton was not subjectively aware of his addiction. This leftonly the question of whether- 16 -

Burton’s addiction was “reasonably ascertainable” p rior to 1992 as determined by an objective standard. Although Kansas law imposes an obligation on persons to investigate available sources of information, that obligation arises only after a party has acquired sufficient facts placing him on notice that he has suffered an injury. See Bagby v. Merrill Lynch, Pierce, Fenner & Smith, In c. , 104 F.Supp. 2d 1294, 1302 (D. Kan. 2000). In its response to the first “interrogatory verdict question” denying Reynolds’ statute of limitations defense, the jury implicitly rejected the proposition advanced by Reynolds throu ghout its case that there was sufficient information to require Burton to investi gate his possible addiction. Because the evidence before the jury included Burto n’s testimony that he was not aware of his addiction until he was admitted to the hospital for amputation of his legs in 1993, that he did not go to doctors, that h e had never attempted to quit smoking prior to having his legs removed in 1993, and that he smoked because he liked the taste, the jury had adequate facts before it on which to base its denial of the statute of limitations defense. For example, b ased on this evidence, the jury certainly could have determined that Burton’s addic tion injury was not reasonably ascertainable because he had never attempted to qui t smoking and thus lacked cravings to smoke against his will or other indiciaof addiction that would have put him on notice to investigate a potential injury

.2 Dr. Burns and Grunberg, two of plaintiff’s experts testified that the intent

of the Surgeon General in publishing his 1988 Report was to tryto inform the American public of the dangers of nicotine addictio n by obtaining extensive publicity of the report. The record is silent on t he outcome.

3 Burton’s witnesses presented extensive evidence th at, beginning in 1954 and continuing throughout the 43 years that Burton smoked, tobacco companies, including Reynolds, engaged in a deliberate publici ty campaign to convince the American public that the existence of negative heal th consequences from smoking was an “open question.” - 17 - Apart from any subjective reasons Burton may have h ad to investigate his addiction, Reynolds argues that publication of the Surgeon General’s report on Nicotine Addictionin 1988 (“1988 Surgeon General’s report”) objectiv ely placed all smokers on notice that they should investigate their addiction to cigarettes. Although the record shows the intent of the drafter s of the 1988 Surgeon General’s report was to achieve widespread publicity of nicotine’s addictive properties, 2 the record is silent as to both the details and ef fectiveness of the effort to communicate this information to the Ameri can public, and to Kansans in particular. Moreover, the jury heard evidence of the tobacco in dustry’s efforts to keep alive the “debate” over the health effects of tobac co going back to 1954, or before, with its Frank Statementand the creation of the “open question” campaign. 3 Consistent with this evidence, the jury was also presented with Reynolds’ CEO’s 1998 claim “that nicotine, by the c lassical definition of the word, is not addictive to anyone.” This testimony, as well as evidence of- 18 -

Reynolds’ long-standing practice of obfuscating the addictive nature of cigarettes, provided a relevant contrast for a jury to considerwhen deciding whether Burton’s “addiction” was reasonably ascertainable m erely because of the publication of a government report. As explained above, the burden was on Reynolds to p rove that the statute of limitations barred the action. Reynolds cannot complain that it was unreasonable for the jury to find that the 1988 Surgeon General’ s Report did not put all smokers in American on notice of the dangers of cig arette “addiction,” when Reynolds itself did not present convincing evidence on the extent or effectiveness of this publicity. On record review, we are left w ith the abiding conclusion that there was sufficient evidence for the jury to deter mine, as it did, that Burton’s addiction-based injuries were not reasonably ascert ainable prior to May 25, 1992.
B Reynolds contends that Burton failed to establish t he elements for a negligent failure to warn claim because he failed t o establish that Reynolds owed him a duty or that any breach caused his injuries. To sustain a negligence claim under Kansas law, the plaintiff must prove by a pre ponderance of the evidence the existence of a duty, breach of that duty, injury, a nd a causal connection between the duty breached and the injury suffered. Honeycu tt v. City of Wichita , 836 P.2d 1128, 1136 (Kan. 1992). Reynolds’ appeal focuses o n what it contends is4 The Kansas Supreme Court recognized in Patton , 861 P.2d at 1313, that a

manufacturer has a post-sale duty to warn of newly discovered latent lifethreatening hazards of a product unforeseeable at t ime of sale. We need not reach the issue of whether this duty is implicated here, as the duty to warn at the time of sale is sufficient for the disposition of this case

.

5 In 1965 and 1969, Congress passed two Acts that af fected tobacco companies’ legal duty to warn of the health effects of smoking: the Federal Cigarette Labeling and Advertising Act of 1965, and the Public Health Cigarette Smoking Act of 1969. On the basis of these two Act s and the Supreme Court’s interpretation of their preemptive effect in Cipoll one v. Liggett Group, Inc. , 505 U.S. 504, 525 (1992), the district court found as amatter of law that the tobacco purveyors have provided legally sufficient warnings since July 1, 1969, and limited the tobacco companies’ duty to warn through their advertising or promotion to the period prior to 1969. Thus, July 1, 1969 became the operative (continued...) - 19 - insufficient evidence for the elements of duty and causation. Our review of the district court’s denial of a judgment as a matter o f law is de novo, and judgment as a matter of law is appropriate only if there is no legally sufficient evidentiary basis for a claim under the controlling law. Hampt on , 247 F.3d at 1099. Proper evaluation of this appeal requires us to det ermine initially the relevant dates against which to measure Reynolds’ d uties and knowledge. It is uncontested that Burton began smoking in 1950 when he was 14 or 15 years old, and continued to smoke until some point in 1994-95 after he was diagnosed with PVD and had his legs amputated. Because a manufact urers’ duty to warn under Kansas law arises at the time of sale, 4 Reynolds’ duty to warn is measured each time it sold cigarettes to Burton from 1950 to a date no later than, July 1, 1969, the effective date of the Public Health Cigarette S moking Act of 1969. 55 (...continued)

cutoff date of Reynolds’ failure to warn liability.

6 This duty is not dependent on the existence of sci entific consensus about the causal relationship between the use of a produc t and a risk. See id. - 20 - Reynolds contends the adverse health effects of smo king were common knowledge prior to 1950 and 1969, and that, therefo re, Reynolds had no duty to warn of addiction, PVD, or any other serious health effect arising from smoking. In advancing this argument, Reynolds cites to no au thority under Kansas law limiting a manufacturers duty to warn about one haz ard simply because use of a product is known to present other hazards. On the contrary, Kansas law recognizes a specific duty for manufacturers to war n of its product’s reasonably foreseeable dangers. Richter , 45 F.3d at 1468; see also Thom v. Bristol-Myers Squibb Co. , 353 F.3d 848, 853 (10th Cir. 2003). As a manufac turer, Reynolds had a duty to warn of dangers associated with its p roduct about which it knew, had a reason to know, or should have known, based o n its position as an expert in the field. See Wooderson v. Ortho Pharmaceutical Corp. , 681 P.2d 1038 (Kan. 1984); Mason v. Texaco, Inc ., 741 F.Supp. 1472, 1507-1508 (D. Kan. 1990). 6 To show such constructive knowledge, Burton present ed extensive expert testimony on the scientific and medical literature describing the relationship between smoking and peripheral vascular disease fro m the 1930s, and continuing throughout the 1950s and 1960s, as well as evidence on research funded by7For example, Dr. Burns testified that there had be en science on the vasoconstrictive effect of nicotine in the scientific l iterature dating back to the 1930s. Both Dr. Burns and Dr. Grunberg testified that Toba cco , a 1961 compilation of smoking and health literature, funded by a tobacco- industry related group to which Reynolds belonged, contained information on t he relationship between smoking and PVD, and had been provided to the Surge on General in 1964. Significantly, Dr. Burns discussed a letter publish ed in 1954 in the Journal of the American Medical Associationthat described a patient with PVD in the 1940s, whose symptoms from PVD became quiescent upon stopp ing smoking in 1941, and remained unchanged until 1949 when he began to smoke again. Within six months gangrene of his toes had developed, and once more his symptoms abated once he ceased smoking, only to recur once again wh en he began to smoke. Further, Dr. Burns testified that, in the 1950s, th ere had been Reader’s Digestand Consumer Reports articles on the possible relationship between smok ing and peripheral vascular disease. - 21 - tobacco companies, including Reynolds. 7Such evidence was clearly sufficient to allow a reasonable jury to determine that Reynolds had a duty to warn of the risks of PVD from 1950 to 1969. We reject Reynolds’ arguments that Burton’s PVD-bas ed failure to warn claim fails because Reynolds did not know about the risk of PVD from smoking before 1969. In making this argument, Reynolds att empts to limit its duty to warn to those dangers of which it had actual knowledge. By this leger de main Reynolds attempts to recast its legal duty and igno re the substantial evidence in the record supporting the jury’s determination thatReynolds, as an expert in the field, should have known of the dangers of smoking and PVD prior to 1969. Because we conclude that this evidence was sufficie nt to support a jury determination that Reynolds should have known of th e risks from smoking8 Under Kan. Stat. Ann. § 60-3304(a), when a productcomplies with

legislative regulatory standards that address warni ngs or instructions, the product shall be deemed not defective by reasons of warning s or instructions unless the claimant proves by a preponderance of the evidence that a reasonably prudent seller could and would have taken additional precau tions. We reject Reynolds’ argument that Burton failed to rebut this presumpti on which arises from Reynolds compliance with federal labeling regulations from 1 966 to 1969. In addition to the evidence we have already discussed on the knowl edge imputed to Reynolds as a manufacturer and expert in the field, Burton pres ented testimony by Bennett Lebow of the Liggett Group, Inc. a cigarette manufa cturer, that it was easy to disseminate additional and more adequate warnings t o consumers. Specifically, Lebow testified that Liggett provided a warning that smoking was addictive on all its cigarette packages. Although instructed on thi s presumption, the jury determined that Reynolds was liable for failure to warn – in effect, finding the presumption successfully rebutted. - 22 - outlined in the scientific and medical literature c oncerning PVD and “addiction” prior to 1950, and assuredly prior to 1969, we simi larly conclude that the jury could reasonably find that Reynolds had a duty to w arn of these specific dangers. 8 Reynolds next contends that the evidence unequivoca lly shows that no warning would have altered Burton’s use of cigarett es, thereby challenging the jury’s determination on causation. In order for a plaintiff to recover, Kansas law requires that a product defect actually and proximately cause the claimed injury. Wilcheck v. Doonan Truck & Equip. Co. , 552 P.2d 938, 942 (Kan. 1976). An inadequate warning, however, creates a presumption of causation. See Wooderson , 681 P.2d at 1057-58; O’Gilvie v. Int’l Playtex, I nc. , 821 F.2d 1438, 1442 (10th Cir. 1987) (applying Kansas law). Not o nly does this presumption shift the burden of rebuttal onto the defendant, un der Kansas law, the effect of9 State law determines the effect of any presumption s in a diversity action.

Fed. R. Evid. 302; see also Mason , 741 F.Supp. at 1505. Under Kan. Stat. Ann. § 60-414, if the facts from which the presumption i s derived have any “probative value as evidence of the existence of the presumed fact,” State v. 1978 Chevrolet Automobile , 835 P.2d 1376, 1381 (Kan. App. 1992), both the bu rden of production and the burden of persuasion shift to th e party against whom the presumption operates. Kan. Stat. Ann. § 60-414(a). It is our view that the Kansas Supreme Court would agree that “evidence of an inad equate warning easily meets the liberal test for probative value under the Kans as and federal rules,” Mason , 741 F.Supp. at 1506, and is, consequently, a burden shifting presumption. - 23 - this presumption is to shift the burden of proof to the party against whom the presumption operates. 9 See Ralston , 275 F.3d at 977 n.6; Mason , 741 F.Supp. at 1507-08. Thus, under Kansas law, Reynolds had the burden of proof on causation once Burton established the fact of an inadequate w arning. A proper allocation of the burdens of proof in this case is critical, as i t is against this allocation that we must weigh the sufficiency of the evidence. See Rajala , 919 F.2d at 615 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986)). Further, a directed verdict favoring parties having the burden of proof may be granted only where they have established their case by evidence that t he jury would not be at liberty to disbelieve. Hurd v. Am. Hoist & Derrick Co. , 734 F.2d 495, 499 (10th Cir. 1984). This is not the case here. We conclude that Burton has presented sufficient ev idence on causation to sustain the jury’s verdict. Although Kansas does n ot require a plaintiff to testify that he would have behaved differently had he been properly warned, Richter , 4510 Dr. Grunberg, a Burton expert, testified that it i s common for addicted

smokers to have to attempt to quit several times be fore being ultimately successful. - 24 - F.3d at 1472, Burton did testify that he quit smoki ng after being warned by his doctors that he would lose his arms if he continued to smoke, and further that he would not have begun smoking in 1950 if he had been shown “this” at that time. Because we construe the evidence and its inferences in the light most favorable to the non-moving party, as we must, we interpret the term “this” to refer to Burton’s injuries – his addiction, PVD, and resultant loss of his legs. Additionally, Reynolds argues that Burton’s failure to quit smoking in the six-month interim from his initial medical visits t o the amputation of his legs in January 1994, and his intermittent relapses after h is discharge from the hospital mandates the conclusion that no warning would have been effective in stopping Burton from smoking. We disagree. Burton’s diffic ulty in quitting smoking, in light of his addiction and his 43-year smoking hist ory, does not mandate such a conclusion by us or by the jury. 10 Reynolds’ fundamental argument at trial, and in thi s appeal, is that “no matter what warning was issued to Burton, he would have continued to smoke Camel cigarettes, become addicted, and develop[ed] PVD.” See Burton , 208 F.Supp. 2d at 1193. Yet, none of the general warni ngs relied upon by Reynolds prior to 1969 included the risks of developing addi ction and PVD. General- 25 -

warnings on the dangers of smoking to health do notnecessarily have the same impact as a frank warning that smoking may cause th e loss of a limb. The consequences of this latter danger are stark, and s o would be a person’s evaluation of this risk. Because, on this record, the proof points more than one direction on the issue of causation, and because itis the jury’s task to weigh the conflicting evidence, the jury’s verdict must stand

. After assessing Reynolds’ contentions on insufficie ncy of the evidence in light of the underlying burdens of proof, we take t he district court’s view that although Reynolds introduced evidence “relevant to causation on which a reasonable jury could have based a decision that th e presumption of causation had been rebutted, the jury did not do that.” Burton , 208 F.Supp. 2d at 1194. Not only does the record disclose sufficient evidence to uph old the jury’s verdict on causation; when viewed in light of the Kansas presu mption of causation and the burdens of proof resulting therefrom, the jury’s ve rdict becomes unassailable.
C In sum, we hold that Burton’s addiction based negli gent failure to warn claim is not barred by the statute of limitations a nd that his addiction and PVD based negligent failure to warn claims are supporte d by sufficient evidence. Accordingly, the jury’s verdict on Burton’s pre-196 9 negligent failure to warn claim must be affirmed.- 26 - IV Finally, the jury rendered a verdict in Burton’s favor on his negligent failure to test claim. Burton , 205 F. Supp. 2d at 1255. Reynolds argues that: (1) Burton’s addiction based failure to test claim is barred by the statute of limitations; and (2) Burton’s PVD based failure to test claim fails because, under Kansas law, failure to test cannot be established a bsent proof that the failure to test resulted in a design defect, warning defect, o r manufacturing defect that caused his injuries, and there is no such proof her e. We disagree as to both arguments. To overcome the jury’s verdict for Burton on the cl aim of negligent failure to test, Reynolds again asserts a statute of limitations defense to the addictionbased claims. We reject this argument for the same reasons stated in section IIIA, and turn directly to analysis of Burton’s PVD basedfailure to test claim. We review the district court’s interpretation of state law de novo. Blackhawk-Cent. City Sanitation , 214 F.3d at 1188. In Lindquist v. Ayerst Laboratories, Inc. , the Supreme Court of Kansas recognized that a manufacturer has a duty to test a nd inspect its products: The rule is that a manufacturer has a duty to make such tests and inspections, during and after the process of manufa cture, as should be recognized as being reasonably necessary to secu re the production of a safe product; and a manufacturer who negligent ly fails to use reasonable care in making such tests and inspection s, and thereby11 Our holding in Kinser v. Gehl Co. , 184 F.3d 1259 (10th Cir. 1999),

abrogated on other grounds by Weisgram v. Marley Co. , 528 U.S. 440, 453, 457 (2000), is not to the contrary. In Kinser , we held that it was proper under Kansas law to submit a duty to test instruction to the jury because the jury could reasonably conclude based on the evidence that the product was defectively designed. Id. at 1273. - 27 - produces a defective article which causes damage wh ile being put to an ordinary anticipated use, is liable for such dam ages. 607 P.2d 1339, 1350 (Kan. 1980) (citation omitted). That court also noted that the plaintiff must prove that the tests would have been effective. Id. In other words, the plaintiff must prove that the manufactur er’s failure to test its product resulted in a defective product that caused injury to the plaintiff. See id. Kansas law recognizes only three ways in which a pr oduct may be defective: (1) a manufacturing defect; (2) a warni ng defect; and (3) a design defect. Delaney v. Deere & Co. , 999 P.2d 930, 936 (Kan. 2000). Accordingly, a plaintiff alleging a breach of the duty to test mus t prove that one of these three types of product defects caused the claimed injury. 11 Reynolds highlights the Lindquistcourt’s comment that “the plaintiff cannot succeed where he fails to allege or prove th at tests or inspections would have been effective.” Lindquist , 607 P.2d at 1350 (citation omitted). Although it is unclear if this is a requirement in all negligen t failure to test claims in Kansas, Burton certainly presented evidence that Reynolds w as involved in a gentlemen’s agreement with the rest of the tobacco industry notto perform animal testing “on12 Reynolds concedes that the same compensatory damag es flowed from all

three causes of action–fraudulent concealment, fail ure to warn, and failure to test. Thus, the jury’s negligent failure to test verdict in this case, when joined with the jury’s determination that there was no design defec t, lead us to conclude that an independent tort was not committed. - 28 - their premises” in the United States. Additionally , a former Reynolds’ employee testified that Reynolds had performed “state of the art” animal testing from approximately 1967 to 1970 that would have benefitt ed public health. This testimony provided a basis for inferences that when Reynolds discovered that these tests produced smoking-related disease in ani mals, it halted testing and concealed the evidence. In Kansas, the core purpose of a duty to test is to avoid production of defective products. This jury specifically decline d to find a design defect, and there was no claim of a manufacturing defect. As d iscussed in Section III above, the record supports the jury’s conclusion that Burt on proved the existence of a warning defect. There is sufficient record evidenc e to allow the jury to conclude that PVD was a reasonably foreseeable risk of smoki ng such that Reynolds should have investigated and warned of this potential dang er. Nevertheless, under the facts of this case, the jury’s finding on the negli gent failure to test claim is coextensive with its finding on the negligent failure to warn claim, and either claim supports the compensatory damages awarded by the ju ry. 12
V- 29 -

For the reasons stated above, we REVERSE the jury verdict on liability as to the fraudulent concealment claim, and its penden t award of punitive damages;
AFFIRM the jury verdict on the failure to warn and failur e to test claims with their attendant award of compensatory damages, and REMAND the case for entry of the appropriate judgment in favor of Reynolds on the fraudulent concealment claim.No. 02-3262, Burton v. R.J. Reynolds Tobacco Company

EBEL, Circuit Judge, dissenting
.

Although I join Sections I and II of the majority o pinion, I respectfully dissent from Section III (affirming the jury verdic t on Burton’s pre-1969 negligent failure to warn theory) and Section IV (a ffirming the jury verdict on Burton’s pre-1969 negligent failure to test theory)

.

I. Pre-1969 Negligent Failure to Warn Claim The jury rendered a verdict in Mr. Burton’s favor o n his pre-1969 negligent failure to warn claim. Burton v. R.J. Reynolds Tob acco Co. , 205 F. Supp. 2d 1253, 1255 (D. Kan. 2002). Reynolds argues, among other things, that (a) the statute of limitations bars Mr. Burton’s addiction- based failure to warn claim; and (b) the jury’s verdict on Mr. Burton’s pvd-based fa ilure to warn claim is not supported by sufficient evidence. I agree with Rey nolds as to both arguments.

A. Addiction-Based Claim: Statute of Limitations Personal injury tort actions must be brought withintwo years of the accrual of the action. Kan. Stat. § 60-513(a)(4); Smith v. Yell Bell Taxi, Inc. , 75 P.3d 1222, 1225 (Kan. 2003). An action “shall not be de emed to have accrued until the act giving rise to the cause of action first ca uses substantial injury, or, if the fact of injury is not reasonably ascertainable unti l some time after the initial act,- 2 -

then the period of limitation shall not commence un til the fact of injury becomes reasonably ascertainable to the injured party.” Kan . Stat. § 60-513(b). The term “reasonably ascertainable” does not mean “ actual knowledge” but is “an objective standard based on an examination o f the surrounding circumstances.” Davidson v. Denning , 914 P.2d 936, 943, 948 (Kan. 1996). Kansas law expressly imposes on a plaintiff an obli gation to investigate available
sources. See id. at 946; Bagby v. Merrill Lynch, Pierce, Fenner & S mith, Inc. , 104 F. Supp. 2d 1294, 1298 (D. Kan. 2000) (applying Kansas law). Mr. Burton filed this lawsuit against Reynolds on M ay 25, 1994. The district court submitted to the jury the question o f whether Mr. Burton could reasonably have discovered his addiction prior to M ay 25, 1992, and the jury concluded that he could not reasonably have discove red his addiction prior to that date. Accordingly, the district court held that Mr . Burton’s claims were not time barred. Burton v. R.J. Reynolds Tobacco Co. , 208 F. Supp. 2d 1187, 1209-10 (D. Kan. 2002). Reynolds now argues that the jury’s de termination was not supported by substantial evidence. The evidence presented at trial indicates that on M ay 3, 1988, the Surgeon General presented to Congress a report entitled “Ni cotine Addiction.” The three major conclusions of the report were that cigarette s are addicting, that nicotine is the drug in cigarettes that causes addiction, and t hat the addictive properties of- 3 -

nicotine are similar to the addictive properties of heroin and cocaine. The report recommended that health care organizations should i nitiate or strengthen efforts to inform the public about the addictive properties of cigarettes and that Congress should require cigarette companies to attach an add iction warning on cigarette labels and advertisements. One of the scientists who helped draft the report t estified regarding one of the purposes of the report: Looking at the information, we wanted to make sure that there were conclusions that were clear to the American people. It also was our belief that the findings of the report were so powe rful and so important and that the message of their findings ne eded to get out in a clear way, so we decided to see what information could be reached, and it ended up we could fit the major findings int o those three – and we use the term sound bytes, that we knew could be presented; the public would get it because, you know, precious tim e, whether in newspapers or in the media, that they would underst and it and could clearly communicate, and one could read the whole r eport or portions of it for the support. This testimony demonstrates that the report was des igned to achieve widespread publicity to inform smokers like Mr. Burton of the addictive properties of nicotine. Indeed, the title of the report was chan ged from “ Pharmacological Basis of Cigarette Smoking” to “Nicotine Addiction” in or der to make the report more readily accessible to the tobacco-consuming public. This evidence establishes that long-time cigarette smokers like Mr. Burton would have had good reason by 1988 at the very late st to investigate a possible- 4 -

addiction. See Soliman v. Philip Morris Inc. , 311 F.3d 966, 973 (9th Cir. 2002) (characterizing 1988 report as “hardly [an] obscure detail[] in the historical record”). Because Kansas expressly imposes upon pl aintiffs a duty to investigate potential injury, Davidson , 914 P.2d at 946, the evidence suggests that Mr. Burton’s addiction injury was “reasonably ascertain able” by 1988. Mr. Burton offered no relevant evidence to the cont rary. He points to a statement by Reynolds’ CEO in a 1998 deposition that “I don’t believe that nicotine, by the classical definition of addiction, is addictive to anyone.” Mr. Burton fails to illustrate the relevance of this is olated, unpublicized comment in a deposition taken four years after Mr. Burton filed this lawsuit to the issue of whether a reasonable smoker would have realized his or her addiction to cigarettes in 1992. Mr. Burton also points to evid ence that he had no idea he was addicted to cigarettes until 1993 when he became co ncerned about the circulatory problem in his legs. Kansas law could not be more clear, however, that Mr. Burton’s subjective knowledge of his injury is not dispositive. Rather, Mr. Burton is charged with constructive knowledge of in formation that is available through reasonable investigation. Davidson , 914 P.2d at 948 (explaining that term “reasonably ascertainable” does not mean “actu al knowledge”). I conclude that the evidence supports no other conc lusion than that the reasonable smoker had good cause to investigate his or her possible addiction to1 Mr. Burton’s addiction-based failure to test claim is also time barred. See

discussion infra

. - 5 - cigarettes by 1988 at the very latest, when the Sur geon General published its report on nicotine addiction. See Bielicki v. Terminex Int’l Co. , 225 F.3d 1159, 1162 (10th Cir. 2000) (stating that jury finding is reversible if evidence “points but one way and is susceptible to no reasonable inf erences supporting the party for whom the jury found” (internal quotation omitte d)). The limitations period on Mr. Burton’s addiction-based failure to warn claim therefore expired in 1990, four years before Mr. Burton brought this lawsuit. Accordingly, I believe this portion of his claim is barred by the statute of li mitations. 1

B. PVD-Based Claims: Sufficiency of the Evidence To sustain a negligence claim under Kansas law, the plaintiff must prove by a preponderance of the evidence the existence of a duty, breach of that duty, injury, and a causal connection between the duty br eached and the injury suffered. Honeycutt ex rel. Phillips v. City of Wichita , 836 P.2d 1128, 1136 (Kan. 1992). Of particular importance here are the elements of d uty and causation. As to the element of duty, “a manufacturer has a duty under K ansas law to warn consumers and users of its products when it knows or has reas on to know that its product is or is likely to be dangerous during normal use.” R ichter v. Limax Int’l, Inc. , 45- 6 -

F.3d 1464, 1468 (10th Cir. 1995) (applying Kansas l aw) (internal quotations omitted). The duty extends only to those dangers “ arising from the foreseeable use and misuse of a product that are known or are r eadily foreseeable in the state of art.” Id. at 1471. As to the element of causation, Kansas law requires evidence that a defect in the product actually and proximately caused the plaintiff’s injury. Wilcheck v. Doonan Truck & Equip., Inc. , 552 P.2d 938, 942 (Kan. 1976). An inadequate warning, however, creates a presumption of causatio n. See Wooderson v. Ortho Pharm. Corp. , 681 P.2d 1038, 1057-58 (Kan. 1984); O’Gilvie v. I nt’l Playtex,
Inc. , 821 F.2d 1438, 1442 (10th Cir. 1987) (applying Kansas law). “The effect of this presumption is to place the burden on [defenda nt] to rebut it.” Ralston v. Smith & Nephew Richards, Inc. , 275 F.3d 965, 977 n.6 (10th Cir. 2001) (applying Kansas law (internal quotation omitted)). Kansas t herefore does not require a plaintiff to testify that he would have behaved dif ferently had he been properly warned. Richter , 45 F.3d at 1472. I conclude that Mr. Burton has presented insufficie nt evidence of causation to sustain the jury’s verdict. The only two items of evidence to which Mr. Burton has directed our attention are either insufficient or irrelevant. Mr. Burton suggests that his receptiveness to a warning is demonstrated by his testimony that he would not have begun smoking in 1950 had he known of the2 Specifically, Mr. Burton presented a 1954 Letter to the Editor, published

in the Journal of the American Medical Association, providing an anecdotal report of a single smoker who suffered vascular disease inhis extremities. - 7 - risk of pvd at that time. This testimony is not re levant evidence of causation. As discussed above, this testimony indicates that Mr. Burton may have been receptive to information regarding the risk of pvd before he started smoking in 1950 but says nothing of his receptiveness to such informati on after he started smoking and became addicted to cigarettes. Only if Mr. Burton introduced evidence that Reynolds should have warned consumers of the risk o f pvd in 1950would Mr. Burton’s testimony that he was receptive to a warni ng in 1950 be relevant. This Mr. Burton has failed to do. The evidence contains an anecdotal scintilla of evidence that Reynolds may have had reason to suspe ct some association between pvd and cigarette smoking in 1954, 2 but there is no evidence that Reynolds had or should have had knowledge of the risk of pvd at anyearlier date. The record reflects that the 1940s and 1950s, because of the t remendous increase in smoking rates during World War II, were volatile decades in terms of scientific knowledge of the health risks associated with cigarette smoki ng. As such, the risks of which Reynolds should have been aware in 1954 cannot be i nferred to be the risks of which it should have been aware in 1950. Because M r. Burton has not pointed to any evidence that Reynolds had a duty to warn consu mers of the risk of pvd in3 A warning that cigarette smoking is hazardous to on e’s health seems to me

adequately to put a smoker on notice that cigarette smoking is hazardous to one’s health. Once a smoker is put on notice of such ris k, the duty of inquiry falls upon the smoker to probe the medical nuances of those ri sks with his or her doctor. - 8 - 1950, Mr. Burton’s testimony that he would not have begun smoking in 1950 had he been warned of that risk is not relevant evidenc e of causation. Mr. Burton also insists that he is entitled to a pr esumption that he would have read and heeded warnings had they been provide d. Mr. Burton is entitled to such a presumption if he proves the warnings were i nadequate, but that presumption is rebuttable. See Ralston , 275 F.3d at 977 n.6. Even assuming that Mr. Burton had proven that the warnings were inadeq uate, which I do not believe, 3 Mr. Burton’s trial testimony and other evidence un equivocally rebutted the presumption. The evidence clearly demonstrated that Mr. Burton disregarded all warnings after he began smoking, at least until those warnings were accompanied by the actual loss of his legs. Per th is evidence, it is clear beyond any doubt that any warnings by Reynolds of the riskof pvd associated with cigarette smoking would have gone unheeded. I conclude that Mr. Burton has presented insufficie nt evidence of causation to sustain the jury’s verdict on the pvd-based port ion of his negligent failure to warn claim.- 9 -

II. Pre-1969 Negligent Failure to Test Reynolds argues, among other things, that (a) Mr. B urton’s addiction-based failure to test claim is barred by the statute of l imitations; and (b) Mr. Burton’s pvd-based failure to test claim fails because, unde r Kansas law, failure to test cannot be established absent proof that the failure to test resulted in a design defect, warning defect, or manufacturing defect that caused his injuries, and there is no such proof here. I agree with Reynolds as to both arguments. Mr. Burton’s addiction-based failure to test claim is barred by the statute of limitations for the same reason his addiction-based failure to warn claim is time barred. See discussion supra . Accordingly, I turn directly to Mr. Burton’s pvd

based failure to test claim. In Lindquist v. Ayerst Laboratories, Inc. , the Supreme Court of Kansas recognized that a manufacturer has a duty to test a nd inspect its products: The rule is that a manufacturer has a duty to make such tests and inspections, during and after the process of manufa cture, as should be recognized as being reasonably necessary to secu re the production of a safe product; and a manufacturer who negligent ly fails to use reasonable care in making such tests and inspection s, and thereby produces a defective article which causes damage wh ile being put to an ordinary anticipated use, is liable for such dam age. 607 P.2d 1339, 1350 (Kan. 1980) (quoting 1 Hursh an d Bailey, American Law of Products Liability 2d , § 2:29, at 214 (1974)). The court also noted that the plaintiff must prove that the tests would have been effective. Id. In other words,- 10 -

the plaintiff must prove that the manufacturer’s fa ilure to test its product resulted in a defective product that caused injury to the pl aintiff. See id. Kansas law recognizes three ways in which a productmay be defective: (1) a manufacturing defect; (2) a warning defect; and ( 3) a design defect. Delaney v.
Deere & Co. , 999 P.2d 930, 936 (Kan. 2000). Accordingly, a pl aintiff alleging a breach of the duty to test must prove that one of t hese three types of product defects caused his or her injury. In this case, Mr. Burton cannot claim that one of t hese three types of product defects caused his pvd-related injury. Fir st, he neither argues nor points to any evidence that Reynolds’ alleged failure to t est resulted in a manufacturing defect. Second, the jury expressly determined thatMr. Burton’s injuries were not caused by a defect in Reynolds’ design of the cigar ettes. Finally, Mr. Burton presented insufficient evidence that a warning defect caused his pvd-related injury. See discussion supra . As discussed above, the record supports no other conclusion than that Mr. B urton would not have responded to a warning from Reynolds after he start ed smoking. See id. Of course, Mr. Burton did present evidence that he may have responded to a warning in 1950 before he ever started smoking. See id. However, he has not identified any evidence that by 1950 pvd was a reasonably fore seeable danger of smoking such that Reynolds should have investigated and the n warned of the potential- 11 -

danger. See Richter , 45 F.3d at 1471 (applying Kansas law) (stating th at product manufacturers have duty to test for and then warn o f only foreseeable dangers, not every conceivable danger). Accordingly, that M r. Burton would never have started smoking had he been warned of the danger of pvd in 1950 is not relevant evidence of causation. Because Mr. Burton cannot claim that any product de fect – either a manufacturing, design, or warning defect – caused h is injury, he has no cause of action for failure to test.

CONCLUSION For the reasons stated above, I would REVERSE the j ury’s entire verdict on liability and REMAND for entry of judgment as a matter of law in favor of Reynolds on all three claims.