The Honorable John B. Jones, United States District Judge for the District of

South Dakota, sitting by designation.

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No. 00-1836

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Submitted: January 8, 2001

Filed: August 6, 2001

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Before WOLLMAN, Chief Judge, BYE, Circuit Judge, and JONES,1 District Judge.

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WOLLMAN, Chief Judge.

The district court granted summary judgment to Brown & Williamson Tobacco

Company in this action arising from Mary Jane Boerner’s development of and death

from lung cancer. We affirm in part and reverse in part.

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Mary Jane Boerner (Mrs. Boerner) began smoking in 1945, at the age of fifteen.

Pall Mall cigarettes, an unfiltered variety manufactured by the American Tobacco

Company, were her brand of choice until 1981, when she quit with the encouragement

of her family and through the “intervention of God.” Mrs. Boerner was diagnosed with

lung cancer in July of 1996, and she and her husband, Henry Boerner (Boerner), filed

suit against Brown & Williamson Tobacco Company, American Tobacco’s successor,

in June of 1998. Mrs. Boerner died on August 26, 1999, and Boerner has pursued the

claims on his own behalf and as the administrator of Mrs. Boerner’s estate.

Mrs. Boerner was a relatively healthy woman until she developed cancer.

According to her February 17, 1999, deposition, she exercised daily, ate primarily fruits

and vegetables and avoided fatty foods, and did not use alcohol or engage in high-risk

behaviors. As a result, she rarely had reason to visit her doctor. She made a number

of brief attempts to quit smoking before 1981, but was plagued by cigarette cravings

each time and, because she was not particularly serious about quitting, quickly reverted

to smoking. After she made the decision to stop smoking in 1981, however, she never

smoked again.

Mrs. Boerner testified that, for much of her time as a smoker, she was unaware

of the relationship between smoking and lung cancer. Health warnings on cigarette

packages underwent three changes during Mrs. Boerner’s lifetime. When she began

smoking in 1945, no warnings were given. Then, in 1966, the congressionally

mandated warning that “SMOKING MAY BE HAZARDOUS TO YOUR HEALTH” was placed

on all cigarette packages. Mrs. Boerner quoted this warning in her deposition

testimony, noting that she supposed she had taken the “may” literally. In 1969, the

warning was reformulated to read that the Surgeon General had determined that

“SMOKING IS HAZARDOUS TO YOUR HEALTH.” Mrs. Boerner remembered that a change

had been made, but was unable to recall during her deposition the wording of the 1969

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warning. Finally, in 1984, three years after Mrs. Boerner quit smoking, the current set

of health warnings appeared, citing the connections between cigarettes and specific

health risks.

Although Mrs. Boerner was familiar with cigarette advertising campaigns during

her time as a smoker, she did not read newspapers or magazines other than Reader’s

Digest. She and her husband both testified that Boerner sometimes pointed out articles

about smoking in the local paper, which he read every day. Mrs. Boerner, however,

did not specifically recall much of the media discussion of the health effects of

smoking. Boerner, himself not a smoker, testified that had he better understood the

health risks posed by smoking, he would have increased his efforts to convince his wife

to stop. Boerner’s primary concerns with his wife’s smoking were a fear that she might

drop ashes on their son when he was an infant and, later, that the smoke seemed to

aggravate the boy’s asthma.

The Boerners’ complaint sought compensatory and punitive damages for

personal injuries and loss of consortium under theories of fraud and deceit, negligence,

and strict liability. In sum, they alleged that Mrs. Boerner was addicted to cigarettes

by 1948, that the cigarettes she smoked were unreasonably dangerous because of

defective design and inadequate warning, and that her lung cancer was caused by her

smoking. After Mrs. Boerner’s death, the complaint was amended to include wrongful

death claims. Brown & Williamson moved for summary judgment on a number of

Boerner’s claims. In response, Boerner submitted an array of medical data and tobacco

advertisements spanning the period during which Mrs. Boerner smoked, as well as

affidavits and depositions from both of the Boerners and from two physicians, Dr.

Martin Blinder and Dr. Allan Feingold.

Boerner appeals from the district court’s grant of summary judgment in favor of

Brown & Williamson on four issues: (1) the pre-1969 inadequate warning claims, (2)

the 1969-81 inadequate warning claims, (3) the defective design claim, and (4) the

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claim for breach of a duty voluntarily undertaken. We affirm the district court’s grant

of summary judgment on the 1969-81 inadequate warning and the breach of duty

claims, but reverse and remand on the 1945-69 inadequate warning and the design

defect claims.

We review the grant of summary judgment de novo, applying the same standard

as the district court and viewing all the facts and inferences in the light most favorable

to the non-moving party. Rabushka v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997).

A grant of summary judgment is appropriate only where the moving party has

demonstrated that there is no genuine issue of material fact such that no reasonable jury

could return a verdict for the non-moving party. Id. “The moving party is ‘entitled to

a judgment as a matter of law’ because the non-moving party has failed to make a

sufficient showing on an essential element of her case with respect to which she has the

burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The parties do

not dispute that Arkansas law controls in this diversity case. See First Bank of Marietta

v. Hogge, 161 F.3d 506, 510 (8th Cir. 1998). We review the district court’s

determination of state law de novo. Salve Regina College v. Russell, 499 U.S. 225,

231 (1991); Lockley v. Deere & Co., 933 F.2d 1378, 1383 (8th Cir. 1991).

Two Arkansas statutes provide the framework for strict liability claims. Section

4-86-102 sets forth the elements of a strict liability claim.

(a) A supplier of a product is subject to liability in damages for harm

to a person or property if:

(1) The supplier is engaged in the business of manufacturing,

assembling, selling, leasing, or otherwise distributing the product;

(2) The product was supplied by him in a defective condition which

rendered it unreasonably dangerous; and

(3) The defective condition was a proximate cause of the harm to

person or to property.

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(b) The provisions of subsection (a) of this section apply although the

claiming party has not obtained the product from or entered into any

contractual relation with the supplier.

Ark. Code Ann. § 4-86-102 (Michie 1996). Section 16-116-102 defines the relevant

terms.

(4) “Defective condition” means a condition of a product that

renders it unsafe for reasonable foreseeable use and consumption; . . .

(7) “Unreasonably dangerous” means that a product is dangerous

to an extent beyond that which would be contemplated by the ordinary

and reasonable buyer, consumer, or user, who acquires or uses the

product, assuming the ordinary knowledge of the community or of similar

buyers, users, or consumers as to its characteristics, propensities, risks,

dangers, and proper and improper uses, as well as any special knowledge,

training, or experience possessed by the particular buyer, user, or

consumer or which he or she was required to possess. However, as to a

minor, “unreasonably dangerous” means that a product is dangerous to an

extent beyond that which would be contemplated by an ordinary and

reasonably careful minor considering his age and intelligence.

Ark. Code. Ann. § 16-116-102 (Michie 1996).

Thus, a supplier of a product is strictly liable for an injury caused by the product

if (1) the product is in a defective condition that rendered it unreasonably dangerous,

and (2) the defective condition was a proximate cause of the injury. Hill v. Searle

Labs., 884 F.2d 1064, 1066 (8th Cir. 1989); Bushong v. Garman Co., 843 S.W.2d 807,

812 (Ark. 1992). The plaintiff may prove the defective condition by showing defective

design, defective manufacture, or inadequate warning. Hill, 884 F.2d at 1066-67.

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Prior to 1966, no health warning appeared on cigarettes. Between 1966 and

1969, cigarette packs displayed the congressionally mandated warning that “CIGARETTE

SMOKING MAY BE HAZARDOUS TO YOUR HEALTH.” Cipollone v. Liggett Group, Inc.,

505 U.S. 504, 514 (1992). The 1966 requirement did not, however, preempt claims

that the warning was inadequate. Id. at 518. Thus, if Boerner can establish a claim

under Arkansas’s strict liability statute sufficient to survive summary judgment, he may

proceed with his 1945-69 inadequate warning claims free of federal preemption.

We are not, however, persuaded by Boerner’s argument that his claims for

inadequate warning after 1969 are not preempted by federal law. The district court

correctly concluded that Cipollone precludes a finding that such claims are not

preempted by federal labeling requirements. 505 U.S. at 522-31 (Public Health

Cigarette Smoking Act of 1969 preempts claims for inadequate warning of the health

dangers of cigarettes after 1969). We therefore affirm its dismissal of the 1969-1981

claims for inadequate warning.

Under Arkansas law, once a plaintiff proves the lack of an adequate warning or

instruction, a presumption arises that the user would have read and heeded an adequate

warning. Bushong, 843 S.W.2d at 811. In granting summary judgment on Boerner’s

1945-69 claims, the district court concluded that Brown & Williamson had successfully

rebutted the presumption and was therefore entitled to judgment as a matter of law.

Boerner contends that the district court misapplied Arkansas law on the heeding

presumption. He contends that the Arkansas heeding presumption shifts to the

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defendant the burden of persuasion that an adequate warning would not have been read

and heeded, and that, because of that burden, summary judgment in Brown &

Williamson’s favor was inappropriate. Brown & Williamson contends that even if it

did bear the burden of persuasion under Arkansas law, summary judgment was

nonetheless appropriate because, in light of the evidence as a whole, no reasonable jury

could have concluded that a warning would have been heeded. We disagree.

The district court summarized the Arkansas heeding presumption as follows:

“Under the Bushong rule, the burden shifts to the defendant to show that an adequate

warning would not have been heeded by the plaintiff and thus futile. Once the

defendant provides this evidence, the presumption becomes a nullity and the burden

remains with the plaintiff to prove causation.”

In Bushong, the defendants contended that, because a custodian admitted that

he had not read the labels on two cleaning products before mixing them and releasing

a toxic gas, any warning would have been futile. In ruling on this issue, the Arkansas

Supreme Court adopted the Louisiana rule on presumption,

We think the better rule is that failure to read a label does not

automatically preclude a claim for inadequate warning. We find the rule

applied in Safeco Ins. Co. v. Baker, 515 So. 2d 655 (La. Ct. App. 1987)

particularly persuasive and we adopt the reasoning therein. Safeco holds

the plaintiff originally has the burden of proving the warnings or

instructions provided were inadequate. Once a plaintiff proves the lack

of an adequate warning or instruction, a presumption arises that the user

would have read and heeded adequate warnings or instructions. This

presumption may be rebutted by evidence “which persuades the trier of

fact that an adequate warning or instruction would have been futile under

the circumstances.” In this case, appellant himself admitted that he had

never read a label on a cleaning product during the three years he worked

at Stewart Electric. Given this, we cannot say the trial court erred in

finding appellant’s failure to read the label precluded his claim as any

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warning or instruction would have been futile since appellant would not

have read it.

Bushong, 843 S.W.2d at 811 (citations omitted).

In Safeco, the Louisiana Court of Appeals quoted extensively from the decision

of that state’s supreme court in Bloxom v. Bloxom, 512 So. 2d 839 (La. 1987).

“An essential element of the plaintiff’s cause of action for failure to

adequately warn of a product’s danger is that there be some reasonable

connection between the omission of the manufacturer and the damage

which the plaintiff has suffered. Once a plaintiff proves that the lack of

an adequate warning or instruction rendered the product unreasonably

dangerous, his cause in fact burden is assisted by a presumption: when

a manufacturer fails to give adequate warnings or instructions, a

presumption arises that the user would have read and heeded such

admonitions. The presumption may, however, be rebutted if the

manufacturer produces contrary evidence which persuades the trier of fact

that an adequate warning or instruction would have been futile under the

circumstances.”

Safeco, 515 So. 2d at 657 (quoting Bloxom, 512 So. 2d at 850; other citations omitted).

The court in Bloxom went on to apply the standard:

Assuming the role of the trier of facts once again, we conclude that

because the plaintiffs proved that the manufacturer failed to give adequate

warnings as to the Firebird’s incendiary propensities, a presumption arose

that the user . . . would read and heed such a warning had it been given.

However, when we examine the evidence, we find that the manufacturer

has fulfilled not only its burden of producing contrary evidence but also

its burden of persuading us that even an adequate warning in the owner’s

manual would have been futile in this case. [The plaintiff] testified on

both direct and cross examination that he had not read any part of his

owner’s manual prior to the fire. He stated that it was not his practice to

refer to an automobile operator's manual unless there was something

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wrong with the car. Accordingly, even if an adequate warning of the

particular danger in this case had been given by a proper provision in the

manual, such a warning would have been futile because [the plaintiff] did

not read the manual before parking his car over combustible materials.

Bloxom, 512 So. 2d at 850-51. Thus, under the Louisiana approach adopted in

Bushong, summary judgment is appropriate in favor of the defendant only where its

evidence is sufficient to carry “not only [the] burden of producing contrary evidence

but also [the] burden of persuading [the trier of fact] that even an adequate warning

would have been futile” as a matter of law. Id. at 851.

Other states have adopted similar presumptions. For instance, the United States

District Court for the Southern District of New York, applying New York law,

described the operation of that state’s heeding presumption:

There is, in New York, a presumption that a user would have heeded

warnings if they had been provided, and that the injury would not have

occurred. The presumption can be rebutted by proof that an adequate

warning would have been futile since plaintiff would not have read it.

However, it is the manufacturer who has the burden of proving that, even

if adequately warned, the plaintiff would not have read the warnings and

his behavior would have been unchanged. Summary judgment is

appropriate only when that burden has been met to the level of negating

the existence of a genuine factual issue.

Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 441-42 (S.D.N.Y. 1999) (citations

omitted). In Rowson v. Kawasaki Heavy Industries, the United States District Court

for the Northern District of Iowa cited Bushong affirmatively in reaching its conclusion

that, under Iowa law, even in a case in which the plaintiff admitted that he had not read

the warnings that were given, “whether the presumption has been rebutted is a question

of fact for the jury, not a question of law for the court appropriate for determination on

a motion for summary judgment.” 866 F. Supp. 1221, 1238 (N.D. Iowa 1994).

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The presumption that an adequate warning would have been read and heeded

does not eliminate Boerner’s ultimate burden of proving that the inadequate warnings

were the proximate cause of Mrs. Boerner’s illness. On this point, we find the analysis

of the New Jersey Superior Court helpful. In discussing New Jersey’s burden-shifting

presumption, the court concluded that the presumption that an adequate warning would

have been heeded entitles a plaintiff to summary judgment on that issue unless the

defendant produces evidence sufficient to raise a genuine issue of material fact. Graves

v. Church & Dwight Co., 631 A.2d 1248, 1256 (N.J. Super. Ct. App. Div. 1993).

Conversely, it is logical to conclude that rebuttal evidence sufficient to

create a genuine issue of fact so that the “minds of reasonable men” could

find that the presumed fact had not been established, is the quantum of

evidence necessary to overcome the presumption, and is sufficient to

make the existence or non-existence of the presumed fact a question for

the jury.

The burden of coming forward with evidence to rebut the presumption

is on the defendant, but the burden of proof never shifts from the plaintiff.

That is to say, once the presumption is rebutted, the risk of nonpersuasion

remains with the party upon whom the burden of proof was

originally placed, in this case, on the plaintiff.

Id. at 1256-57 (citations omitted).

To summarize, then, once the defendant submits evidence tending to rebut it, a

rebuttable presumption that shifts to the defendant the burden of persuasion on futility

operates in one of two ways. If the defendant produces evidence so strong that it

would necessarily persuade any reasonable trier of fact that an adequate warning would

have been futile, the defendant is entitled to have causation determined as a matter of

law. Bushong, in which the plaintiff admitted that he had not read a label on a cleaning

product during the three years he worked for his employer, falls into this category. 843

S.W.2d at 811. If, however, the evidence offered to rebut the presumption, weighed

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against any evidence offered to support it, would permit reasonable minds to differ on

whether an adequate warning would have been read and heeded, the question of

causation is properly submitted to a jury, and the plaintiff bears the ultimate risk of nonpersuasion

that an adequate warning would have prevented the plaintiff’s injury.

In this case, the evidence established that no warning was given between 1945

and 1966, and that Mrs. Boerner read the warning that appeared in 1966. The question,

then, is whether the record evidence demonstrates a genuine issue of material fact as

to whether she would have heeded an adequate warning. The district court concluded

that Boerner had made out a prima facie case that the 1966 warning was inadequate,

which raised the presumption that an adequate warning would have been read and

heeded. It then determined that Brown & Williamson was entitled to have causation

determined as a matter of law. First, it concluded that Mrs. Boerner’s statements that

her health was not a factor in her decision to stop smoking precluded a jury from

finding that she would have heeded a more stringent health warning. In order to sustain

this conclusion, the evidence must incontrovertibly establish that Mrs. Boerner would

not have stopped smoking for health reasons even if she had been given an adequate

warning. Boerner, however, submitted evidence that his wife was a health-conscious

individual who avoided high-risk behavior and took active steps to promote her health

and that her family members’ wishes, which were part of her decision to quit smoking,

would have been influenced by more graphic, pointed, health-specific warnings.

Second, the district court concluded that Mrs. Boerner’s acknowledgment that

she read and ignored post-1966 warning labels indicated that an adequate warning

would have been futile. Brown & Williamson argues that Dr. Blinder’s affidavit, which

stated that Mrs. Boerner’s addiction produced a “selective inattention” to information

indicating that smoking was dangerous, supports this conclusion because it indicates

that she would have ignored any warning. This, it argues, coupled with the fact that

Mrs. Boerner had paid very little attention to the post-1969 warning, precludes a

finding that any warning could have prevented her illness.

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We conclude that the district court erred in holding that, in the light of Boerner’s

evidence, an adequate warning would have been futile. Mrs. Boerner’s family

members’ requests that she stop smoking would have been stronger had stronger

warnings been given. See Anderson, 76 F. Supp. 2d at 444-45 (presumption not

rebutted where adult plaintiff did not read an inadequate warning but his father had read

and explained it to family members). Mrs. Boerner’s ability to stop smoking in 1981

demonstrated that her addiction was not so extreme as to render her unable to absorb

and respond to any information suggesting that she ought to stop smoking. Moreover,

Dr. Blinder opined that a more specific and dire warning could overcome an addict’s

selective inattention.

Taking these facts in the light most favorable to Boerner, we cannot agree with

the district court’s conclusion that no reasonable juror could conclude that an adequate

warning would have been heeded. Unlike the Bushong plaintiff, Mrs. Boerner read the

allegedly inadequate warning when it appeared in 1966. The factual question whether

an adequate warning would have been sufficiently effective to overcome Mrs.

Boerner’s addiction and prevent her illness is one for a jury. Accordingly, we reverse

the district court’s grant of summary judgment on Boerner’s failure to warn claims that

are not preempted by federal law.

Boerner contends that the court’s grant of summary judgment on his defective

design claims was erroneous because it was based on an incorrect assumption that

Arkansas law requires a plaintiff to show that a design is defective by demonstrating

that a safer alternative design was feasible. Brown & Williamson responds by arguing

that in light of Boerner’s failure to demonstrate that Pall Mall cigarettes would not have

been unreasonably dangerous had they been manufactured in accordance with his

suggested alterations, his evidence was insufficient to support a jury finding that a

design defect was the proximate cause of Mrs. Boerner’s illness and death.

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Despite Brown & Williamson’s arguments to the contrary, our case law makes

clear that a defective design can be established under Arkansas law without proof of

a safer alternative design. French, 656 F.2d at 298 (“It is apparent that [the statutory]

definitions of the key terms in the strict liability statute contain no requirement that a

feasible and safer alternative be proven by the plaintiff and we see no reason to impose

that requirement.”). “[U]nder Arkansas law the existence, practicality, and

technological feasibility of an alternative safe design are not necessary elements of the

plaintiff’s cause of action, but rather are merely factors that may be considered by the

jury in determining whether a product was supplied in a defective condition that

rendered it unreasonably dangerous.” Id. at 298-99. Indeed, our review of Arkansas’s

products liability law reveals that its general tendency is to submit such factual

questions to the jury to weigh in light of all the evidence. See, e.g., Aderhold, 616

S.W.2d at 722-23 (whether “open and obvious” nature of danger posed by product and

compliance with industry standard rendered design of product not defective were

considerations for jury, not questions of law that could bar recovery); Hill, 884 F.2d at

1070 (whether prescription IUD was sufficiently socially important to fall within the

exception for unavoidably unsafe products was not an appropriate question for

summary judgment).

We have recognized that when a plaintiff’s sole proof of a defective design is the

designer’s choice not to pursue a safer design, the evidentiary burden is on the plaintiff

to show that the safer alternative design he advocates actually exists. Dancy v. Hyster

Co., 127 F.3d 649, 653-54 (8th Cir. 1997) (upholding a grant of summary judgment

against a plaintiff who alleged that a lift truck was unreasonably dangerous because it

lacked a safety device but failed to provide expert testimony to support the proposition

that a feasible safety device existed). Arkansas law does not, however, require a

plaintiff alleging defective design to point to a specific design flaw resulting in a

product that poses a danger greater than that inherent in products of its kind. Buchanna

v. Diehl Mach. Inc., 98 F.3d 366, 370 (8th Cir. 1996) (Arkansas law does not require

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that a plaintiff show that a product poses a danger not posed by similar products in

order to avoid summary judgment, although trier of fact may consider such evidence).

The sufficiency of Boerner’s defective design allegation rests on the content of

Dr. Feingold’s third affidavit. That affidavit states, in relevant part:

2. The Pall Mall cigarette is defective and unreasonably dangerous

because:

ingredients;

3. The medical literature contains abundant references to the various

methods that were available to the manufacturers of this cigarette

to reduce its harmful potential.

4. In particular, reduced hazard products were feasibly designed and

sold. Reduced hazard products of several different types were

feasible. These included the following:

Eclipse, and Accord, where were actually manufactured [sic],

and which did not burn tobacco. Their smoke yields of

carcinogens were highly reduced;

feasible. They demonstrated improvements in cancer tests and

did not contain addictive levels of nicotine;

practices (use of low nitrate, low nicotine tobacco) and

cigarette engineering (improvement of filtration quality,

reduction in gaseous ciliatoxins; reduction of specific

particulate carcinogens such as PAH’s and TSNA’s; alteration

of nicotine delivery to reduce addiction);

[sic] would have been to reduce available nicotine delivery to

below the threshhold necessary to sustain or initiate addiction,

2We note that a number of courts have considered the question whether a safer

alterative design is an element of a defective design claim and have concluded that the

determinative factor is the underlying state law. Compare Ghuilbeault v. R.J. Reynolds

Tobacco Co., 84 F. Supp. 2d 263, 276 (D.R.I. 2000) (plaintiff could proceed on design

defect claim under Rhode Island law without showing safer alternative designs existed)

and O’Brien v. Muskin Corp, 463 A.2d 298, 305 (N.J. 1983) (same holding under New

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which is probably around .1 milligram per cigarette.

Technology to accomplish this was readily available as shown

in the medical literature from the mid 1960’s onward.

5. Lung cancer is a dose-response disease, and Mrs. Boerner’s lung

cancer was no exception. Her disease was the cumulative result of

a succession of genetic mutations caused by the carcinogens in

cigarette smoke. The number and rate of mutations is related to the

concentration and cumulative dose of carcinogens. The cumulative

dose of carcinogens is related (a) to their concentrations in

cigarette smoke; (b) to delivery factors such as inhalation and

smoke chemistry; and (c) to the amount of smoke consumed. The

addictiveness of nicotine is the primary mediator of the lifetime

smoke dose.

We conclude that Dr. Feingold’s affidavit is sufficient to allow Boerner’s design

defect claim to survive summary judgment on the theory that the Pall Mall cigarette, as

designed, was an unreasonably unsafe product. Boerner’s evidentiary burden was to

show (1) that Pall Mall cigarettes were supplied in a defective condition that rendered

them unreasonably dangerous, and (2) that the defective condition was a proximate

cause of Mrs. Boerner’s lung cancer. See Bushong, 843 S.W.2d at 1066. The district

court concluded that the safer alternatives put forward by Dr. Feingold “are still

unreasonably dangerous.” Presumably, then, the less safe design actually used was

also unreasonably dangerous. Under Arkansas law, Dr. Feingold’s statements that the

Pall Mall cigarette delivers excessive amounts of carcinogens, is engineered for

inhalation, and administers an addictive dose of nicotine are sufficient to create a jury

issue as to whether the cigarette was sold in a defective condition.2

Jersey law) with Hernandez v. Tokai Corp., 2 S.W.3d 251, 258 (Tex. 1999) (Texas

statute requires plaintiff alleging design defect to show safer alternative design would

have prevented injury).

3Filtered cigarettes administer a lower dose of nicotine than unfiltered cigarettes;

Mrs. Boerner testified in her deposition that this lower dose of nicotine did not

“satisfy” her, and that she therefore avoided filtered cigarettes.

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Dr. Feingold’s statement that Mrs. Boerner’s lung cancer was caused by

exposure to the carcinogens in cigarette smoke is sufficient to create a jury issue on

proximate cause. In reaching this conclusion, we have considered the district court’s

conclusion that Mrs. Boerner would not have used a safer alternative product because

she disliked filtered cigarettes, and find it to be beside the point. Under Arkansas law,

contributory negligence is no bar to recovery under a strict liability theory. Lockley,

933 F.2d at 1381 (question whether plaintiff’s conduct was cause of injury is a question

of fact for a jury). The existence of a filtered cigarette is irrelevant to the question

whether Mrs. Boerner’s illness was caused by her use of a cigarette supplied in a

defective condition that rendered it unreasonably dangerous, just as the existence of

a table saw with a safety guard would be irrelevant to the question whether the loss of

a finger was caused by a saw supplied with no safety guard. Moreover, Boerner

alleges that Mrs. Boerner’s decision not to smoke filtered cigarettes was itself a result

of the defective condition of the Pall Malls she smoked: their addictiveness.3

Summary judgment is appropriate only where the non-moving party has failed

to create a genuine issue of material fact on some essential element of his claim.

Rabushka, 122 F.3d at 562. The feasibility of alternative designs, including the extent

to which they succeed in making the product safe, is not an essential element of a

design defect claim under Arkansas law. French, 656 F.2d at 298-99. We therefore

reverse the district court’s grant of summary judgment on Boerner’s design defect

claims.

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Boerner’s final contention is that the district court erred in dismissing his claim

for damages based on Brown & Williamson’s breach of a duty voluntarily undertaken.

Under this theory, set forth in § 324A of the Restatement (Second) of Torts and

recognized by the Arkansas Supreme Court in Wilson v. Rebsamen Insurance., Inc.,

957 S.W.2d 678 (Ark. 1997), one who voluntarily assumes a duty owed another is

liable to a third party injured by a breach of that duty. Boerner contends that by

publicly representing that they would pursue public health research about the dangers

of cigarette smoking, Brown & Williamson and other cigarette manufacturers assumed

a duty that they breached by withholding information on the health ramifications and

addictiveness of cigarettes. In Wilson, a company’s duty to maintain a safe workplace

was assumed by contract by an insurance company, and an employee who was

subsequently injured when that duty was breached was allowed to recover damages

from the insurance company. Id. at 678. We decline to extend the holding in Wilson

to the facts of this case, as Boerner has not cited any authority to show either that the

public health community owed him or Mrs. Boerner a legally enforceable duty or that

such a duty could be assumed, under Arkansas law, through unilateral public

statements. Thus, we affirm the district court’s dismissal of Boerner’s breach of duty

claim.

The judgment is affirmed as to the breach of duty and the 1969-81 inadequate

warning claims. The judgment with respect to the 1945-69 inadequate warning and the

defective design claims is reversed, and the case is remanded to the district court for

further proceedings consistent with this opinion.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.