Kirksey v. R.J. Reyolds Tobacco Co.

168 F.3d 1039 (7th Cir. 1999)

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Nature of the Case

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Facts

P sued Ds for personal injury. As the executor of her husband's estate, P alleges that her husband smoked cigarettes manufactured by D. The complaint was captioned 'complaint for damages for wrongful death and emotional distress,' charges that the defendants accelerated Mr. Kirksey's death from lung cancer by falsely advertising that their cigarettes were not addictive and by adding addicting agents to their cigarettes without informing him either that they were doing this or that cigarettes (with or without such agents) are addictive. Had it not been for these acts or omissions, the complaint alleges, Kirksey would have smoked less and lived longer. Ds filed a motion to dismiss alleging that the complaint does not add up to a tort in Illinois. Ds' claim that P's case is one of products liability or false advertising and that it was either preempted by federal law or barred by the cases interpreting Illinois' tort law. P claimed that Ds deliberately tampered with the cigarettes which made them more dangerous than P's decedent knew or could have known. She claims this is as a species of intentional tort which cannot be easily cabined in the traditional civil wrong categories. P contends that she was not 'required at this stage of the litigation to specifically characterize or identify the legal basis of the claims in the complaint but to only assert a colorable claim that has some factual support. The district judge held that because P had 'failed to make any legal argument in support of any claim, her claims are waived.'