ORDER RE PLAINTIFF'S OFFER OF PROOF RE CONCEALMENT CLAIM

PHYLLIS J. HAMILTON, District Judge.

On May 27, 2014, pursuant to court order, plaintiff Nikki Pooshs filed an Offer of Proof as to the evidence supporting the post-1969 concealment claim.

PROCEDURAL BACKGROUND

This case has been pending for well over 10 years. Plaintiff filed the original complaint in the Superior Court of California, County of San Francisco, on January 13, 2004, alleging claims of negligence, fraud/misrepresentation, failure to warn, and unfair business practices and deceptive advertising against 22 defendants, including a number of cigarette manufacturers.

The case was removed to this court on March 26, 2004, based on diversity jurisdiction. Starting on April 2, 2004, various defendants or groups of defendants filed a total of seven motions to dismiss, some of which were later withdrawn after plaintiff stipulated to dismiss certain defendants. On April 21, 2004, plaintiff filed a motion to remand, which the court denied in an order issued June 8, 2004. On August 11, 2004, the court granted defendants' motion to dismiss, finding that under Soliman v. Philip Morris, Inc., 311 F.3d 966 (9th Cir. 2002), plaintiff's claims were barred by the applicable statutes of limitation. The court entered judgment on August 20, 2004.

Plaintiff filed a notice of appeal on September 9, 2004. While the appeal was pending in the Ninth Circuit, the parties jointly moved for an order remanding the case for further consideration in light of Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623 (2007) — a decision issued by the California Supreme Court on February 15, 2007. In accordance with the parties' request, the Ninth Circuit issued a mandate on September 27, 2007 remanding the case to this court.

On February 6, 2008, defendants moved for summary judgment, arguing that plaintiff's claims were time-barred because, while she was not diagnosed with lung cancer until January 2003, she first discovered that she suffered from physical injury caused by smoking cigarettes in 1989. On May 27, 2008, the court issued an order granting the motion. On May 30, 2008, plaintiff filed a notice of appeal.

On April 1, 2009, the Ninth Circuit issued an order certifying questions of state law to the California Supreme Court, regarding the running of the statute of limitations when two separate physical injuries arise out of the same wrongdoing, but at separate times. On May 5, 2011, the California Supreme Court issued its opinion in Pooshs v. Philip Morris USA., Inc., 51 Cal.4th 788 (2011), holding that an earlier-discovered disease does not trigger the statute of limitations for a lawsuit based on a later-discovered separate latent disease caused by the same tobacco use. The Ninth Circuit requested that the parties submit supplemental briefs, and on August 5, 2011, issued a mandate remanding the case to this court.

The court held a case management conference on September 1, 2011, setting a November 29, 2012 pretrial conference date and a January 7, 2013 trial date. On June 18, 2012, the defendants remaining in the case — Philip Morris USA, Inc. ("Philip Morris"), R.J. Reynolds Tobacco Company ("RJR"), and Hill and Knowlton Strategies, LLC ("H&K") — filed a motion for summary judgment on the design-defect claims, the failure to warn claims, the claim for "concert of action," and the fraud and concealment claims. Among other things, defendants argued that to the extent plaintiff was claiming that additional or different information about health risks should have been disclosed after July 1, 1969, such claims were subject to express preemption under the Federal Cigarette Labeling and Advertising Act of 1965, as amended by the 1969 Public Health Cigarette Smoking Act of 1969 ("Labeling Act"). Following completion of the briefing, the court heard the motions on August 8, 2012, and issued an order on October 22, 2012.

A. The Order re Defendants' Motion for Summary Judgment (Doc. 229)

In their summary judgment motion, defendants argued that the failure-to-warn and concealment claims were preempted by the Labeling Act to the extent such claims were based on the assertion that new or different information about health risks should have been disclosed after July 1, 1969. Defendants also asserted that to the extent the first cause of action could be construed as alleging a claim of negligent failure to warn, it was preempted insofar as it was based on any events after 1969, and that the fifth cause of action for fraudulent concealment and the tenth cause of action for "off-label failure to warn" were also preempted to the extent that they related to events after 1969.

The Labeling Act has required the placement of warning labels on cigarette advertising and packaging since 1966. As amended, the Labeling Act contains two express preemption provisions. Section 5(a) protects cigarette manufacturers from inconsistent state labeling laws by prohibiting any requirement that additional statements relating to smoking and health be placed on cigarette packages. 15 U.S.C. § 1334(a). Section 5(b) provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." 15 U.S.C. § 1334(b).

In Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), the plurality held that § 5(b) preempts both positive enactments and certain state common-law actions that would impose such "requirements or prohibitions" after that date.1 See id. at 521-23. Under the preemption framework set forth by the plurality, determining which state claims are preempted requires a court to consider the "legal duty that is the predicate" of a particular claim, and determine whether it falls within the scope of the preemption provision. Id. at 523. Failure-to-warn claims are preempted, "to the extent that they rely on a state-law requirement or prohibition . . . with respect to . . . advertising and promotion." Id. at 524.

The plurality found that a post-1969 fraud claim that the cigarette manufacturers, through their advertising, intentionally attempted to minimize or "neutralize" the effect of federally mandated warning labels2 was preempted by § 5(b) because it was based on a "state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking," which was "merely the converse of a state law requirement that warnings be included in advertising and promotional materials." Id. at 527. Similarly, the plurality found, a claim alleging that post-1965 advertising was fraudulent because it included imagery associated with "such positive attributes as contentment, glamor, romance, youth, happiness," and suggested that claims based on such allegedly misleading advertising was also preempted. Id. at 527-28.

However, with regard to claims of fraudulent misrepresentation — "most notably claims based on allegedly false statements of material fact made in advertisements" — the plurality found such claims not preempted because they were predicated "not on a duty `based on smoking and health' but rather on a more general obligation[,] the duty not to deceive.'" Id. at 528-29. With regard to claims that defendants had concealed material facts, the plurality found the claims not preempted "insofar as those claims rely on a state-law duty to disclose such facts through channels of communication other than advertising and promotion." Id. at 528.

The plaintiffs also alleged that the defendants engaged in a conspiracy to misrepresent or conceal information coming from the scientific and medical community concerning the health hazards of smoking. Id. at 530 & n.28. The plurality described the predicate duty underlying this claim as "a duty not to commit fraud," and concluded that it was not preempted for the reasons stated in the analysis of the intentional fraud claim. Id. at 530.

In Altria Group, Inc. v. Good, 555 U.S. 70 (2008), the plaintiffs asserted a claim of fraudulent marketing under the Maine Unfair Trade Practices Act ("MUTPA"), which prohibits "unfair or deceptive acts or practices in the conduct of any trade or commerce." See Me. Rev. Stat. Ann. tit. 5, § 207. This prohibition encompasses various kinds of behavior, including "a material representation, omission, act or practice that is likely to mislead consumers acting reasonably under the circumstances." Maine v. Weinschenk, 868 A.2d 200, 206 (Me. 2005).

The plaintiffs alleged that while it was true, as the manufacturers claimed, that the tar and nicotine levels of the "light" cigarettes at issue were lower than those of regular cigarettes, the manufacturers knew that smokers engaged in "compensatory" smoking "behaviors" that negated the beneficial effects of the lower tar and nicotine, and also knew that the increased ventilation that resulted from the cigarettes' unique design features produced smoke that was actually more mutagenic per milligram of tar than that of regular cigarettes. The plaintiffs alleged that the manufacturers had violated the MUTPA by fraudulently concealing that information and by affirmatively representing through the use of "light" and "lowered tar and nicotine" descriptors that their cigarettes posed fewer health risks. See Altria, 555 U.S. at 74.

The cigarette manufacturers argued that the Labeling Act preempted the plaintiffs' state-law causes of action. The Supreme Court concluded, as the plurality had in Cipollone, that the Labeling Act does not preempt state-law claims that are predicated on the duty not to deceive — a duty that is not "based on smoking and health" — and that "the phrase `based on smoking and health,' fairly but narrowly construed, does not encompass the more general duty not to make fraudulent statements.'" Altria, 555 U.S. at 81 (quoting Cipollone, 505 U.S. at 528-29).

In the present case, plaintiff argued in her opposition to defendants' 2012 motion for summary judgment that the negligent failure to warn and the off-label failure-to-warn claims were not preempted by the Labeling Act, to the extent they were based on statements or actions that were unrelated to advertising and promotion, or on warnings that could have been given outside of advertising and promotion.

With regard to post-1969 fraud and concealment claims, plaintiff argued that under Cipollone, fraudulent misrepresentation claims that arise with respect to advertising and promotions (most notably claims based on allegedly false statements of material fact made in advertisements) are not preempted by § 5(b) because such claims are not predicated on a duty "`based on smoking and health,' but rather on a more general obligation the duty not to deceive." Similarly, she asserted, the concealment claim was based on defendants' alleged scheme to conceal their knowledge concerning the health hazards of smoking and the addictive nature of smoking, and was not preempted because it alleged a violation of the manufacturers' duty not to deceive — a duty not based on "smoking and health."

In the October 22, 2012, order, the court granted defendants' motion as to second cause of action for defective design (and to the first cause of action for negligence to the extent it alleged defective design); as to the third, fourth, sixth, and seventh causes of action for affirmative misrepresentation (fraud and deceit, including negligent misrepresentation); and as to the eighth cause of action for concert of action.

The court denied summary judgment as to the fifth cause of action for concealment; as to the first cause of action to the extent it alleged negligent failure to warn; and as to the ninth and tenth causes of action for off-label failure to warn and pre-1969 failure to warn. The court found that triable issues precluded summary judgment as to the concealment and failure-to-warn claims. The court also ruled that the failure-to-warn and concealment claims that were based on events after July 1, 1969, were not preempted by the Labeling Act, to the extent they were not claims of failure to warn or disclose through advertising and promotion. See Oct. 22, 2012 Order, at 22 (citing Cipollone, 505 U.S. at 528).

The court noted further that plaintiff had conceded that claims of post-1969 failure-to-warn through advertising and promotion were preempted, but had asserted that neither the ninth cause of action for pre-1969 failure-to-warn, nor any other cause of action based on facts prior to July 1, 1969, was preempted because the Labeling Act does not preempt pre-1969 claims. The court concluded that "to the extent that plaintiff is asserting pre-1969 failure to warn, or post-1969 failure to warn that is based on a duty to disclose facts other than through advertising and promotion, such claims are not preempted and may proceed." Id. at 22-23. Plaintiff did not seek reconsideration of any part of the order.

B. Plaintiff's Trial Brief (Doc. 261)

In accordance with the September 6, 2011 Revised Case Management and Pretrial Order (Doc. 157), plaintiff filed pretrial papers, including a trial brief, on November 1, 2012. In the trial brief, plaintiff argued, with regard to the post-1969 off-label failure-to-warn claim, that for the reasons set forth in Cipollone and Altria, her claims were not preempted by the Labeling Act because they were based on "defendants' duty not to deceive and to warn customers, including the [p]laintiff, of the harm that might occur if defendants' products were used as intended, particularly where, as here, defendants breached an owed duty to [plaintiff] through intentional acts of deception, concealment, suppression of facts, and failure to warn." Pltf's Trial Brief at 22-23.

Plaintiff asserted that defendants' "bad acts" imposed legal "duties" on them to warn cigarette users (outside and off the cigarette label) of the health risks of smoking; to disclose to consumers the results of "scientific research known to them" indicating that the use of cigarettes was harmful; and to disclose the ingredients of cigarettes and the presence of additives and alterations to the nicotine levels in cigarette tobacco. Plaintiff contended that defendants had breached each of these duties, none of which was preempted by the Labeling Act. Id. at 23.

Plaintiff argued further that the only claims to which Labeling Act preemption applies are post-1969 failure-to-warn through advertising and promotional activities, and that because she had not alleged any cause of action based on defendants' post-1969 failure to warn through advertising and promotional activities, preemption provided no basis for excluding any evidence at trial. She reiterated that "Cipollone is the law on preemption in cigarette cases." Id. at 23-24.

C. Initial Final Pretrial Conference

On November 29, 2012, the court presided over what was supposed to be the final pretrial conference. During this session, which lasted almost three hours, the court ruled on certain of the parties' motions in limine, and deferred ruling on others to allow further briefing and/or additional efforts by the parties to resolve their differences. The court also issued directives with regard to the trial schedule, and discussed the jury instructions and verdict forms, voir dire and jury questionnaire, and jury selection (including peremptory challenges), as well as plaintiff's exhibit lists, witness lists, deposition designations, written discovery designations, and presentation of evidence regarding damages. The court ordered the parties to meet and confer regarding the jury questionnaire, jury instructions and verdict form, and objections to evidence, and ordered plaintiff's counsel to revise and resubmit plaintiff's designations of witnesses and evidence.

Following this, the court raised the issue of Labeling Act preemption, and the duty to disclose facts other than through promotion and advertising, as set forth in Cipollone, 505 U.S. at 521-28. The court requested that plaintiff's counsel identify the source of the state-law duty to disclose through channels of communication other than advertising and promotions, which plaintiff had asserted applied in this case. Counsel's response was that the duty was found in California Civil Code § 17143 "for starters[,]" adding that

Nov. 29, 2012 Hearing Tr. (Doc. 287), at 90-92.

Plaintiff's counsel then explained that "if a tobacco executive is on television and says, `We've conducted research and the conclusion of the research shows that cigarettes do not cause disease, cigarettes do not cause cancer, when they are concealing the same results they are engaging . . . and referencing . . ." Id. at 93. The court interjected, "[A]ll . . . I needed to hear was whether or not you were asserting that there was some duty other than that that arises from the common law which precludes concealment. . . . Is there some duty owed that is . . . based on a failure to disclose through channels of communication other than promotion and advertisement . . ." as in Cipollone, where the Court "found that the state law claims for fraudulent misrepresentation . . . gave rise to that duty." Id.

Counsel could not confirm that the claims of failure to warn and concealment gave rise to such a duty, stating that "this is a murky area in some respects," but adding that "we have — for example, on negligence, the duty of ordinary care to conduct yourself so as to avoid injury to others, a more common, broad-based common law duty of ordinary care." Id. at 94. The court responded, "I'm unaware of any negligence cause of action that's remaining in the case other than with regard to the failure to warn. That's all I found in the summary judgment ruling that was left." The court asked counsel to explain what he meant by "common-law negligence duty." Id.

Counsel responded that the court had not dismissed the first cause of action for "general negligence," other than to the extent that it "was based upon the design, the design issue," and asserted that "it's a general garden-variety 1714 negligence claim." Id. at 95. When asked to define the duty that this "garden-variety" claim entailed, counsel referred only to the "duty of ordinary care." Id. at 96-98. The court asked what defendants had done to breach that duty. Plaintiff's counsel responded,

Id. at 98.

Plaintiff's counsel did not claim that the first cause of action actually referenced § 1714, but instead argued that, for example, the assertion that the defendants negligently manipulated, manufactured, and marketed cigarettes — thereby breaching the ordinary duty of care — which was a substantial contributing factor to causing injury to the plaintiff, adequately alleged negligence under § 1714. Id. at 96-100, 103-105.

Plaintiff's counsel indicated that "[w]e understood" the October 22, 2012 order to "leave in negligence except to the extent it involved a negligent design claim." Id. at 104. Nevertheless, it seemed clear that defendants as well as the court had interpreted the first cause of action as largely duplicative of other causes of action asserted in the complaint — in particular the claims of affirmative misrepresentation and defective design — and had concluded that all that remained of the first cause of action after the October 22, 2012 order was a claim of negligent failure to warn of the health risks of smoking.

On December 5, 2012, the court issued a Preliminary Final Pretrial Order (Doc. 289) relating to the rulings on the motions in limine and other rulings issued at the November 29, 2012 pretrial conference. Because the entirety of the negligence claim that plaintiff appeared to be asserting had not been tested on summary judgment, the court also directed plaintiff to file a statement clarifying the exact nature of the claim she believed remained in the case, setting forth the legal basis for the duty allegedly owed by the defendants, plus the facts supporting the alleged breach of that duty. The court added that before allowing the claim to be tried to a jury, the court would require defendants to either move for summary judgment, or state in writing that in their view, moving for summary judgment would be futile because of the existence of disputed material facts. Dec. 5, 2013 Order at 10-13.

With the emphasis on the question of what if anything remained of the negligence cause of action, the questions posed by the court regarding the issue of Labeling Act preemption of plaintiff's failure to warn and concealment claims and the source of the state-law duty to disclose facts other than in advertising and promotions remained unclarified, and the focus temporarily turned to the negligence claim and the allegations of duty to support that claim.

Plaintiff filed the statement regarding the first cause of action for negligence on December 12, 2012 (Doc. 293), arguing that from 1954, when defendants published the document entitled "A Frank Statement to Cigarette Smokers," they knew that use of their products presented serious health problems, and that they nonetheless failed to exercise the prudence and care an ordinary person would have exercised in the same circumstances to avoid harm to their consumers, and in so doing, breached their duty of reasonable care to the plaintiff.

On January 9, 2013, defendants filed a motion for partial summary judgment (Doc. 300), seeking a ruling confirming that plaintiff had no remaining viable negligence claims apart from negligent failure to warn, or, in the alternative, an order granting partial summary judgment as to any remaining negligence claim apart from negligent failure to warn. In addition, proceeding outside the scope of the court's prior order, defendants sought an order limiting plaintiff's remaining claims to the period prior to July 1, 1969, and dismissing all remaining claims against H&K.

Plaintiff filed an opposition to defendants' motion on January 23, 2013, arguing the complaint adequately stated a claim for negligence, and that her negligence claim was supported by law. In addition, she asserted that defendants were improperly seeking reconsideration of the court's prior rulings, and that Labeling Act preemption does not apply to concealment claims because concealment claims are based on a duty not to deceive (citing Cipollone, 505 U.S. at 528-29). She also reiterated that she was not asserting a claim for post-1969 failure-to-warn, but also that Labeling Act preemption does not apply to her claim of off-label failure-to-warn, including post-1969 off-label failure to warn.

Following a hearing on February 13, 2013, lasting an hour and forty-five minutes, at which time the court addressed (among other things) the ongoing issues with regard to damages discovery, and with regard to plaintiff's proposed witness list, proposed deposition designations, and proposed exhibit list, and defendants' objections thereto, see Feb. 13, 2013 Hearing Tr. (Doc. 311), the court on February 15, 2013, issued a Second Final Pretrial Order (Doc. 310) in which it directed further briefing. On May 22, 2013, the court issued an order on defendants' motion for partial summary judgment.

D. The May 22, 2013 Order re Defendants' Motion for Partial Summary Judgment (Doc. 319)

The court first addressed the first cause of action for negligence, finding that plaintiff had alleged negligent manipulation (design), manufacture, and various other actions (marketing, advertising, distribution, and selling) in the first cause of action for negligence, all of which were subsumed by causes of action that had previously been dismissed, with the exception of one claim. That finding clarified that the only negligence claim remaining against the manufacturer defendants was the claim of negligent failure to warn.

Second, the court addressed the negligence and fraud/deceit claims asserted against H&K, finding that plaintiff had conceded she had no failure-to-warn claim against H&K, and no other negligence claim remained in the case; that to the extent that plaintiff was attempting to allege misrepresentation, all such claims had been dismissed from the case; and that plaintiff could not establish a concealment claim because she had not identified a relationship between herself and H&K in which a duty to disclose could arise.

Third, the court addressed the post-1969 claims. The court noted that the October 22, 2012 order re defendants' motion for summary judgment had held that under Cipollone, claims for fraudulent concealment or failure to warn in advertising and promotions after July 1969 are preempted unless they rely on a state-law duty to disclose facts through channels of communication other than advertisement or promotion; and that to the extent these claims pre-date 1969, or (if post-1969) are based on a duty to disclose facts other than through advertising and promotion, then such claims are not preempted and may proceed. May 22, 2013 Order, at 15 (citing Oct. 22, 2012, Order at 23)).

In their motion, defendants argued that plaintiff could not establish a duty to warn or to disclose facts outside advertising and promotion after July 1, 1969, as she had identified no source for any such duty to warn or disclose. In the order, the court noted that it had asked plaintiff's counsel at the November 29, 2012 hearing to identify the source of the state-law duty to disclose through channels of communication other than advertising and promotion, and that the only specific source plaintiff's counsel mentioned was Civil Code § 1714 (the general negligence statute), although counsel also made reference to the common law precluding fraudulent concealment. Id. (citing Nov. 29, 2012 Tr. at 90-94).

The court further noted that in her July 9, 2012 opposition to defendants' original motion for summary judgment, plaintiff had agreed that the failure-to-warn claims are limited to the pre-1969 period, but that she also asserted that the Labeling Act preemption does not apply to the off-label failure to warn claims (claims not based on advertising and promotion), which she argued include the failure to warn of the negative health effects of smoking. The court found, however, that plaintiff had failed to provide the source of any state-law duty to disclose facts other than through advertising and promotion, which would suffice to remove the off-label failure-to-warn claims from the preemptive effect of the Labeling Act. Id. at 15. For this reason, the court concluded that Labeling Act preemption applied to any portion of the claim of negligent failure-to-warn based on post-1969 actions (as to any other failure-to-warn claim). Id. at 16.

E. The July 19, 2013 Third Final Pretrial Order (Doc. 337)

On July 12, 2013, the court conducted a further pretrial conference, lasting almost four hours. See July 12, 2013 Hearing Tr. (Doc. 341). On July 19, 2013, the court issued the Third Final Pretrial Order (Doc. 337). In that order, the court addressed the on-going problems with the plaintiff's deposition designations, and ruled on defendants' categorical objections to the designations; issued rulings with regard to a number of the disputed jury instructions, and ordered the parties to meet and confer regarding others; again ordered the parties to meet and confer regarding the joint verdict form; attempted to impose a workable method for reducing the number of exhibits on plaintiff's exhibit list; and issued rulings on remaining deferred motions in limine.

In addition, the court summarized the claims remaining in the case — concealment and the two pre-1969 failure-to-warn claims. The court ruled that under Cipollone, the concealment claim is not subject to wholesale preemption by the Labeling Act because Civil Code § 1710, the state law identified by plaintiffs, does not impose a prohibition "based on smoking and health." July 19, 2013 Order at 14.

The court noted that plaintiff could have pursued a claim of post-1969 failure to warn, to the extent it was not based on the defendant tobacco companies' packaging, advertising, or promotional material, but that plaintiff had failed to cite a source of a state-law duty to disclose facts other than through advertising and promotion. Id. Thus, the court concluded, for the period July 1, 1969 to January 1, 1988, the only evidence that will be admissible is evidence to support plaintiff's claim of fraudulent concealment; that no evidence relating to post-1988 (immunity period) conduct will be admissible; and any claim that defendants' post-1969 advertising or promotions should have included additional, or more clearly stated, warnings regarding safety or health is preempted. Id.

F. March 27, 2014 Further Final Pretrial Conference

On March 27, 2014, the court conducted a further final pretrial conference, lasting an hour and a half. See March 27, 2014 Hearing Tr. (Doc. 378). At the hearing, the court addressed the ongoing issues with exhibit lists, witness lists, and deposition designations and counter-designations. See id. The court also reviewed and ruled on the remaining disputed jury instructions. The final instruction that was discussed was the concealment instruction. In that regard, the court stated that "[o]ne of the issue we're going to have to discuss today is the post-1969 evidence that does not relate to advertising or promotion[,]" and asked plaintiff's counsel to identify it. Id. at 19-20.

Plaintiff's counsel responded, "We don't believe the Frank Statement fits into that category." The court asked, "Was it made after 1969?" Counsel responded, "No. But that's the substance. It's the root source of the concepts where corruption of understanding of cancer, cancer causation, is not product promotion or advertising. It's a different thing rooted in the 1954 Frank Statement and the course thereafter that the evidence will demonstrate." Id. at 20. The court again asked, "[W]hat is the post-1969 evidence that does not relate to advertising and promotion?" Plaintiff's counsel repeated that the Frank Statement "sets the pattern and practice that transcends '69 where the defendants are continuing that practice to corrupt understanding about what they knew about the dangers of smoking." Id.

Again the court asked, "[W]hat's the specific evidence that you're seeking to admit that's post-1969 that has nothing to do with advertising and promotion?" Counsel responded that it "comes in the form of the defendants' representative speaking to the topic of dangers associated with use of their product, risks of cancer, talking about science, concepts independent of product promotion or advertising more — more rooted in science." Id. at 20-21. The court asked whether counsel could identify the specific items of evidence, and counsel responded. "It's in the deposition excerpts that have been page lined through various former executives, Mr. Bible, Dr. Cook, others that we have page lined who speak to the notion that it is not demonstrated that their products cause injury . . . It has nothing to do with them endeavoring to promote their product, try and sell more of it." Id. at 21. He added, "They're trying to communicate what they believe to be the medicine and the science, denying that their products create any danger associated with cancer, that it has not been proven." Id.

Following this exchange, the court directed plaintiff to file an offer of proof with an identification of the evidence. Id. at 22-23. The court also issued a Fifth Final Pretrial Order (Doc. 376) on April 2, 2014, summarizing the rulings at the pretrial conference.

PLAINTIFF'S OFFER OF PROOF

A. Offer of Proof

Plaintiff begins by arguing that under Altria, Labeling Act preemption does not apply to state-law based concealment claims that are predicated on a duty not to deceive, and it does not "limit or modify the evidentiary basis of such concealment claims," and that preemption is limited to "certain types of failure to warn/neutralization claims." She contends that because Civil Code §§ 1709 and 1710 are not state law requirements based on "smoking and health," but rather are state laws establishing a duty not to deceive, Labeling Act preemption is not applicable to her post-1969 concealment claim.

Plaintiff also asserts that concealment claims can be based on affirmative statements. She cites § 1710, which provides that concealment occurs when a defendant gives "information of other facts" that are "likely to mislead" and CACI 1901 ("Defendant disclosed some facts to [p]laintiff but intentionally failed to disclose other important facts.") She contends that one cannot give "information of other facts" or "disclose some facts" without making affirmative statements. She asserts that the difference between an intentional misrepresentation claim and a concealment claim is that misrepresentation involves making affirmative statements knowing them to be false, while concealment involves making affirmative statements that are true but also concealing or intentionally failing to disclose facts that materially qualify those stated.

Plaintiff argues that defendants breached their duty not to deceive under California law when they elected to speak to the public, including plaintiff, regarding health claims associated with the use of their products. She asserts that because defendants made public statements, they were obligated to provide the entire truth, but that they instead disclosed only some selected facts and half-truths, while concealing other facts, thereby creating a "false controversy concerning the adverse health effects of smoking."

Plaintiff also contends that defendants had the intention of causing smokers, including herself, to rely on the substance of that misinformation, and that she did reasonably rely on defendants' deception. She notes that in ruling on defendants' motion for summary judgment, the court found that disputed issues of fact remained "as to whether plaintiff might have made different decisions at various times had she been aware of certain health risks or whether she would have smoked a `safer' cigarette had [d]efendants manufactured one" (quoting Oct. 22, 2012 Order at 20). Plaintiff also claims proving a concealment claim in a smoking case under California law does not require establishing that the plaintiff relied on specific individual false statements, where the misrepresentations and false statements are part of an extensive and long-term advertising campaign.

Following these arguments, plaintiff discusses the evidence — consisting of 101 exhibits — which she cites in support of the concealment claim. Some of this evidence predates the effective date of the Labeling Act (particularly some of the evidence discussed in the first subsection), but most of it is post-1969 (though some of the deposition or trial testimony relates to events pre-1969).

a. Evidence of defendants' concealment

Plaintiff first discusses the history of smoking-related lung cancer, primarily in the U.S. but also in England, beginning with a sharp rise in the number of cases of cancer in the 1930s and 1940s, and a growing recognition among medical doctors in the 1950s and early 1960s of the connection between smoking and lung cancer, followed by the public response of the cigarette manufacturers during the period from the late 1950s through the mid-1980s.

The attached evidence includes excerpts of deposition transcripts and transcripts of trial testimony from other cases (primarily in the State of Florida); opinions in expert reports; reports in American and British scientific publications in the 1950s of studies regarding the relationship between smoking and cancer; documents (including excerpts of deposition testimony) relating to the manufacturers' hiring of H&K in 1953, and H&K's subsequent public relations work, including preparation and publication of the "Frank Statement" in January 1954; documents (including deposition excerpts) relating to the formation of industry groups the Tobacco Industry Research Committee (which later became the Council for Tobacco Research) and the Tobacco Institute — and publications issued by both from the mid-1950s to the early 1960s; and U.S. Government reports on smoking and health in the early to mid-1960s.

Second, plaintiff discusses the public response of the Tobacco Institute, the American Tobacco Company (now RJR), and Philip Morris in the late 1950s and through the 1960s and into the 1970s with regard to the issue of the relationship between smoking and lung cancer; and the efforts made by Philip Morris and the American Tobacco Company (RJR) to increase sales, including use of advertising and efforts to study smoking behavior with a view to getting more people (including youth smokers) to smoke more cigarettes. The attached evidence regarding the public response of RJR and Philip Morris, and the Tobacco Institute includes deposition testimony, company documents (including press releases), and Federal Trade Commission reports.

Third, plaintiff discusses the theory that because of defendants' "open question" approach to the smoking/cancer issue, many smokers in the mid-1970s did not accept that smoking causes cancer. She also discusses research on smoking and cancer performed by defendants and the Council for Tobacco Research from the late 1960s and through the 1970s, which they allegedly "concealed" from consumers. The attached evidence includes deposition excerpts and company documents.

Fourth, plaintiff discusses defendants' public responses (and the responses of the Tobacco Institute) in the 1980s to the question of the connection between smoking and lung cancer — generally that there is no proven causal link between the two. The attached evidence includes deposition testimony, Congressional hearing testimony, FTC reports, company documents, and Tobacco Institute reports and public releases.

Fifth, plaintiff discusses the anticipated proposed testimony of her expert Dr. William Farone (who was employed at Philip Morris from 1976-1984), to the effect that his supervisors at Philip Morris told him smoking was addictive and caused cancer, and that those facts were generally understood at Philip Morris as early as the mid-1970s; and to the effect that Philip Morris intentionally attempted to create doubt in the minds of the public as to whether smoking was addictive and/or caused cancer. The attached evidence includes excerpts from judicial opinions in other cases describing Dr. Farone's trial testimony in those cases. It also includes Dr. Farone's November 2011 expert report.

b. Specific evidence relating to Philip Morris

This section consists of references to "admissions" by Philip Morris at various times regarding health/cancer/smoking and the addictive effects of nicotine. The attached evidence consists of excerpts from 2011-2012 deposition testimony by Philip Morris representatives Richard Jupe and Peter J. Lipowicz, and excerpts of March 1998 trial testimony by former Philip Morris CEO Geoffrey Bible (now deceased).

c. Specific evidence relating to RJR

This section consists of references to "admissions" by RJR at various times regarding health/cancer/smoking and the addictive effects of nicotine, as well as "admissions" regarding what it did or did not tell the public about these facts. The attached evidence consists of excerpts from 2011 deposition testimony by RJR representatives Jeff Gentry, Christopher Cook, and Dr. James Figlar.

d. Evidence in the form of planned trial testimony

In this section, plaintiff discusses her anticipated trial testimony regarding how she came to start smoking; why she couldn't quit smoking and what efforts she made to quit; what she knew or did not know at various times about the relationship between smoking and health; whether and to what extent she relied on defendants' public statements regarding the risks of smoking; and what she believed about low-tar/low-nicotine cigarettes or "light" cigarettes, and whether they were healthier than regular cigarettes. In support, plaintiff cites to her declaration filed on July 9, 2012 in opposition to defendants' motion for summary judgment, and to excerpts from her deposition testimony from November and December 2006.

This section also describes proposed trial testimony of plaintiff's pulmonologist, Barry Horn, M.D., whom plaintiff anticipates will testify that plaintiff's smoking cigarettes was the cause of her lung cancer. In this section, plaintiff cites to Dr. Horn's declaration filed July 9, 2012, in opposition to defendants' motion for summary judgment.

B. Defendants' Response

Defendants argue that plaintiff is improperly seeking reconsideration of the court's prior rulings on preemption by arguing that there is "no legal basis" for those rulings and that "Labeling Act preemption . . . is not applicable at all to state-law-based fraud claims" (quoting Offer of Proof at 1-2).

Defendants assert that under the standard articulated in Cipollone, post-1969 fraud claims predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking are preempted, as are fraud claims based on allegedly "misleading" post-1969 advertising imagery associating smoking with "glamor" or "happiness" or other "positive attributes." By contrast, they assert, fraud claims premised on allegedly false statements made in advertisements are not preempted, because while they involve advertising or promotion, they are not also predicated on smoking and health, but rather are based on the "duty not to deceive."

As for the concealment claim, defendants reiterate that such claims are not preempted insofar as they rely on a state law duty to disclose such facts through channels of communication other than advertising and promotion. Defendants note that in this case, the court has already ruled that plaintiff's claims regarding post-1969 conduct are preempted by the Labeling Act to the extent they rely on a state-law requirement or prohibition with respect to smoking or health in connection with advertising or promotion of cigarettes. They assert that to the extent that plaintiff is asserting that defendants concealed material facts about safety and health effects of smoking in the post-1969 period, she must provide evidence of such concealment apart from advertising and promotion.

Defendants argue, however, that the evidence presented does not establish a post-1969 concealment claim based on a duty to disclose facts through channels of communication other than advertising and promotion. Defendants contend that plaintiff appears to be asserting that this court should ignore Cipollone as having been superceded by Altria. Defendants assert, however, that the Court in Altria expressly rejected the contention that the Cipollone framework should be discarded, and that the Court's opinion shows that it understood the plaintiffs' claims to be based on false statements of fact, not mere concealment. They note that the Court specifically stated, "As was true of the claim in Cipollone, respondents' claim that the deceptive statements `light' and `lowered tar and nicotine' induced them to purchase petitioners' product alleges a breach of the duty not to deceive." See 555 U.S. at 82-87.

Defendants argue that plaintiff has not attempted to explain how she would comply with the limitations this court has placed on her concealment claims post-1969, and argue that the Offer of Proof shows that she cannot. Defendants note that plaintiff sets forth in her brief the elements of the concealment claim she says she intends to prove, but omits any reference to pre- or post-1969 (citing Offer of Proof at 3 (listing elements of CACI 1901)). They also note that she now appears to be asserting only one of the four alternatives in the first element of CACI 1901, which requires the plaintiff to prove that defendants "disclosed some facts to [p]laintiff but intentionally failed to disclose other important facts, making the disclosure deceptive."

Defendants speculate that this might be why plaintiff now is arguing that "concealment claims can be based on affirmative statements." While defendants agree with this basic premise, they argue that it is true only in the sense that a duty to disclose may arise from a partial disclosure made "to the plaintiff," which deceived the plaintiff into acting in a way she would not have acted if the disclosure had been complete.

However, defendants contend, the court has already found that plaintiff has no evidence that she was influenced by any disclosure by either defendant. In support, defendants cite the ruling in the October 22, 2012 order re defendants' motion for summary judgment, in which the court granted summary judgment on the claims of affirmative misrepresentation, "because plaintiff has provided no evidence that she relied on any particular representation made by the defendants," and "was unable to identify any specific misleading statements relating to smoking and health." Oct. 22, 2012 Order at 17-18. Defendants claim that the theory plaintiff now proposes to prove would fail for the same reason her claims of affirmative misrepresentation failed.

In their second main argument, defendants assert that the evidence proffered by plaintiff does not establish a post-1969 concealment claim based on breach of a duty to disclose facts through channels of communication other than advertising and promotion. First, they contend that plaintiff's evidence does not establish a duty arising from any "partial disclosure" — an affirmative statement that was misleading because it did not include all information necessary in order to make it not misleading. Defendants note that in the October 22, 2012 order re defendants' motions for summary judgment, the court dismissed plaintiff's affirmative-misrepresentation claim based on its finding that plaintiff "did not recall having ever read or heard (much less relied on) any specific statement regarding smoking and health" in advertising or promotion or otherwise.

Indeed, defendants assert, plaintiff's Offer of Proof avoids identifying any public communications at all, as she points to only general "communications" without showing when or where they were made, or by whom, and whether they were made to "plaintiff" as defendants assert CACI 1901 requires. Defendants argue that sweeping statements referring generically to "communications" cannot suffice because they are impossible to attribute to something that reached plaintiff through channels of communication outside advertising and promotion.

For example, defendants cite to Offer of Proof ¶ 86 (deposition testimony by RJR representative Figlar that even after the 1979 Surgeon General's report, RJR continued to "assert publicly" that a link between smoking and cancer was not scientifically established; id. ¶ 116 (deposition testimony by Philip Morris representative Jupe that Philip Morris continued to state for decades after Surgeon General's report that mechanism by which cigarette smoking causes cancer had not been proven; and id. ¶ 148 (deposition testimony by RJR representative Cook that RJR continued to publicly deny that smoking causes cancer until late 1990s (after plaintiff had quit smoking). However, defendants argue, plaintiff offers no proof that these representations were communicated to her other than through advertising and promotion. They assert that this is not "specific evidence" supporting the post-1969 concealment claim, as the court ordered plaintiff to provide.

Defendants also note that plaintiff attributes certain representations to the Tobacco Institute (citing id. ¶¶ 37, 39, 84-85, 87, 924), but notes that the court previously held that plaintiff "never heard, saw, read, or relied on statements made by . . . TI" (citing May 22, 2013 order re defendants' motion for partial summary judgment (Doc. 319)). Thus, defendants argue, as to those representations, there can be no evidence that such "partial disclosures" could have caused her to act differently than she otherwise would have, had the disclosure been "complete."

Similarly, defendants contend that there is no proffer that plaintiff saw, heard, or read about the testimony of an RJR executive before Congress on March 12, 1982, or that she heard about a report presented by the Tobacco Institute to Congressional committee in 1984, or that she watched NBC's "Nightline" on February 2, 1984, where RJR's former Chairman of the Board stated that "science has still failed to establish a causal link" between smoking and cancer (citing Offer of Proof ¶¶ 91, 93, 94).

Finally, with regard to the evidence submitted by plaintiff in the form of citations to testimony in her declaration, see id. Exh. 93 (originally filed July 9, 2012 in opposition to defendants' motion for summary judgment), cited in id. ¶¶ 151, 156, 165, 167, 171, 173, or to various excerpts from her deposition testimony, id. Exhs. 95-97, cited in id. ¶¶ 157-164, defendants contend that the court previously considered the same statements from plaintiff and concluded that plaintiff had failed to show she ever encountered any specific statement from defendants about smoking and health.

Second, defendants contend that plaintiff's evidence does not otherwise establish any duty to disclose important facts outside advertising and promotion. Defendants concede that plaintiff has pointed to some information she did not have, but argue that she has not explained how a duty to disclose that information could have arisen in the absence of some representation about it.

For example, defendants assert, testimony by company representatives that Philip Morris and RJR kept up with the available medical and scientific literature, id. ¶¶ 120, 145, does not show that defendants had exclusive knowledge that plaintiff could not have obtained. Nor, defendants argue, does it show "active concealment," and indeed, does not even show anything was actually concealed.

Defendants claim that the same can be said of testimony by RJR representatives Figlar and Gentry that RJR did not conduct studies comparing its cigarettes with those of its competitors, id., ¶ 140; or testimony by Philip Morris representative Jupe that Philip Morris studied whether nicotine was addictive, id. ¶ 107; or testimony by RJR representative Cook that RJR never told its customers to stop buying its product, id. ¶ 147; or testimony by former Philip Morris CEO Bible that Philip Morris viewed customer health and profits equally, id. ¶ 117; or testimony by former Philip Morris CEO Bible that Philip Morris acquired a research facility in Germany in 1970 so it could "conceal research from consumers," id. ¶ 74; or testimony that RJR and Philip Morris "destroyed," "buried," or "tightly controlled" cigarette research, id. ¶¶ 76-82, 88; or testimony by Philip Morris representative Jupe that Philip Morris has never taken a public position on the number of cigarettes per day one should smoke, id. ¶ 111.

Defendants argue that plaintiff fails to explain how any of this evidence shows some important fact that defendants had a duty to disclose after 1969, let alone what form defendants should have used to communicate it. Defendants contend that this evidence appears to have been selected to suggest that defendants acted reprehensibly, but they argue that that is not the issue that the court asked plaintiff to address, and it has nothing to do with preemption. Similarly, defendants assert, plaintiff identifies internal reports and memoranda that were not publicly disclosed (citing id. ¶¶ 62, 64, 66, 69-72, 83), but does not explain what important facts they contained that defendants had a duty to disclose, let alone a duty to disclose them outside advertising or promotion.

As for plaintiff's citation to her own testimony about information she supposedly did not know (even after federal warnings containing such facts began appearing) — e.g., id. ¶ 168 (plaintiff didn't know smoking caused cancer until decades after Surgeon General's 1964 report); id. ¶ 171 (plaintiff believes she "may have been able to stop using cigarettes sooner" than 1991 if she had known smoking caused lung cancer); id. ¶ 73 (describing consumer survey of beliefs of smokers "like" plaintiff, some of whom allegedly did not know smoking causes lung cancer) — defendants reiterate that there is no cause of action for lack of knowledge, or even for a mere failure to disclose, and a concealment cause of action must be based on breach of a duty to disclose. Here, defendants argue, the question is how that duty arose after 1969 despite the federal warnings, and how such a duty could be discharged after 1969, outside advertising and promotion.

Third, defendants assert that plaintiff has improperly included evidence of post-1969 advertising or promotion. They contend that it is indisputable that no duty to disclose after 1969 could be premised on post-1969 advertising and promotion, because that is exactly what is precluded by the Labeling Act. Moreover, they argue, due to the combined effect of the California immunity period and plaintiff's stop-smoking date, no evidence will be admissible in this action relating to defendants' post-1987 knowledge, statements, or public positions. Defendants argue that none of the evidence cited here helps plaintiff establish her proposed post-1969 concealment claim, and that in offering it, plaintiff has violated more of the court's rulings.

Defendants list the following as examples of such impermissible evidence — id. ¶ 48 (testimony by former Director of Consumer Research that Philip Morris approved its own advertising); id. ¶ 90 (testimony by former Philip Morris spokesperson Jeanne Bonhomme relating to FTC report concerning cigarette advertising published between 1964-1981); id. ¶ 101 (describing 1985 RJR "public statement," which plaintiff identifies as an "advertisement"); id. ¶ 118 (testimony by former Philip Morris CEO Bible re Philip Morris advertisements during period from 1954 (when plaintiff started smoking) through time she quit; id. ¶ 141 (testimony by RJR representative Cook that he was not aware of RJR "voluntarily putting a warning label on any advertisement"); id. ¶¶ 134, 136-138, 150 (testimony by RJR representative Gentry re positions RJR took in 2000 regarding smoking cigarettes); id. ¶ 132 (testimony by RJR representative Cook that RJR did not publicly admit that smoking was addictive until late 1990s, after plaintiff quit smoking); id. ¶¶ 126-127 (testimony by Philip Morris representative Lipowicz re positions Philip Morris took in 2000 regarding smoking cigarettes); id. ¶¶ 110-111 (testimony by Philip Morris representative Jupe re position Philip Morris took in 2011 regarding smoking and lung cancer).

Fourth, defendants argue that plaintiff continues to offer cigarette-design evidence in violation of prior court rulings. Defendants note that the court dismissed the design claim, found cigarette-design evidence inadmissible and irrelevant as to any remaining claim, and precluded Dr. Farone from testifying about it. Yet, defendants assert, plaintiff now says she plans on asking Dr. Farone to tell the jury that Philip Morris could have replaced the nicotine in its cigarettes with nicotine analogs "that would produce the same addictive effects but without the adverse cardiovascular effects of nicotine" (quoting id. at ¶ 99).

Defendants contend that this is design evidence, which would also violate another order in the case because it relates to cardiovascular disease, an injury not at issue in this case. Defendants point to other evidence that appears to violate the same orders, including id. ¶ 103 ((testimony by Philip Morris representative Jupe that cigarette smoking results in brain changes); id. ¶ 108 (testimony of former Philip Morris CEO Bible regarding effects of nicotine addiction); id. ¶ 131 (testimony of RJR scientist Gentry cigarettes are "significantly risky"); id. ¶ 135 (testimony of RJR executive Cook regarding the flavor of low-nicotine cigarettes); id. ¶ 168 (plaintiff's statement that she would have smoked safer cigarettes had they been available).

ANALYSIS

As indicated above, notwithstanding numerous orders issued by the court, plaintiff continues to assert that no part of the concealment claim is preempted, and that she is entitled to put on evidence from any period prior to 1988, relating to concealment in advertising and promotion (or any other vehicle of communication) regarding the health effects of smoking. Plaintiff's Offer of Proof, which is a jumbled and overblown conglomeration of re-argument of issues already decided by the court and citations to evidence that in some instances is irrelevant or was previously excluded by the court, is premised on this untenable theory that Labeling Act preemption does not apply in this case.

Any claim that requires a showing that the defendants' post-1969 advertising or promotions "should have included additional, or more clearly stated, warnings" is preempted. Cipollone, 505 U.S. at 524. Similarly, any claim that defendants made statements or used images in cigarette advertising or promotional materials that "tend[ed] to minimize the health hazards associated with smoking," such as by associating smoking with positive attributes such as "contentment, glamour, romance, youth, [or] happiness" is also preempted. Id. at 527. Even if not specifically labeled "failure to warn," such claims necessarily contend that the federal warnings are not sufficient to warn, and so are preempted. See id.

On the other hand, claims of breach of express warranty are generally not preempted, nor are claims of fraudulent misrepresentations in advertising and promotion, as a claim based on an allegedly false statement of material fact in an advertisement is not predicated on a duty relating to "smoking and health," but rather on the "more general obligation . . . not to deceive." Id. at 528-29. A claim of fraudulent concealment is predicated on a state-law duty not to conceal material facts, and a claim that the defendants concealed material facts is thus not preempted insofar as that claim relies "on a state-law duty to disclose such facts through channels of communication other than advertising or promotion," as where a state law obliges manufacturers to disclose material facts about smoking and health to an administrative agency. Id. at 528.

It is generally agreed that the Cipollone plurality's opinion regarding Labeling Act preemption is difficult to apply. The Supreme Court itself recognized that the Cipollone preemption framework "lack[s] `theoretical elegance,'" Altria, 555 U.S. at 84 (quoting Cipollone, 505 U.S. at 530 n.27), and numerous courts have agreed. The California Court of Appeal commented that the difficulty is "due not only to the various concurring and dissenting opinions making up a majority on different parts of the decision [citing Cipollone, 505 U.S. at 553-54 (con. & dis. opn. of Blackmun, J.; id. at 555 (con. & dis. opn. of Scalia, J.], but more fundamentally due to the inherent contradiction at the core of the case." Whitely v. Philip Morris, Inc., 117 Cal.App.4th 635, 669-70 (2004).

In Altria, which followed Cipollone, the Court found that the claim at issue — that statements in advertisements and elsewhere that the cigarettes at issue had less tar and lower nicotine than other cigarettes were deceptive and induced the plaintiffs to purchase the cigarettes — alleged a breach of the duty not to deceive. Id., 555 U.S. at 82. While the court conceded that the presence of the warnings on the packages might bear on the materiality of the allegedly fraudulent statements, the court emphasized that the claim was a claim about deceptive statements, not a claim about warnings about smoking and health. Id. at 82-83. The Court found nothing in the Labeling Act's purpose that otherwise limits the States' authority to prohibit deceptive statements in cigarette advertising. Id. at 79-80.

However, the Court confined its analysis to the claim that the manufacturers had made affirmative misrepresentations. The Court found it "clear that our holding in Cipollone that the common-law fraud claim was not pre-empted is directly applicable to the statutory claim at issue in this case," adding, "[a]s was true of the claim in Cipollone, respondents' claim that the deceptive statements `light' and `lowered tar and nicotine' induced them to purchase [the manufacturers'] product alleges a breach of the duty not to deceive." Id. at 82.

Both Altria and Cipollone analyzed the claims at issue as affirmative misrepresentation claims — not as claims of fraudulent concealment. In the present case, there are no claims of affirmative misrepresentation remaining. Plaintiff's concealment claim appears to be premised on the theory that defendants made public statements regarding smoking and health, and that while the statements may have been true, they were rendered misleading by defendants' failure to include additional statements concerning the negative health effects of smoking. However, because plaintiff has not precisely identified the statements at issue, it is impossible to ascertain the exact basis of the concealment claim. Nevertheless, to the extent that any of these statements were made in advertising or promotions after 1969, when Labeling Act warnings were mandated, such a claim is preempted by the Labeling Act because it is indistinguishable from a claim alleging that defendants failed to include additional warnings regarding smoking and health in advertising and promotions.

Turning to defendants' response, the court notes that defendants have attacked plaintiff's Offer of Proof largely as though it were a motion for summary judgment. An offer of proof is normally made after the court has sustained an evidentiary objection, with the purpose of establishing a record for appeal. See Wright, Miller & Kane, 21 Federal Practice & Procedure (2d ed. 2014) Evid. § 5040. The intent is to show the substance of the would-be evidence and the purpose for which a party sought to introduce it. See Fed. R. Evid. 103; see also Heyne v. Caruso, 69 F.3d 1475, 1481 (9th Cir. 1994); Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 887 (9th Cir. 1991).

Federal Rule of Evidence 103 does not define "offer of proof," although the Advisory Committee Notes for 1972 refer to "similar provisions" in the California Evidence Code. Under California Evidence Code § 354, an "offer of proof" is a statement by counsel describing proposed evidence and what he or she intends to prove if such evidence is admitted. Cal. Evid. Code § 354(a). In this case, given the general lack of clarity of the claims asserted in plaintiff's complaint, and also given counsel's apparent unwillingness or inability to conform to the court's procedures for pretrial preparation, the court's intent in requiring the Offer of Proof was simply to ascertain whether plaintiff had evidence to support the claim that defendants had concealed material information regarding health and smoking outside of advertising and promotion. The intent was not, as defendants seem to be suggesting, to determine at this stage whether plaintiff can "prove" concealment.

Moreover, defendants' contention that plaintiff has abandoned all except one of the four alternative elements listed under element (1) in CACI 1901 is not persuasive, nor is the argument that because the court previously granted summary judgment as to the affirmative misrepresentation claims, plaintiff is precluded from pursuing a concealment claim based on some affirmative statement. This is not to say that the court finds that plaintiff has established all the elements necessary to prevail on a claim of concealment. Nevertheless, while the Offer of Proof is far from straightforward, it was not intended to afford defendants another opportunity to seek summary adjudication of the concealment claim. The concealment claim will be allowed to proceed to trial, but limited as follows.

Setting aside the questions whether plaintiff's evidence "establishes a duty" or whether plaintiff has offered "proof" of reliance — issues that remain to be determined — the court finds that evidence relating to post-1969 advertising and promotion must be excluded, because claims of concealment based on statements in advertising and promotion post-1969 are preempted by the Labeling Act. That is, any post-1969 evidence that comes in must be unrelated to advertising and promotion. For example, assuming such evidence is otherwise admissible, plaintiff has cited to a number of public statements made by defendants in company documents (including press releases) and in deposition testimony.

As for defendants' further objections to evidence, the court previously excluded evidence of post-1987 tortious conduct (Docs. 289, 310) and sustained defendants' objections to deposition designations relating to defendants' post-1987 knowledge, statements, and public positions (Doc. 337), based on operation of statutory immunity under California law for the ten-year period beginning January 1, 1988. Thus, such evidence cannot be admitted to support an element of the concealment claim. Finally, to the extent that any of plaintiff's exhibits relate to cigarette design, or to diseases other than lung cancer, such evidence is excluded, in line with the court's prior rulings (Docs. 229, 337).

Unfortunately, however, the court's attempt to ascertain whether plaintiff has evidence to support the claim that defendants concealed material information regarding smoking and health outside of advertising and promotion has failed. This exercise has not advanced the case and has largely been a waste of time. As set forth above in excruciating detail, the court has already ruled in prior orders (Docs. 229 and 319) that under Cipolline, a claim that defendants' post-1969 advertising and promotions should have included additional warnings is preempted, while a claim that defendants concealed material facts is not preempted insofar as it relies on a state-law duty to disclose such facts through channels of communication other than advertising and promotion. The findings made in this order change nothing.

IT IS SO ORDERED.