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Doerner v. Swisher Int'l, Inc.

Ex-wife had no loss of consortium or emotional distress claims against cigar manufacturer where cigar-smoking former husband was diagnosed with tongue cancer after couple's divorce.

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The full case caption appears at the end of this opinion.

Coffey, Circuit Judge. Norma Doerner (Doerner) attempted to jump on the tobacco-litigation bandwagon with a novel, though meritless, claim. According to Doerner, her ex-husband, Elmer Doerner, smoked Swisher International’s “Sweet Perfecto” brand of cigars compulsively, averaging four cigars per day from the late 1960s until 1995 when he was diagnosed with cancer of the tongue. After Doerner’s ex-husband died at age 70 in 1997, six years after their 1991 divorce, she sued Swisher under the Indiana Products Liability Act (IPLA). Doerner’s claim rests upon her belief that the IPLA allows her to recover damages from Swisher for loss of consortium and emotional distress caused by the death of her ex-husband despite the fact that they had been divorced for over four years when he was initially diagnosed with his life-ending illness. The trial judge easily spotted the untenable claims, dismissing some of Doerner’s claims under Fed. R. Civ. P. 12(b)(6) and later granting summary judgment in favor of Swisher on the remaining claims. We affirm.

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