Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING CERTAIN DEFENDANTS’ MOTION TO DISMISS BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION.803 II. STANDARDS FOR MOTION TO DISMISS.804 III. LEGAL ANALYSIS. 00 o d A. Negligence and Strict Liabilitg Claims. 00 o d 1. Design defect claims. 00 o d a. What test is used in Iowa to determine whether or not a product is unreasonably dangerous?. ZD O 00 b. Does Comment i of § 402A of the Restatement (Second) of Torts bar Mr. Wright’s design defect claims? . 05 O 00 c. The “common knowledge” doctrine . O 1-1 00 d. Is the risk of addiction a “lesser included risk” of the risks of smoking?. e. Will the court take judicial notice that the risks of smoking are “common knowledge?” LQ i — l 00 2. Failure to warn claims. 00 t — 1 00 .819 Express Warranty, Fraudulent Misrepresentation and Fraudulent Nondisclosure Claims. B. .819 1. Does the common knowledge doctrine bar Mr. Wright’s fraudulent misrepresentation and fraudulent nondisclosure claims?. 2. Does the common knowledge doctrine bar Mr. Wright’s express warranty claim?. Federal Preemption . c. CO OO toco coco 1. Does the Labeling Act preempt Mr. Wright’s post-1969 fraudulent nondisclosure and failure to warn claims? . OO to cn a. Fraudulent nondisclosure claim. OO to ctt b. Failure to warn claim. OO to o Manufacturing defect claim. D. OO CO Claim for Breach of Implied or Express Warranties. E. OO to oo 1. Implied warranty of merchantability. OO to co 2. Express warranty claim. OO to oo 3. Does Mr. Wright’s failure to notify defendants of the alleged breach of warranty preclude his warranty claims?. Claim for Breach of Special Assumed Duty.. Fraud Claims. F. G. X» OO OO iO CO to íooo 1. Mr. Wright’s ñ'audulent misrepresentation claim.833 2. Mr. Wright’s fraudulent nondisclosure claims .834 Civil Conspiracy Claim and Loss of Consortium Claim.835 H. 1. Mr. Wright’s civil conspiracy claim.836 2. Mrs. Wright’s loss of consortium claim.838 TV. CONCLUSION. .838 Over 23 centuries ago, Aristotle wrote: “Thus every action must be due to one or other of seven causes: chance, nature, compulsion, habit, reasoning, anger, or appetite.” ARISTOTLE’S RHETORIC, Bk. I, ch. 10. The ultimate resolution of the rising tide of tobacco litigation may some day prove the wisdom of Aristotle’s observation. However, this Motion to Dismiss presents initial vexing legal questions that must be resolved by interpreting more mundane issues of Iowa law on the lengthy journey to that final resolution. I. INTRODUCTION On October 29, 1999, Robert A. Wright (“Mr. Wright”) and DeeAnn K. Wright (“Mrs. Wright”) filed a petition in state court, alleging that they have been damaged as a result of Mr. Wright’s cigarette smoking. Mr. Wright alleges that he has developed cancer, as well as suffering from other personal injuries, and Mrs. Wright alleges loss of consortium because of Mr. Wright’s alleged injuries. Plaintiffs’ complaint contains the following nine counts: (1) Negligence; (2) Strict Liability; (3) Breach of Implied Warranty; (4) Breach of Express Warranty; (5) Breach of Special Assumed Duty; (6) Fraudulent Misrepresentation; (7) Fraudulent Nondisclosure; (8) Civil Conspiracy; and (9) Loss of Consortium. On November 26, 1999, defendants removed this case to federal court based on diversity jurisdiction. See 28 U.S.C. § 1441. Thereafter, on January 21, 2000, certain defendants, Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brooke Group Ltd., Liggett & Myers, Inc. and Liggett Group Inc., filed a Motion to Dismiss plaintiffs’ complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants assert that all nine of the plaintiffs claims fail as a matter of law because of the following reasons. First, defendants assert that common knowledge of the risks of cigarette smoking bars Mr. Wright’s negligence and strict liability design defect and failure to warn claims (Counts I and II) because cigarettes are not unreasonably dangerous under Iowa law and defendants contend they had no duty to warn Mr. Wright of commonly known risks. Second, defendants assert that Mr. Wright’s express warranty, fraudulent misrepresentation, and fraudulent nondisclosure claims (Counts IV, VI, and VII) are barred because Mr. Wright could not have justifiably relied on any statements or nondisclo-sures of defendants in light of the common knowledge of the risks of cigarette smoking and express warnings on cigarette packages and cigarette advertisements. Third, defendants assert that to the extent that Mr. Wright’s negligence and strict liability failure to warn and fraudulent nondisclosure claims (Counts I, II, and VII) are based on alleged actions or omissions occurring after 1969, they are preempted by the Federal Cigarette Labeling and Advertising Act (the “Labeling Act”). Fourth, defendants assert that Mr. Wright fails to state a claim that there was a negligent manufacturing defect (Count I), and that there was a breach of implied or express warranties (Counts II and IV), or that there was a breach of special assumed duty (Count V). Fifth, defendants assert that Mr. Wright’s fraudulent misrepresentation and fraudulent nondisclosure claims (Counts VI and VII) are not pleaded in accordance with Rule 9(b) of the Federal Rules of Civil Procedure. Sixth, defendants assert that Mr. Wright’s civil conspiracy claim (Count VIII) and Mrs. Wright’s consortium claim (Count IX) fail, because Mr. Wright’s substantive claims fail. On February 3, 2000, plaintiffs filed a stipulated Motion for Extension of Time, which this court granted, allowing plaintiffs to and including March 15, 2000, in which to file their resistance. Plaintiffs complied, filing their resistance on March 15, 2000, and asking this court to deny, in its entirety, defendants’ Motion to Dismiss. Defendants, thereafter, filed a reply, to which the plaintiffs, after seeking permission from this court, filed a surreply. On July 19, 2000, the court heard oral arguments on defendants’ Motion to Dismiss. Plaintiffs were represented by E. Ralph Walker, David J. Darrell and Harley C. Erbe of Walker Law Firm, Des Moines, Iowa. Defendant Philip Morris, Inc., was represented by Robert A. Van-Vooren and Thomas Waterman of Lane & Waterman, Davenport, Iowa, and Timothy E. Congrove and J. Patrick Sullivan of Shook, Hardy & Bacon, L.L.P., Kansas City, Mo. Defendants The Brooke Group, Ltd., Liggett & Myers, Inc., and Liggett Group Inc. were represented by Richard R. Chabot of Sullivan & Ward, P.C., Des Moines, Iowa. Defendant R.J. Reynolds Tobacco Co., was represented by Steven L. Nelson of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, Iowa, and J. Todd Kennard of Jones, Day, Reavis & Pogue, Cleveland, Ohio. II. STANDARDS FOR MOTION TO DISMISS The issue on a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence in support of his or her claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989). In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged in the plaintiffs complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Gross v. Weber, 186 F.3d 1089, 1090 (8th Cir.1999) (“On a motion to dismiss, we review the district court’s decision de novo, accepting all the factual allegations of the complaint as true and construing them in the light most favorable to [the non-mov-ant].”); St. Croix Waterway Ass’n v. Meyer, 178 F.3d 515, 519 (8th Cir.1999) (“We take the well-pleaded allegations in the complaint as true and view the complaint, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff.”); Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir.1999) (same); Midwestern Machinery, Inc., v. Northwest Airlines, 167 F.3d 439, 441 (8th Cir.1999) (same); Duffy v. Landberg, 133 F.3d 1120, 1122 (8th Cir.) (same), cert. denied, 525 U.S. 821, 119 S.Ct. 62, 142 L.Ed.2d 49 (1998). The United States Supreme Court and the Eighth Circuit Court of Appeals have both observed that “a court should grant the motion and dismiss the action only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); accord Conley, 355 U.S. at 45-46, 78 S.Ct. 99 (“A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”). Thus, “[a] motion to dismiss should be granted as a practical matter only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995) (internal quotation marks and ellipses omitted). The court will now turn to defendants’ Motion to Dismiss with these standards in mind. III. LEGAL ANALYSIS A. Negligence and Strict Liability Claims Plaintiffs’ pleading essentially alleges that defendants’ cigarettes were unreasonably dangerous and caused the plaintiff, Mr. Wright, “to become addicted to tobacco products, including but not limited to Defendants’ tobacco products, and to suffer adverse health effects arising from the use of these products,” including cancer of the right tonsil, severe emphysema, chronic obstructive pulmonary disease, and permanent cellular damage. See Plaintiffs’ Complaint ¶ 4.13, ¶ 5.5 and ¶ 6.3. Mr. Wright asserts that the alleged unreasonable dangerousness of defendants’ cigarettes is caused by all three types of defects: design, manufacturing and failure to warn. 1. Design defect claims In adopting strict liability for defective products, codified at § 402A of the Restatement (Second) Torts, the Supreme Court- of Iowa specifically recognized that this theory did not replace claims based on negligence. Lovick v. Wil-Rich, 588 N.W.2d 688, 698 (Iowa 1999) (citing Hawkeye-Security Ins. Co. v. Ford Motor Co., 174 N.W.2d 672, 685 (Iowa 1970)). Indeed, courts in Iowa have consistently recognized a distinction between the two theories. Aller v. Rodgers Mach. Mfg. Co., 268 N.W.2d 830, 835 (Iowa 1978). Strict liability claims focus on the condition of the product, while negligence claims focus on the conduct of the defendant. Id.; Chown v. USM Corp., 297 N.W.2d 218, 220 (Iowa 1980). Under a theory of strict liability, the plaintiff must establish that the product was in a defective condition and unreasonably dangerous to the consumer. Chown, 297 N.W.2d at 220. Under a negligence theory, the plaintiff must establish that the product was unreasonably dangerous because the manufacturer failed to use reasonable care. Ackerman v. American Cyanamid Co., 586 N.W.2d 208, 220 (Iowa 1998) (citing Chown, 297 N.W.2d at 220). However, the Iowa Supreme Court has held that despite the distinctions between the two theories of liability, the “unreasonably dangerous” element of a negligent design claim is the same as the “unreasonably dangerous” element of a strict liability design claim. See id.; accord Hillrichs v. Avco Corp., 478 N.W.2d 70, 75-76 & n. 2 (Iowa 1991) (noting in that case “the strict liability claim depend[s] on virtually the same elements of proof as are required to establish the negligence claim” and making the further observation that “a growing number of courts and commentators have found that, in cases in which the plaintiffs injury is caused by an alleged defect in the design of a product, there is no practical difference between theories of negligence and strict liability”); accord Chown v. USM Corp., 297 N.W.2d 218, 220 (Iowa 1980) (stating that proof of unreasonable danger is an essential element under both theories of negligence and strict liability). In deciding whether the evidence supports a finding that a product was “unreasonably dangerous,” courts in Iowa apply the principles set forth in Comment i of § 402A of the Restatement (Second) of Torts. Ackerman, 586 N.W.2d at 220 (citing Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 916 (Iowa 1990)) (quoting definition of “unreasonably dangerous” from § 402A Comment i, at 352 of Restatement (Second) of Torts (1965)); Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 569-70 (Iowa 1986). Comment i of § 402A, in pertinent part, states: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Restatement (Second) of Torts § 402A cmt. i (1965). Comment i is commonly referred to as the consumer contemplation test. In this case, defendants assert that the Maguire case makes it abundantly clear that, under both negligence and strict liability theories, only the consumer contemplation test is applied in determining whether a product is unreasonably dangerous. Plaintiffs, however, disagree, contending that not only is the consumer contemplation test applied in determining whether a product is unreasonably dangerous, but that the risk-utility test is also applied in determining whether a product is unreasonably dangerous. Thus, while it is clear that Iowa law utilizes the consumer contemplation test to determine if a product is unreasonably dangerous, whether this is the only test used to determine if a product is unreasonably dangerous under Iowa law is not so clear. a. What test is used in Iowa to determine whether or not a product is unreasonably dangerous? In Alter v. Rodgers Mach. Mfg. Co., 268 N.W.2d 830 (Iowa 1978), the Iowa Supreme Court first considered in detail the appropriate standard for a design defect analysis. The plaintiff in Alter alleged that a power saw was defectively designed because it did not have an adequate guard system and could be activated when a person’s hand was too near the blade. Id. at 832. The case went to the jury solely on the theory of strict liability. The jury returned a verdict for the defendant manufacturer and the plaintiff appealed, requesting that the court eliminate the phrase “unreasonably dangerous” from the strict liability test, or at a minimum, change its definition. Id. at 835. In ruling on this appeal, the Supreme Court of Iowa explained how the proper test for the strict liability standard was to be applied. In doing so, however, the Alter court vacillated between the consumer contemplation test and risk-utility test, and significantly failed to indicate which test was proper in determining whether a product is “unreasonably dangerous” under a strict liability claim. The Alter court initially explained that a plaintiff had to establish that the product was more dangerous than a reasonable consumer would have expected. Id. at 884. Thus, this explanation ostensibly adheres to the contemplation test outlined in Comment i of § 402A Restatement (Second) of Torts. Shortly thereafter, however, the Aller court explained that in determining whether the product is dangerous to an unreasonable extent requires a balancing of the product’s risk and utility: Whether the doctrine of negligence or strict liability is being used to impose liability the same process is going on in each instance, i.e., weighing the utility of the article against the risk of its use. Therefore, the same language and concepts of reasonableness are used by courts for the determination of unreasonable danger in product liability cases. Id. at 835. The Aller court stated that “this balancing process is the same as that used in negligence cases.” Id. Thereafter, the Iowa Supreme Court, in Chown v. USM Corp., 297 N.W.2d 218 (Iowa 1980), displayed the same ambivalence concerning which test is used to determine when a product is “unreasonably dangerous.” In that case, the plaintiff claimed the absence of a barrier guard made the machine at issue defective as a matter of both negligence and strict liability. Chown, 297 N.W.2d 218 at 220. The trial court found in favor of the manufacturer, concluding that, as a matter of law, the product at issue was not “unreasonably dangerous” and “defective.” The plaintiff appealed. In affirming the trial court, the Iowa Supreme Court, explicitly referencing the Aller decision, indicated that there are two tests used to determine whether a product is unreasonably dangerous. Id. at 220. The Chown court explained that one test is whether the danger is greater than an ordinary consumer with knowledge of the product’s characteristics would expect it to be; another test is whether the danger outweighs the utility of the product, explaining: In a design case, the risk-utility analysis involves balancing the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, and the adverse consequences to the product and to the consumer that would result from an alternative design. Id. at 220 (internal citation marks omitted). The Chown court, like its predecessor, failed to indicate whether there was a single proper test, and instead applied both tests: “Under this record, we cannot say the trial court was compelled as a matter of law to find the calender [machine] was unreasonably dangerous. The court was not required to find that the defendant in 1900-1904 could reasonably have foreseen that a consumer in 1975 would expect barrier guards to be included in the design.... Furthermore, employing the risk-utility analysis, the court was not compelled to find that the safety device was technologically and practically feasible at the time of the manufacture.” Chown, 297 N.W.2d at 221. Similarly, in Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911 (Iowa 1990), a case that involved a strict liability design defect claim, the Iowa Supreme Court articulated and applied both the consumer contemplation test and the risk-utility test to determine whether the product at issue was unreasonably dangerous. In so holding, the Fell court stated “in line with what we said in Aller,” that the expert’s report generated several fact questions as to whether the elevator, the product at issue, was unreasonably dangerous based on both the consumer contemplation test and the risk-utility test. Fell, 457 N.W.2d 911 at 918. With respect to the consumer contemplation test the Fell court stated “that a normal user would not appreciate the danger posed by the missing gear guard when operating the shifter lever from the ground.” Id. With respect to the risk-utility test the Fell court stated that “a fact question existed whether the risks in using such a product outweighed the utility of the product.” Id. Moreover, in Lovick v. Wil-Rich, 588 N.W.2d 688 (Iowa 1999), the plaintiff instituted a strict liability and negligence action for defective design of a cultivator against the manufacturer. In submitting the design defect claim to the jury, the trial court instructed only on a strict liability theory. The manufacturer appealed the adverse verdict, claiming that the consumer contemplation instruction under the strict liability theory was an unfair standard for manufacturers and that the risk-utility analysis under the negligence theory should have been utilized. On appeal, the Lovick court refused to merge the two theories, instead preserving the distinction between the two theories, namely that strict liability focuses on the condition of the product, while negligence focuses on the conduct of the defendant. Id. at 698-99. However, the Lovick court found no legal error in the trial court’s instruction. Specifically, the Lovick court stated: First, the trial court did not instruct on both negligence and strict liability theories. It only instructed on strict liability. The instruction to the jury included the risk-utility balancing analysis utilized in negligence. Thus, even if strict liability actually applied negligence principles, no prejudice occurred. Id. at 699. The Lovick case follows Aller, Chown, and Fell, in applying both the consumer contemplation test and the risk-utility test in strict liability and negligent design defect claims. Indeed, even though the trial court instructed only on a strict liability claim, the Lovick court found that no error occurred due to the trial court’s failure to submit a separate instruction for negligence because the strict liability instruction included the risk-utility test “utilized in negligence”. Id. This court notes that although the court in Maguire v. Pabst Brewing Co., 387 N.W.2d 565 (Iowa 1986), the case upon which defendants principally rely for their argument, only utilized the consumer contemplation test to determine whether or not the product at issue was “unreasonably dangerous,” this test is only one of two tests that have been utilized by Iowa courts. Certainly, the holding in Maguire did not foreclose the idea of applying two tests, and based on the cases examined above, admittedly not a model of clarity, the court concludes that under Iowa law, both the consumer contemplation test and the risk-utility test are used to determine whether or not a product is “unreasonably dangerous.” This is true for design defect claims brought under a theory of strict liability and a theory of negligence. In the alternative, defendants, in a footnote of their reply brief, argue that the risk-utility test should not be applied to Mr. Wright’s design defect claims because the risk-utility test does not apply to products whose potential risks are well-known such as cigarettes. For this proposition defendants rely on Todd v. Societe Bic, S.A., 21 F.3d 1402, 1409, 1412 (7th Cir.1994) and Filkin v. Brown & Williamson Tobacco Corp., No. 99 C238, 1999 WL 617841, at *1 (N.D.Ill. Aug. 11, 1999). This argument, however, presupposes that the risks asso-dated with smoking dgarettes, induding. addidion, are well-known and that this court will take judicial notice of this fact. Therefore, before determining whether .or not the risk-utility test, in addition to the consumer contemplation test, is applicable here, the court must venture forth to determine whether it will take judicial notice that the risks associated with smoking cigarettes, including addiction, are, in fact, common knowledge. Initially, however, the court will first address defendants’ argument that Comment i of § 402A of the Restatement (Second) of Torts bars Mr. Wright’s design defect claims. b. Does Comment i of § 402A of the Restatement (Second) of Torts bar Mr. Wright’s design defect claims? According to the defendants, because the plain language of Comment i makes it clear that cigarettes are not unreasonably dangerous, Mr. Wright cannot properly state a claim for design defect with respect to the cigarettes he allegedly smoked. Defendants point out that tobacco is explicitly held out as an example of a product that is not unreasonably dangerous in § 402A and Comment i: Many products cannot be made safe for all consumption, and any food or drug necessarily involves some risk of harm ... That is not what is meant by unreasonably dangerous in this section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whisky, containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Restatement (Second) of Torts § 402A, cmt. i (emphasis added). Rased on the plain language of this comment, therefore, defendants argue that because tobacco is not unreasonably dangerous, an essential element under Mr. Wright’s negligence and strict liability design defect claims, such claims fail as a matter of law. Additionally, in their reply brief, defendants argue that the distinction asserted by the plaintiffs between “good tobacco,” as listed in Comment i, and manufactured cigarettes is without merit. This is so, because defendants contend that Comment e of § 402A specifically contemplates § 402A’s application to manufactured products: Normally, the rule stated in this Section will be applied to articles which already have undergone some processing before sale, since there is today little in the way of consumer products which will reach the consumer without such processing. Restatement (Second) of Torts § 402A, cmt. e. Thus, defendants assert that in addition to Comment e, the plain language of Comment i, as well as its historical context and “legislative history,” make it clear.that the framers of § 402A meant to exempt manufactured cigarettes as a definitional example of a non-defective product. Defendants’ Reply Brief at 4. The court rejects this argument. Initially, defendants are correct that Iowa has adopted Comment i of § 402A. However, this court finds that even so, plaintiffs’ claims would not necessarily be barred. Indeed, while not binding on this court, many courts that have addressed this same argument have concluded that, because cigarettes are manufactured products and not raw tobacco, Comment i “does not, as a matter of law, remove all claims of defective tobacco products from the operation of Section 402A.” Burton v. R.J. Reynolds Tobacco Co., 884 F.Supp. 1515, 1522 (D.Kan.1995) (noting that although “good tobacco,” without any additives or foreign substances, may not be unreasonably dangerous, that does not automatically mean that all tobacco-containing products are not unreasonably dangerous); See also Witherspoon v. Philip Morris Inc., 964 F.Supp. 455, 466 (D.D.C.1997) (citing Burton); Tompkins v. R.J. Reynolds Tobacco Co., 92 F.Supp.2d 70, 85 n. 9 (N.D.N.Y.2000) (noting that R.J. Reynolds’ reliance on Comment i of § 402A to show that cigarettes are not unreasonably dangerous when manufactured according to plan is not New York law and therefore unavailing); Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1053 n. 8 (Ind.Ct.App.1990) (noting that because cigarettes are manufactured products and not raw tobacco, Comment i does not, as a matter of law, remove all claims of defective tobacco products from the operation of § 402A). For example, in Hill v. R.J. Reynolds Tobacco Co., 44 F.Supp.2d 837 (W.D.Ky.1999), the district court explained that design defect claims that allege the deliberate addition of harmful substances beyond those naturally occurring in tobacco disqualify cigarettes as “good tobacco” and thus “would allow a finding that they are defective and unreasonably dangerous.” Id. at 852-53. This court points out that no Iowa court has concluded that cigarettes are not an unreasonably dangerous product, as a matter‘of law, based on Comment i of § 402A. The court is mindful that this tobacco case is one of first impression in the State of Iowa, and, thus, to a large extent, is the reason that this part of Comment i dealing with tobacco has never been mentioned in any Iowa case. However, even the majority of cases that have dismissed cigarette product liability claims have done so not based on Comment i, but after a thorough analysis of the specific risks claimed by the respective plaintiff to have caused his or her injury and whether those risks were “common knowledge” during the relevant time period. See Guilbeault v. R.J. Reynolds Tobacco Co., 84 F.Supp.2d 263, 273 (D.R.I.2000) (refusing to blindly apply Comment i to bar plaintiffs claims); Hol-lar v. Philip Morris Inc., 43 F.Supp.2d 794, 806-07 (N.D.Ohio 1998); Paugh v. R.J. Reynolds Tobacco Co., 834 F.Supp. 228, 230-31 (N.D.Ohio 1993). But see Estate of Edward D. White v. R.J. Reynolds Tobacco Co., 2000 WL 1133537, *6 (“The insurmountable obstacle to recovery on plaintiffs’ strict liability claim is comment i to § 402A, known as the consumer expectation test.”). In a similar vein, this court, refuses to dismiss Mr. Wright’s design defect claim solely on the basis of the language contained in Comment i of § 402A of Restatement (Second) of Torts. See Insolia v. Philip Morris Inc., 216 F.3d 596, 603 (7th Cir.2000) (stating that “we explicitly reject the tobacco industry’s invitation to declare that cigarettes are not unreasonably dangerous.”). Thus, defendants’ motion to dismiss Mr. Wright’s strict liability and negligence design defect claims based solely on Comment i § 402A of the Restatement (Second) of Torts is denied. c. The “common knowledge” doctrine In the alternative, defendants argue that even if the plain language of Comment i § 402A of the Restatement (Second) of Torts does not persuade this court that cigarettes are not unreasonably dangerous, the common knowledge doctrine completely defeats Mr. Wright’s design defect claims. The common knowledge doctrine rests upon the premise that a product is not unreasonably dangerous if everyone knows of its inherent dangers. Comment i of § 402A of the Restatement of (Second) of Torts incorporates the common knowledge doctrine. Comment i, which describes the term “unreasonably dangerous,” states: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” Restatement (Second) of Torts § 402A cmt. i (1965). According to defendants, both state and federal courts throughout the country have applied the laws of the states in which they sit and repeatedly dismissed claims brought by cigarette smokers because information regarding the risks of smoking, including addiction, have long been available to, and known by, the public. See e.g. Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir.1988); Filkin v. Brown & Williamson Tobacco Corp., 1999 WL 617841, *1 (N.D.Ill. Aug.11, 1999); Paugh v. R.J. Reynolds Tobacco Co., 834 F.Supp. 228, 230-31 (N.D.Ohio 1993); Gunsalus v. Celotex Corp., 674 F.Supp. 1149, 1158 (E.D.Pa.1987); Tune v. Philip Morris, No. 97-4678-CI, at 6 n. 4 (6th Jud.Cir.Ct., Pinellas County Fla. Feb. 10, 1999). Thus, defendants argue here, that because the health risks of smoking, including the possibility of addiction, are and have been common knowledge in the State of Iowa, as a matter of law, cigarettes cannot be found to be unreasonably dangerous. Whether the common knowledge doctrine defeats plaintiffs’ design defect claims based on both strict liability and negligence, as a matter of law, is a novel question in Iowa. Other courts considering this very issue have reached different results regarding when, if at all, assorted risks, namely general disease-related risks and risks of addiction, associated with smoking became common knowledge. In Guilbeault v. R.J. Reynolds Tobacco Co., 84 F.Supp.2d 263 (D.R.I.2000), the district court noted that the “Northern District of Ohio, applying Ohio law, has been particularly active in dismissing smokers’ claims under Rule 12(b)(6) based on the common knowledge of health risks associated with smoking since at least 1966 and as far back as 1940.” Id. at 270. See e.g. Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 2000 WL 1229061, * 7 (6th Cir. Aug.31, 2000) (affirming district court’s dismissal of plaintiffs wrongful death claims against the defendant tobacco companies pursuant to Fed.R.Civ.P. 12(b)(6) because the common knowledge doctrine barred her claims during the relevant time period when plaintiff began to smoke, 1969, until the time plaintiff ceased to smoke, 1997); Hollar v. Philip Morris Inc., 43 F.Supp.2d 794, 807 (N.D.Ohio 1998) (dismissing two plaintiffs’ product liability claims, who began smoking in 1968 and 1971 respectively, because “[t]he case law is well settled that the health hazards of smoking were within the ordinary citizen’s common knowledge at that time”); Paugh v. R.J. Reynolds Tobacco Co., 834 F.Supp. 228, 230-31 (N.D.Ohio 1993) (dismissing claims of plaintiff who smoked from 1940-1990 because “the dangers posed by tobacco smoking have long been within the ordinary knowledge common to the community”). After observing this fact, the district court in Guilbeault concluded: [AJfter thoroughly reviewing the facts regarding the evolution of the public’s knowledge of smoking-related dangers, the Court is satisfied that it can take judicial notice of the community’s common knowledge of the general disease-related health risks associated with smoking, including the risk of contracting cancer, as of 1964. Guilbeault, 84 F.Supp.2d at 273. Moreover, several courts have granted summary judgment to the. defendant tobacco companies because the risks associated with smoking were common knowledge. See Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir.), cert. denied, 519 U.S. 930, 117 S.Ct. 300, 136 L.Ed.2d 218 (1996) (applying Texas law) (affirming grant of summary judgment to defendant on “lifetime smoker’s” failure to warn claim for failure to comply with statute of limitation, and alternatively under “common knowledge” theory, as “the dangers of cigarette smoking have long been known to the community”) (citing Roysdon and Paugh); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 236 (6th Cir.1988) (applying Tennessee law) (applying common knowledge doctrine to affirm grant of summary judgment to defendant on plaintiffs product liability claims spanning 1974-1984, citing with approval the district court’s observation that “ ‘tobacco has been used for over 400 years.... Knowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge of the community.’ ”); The American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 429-31 (Tex.1997) (applying Texas law) (granting summary judgment to defendant on claims based on failure to warn of health risks of smoking since 1952 because the general ill-effects of smoking were common knowledge at that time). Courts in other jurisdictions, however, have refused to dismiss claims based on the common knowledge doctrine. See Tompkins, 92 F.Supp.2d at 87 (refraining from taking judicial notice that the risks of cigarette smoking have been “open and obvious” to consumers since plaintiff began smoking in 1938 because such an issue involves questions of fact); Hill v. R.J. Reynolds Tobacco Co., 44 F.Supp.2d 837, 844 (W.D.Ky.1999). The district court in Hill observed: [T]he judicial notice inquiry [in this case] would focus on the state of popular consciousness concerning cigarettes before 1969. The Court is simply unwilling to take judicial notice of something as intangible as public knowledge over three decades in the past. The exercise seems inherently speculative and an inappropriate topic for judicial notice. Hill, 44 F.Supp.2d at 844. As demonstrated, these above-mentioned cases focus the common knowledge inquiry on whether the link between cigarette smoking and general health risks was common knowledge during the relevant time period. Other cases that have analyzed the common knowledge inquiry have distinguished between knowing about the general health risks of smoking and knowing about the risk of addiction, or other specific illnesses or injury allegedly caused by defendants’ tobacco products. In this case, defendants contend that the risk of addiction is a “lesser included risk” of the general risks of smoking. d. Is the risk of addiction a “lesser included risk” of the risks of smoking? Several courts have said that whether or not there is a distinction between knowing about the general risks of smoking and knowing about the risk of addiction is a question of fact that should be decided by the jury. See State of Texas v. American Tobacco Co., 14 F.Supp.2d 956, 966 (E.D.Tex.1997) (when facts are viewed in light most favorable to plaintiff, “while the health risks of tobacco consumption are generally known, the addictive nature of tobacco consumption is not generally known due to the concealment and misrepresentation by Defendant”); Castano v. American Tobacco Co., 961 F.Supp. 953, 958 n. 1, 959 (E.D.La.1997); Grinnell, 951 S.W.2d. at 429-31 (refusing to grant summary judgment on failure to warn of the addictive nature of cigarettes because “we cannot simply assume that common knowledge of the general health risks of tobacco use naturally includes common knowledge of tobacco’s addictive quality”); Burton v. R.J. Reynolds Tobacco Co., 884 F.Supp. 1515, 1525-26 (D.Kan.1995). In Burton, the district court refused to find as a matter of law that the dangers of smoking have been common knowledge since the 1950’s. See Burton, 884 F.Supp. at 1526. The Burton court, quoting a state court decision, noted that: “[tjhere is no basis for our judicially noticing what the ordinary consumer’s knowledge concerning the addictive qualities of cigarettes may have been when [plaintiff] began smoking in 1940. The state of knowledge attributable to the community of individuals consuming cigarettes has changed over time and will continue to do so. It was not until 1988 that the Surgeon General published a report informing of the addictive nature of cigarettes.” Id. (quoting Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1054 (Ind.App.1990)). The Seventh Circuit Court of Appeals, in Insolia v. Philip Morris Incorp., 216 F.3d 596 (7th Cir.2000), has taken the holdings reached in these cases one step further by explicitly stating that “there is a considerable difference between knowing that smoking is bad and knowing that smoking is addictive.” Insolia, 216 F.3d at 603. Thus, the Insolia court did not consider whether or not the existence of a distinction between the general risks of smoking and the risk of addiction was a question of fact to be determined by a jury; rather, the Insolia court unequivocally recognized that such a distinction does, in fact, exist. The issue, however, in Insolia, was whether or not the plaintiffs presented sufficient evidence to generate a genuine issue of material fact that the risk of addiction was not commonly known. In Insolia, the plaintiffs appealed the district court’s granting summary judgment on their strict liability claim based on the common knowledge doctrine, arguing that although the typical consumer was aware that smoking was bad, he or she didn’t know back then that smoking was addictive. Id. at 601. The Insolia court affirmed the district court’s decision, stating that the evidence in the record “that the ordinary consumer at the time the plaintiffs began smoking was unaware of smoking’s addictive danger [was] surprisingly thin.” Id. at 603. The Insolia court also emphasized the plaintiffs’ concession that the ordinary consumer at the time in question knew that smoking was habit forming, which the Insolia court concluded was tantamount to plaintiffs conceding that the ordinary consumer at the time in question knew that smoking was addictive. Id. The court rejected plaintiffs attempt to distinguish between a habit that can easily be broken and a physiological addiction that is difficult to stop, stating that whether smoking is habit forming or addictive is a “semantical distinction beyond the grasp of our Average Joe.” Id. Therefore, the Insolia court affirmed the district court’s granting summary judgment to defendant because of plaintiffs’ concession and the “surprisingly thin” amount of evidence plaintiffs presented that tobacco’s addictive nature was generally unknown. Significantly, the Seventh Circuit Court of Appeals in Insolia stated with clarity that its ruling was limited to the facts in the record before it, stating: Based on this particular evidentiary record, no reasonable trier of fact could find for the plaintiffs that the ordinary consumer in 1935 and in the early 1950’s did not appreciate the health risks of smoking. This decision does not foreclose the possibility that other plaintiffs might prevail on a strict liability claim against the tobacco industry. Another record in another case might be different. Another plaintiff might marshal better evidence that the haze of the tobacco companies’ propaganda obscured whatever hazards were known to the average consumer. We explicitly reject the tobacco industry’s invitation to declare that cigarettes are not unreasonably dangerous. Id.; See also Guilbeault, 84 F.Supp.2d 263 at 275 n. 2 (taking judicial notice that the general disease related health risks associated with smoking were part of the common knowledge as of 1964, however, noting in dicta that in the face of a claim that the plaintiff alleged that he was addicted to defendant’s cigarettes, the “common knowledge” analysis might be different). Most recently, moreover, the Sixth Circuit Court of Appeals handed down two decisions that stress the distinction between common knowledge of the general health hazards of smoking versus common knowledge of specific illnesses or injuries allegedly caused by the defendants’ tobacco products. In Tompkin v. American Brands, 219 F.3d 566 (6th Cir.2000), the Sixth Circuit Court of Appeals reversed the district court’s grant of summary judgment in favor of the defendant tobacco companies, holding that whether the dangers of smoking, namely the link between smoking and lung cancer, were common knowledge between 1950 and 1965 presented a question of fact for the jury. Tompkin, 219 F.3d at 572. In reaching this decision, the Tompkin court expressly noted: The pertinent issue here is not whether the public knew that smoking was hazardous to health at some undifferentiated level, but whether it knew of the specific linkages between smoking and lung cancer. Tompkin, 219 at 572. Thus, because the plaintiffs in Tompkin alleged that defendants’ tobacco products caused Mr. Tomp-kin’s lung cancer, the Sixth Circuit Court of Appeals concluded that the common knowledge inquiry must be narrowed to the question of whether the link between cigarette smoking and lung cancer was common knowledge, not merely whether the link between cigarette smoking and general health maladies was common knowledge. The Tompkin court explained its reason for narrowing the inquiry, stating: It is one thing to be aware generally that a product might have an attenuated and theoretical connection with a deadly disease like lung cancer; it is another altogether to comprehend that it is the cause of an overwhelming majority of lung cancer cases. The “common knowledge” requirement is emasculated if a defendant may show merely that the public was aware that a product presented health risks at some vague, unspecified, and undifferentiated level. Tompkin, 219 F.3d at 572. Additionally, in Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343, 2000 WL 1229061 (6th Cir. Aug.31, 2000), the Sixth Circuit Court of Appeals reiterated with approval the analysis employed in Tomp-kin, namely narrowing the question regarding common knowledge. Glassner, 223 F.3d 343, 351. In Glassner, however, the Sixth Circuit Court of Appeals affirmed the district court’s dismissal of plaintiffs wrongful death action against the defendant tobacco companies for failure to state a claim upon which relief might be granted pursuant to Fed.R.CivP. 12(b)(6). The difference being that the plaintiff in Glassner failed to allege any specific illness or injury caused by defendants’ tobacco products, whereas the plaintiff in Tompkin alleged that the defendants’ tobacco products caused his lung cancer. Indeed, the plaintiff in Glassner merely alleged that smoking cigarettes is hazardous to one’s health and that his wife, the decedent, was harmed as a result of smoking. In so doing, the Glassner court limited its common knowledge inquiry to the question of whether the link between cigarette smoking and general health risks was common knowledge during the relevant time period. As a result, the Glass-ner court found that, indeed, there existed widespread public awareness of the health risks associated with smoking, which the Glassner court imputed to the decedent, thereby presuming that she was aware and assumed those risks. In this case, defendants argue that this court should not recognize this distinction, because defendants assert that the risk of addiction is a “lesser included risk” of the risks of smoking. Defendants attempt to marshal case-law in support of their claim that the risks of smoking, and the “lessor included risk” of addiction, have been common knowledge. See e.g. Allgood, 80 F.3d at 172; Sanchez, 187 F.3d at 490; Arnold v. R.J. Reynolds Tobacco Co., 956 F.Supp. 110, 115 n. 8 (D.R.I.1997); Lonkowski v. R.J. Reynolds Tobacco Co., 1996 WL 888182 (W.D.La.1996) Despite defendants’ protestations, these cases, as will be discussed, do not hold for such a sweeping proposition. Defendants correctly state that the Fifth Circuit Court of Appeals in Allgood affirmed the trial court’s dismissal of product liability claims brought by a deceased smoker’s spouse. Defendants assert that by explaining that “like the dangers of alcohol consumption, the dangers of cigarette smoking have long been known to the community” with knowledge that the plaintiff claimed that her husband started smoking as early as 1936 and “was so addicted that no amount of warning could induce him to quit,” Id. at 172, the Allgood court implicitly refused to distinguish between the risk of addiction and the risks of smoking. In so doing, defendants, by way of inference, contend that the Allgood court held that the risk of addiction was subsumed within the risks of smoking when it concluded that “the dangers of cigarette smoking have long been known to the community.” Id. at 172. This court, however, points out that the Allgood court did not inquire into the extent of knowledge regarding the link between smoking and addiction, nor did it specify the nature of the risk the public allegedly knew. It merely made a bald finding that people believe that smoking has health hazards. Indeed, this court concludes that, such a bare finding is an insufficient predicate for concluding as a matter of law that the nexus between cigarette smoking and addiction was common knowledge. Furthermore, because the Fifth Circuit Court of Appeals in AUgood did not expressly hold that the risk of addiction was subsumed within the risks of smoking, the Allgood court did not pass on whether or not such a distinction existed. See Castano v. The American Tobacco Co., 961 F.Supp. 953, 958 n. 7 (E.D.La.1997) (stating that the Allgood opinion does not hold that nicotine’s alleged addictiveness or the defendants’ alleged concealment and manipulation was within the “common knowledge”). In Sanchez v. Liggett & Myers, Inc., 187 F.3d 486 (5th Cir.1999), the Fifth Circuit Court of Appeals did refuse to make such a distinction and determination between “common knowledge as to general health dangers” and “common knowledge as to the specific danger of addiction from smoking.” Sanchez, 187 F.3d 486 at 490. The reason for the Court’s refusal, however, was based upon a state statute. Indeed, the Sanchez court concluded that the plain language of the state statute and its legislative history established that the Texas legislature did not intend to distinguish between general health dangers and the addictive dangers of smoking when assessing “common knowledge.” Id. at 490. Based on the foregoing authority, this court concludes that there is a considerable difference between knowing that smoking is bad and knowing that smoking is addictive. See Insolia, 216 F.3d at 603. Therefore, this court rejects defendants’ argument, and concludes that the risk of addiction is not, as defendants assert, “a lesser included risk,” of the risks of smoking. e. Will the court take judicial notice that the risks of smoking are “common knowledge?” Defendants assert that both the Eighth Circuit Court of Appeals and the Iowa Supreme Court recognize that judicial notice can be taken of commonly known facts. Defendants ask that this court take judicial notice that the health risks of smoking, including addiction, are commonly known in Iowa. Defendants assert that many courts in other jurisdictions, cited above, have taken judicial notice of the fact that the health risks of smoking, including addiction, are common knowledge. Plaintiffs, however, argue that taking judicial notice that the health hazards of smoking were common knowledge in the Northern District of Iowa since the 1950’s through the present is improper because there exists considerable dispute devoted to the issues of what information was known among the scientists during this period, what information was known to the tobacco companies, what public statements and actions were being undertaken by the tobacco companies through this period to create false controversy as to those issues, and what the public actually knew or understood during this time. Also, plaintiffs stress that it is improper for this court to take judicial notice of a fact merely because a different court took judicial notice of that same fact. Pursuant to Rule 201 of the Federal Rules of Evidence, a federal court may take judicial notice of an adjudicative fact that is both “not subject to reasonable dispute” and either: (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. 201(b); See Qualley v. Clo-Tex Int’l, Inc., 212 F.3d 1123, 1128 (8th Cir.2000) (stating that Rule 201 governs only the judicial notice of “adjudicative facts.” Fed.R.Evid. 201(a)); see also Fed. R.Evid. 201(b) Advisory Committee’s Note (“With respect to judicial notice of adjudicative facts, the tradition has been one of caution in requiring that the matter be beyond reasonable controversy;” “A high degree of indisputability is an essential prerequisite.”); General Electric Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1081 (7th Cir.1997) (“In order for a fact to be judicially noticed, indisputability is a prerequisite.”) (citation omitted). Because the effect of judicial notice is to deprive a party of the opportunity to use rebuttal evidence, cross-examination, and argument to attack contrary evidence, caution must be used in determining that a fact is beyond controversy under Rule 201(b). See Fed.R.Evid. 201(b) Advisory Committee Notes; International Star Class Yacht Ass’n v. Tommy Hilfiger USA Inc., 146 F.3d 66, 70 (2d Cir.1998) (noting that “[c]are must be taken that the requisite notoriety exists [and][e]very reasonable doubt upon the subject should be resolved promptly in the negative”) (quoting Brown v. Piper, 91 U.S. 37, 43, 23 L.Ed. 200 (1875)). This court is familiar with Rule 201 of the Federal Rules of Civil Procedure and its application, having taken judicial notice of various adjudicative facts. See Laird v. Stilwill, 969 F.Supp. 1167, 1175 (N.D.Iowa 1997) (taking judicial notice of the five-step process both parties advanced in their memorandums to provide the background necessary to adequately explain the issues at hand to the uninitiated reader); Commercial Savings Bank v. Commercial Federal Bank, 939 F.Supp. 674, 677 (N.D.Iowa 1996) (taking judicial notice of the fact that the cities of Carroll, Dedham, and Lanes-borro are all located in Carroll County, Iowa); Curtis 1000, Inc. v. Youngblade, 878 F.Supp. 1224, 1238 (N.D.Iowa 1995) (taking judicial notice of the fact that, at the time Youngblade entered into the Agreement with Curtis 1000, the property on which Gateway 2000 is now located was outside the corporate limits of the town of North Sioux City, South Dakota). In this case, however, the court will refrain from taking judicial notice that the risks of cigarette smoking have been common knowledge to consumers since Mr. Wright began smoking in 1954. Additionally, because this court agrees,with the Seventh Circuit Court of Appeals in Inso- lia that “there is a considerable difference between knowing that smoking is bad and knowing that smoking is addictive,” Inso-lia, 216 F.3d at 603, this court will likewise refrain from taking judicial notice that the risk of addiction has been common knowledge to consumers since Mr. Wright began smoking in 1964. These issues involve questions of fact. To extend the doctrine of judicial notice to the length pressed by the defendants would allow defendants to do through argument to this court what it is required by due process to do at the trial. Such an extension would turn the doctrine of judicial notice into a pretext for dispensing with a trial. Ohio Bell Telephone Co. v. Public Utilities Comm., 301 U.S. 292, 302, 57 S.Ct. 724, 81 L.Ed. 1093 (1937) (“To extend the doctrine of judicial notice to the length pressed by the respondent would require us to allow the prosecution to do through argument to this Court what it is required by due process to do at the trial, and would be to turn the doctrine into a pretext for dispensing with a trial.”). Although the court is cognizant that courts in different jurisdictions have taken judicial notice that the risks of smoking, sometimes including the risk of addiction, are common knowledge, this court cannot take judicial notice of the findings of other courts. See Holloway v. A.L. Lockhart, 813 F.2d 874, 878-79 (8th Cir.1987) (holding district court could not take judicial notice of finding of another court that use of tear gas was reasonable and necessary). Also, the simple fact that courts disagree about whether or not to take judicial notice of this fact further illustrates to this court that this fact is subject to considerable dispute, such that taking judicial notice of it would be improper. Moreover, taking judicial notice of the fact that the risks of smoking, including addiction, are common knowledge based in large part on journals, periodicals and the like, has none of the indicia of trustworthiness found in a public record or a well-established treatise. General Electric Corp., 128 F.3d at 1084 (stating that Gray’s anatomy is an example of a well-established treatise); Carley v. Wheeled Coach, 991 F.2d 1117, 1126 (3rd Cir.1993) (refusing to take notice of government test on vehicle rollovers because results are not “readily provable through a source whose accuracy cannot be reasonably questioned”); Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 517 (11th Cir.1991) (holding that a statement of fact that appears in a daily newspaper does not of itself establish that the stated fact is “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”) (citing Fed. R.Evid. 201(b)(2)). As this is a motion to dismiss, the court must assume that all the facts alleged in Mr. Wright’s complaint are true, and must liberally construe those allegations in the light most favorable to Mr. Wright. See St. Croix, 178 F.3d at 519 (‘We take the well-pleaded allegations in the complaint as true and view the complaint, and all reasonable inferences arising therefrom, in the light most favorable to the plaintiff.”); Gordon, 168 F.3d at 1113 (same); Midwestern Machinery, Inc., 167 F.3d at 441 (same). Mr. Wright alleges that he did not, in the exercise of ordinary diligence, know of the likelihood of, or the severity of, the risks from defendants’ tobacco products, including the risk of addiction. Among other things, Mr. Wright alleges in his design defect claim based on negligence that defendants failed to test, to test adequately, or conduct scientific research on their tobacco products for harmful or addictive properties; failed to establish a reasonably safe dose for foreseeable users; failed to design a product that when used as intended was reasonably safe for foreseeable users; failed to make such feasible improvements in design and composition of their tobacco products such as to materially decrease the foreseeable risk to users; and in designing “light” cigarettes in such a way that they generate lower tar and nicotine ratings on standard machine smoking tests than regular cigarettes while typically they do not actually deliver less tar or nicotine as actually smoked by most cigarette smokers. Mr. Wright also alleges that defendants controlled and manipulated the amount of nicotine in cigarettes for the purpose and with the intent of creating and sustaining addiction. Furthermore, in his design defect claim based on strict liability, Mr. Wright alleges, among other things, that the tobacco products were addictive, habituating, habit-forming, and once used caused physical and psychological dependence; the tobacco products failed to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the consumer; that the risk of danger from the design of defendants’ tobacco products outweighed the benefits obtained with the use of the products; that the defendants’ tobacco products were insufficient in reducing tar and other carcinogens by removal, dilution and filtration; that defendants’ tobacco products excessively delivered nicotine; and that defendants controlled and manipulated the amount of nicotine in cigarettes for the purpose and with the intent of creating and sustaining addiction. All of these allegations are at war with the claim that consumers knew they were buying a dangerous product. Without factual development, the court cannot conclude that dismissal based on the common knowledge doctrine is appropriate. Therefore, the court denies defendants’ motion to dismiss plaintiffs’ strict liability and negligent design defect claims based on the common knowledge doctrine. In so doing, plaintiffs’ Objection to and Motion to Strike Defendants’ Exhibits and Alternative Motion for Leave to File Response and Supplemental Exhibits (# 62) is denied as moot. Furthermore, this court noted that defendants’ previous argument — that the risk-utility test is not applicable to Mr. Wright’s design defect claims because the test does not apply to products whose potential risks are well-known such as cigarettes — presupposed that this court would take judicial notice that the risks associated with smoking, including addiction, are common knowledge. Because this court will refrain from taking judicial notice that the risks associated with smoking, including addiction, are common knowledge at this preliminary motion to dismiss stage, application of the risk-utility test, in addition to the consumer contemplation test, to Mr. Wright’s negligent and strict liability design defect claims is appropriate. 2. Failure to warn claims In Olson v. Prosoco, Inc., 522 N.W.2d 284 (Iowa 1994), the Iowa Supreme Court stated that any distinction between strict liability and negligence principles on a failure to warn claim are illusory. Id. at 288. Thus, under Iowa law, Mr. Wright’s strict liability failure to warn claim merges into his negligent failure to warn claim. Id. at 289. In determining whether a manufacturer owes a duty to warn, Iowa courts apply the principles of the Restatement (Second) of Torts § 388. See West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 209 (Iowa 1972). Section 388 provides: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and b