Barnes v. American Tobacco Co., Inc.

• Decision Date: 10 October 1997
• Docket Number: No. CIV.A. 96-5903.,CIV.A. 96-5903.
• Citation: 989 F.Supp. 661
• Parties: William BARNES, et al. v. THE AMERICAN TOBACCO COMPANY, INC., et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

989 F.Supp. 661

William BARNES, et al. v. THE AMERICAN TOBACCO COMPANY, INC., et al.

No. CIV.A. 96-5903.

United States District Court, E.D. Pennsylvania.

October 10, 1997.

Stephen A. Sheller, Sherrice A. Knisely, Sheller, Ludwig & Badey, Philadelphia, PA, Thomas E. Mellon, Jr., Mellon, Webster & Mellon, Doylestown, PA, Arnold Levin, Jonathan Shub, Levin, Fishbein, Sedran & Berman, Philadelphia, PA, Julia W. McInery, Coalie and Van Sustern, Washington, DC, Gary Robert Fine, Rodham and Fine, P.A., Fort Lauderdale, FL, Dianne M. Nast, Mary Ann M. Cooke, Roda and Nast, P.C., Lancaster, PA, Clifford E. Douglas, Evanston, IL, for Plaintiffs.

Edward F. Mannino, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, PA, Peter S. Greenberg, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for Defendant American Tobacco Co.

Hugh R. Witing, Jones, Day, Reavis & Pogue, Cleveland, OH, Gerhard P. Dietich, Morton F. Daller, Tracy Canuso Nugent, Daller Greenberg & Dietrich, Fort Washington, PA, for R.J. Reynolds Tobacco Co.

Morton F. Daller, Tracy Canuso Nugent, Daller Greenberg & Dietrich, Fort Washington, PA, for RJR Nabisco, Inc.

Edward F. Mannino, James Lewis Griffith, Virginia Lynn Hogben, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, PA, Gerhard P. Dietrich, Daller, Greenberg & Dietrich, Fort Washington, PA, for Brown & Williamson Tobacco Corp.

Judy L. Leone, Dechert, Price & Rhoads, Philadelphia, PA, Thomas Finarelli, Lavin, Coleman, O'Neil, Ricci, Finarelli & Gray, Philadelphia, PA, for B.A.T. Industries P.L.C.

Judy L. Leone, Robert C. Heim, Christine C. Levin, Ronni Ellen Fuchs, Dechert, Price & Rhoads, Philadelphia, PA, for Philip Morris, Inc., Phillip Morris Companies, Inc.

Howard M. Klein, William J. O'Brien, Conrad, O'Brien, Gellman & Rohn, P.C., Philadelphia, PA, Edward A. Greenberg, Gerhard P. Dietrich, Daller Greenberg & Dietrich, Fort Washington, PA, for Lorillard Tobacco Co., Inc., Lorillard, Inc.

Judy L. Leone, Dechert Price & Rhoads, Philadelphia, PA, Madeline M. Sherry, Stephen J. Imbriglia, Heckler, Brown, Sherry and Johnson, Philadelphia, PA, for U.S. Tobacco Co., UST, Inc.

Howard M. Klein, William J. O'Brien, Conrad, O'Brien, Gellman & Rohn, P.C., Philadelphia, PA, for The Tobacco Institute, Inc.

Joseph M. Fuller, Jr., Patrick W. Kittredge, Gary M. Marek, Kittredge, Conley, Elson, Fullem & Embick, Philadelphia, PA, for Council for Tobacco Research-U.S.A., Inc.

Mark E. Squires, J. Kurt Straub, Abrahams, Lowenstein, Bushman & Kauffman, Philadelphia, PA, for Liggett Group, Inc., Liggett & Myers, Inc., Brooke Group, Ltd.

Matthew L. Myers, Nat. Ctr. for Tobacco Free Kids, Washington, DC, for American Heart Ass'n, American Cancer Soc., American Lung Ass'n.

MEMORANDUM

NEWCOMER, District Judge.

Presently before this Court are Defendants' Motion to Enforce Jury Demand, and plaintiffs' response thereto, and defendants' reply thereto. For the following reasons, this Court will grant defendants' Motion.

I. Introduction

Plaintiffs,¹ proceeding as the named representatives of a class of approximately one to two million Pennsylvania residents who smoke cigarettes,² have filed suit against defendants,³ seeking the establishment of a medical monitoring fund. In their Second Amended Complaint, the plaintiffs have only asserted one claim against defendants — a claim for medical monitoring. Plaintiffs have requested a jury trial in their complaint. The defendants have likewise filed demands for a jury trial. Despite their demand for a jury trial, plaintiffs contend that this case should be tried to the Court because their medical monitoring claim is an equitable, injunctive claim.

In response to plaintiffs' request to have this case tried to the Court, the defendants have filed a motion to enforce their demands for a jury trial. In general, defendants argue that they are entitled to a trial by jury because (1) the injury for which plaintiffs seek relief — alleged increased risk of latent diseases — is one for which an adequate remedy at law exists and (2) the remedy that plaintiffs seek is money. Plaintiffs rejoin that defendants have no right, nor do they, to a jury trial because they assert an equitable claim and request equitable relief.

II. Discussion

The Seventh Amendment to the United States Constitution provides that "[i]n Suits at common law, where the value exceeds twenty dollars, the right of trial by jury shall be preserved." U.S. Const. Amend. VII. The phrase "Suits at common law" refers to "`suits in which legal rights [are] to be ascertained and determined, in contradistinction to those where equitable rights alone [are] recognized, and equitable remedies [are] administered.'" Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564, 110 S.Ct. 1339, 1344, 108 L.Ed.2d 519 (1990) (quoting Parsons v. Bedford, 28 U.S.(3 Pet.) 433, 447, 7 L.Ed. 732 (1830)). Since the merger of law and equity under the Federal Rules of Civil Procedure, see Fed.R.Civ.P. 2, the Supreme Court of the United States has carefully preserved the right to trial by jury where legal rights are at stake. Indeed, the Supreme Court noted, in Beacon Theatres, Inc. v. Westover, that "`[m]aintenance of the jury as a fact finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.'" 359 U.S. 500, 501, 79 S.Ct. 948, 951, 3 L.Ed.2d 988 (1959) (quoting Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935)).

"To determine whether a particular action will resolve legal rights, [the Court must] examine both the nature of the issues involved and the remedy sought." Terry, 494 U.S. at 565, 110 S.Ct. at 1344. "`First, [the Court must compare] the [ ] action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, [the Court must also] examine the remedy sought and determine whether it is legal or equitable in nature.'" Id. (quoting Tull v. United States, 481 U.S. 412, 417-18, 107 S.Ct. 1831, 1835, 95 L.Ed.2d 365 (1987)). The Supreme Court has explained that the "second inquiry is the more important [prong] of [a court's] analysis." Id. (citation omitted).

In applying the first part of the test, the Terry Court has stated that "`[t]he Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.'" Id. 494 U.S. at 569, 110 S.Ct. at 1347 (quoting Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970)). There is no dispute that a cause of action for medical monitoring did not exist in 1791; admittedly, the Third Circuit only predicted that the Pennsylvania Supreme Court would recognize this cause of action in 1990, In re Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3d Cir.1990) (Paoli I), and the Pennsylvania Supreme Court did not officially recognize medical monitoring as a viable cause of action until 1996. Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).⁴ In the absence of an 18th-century medical monitoring claim, this Court is instructed to "look for an analogous cause of action that existed in the 18th century to determine whether the nature of [a medical monitoring claim] is legal or equitable." Terry, 494 U.S. at 566, 110 S.Ct. at 1345.

Upon careful consideration of the possible analogous suits, the Court concludes, in agreement with defendants, that the most analogous cause of action is a negligence action for future medical expenses. As explained by the Pennsylvania Supreme Court, the basis for a medical monitoring claim is negligence⁵ on the part of the defendant in exposing the plaintiff to a hazardous substance. Redland, 548 Pa. 178, 696 A.2d 137. A negligence-based claim for future medical expenses was an action at law for personal injury in the 18th century, and today, a negligence-based claim for future medical expenses is also an action at law. Based on this observation, it clearly would not be inappropriate for this Court to conclude that plaintiffs' medical monitoring claim, which is extremely similar to a negligence-based claim for future medical expenses, raises primarily legal issues. Although this reasoning is facially appealing, the Court must explore the issues that are raised in a suit for medical monitoring more deeply in order to properly dispose of the instant issue before the bar.

Defendants are not wrong to argue that the modern common law claim of medical monitoring closely resembles a negligence-based claim for future medical expense. In order to prove your entitlement to medical monitoring, the Supreme Court of Pennsylvania requires plaintiffs to demonstrate that they were exposed to hazardous substances due to the defendants' negligence. Thus, the underlying theory of liability for a medical monitoring claim is the legal claim of negligence. Plaintiffs do not refute that negligence is an underlying theory of liability for a medical monitoring claim; indeed, they argue that strict products liability and intentional exposure to a hazardous substance can also act as theories of liability for medical monitoring — two theories of liability which implicate legal rights.

Applying the Supreme Court's Terry analysis, it would appear that the "nature of the issue" to be tried under a medical monitoring claim is legal as opposed to equitable. As noted above, the possible underlying theories of liability for a medical monitoring claim are legal. Because these theories of liability are legal, it appears that the attendant affirmative defenses would also be legal; for example, a defendant sued in negligence can raise the defense of contributory or comparative negligence. Moreover, the injury that a person claims under a medical monitoring cause of action is "the cost of the medical care that will, one hopes, detect that injury." Redland, 696 A.2d at 144 (quoting Paoli I, 916 F.2d...