Brown v. R.J. Reynolds Tobacco Co.

• Docket Number: C. A. 4:22-2938-JD-KDW
• Decision Date: 11 July 2023
• Parties: Rickey Nathaniel Brown a/k/a Ricky Brown, Plaintiff, v. R.J. Reynolds Tobacco Company, Inc.; Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; and Phillip Morris, USA., Inc., Defendants.
• Court: U.S. District Court — District of South Carolina

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Rickey Nathaniel Brown a/k/a Ricky Brown, Plaintiff,
v.
R.J. Reynolds Tobacco Company, Inc.; Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; and Phillip Morris, USA., Inc., Defendants.

C. A. No. 4:22-2938-JD-KDW

United States District Court, D. South Carolina

July 11, 2023

REPORT AND RECOMMENDATION

Kaymani D. West, United States Magistrate Judge.

Rickey Nathaniel Brown, Plaintiff, is a state prisoner proceeding pro se and in forma pauperis. He brings this action seeking damages against Defendants. Plaintiff is presently incarcerated by the South Carolina Departments of Corrections at Broad River Correctional Institution. Plaintiff alleges Defendants have committed wire, radio, and television communication fraud, as well as acted in violation of several other state statutes. On October 17, 2022, Defendants Phillip Morris USA, Inc., and Defendant R. J. Reynolds Tobacco Company, Inc., on behalf of itself and its successors-Defendants Brown & Williamson Tobacco Corporation and Lorillard Tobacco Company filed a Motion to Dismiss Plaintiff's Complaint. ECF No. 22. Plaintiff filed his Response on December 16, 2022. ECF No. 33.^[1] Defendants filed a reply on January 3, 2023. ECF

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No. 34. Plaintiff then filed a sur reply on January 24, 2023. ECF No. 35.^[2] This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2)(d) and (e), D.S.C. Because this Motion is dispositive, a Report and Recommendation (“R&R”) is entered for the court's review.

I. Factual Background

Plaintiff brings this lawsuit against Defendants, alleging they are liable for damages flowing from Plaintiff's smoking habit that began in 1973 when he was twelve years old and continued through 2003. Plaintiff's Complaint is similar to several other pro se lawsuits filed in the past year by inmates currently incarcerated at the Broad River Correctional Institution. See ECF No. 22-1 at 1, n. 1. Indeed, while Plaintiff alleges some facts that are specific to him personally, much of the approximately 65-page Complaint is a recitation of a timeline of purported advertisements, television commercials, and other media appearances by Defendants seeking to induce the American public into smoking their tobacco products. Additionally, much like many of the other Complaints, Plaintiff makes nearly identical accusations regarding the means and methods by which Defendants attempted to conceal the true harmful nature of tobacco products

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from the American public beginning in 1950. See ECF No. 1 at 15-16.^[3]

According to the allegations in Plaintiff's Complaint, Plaintiff alleges that from 1973 through 2003, including while he was incarcerated, he smoked Winston cigarettes. ECF No. 1 at 8. Plaintiff alleges he smoked Kool menthol filtered light cigarettes from 1973 to 2003. Id. Plaintiff alleges he smoked Newport menthol cigarettes from 1973 through 2003. Id. Plaintiff alleges he smoked Marlboro menthol filtered cigarettes from 1973 through 2003. Id. Plaintiff alleges that Defendants knowingly manufactured, designed, promoted, marketed, advertised and sold its cigarettes to Plaintiff, and he subsequently became addicted to smoking. Id. at 9-13. Plaintiff alleges that Defendants “foreseeably knew” and were aware that their tobacco products contained “hazardous compound substances” or “carcinogenic constituents” that were harmful to people's health, but they did not provide any warnings or notices but instead represented that their products were safe. Id. at 13.

Within his Complaint, Plaintiff outlines the history of Defendants' advertisements and statements made to the American public regarding its tobacco products. Id. at 18-28. Plaintiff alleges Defendants published or advertised via newspapers, magazines, and television, that its tobacco products did not have any adverse health effects. Id. The last known date Plaintiff alleges and Defendants made these statements was May 2002-2004, wherein Defendant R.J. Reynolds Tobacco Company, Inc. allegedly made statements in several magazines and publications that nicotine was not added to cigarettes, and that it disagreed with smoking being addictive. Id. at 21.

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Similarly, Plaintiff alleges on May 9 or 10, 2004 that Defendants issued an advertisement for Kool brand cigarettes.^[4] Plaintiff alleges that over the years he read, observed, and detrimentally relied upon these advertisements and statements by continuing to purchase and smoke cigarettes. ECF No. 1. at 19. Plaintiff further alleges that Defendants gave him a “false sense of security of hope and assurance” that quitting smoking would not “resolve the issue.” ECF No. 1 at 34. The undersigned reads the Complaint as a whole to assume Plaintiff is referring to health issues generally. Plaintiff alleges that “based upon recently discovered information and belief” he learned on April 28, 2022 that Defendants concealed to the American public, including Plaintiff, the harmful nature of its tobacco products. ECF No. 1 at 15, 31. Plaintiff alleges he suffered injuries including chronic coughing, wheezing, shortness of breath, respiratory infections, hay fever, allergies, loss of enjoyment of life, anxiety, throat irritations, high blood pressure, frustration, and alteration of lifestyle. Id. at 29.

Plaintiff brings several causes of actions against Defendants, including intentional fraud; intentional fraudulent misrepresentation; intentional fraudulent inducement; intentional fraudulent concealment; intentional tort of battery; negligent failure to warn; civil conspiracy to commit fraud; negligence; gross negligence; strict product liability; breach of express warranty; tort of fear of contracting cancer. ECF No. 1 at 4. Within Plaintiff's Complaint, he tackles head on the issue of the statute of limitations on some of his alleged claims by arguing that this court should invoke the doctrine of equitable estoppel. Plaintiff alleges that due to Defendants' purposeful concealment of information to the American public, Plaintiff only recently discovered the harmful nature of cigarettes. Id. at 15, 31.

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II. Standard of Review

Defendants filed this Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Within the Motion, Defendants also cite to Federal Rule of Civil Procedure 9(b), which provides a heightened pleading requirement for allegations of fraud.^[5] “A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Fed.R.Civ.P. 12(b)(6).

The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .

550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at 556)); see also Tobey v. Jones, No. 11-2230, 2013 WL 286226, at *3 (4th Cir. Jan. 25, 2013) (affirming district court's denial of Rule 12(b)(6) motion, noting that Twombly reiterated that a plaintiff “was not required to state [] precise magical words” to plausibly

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plead claim). When ruling on a motion to dismiss, the court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)).

Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Pro se complaints are to be construed liberally. King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). While the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v....