Burton v. RJ Reynolds Tobacco Co.

• Decision Date: 10 March 1995
• Docket Number: No. 94-2202-JWL.,94-2202-JWL.
• Citation: 884 F. Supp. 1515
• Parties: David BURTON and Ora Burton, Plaintiffs, v. R.J. REYNOLDS TOBACCO CO. and The American Tobacco Company, Defendants.
• Court: U.S. District Court — District of Kansas

884 F. Supp. 1515

David BURTON and Ora Burton, Plaintiffs, v. R.J. REYNOLDS TOBACCO CO. and The American Tobacco Company, Defendants.

No. 94-2202-JWL.

United States District Court, D. Kansas.

March 10, 1995.

COPYRIGHT MATERIAL OMITTED

Kenneth B. McClain, Gregory Leyh, Humphrey, Farrington & McClain, Independence, MO, for David Burton, Ora Burton.

Roger D. Stanton, Stinson, Mag & Fizzell, Overland Park, KS, Stanley D. Davis, John C. Noonan, Teresa L. Clark, Stinson, Mag & Fizzell, Kansas City, MO, Sydney Bosworth McDole, William E. Marple, Jones, Day, Reavis & Pogue, Dallas, TX for R.J. Reynolds Tobacco Co.

Roger W. Warren, James D. Griffin, James M. Warden, Blackwell, Sanders, Matheny, Weary & Lombardi, Overland Park, KS, Bruce G. Sheffler, James Mirro, Chadbourne & Parke, New York City, for The American Tobacco Co.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

Plaintiffs David Burton and Ora Burton filed this lawsuit on May 25, 1994, and later filed an amended complaint against defendants R.J. Reynolds Tobacco Company and The American Tobacco Company. Plaintiff¹ alleges numerous claims, including fraud and misrepresentation, negligence, strict liability, breach of express warranty, conspiracy and violation of consumer protection statutes.

The matter is currently before the court on two motions filed by the defendants. The first of these is defendants' joint motion to dismiss and for judgment on the pleadings (Docs. # 52-1 and 52-2). In their joint motion to dismiss, the defendants argue that, pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Procedure, the court should dismiss Counts 1-5 and 7-11 with prejudice because they are deficient as a matter of law. The defendants advance a number of theories, chief among these that a majority of plaintiff's claims are pre-empted by the Federal Cigarette Labeling and Advertising Act and that plaintiff's strict liability claims fail to state a claim under the Restatement (Second) of Torts Section 402A. The defendants also contend that Kansas has not adopted "medical monitoring" as a separate tort claim and that, in any event, the doctrine is not applicable to Mr. Burton because his injury has already manifested itself. Finally, the defendants contend that plaintiff's pre-July 1, 1991 Kansas Consumer Protection Act claims fail because, prior to that time, the Act excluded claims for personal injury.

For the reasons set forth below, the court finds that defendants' joint motion to dismiss and for judgment on the pleadings should be granted in part and denied in part. The motion is granted on plaintiff's failure to warn claims contained in Counts 2, 3 and 4 to the extent those claims require a showing that the defendants' post-1969 advertising or promotions should have included additional, or more clearly stated, warnings. The motion is also granted on plaintiff's medical monitoring claim and on plaintiff's KCPA claim.² As to Ora Burton's claim for loss of consortium, her claim fails to the extent that the claims of David Burton fail.

Also before the court is defendants' joint motion for summary judgment (Doc. # 50). In their motion, the defendants contend that they are entitled to summary judgment on a number of plaintiff's claims under a variety of theories. For the reasons set forth below, defendants' joint motion for summary judgment is granted in part and denied in part. The motion is granted on plaintiff's express warranty claim contained in Count 6 of his amended complaint and on plaintiff's fraudulent misrepresentation claims to the extent they rely on express affirmations by defendants. The motion is denied on plaintiff's remaining claims.

II. Factual Background

From approximately 1950 to 1993, plaintiff David Burton purchased and smoked Camel cigarettes, manufactured and sold by defendant RJR, and Lucky Strike cigarettes, manufactured and sold by defendant American Tobacco. Plaintiff contends that as a direct and proximate result of the use of defendants' products, he developed peripheral vascular disease. As a result of the disease, plaintiff underwent a series of operations in 1993 and 1994 which resulted in the amputation of both of his legs.

Plaintiff's amended complaint contains eleven separate counts. Count 1 is a strict liability claim in which plaintiff contends that the cigarettes placed in the stream of commerce by the defendants were dangerous to an extent beyond what would be contemplated by ordinary consumers and were in an unsafe and defective condition. Count 2 is a strict liability claim in which plaintiff contends defendants failed to give adequate warnings. Count 3 is a negligence claim in which plaintiff contends defendants breached duties regarding testing, research, sale, promotion, advertising and warnings. Count 4 is a negligence claim in which plaintiff contends that the defendants were negligent in the manner in which they advertised their cigarette products in that the warnings that were given regarding the adverse health consequences of smoking were neutralized and rendered ineffective. Count 5 is a strict liability claim in which plaintiff contends that the cigarettes were defective as a result of the cigarettes causing addiction and dependency, therefore rendering any warning meaningless. Count 6 is an express warranty claim in which plaintiff contends that certain statements and advertisements made by the defendants constituted express warranties that the cigarettes did not present any significant health problems. Count 7 is a misrepresentation and concealment claim in which plaintiff contends that the defendants knew that use of their products caused cancer and vasculatory disease, yet willfully chose to conceal those facts from the public. Count 8 is a conspiracy count in which plaintiff contends the defendants ignored and failed to act upon pertinent medical and scientific data and conspired to deprive the public, and particularly the consumers of defendants' products, of the pertinent medical and scientific data. Count 9 is a loss of consortium claim which is brought by plaintiff Ora Burton. Count 10 is a "medical monitoring" claim in which plaintiff seeks to recover damages for ongoing medical surveillance regarding his medical disabilities. Finally, Count 11 is brought under the Kansas Consumer Protection Act ("KCPA") and alleges that the defendants engaged in deceptive sales practices.

III. Discussion

A. Defendants' Joint Motion to Dismiss and for Judgment on the Pleadings

In their joint motion to dismiss and for judgment on the pleadings, defendants ask this court to enter an order pursuant to Rules 12(b)(6) and 12(c) dismissing Counts 1-5 and 7-11 on the grounds that those counts fail to state a claim upon which relief can be granted. A court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991). The pleadings are liberally construed, and all reasonable inferences are viewed in favor of the plaintiff. Fed.R.Civ.P. 8(a); Lafoy v. HMO Colorado, 988 F.2d 97, 98 (10th Cir.1993). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

The main thrust of defendants' argument is that a majority of plaintiff's claims are preempted by the Federal Cigarette Labeling and Advertising Act. The issue of pre-emption under the Federal Cigarette Labeling and Advertising Act of 1965, as amended by the Public Health Cigarette Smoking Act of 1969, 15 U.S.C. §§ 1331-1340, was addressed by the United States Supreme Court in Cipollone v. Liggett Group, Inc., ___ U.S. ___, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992).

In 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act (the "Act"). Section 2 of the Act declared its purposes, which were to adequately inform the public that cigarette smoking may be hazardous to one's health and to protect the national economy from the burden imposed by diverse, nonuniform and confusing cigarette labeling and advertising regulations. Section 4 of the Act required a conspicuous label warning of smoking's health hazards to be placed on every package of cigarettes sold in this country, while Section 5 of the Act, captioned "Preemption," provided: "(a) No statement relating to smoking and health, other than the § 4 statement ..., shall be required on any cigarette package," and "(b) No such statement ... shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with" § 4. Section 5(b) was amended by the Public Health Cigarette Smoking Act of 1969 (the "1969 Act") to specify: "No 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 lawfully labeled."

In Cipollone, the plaintiff asserted that the defendant cigarette manufacturers were responsible for the death of his mother, a long-time smoker, because they breached express warranties contained in their advertising, failed to warn consumers about smoking's hazards, fraudulently misrepresented those hazards to consumers, and conspired to deprive the public of medical and scientific information about smoking, all in derogation of duties created by New Jersey law. Cipollone, ___ U.S. at ___, 112 S.Ct. at 2613. The question before the Cipollone court was whether the ...