Collins v. RJ Reynolds Tobacco Co.

• Decision Date: 14 September 1995
• Docket Number: Civ. A. No. 3:94-1563-17.
• Citation: 901 F. Supp. 1038
• Parties: Rachel COLLINS, individually and as Administrator (Personal Representative) of the Estate of John Henry Collins, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY and the American Tobacco Company, Defendants.
• Court: U.S. District Court — District of South Carolina

901 F. Supp. 1038

Rachel COLLINS, individually and as Administrator (Personal Representative) of the Estate of John Henry Collins, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY and the American Tobacco Company, Defendants.

Civ. A. No. 3:94-1563-17.

United States District Court, D. South Carolina, Columbia Division.

September 14, 1995.

COPYRIGHT MATERIAL OMITTED

William A. Wehunt, Jonesboro, Georgia, David E. Belding, Columbia, SC, for plaintiff.

Christopher J. Daniels, Steven A. McKelvey, Jr., Nelson, Mullins, Riley & Scarborough, Columbia, SC, Carl B. Epps, III, Elbert S. Dorn, Turner, Padget, Graham & Laney, Columbia, SC, for defendants.

MEMORANDUM OPINION AND ORDER

JOSEPH F. ANDERSON, Jr., District Judge.

In this products liability action, plaintiff alleges that her husband, John Henry Collins ("Collins"), developed emphysema and died from smoking "Camel" and "Salem" cigarettes manufactured by the defendant RJ Reynolds Tobacco Company ("Reynolds") and "Pall Mall" cigarettes manufactured by The American Tobacco Company ("American"). In her amended complaint, plaintiff asserts both wrongful death and survival actions based upon theories of strict liability, negligence and breach of implied warranty.

This matter is now before the court upon the defendants' motion for summary judgment. The court heard oral argument on August 15, 1995. At the conclusion of oral argument, the court announced that it was granting the motion for summary judgment on two separate grounds: (1) the court lacks subject matter jurisdiction over this action by virtue of the South Carolina "door-closing" statute, S.C.Code Ann. § 15-5-150; and (2) plaintiff's claims are time-barred. This order memorializes the court's ruling.

PROCEDURAL HISTORY

The plaintiff commenced this action by filing her initial complaint on June 2, 1994. Service was effective on July 3, 1994.¹ The complaint invokes jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332. On August 1, 1994, defendants filed a motion to dismiss for lack of subject matter jurisdiction and improper venue. In an Order dated October 24, 1994, this court, relying upon an affidavit of plaintiff Rachel Collins and the averments in the complaint, denied defendants' motion to dismiss. With permission of the court, plaintiff subsequently filed an amended complaint clarifying her claims for relief and setting forth causes of action for survival pursuant to S.C.Code Ann. § 15-5-90 and for wrongful death pursuant to S.C.Code Ann. § 15-51-10. On June 29, 1995, following depositions of plaintiff and her son, defendants filed this motion for summary judgment seeking dismissal of this action on three grounds: (1) that the court lacked jurisdiction under the South Carolina "door-closing" statute; (2) the survival and wrongful death actions were barred by limitations; and (3) the plaintiff lacked the proper capacity to sue.

LEGAL STANDARD

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). When the defendant is the moving party and the plaintiff has the ultimate burden of proof on an issue, the defendant must identify the parts of the record that demonstrate the plaintiff lacks sufficient evidence in support of her claims. The non-moving party — here the plaintiff — must then go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Viewed in the light most favorable to the plaintiff, the facts are as follows: The decedent Collins was a life-long resident of Georgia, and died on July 7, 1991 at St. Joseph's Hospital in Atlanta. Plaintiff herself is also a resident of Georgia and was appointed by the Dekalb County (Georgia) Probate Court as the administrator of Collins' estate.

Collins' medical records establish that he had a history of emphysema pre-dating his admission to Northside Hospital in Atlanta, Georgia on October 2, 1986. On October 3, 1986, Collins was advised by a treating physician to stop smoking because of poor pulmonary function tests. On February 25, 1987, Collins entered St. Joseph's Hospital in Atlanta due to chronic obstructive pulmonary disease (COPD) and again was advised to quit smoking. On April 24, 1987, Collins became permanently disabled and retired from his employment as an over-the-road truck driver due to his health problems.

The plaintiff, a licensed practical nurse for over thirty years, concedes that she had known since the 1960s of an alleged relationship between cigarette smoking and emphysema. Thus, in 1984 — when the decedent was experiencing shortness of breath — the plaintiff advised him that his shortness of breath was due to smoking. Additionally, at the time Collins acknowledged his history of emphysema in 1986, one of the four rotational warning labels on cigarette packages sold in the United States expressly advised of a link between emphysema and smoking: "SURGEON GENERAL'S WARNING: Smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy." See Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq., as amended.

Prior to his retirement, Collins' job as a truck driver entailed traveling across the United States. His young son, Dexter Collins, accompanied him during summers on trips throughout the country. Dexter's testimony reveals that Collins purchased cigarettes "pretty much everywhere" in the United States, from the Dakotas, Washington, and New Mexico to Florida, New York, Vermont and Maine. During his travels, Collins purchased several packs of cigarettes and sometimes as many as two or three cartons at one time. Dexter testified that his father purchased more cigarettes on the East Coast than in the West, but did not specify any particular state as a favorite for his purchases. Instead, Dexter Collins testified that he did not know of any differences in his father's purchasing habits between states. Dexter was unable to provide testimony based on personal knowledge that his father purchased more cigarettes in South Carolina than elsewhere. (See Fed.R.Evid. 602). He accompanied his father only three or four times to South Carolina, and conceded that they did not even stop in South Carolina on each of these trips. He could not specifically recall how many times his father bought cigarettes in South Carolina, or in what quantity. At most, he could say that his father bought a total of up to six cartons of cigarettes in South Carolina. Dexter Collins and plaintiff both testified that the decedent purchased cigarettes in his home state of Georgia.

Plaintiff herself never saw Collins purchase cigarettes in South Carolina. She accompanied him during one visit in the 1960s to South Carolina but did not observe any cigarette purchases by her husband on that trip. On one occasion, plaintiff did observe one carton of her husband's cigarettes at home which carried a South Carolina tax stamp and was presumably purchased by her husband in this state. Plaintiff had no personal knowledge of any other cigarette purchases by her husband in South Carolina.

DISCUSSION

A. South Carolina Door-Closing Statute

The South Carolina "door-closing" statute, S.C.Code § 15-5-150, provides in pertinent part:

An action against a corporation created by or under the laws of any other state, government or country may be brought in the circuit court ... by a plaintiff not a resident of this state when the cause of action shall have arisen or the subject of the action shall be situated within this state.

This statutory provision prohibits a non-resident from maintaining an action against a foreign corporation in a South Carolina court unless the cause of action arose in South Carolina or the subject of the action is located here. A federal court sitting in South Carolina, exercising diversity jurisdiction, must apply the "door-closing" statute unless there are "affirmative countervailing federal considerations" which override the application of the statute. Szantay v. Beech Aircraft Corporation, 349 F.2d 60 (4th Cir.1965); Proctor and Schwartz, Inc. v. Rollins, 634 F.2d 738 (4th Cir.1980); Bumgarder v. Keene Corp., 593 F.2d 572 (4th Cir.1979). There are no "affirmative countervailing federal considerations" presented by the plaintiff in this case.² Therefore, the case must be analyzed solely under the parameters of the door-closing statute itself. The plaintiff here has the burden of demonstrating that subject matter jurisdiction can be exercised over this action. Felkel v. United States, 861 F.Supp. 507, 509 (D.S.C.1994), citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Sauders v. South Carolina Public Service Authority, 856 F.Supp. 1066, 1069 (D.S.C.1994) (party asserting jurisdiction has the burden of proving that jurisdiction). See also Fairfax Countywide Citizens Assoc. v. Fairfax County, 571 F.2d 1299 (4th Cir.1978), cert. den., 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978) (burden of establishing jurisdiction is on the party claiming it).

The plaintiff is a Georgia...