Conley v. R.J. Reynolds Tobacco Co.

• Decision Date: 26 December 2002
• Docket Number: No. C 00-1740 SBA.,C 00-1740 SBA.
• Citation: 286 F.Supp.2d 1097
• Court: U.S. District Court — Northern District of California
• Parties: Elaine CONLEY, an individual; Dorothy White, an individual; and Weldon White, an individual, Plaintiffs, v. R.J. REYNOLDS TOBACCO CO., et al., Defendants.

286 F.Supp.2d 1097

Elaine CONLEY, an individual; Dorothy White, an individual; and Weldon White, an individual, Plaintiffs, v. R.J. REYNOLDS TOBACCO CO., et al., Defendants.

No. C 00-1740 SBA.

United States District Court, N.D. California.

December 26, 2002.

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Perry S. Dobson, Hayward, CA, for Plaintiffs.

Richard D. Shively, Thomas G. Scarvie, Howard Rice Nemerovski Canady Falk & Rabin, San Francisco, CA, Stephanie A. Schrandt, Barbara A. Brill, Shannon Spangler, Shook Hardy & Bacon LLP, San Francisco, CA, Ingrid von Kaschnitz, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA, Stephen Kaczynski, Sevan Ogulluk, Jones Day Reavis & Pogue, Cleveland, OH, Lynn A. Airasian, Bonnie L. Hemenway, Jones Day Reavis & Pogue, New York City, Alicia J. Donahue Shook Hardy & Bacon LLP, San Francisco, CA, Gregory G. Little, Catherine B. Stevens, Hunton & Williams, New York City, for Defendants.

ORDER DENYING WITHOUT PREJUDICE DEFENDANTS' MOTIONS FOR JUDGMENT AS A MATTER OF LAW

ARMSTRONG, District Judge.

At the close of plaintiffs' case-in-chief at trial, defendants filed two motions for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a): Defendants' Joint Motion for Judgment as a Matter of Law (the "Joint Motion") and Defendant R.J. Reynolds Tobacco Company's Motion for Judgment as a Matter of Law ("Reynolds' Motion").¹ Plaintiffs have filed respective oppositions to the motions.

These motions are now before the Court. Having read and considered the papers submitted, having reviewed the transcript of the proceedings, and being fully informed, the Court DENIES the motions WITHOUT PREJUDICE to their being renewed after plaintiffs have been afforded an opportunity to correct the evidentiary deficiencies identified in this Order.

LEGAL STANDARD

Federal Rule of Civil Procedure 50(a)(1) provides:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

In entertaining a motion for judgment as a matter of law, a federal court sitting in diversity is bound to apply state law in determining whether the evidence is sufficient to support a verdict in favor of the non-moving party. See In re Beverly Hills Fire Litig., 695 F.2d 207, 218-19 (6th Cir.1982) (applying Kentucky law to determine whether the evidence in the record was sufficient to support the causation element of the plaintiffs' state-law cause of action and thereby prevent entry of judgment as a matter of law against the plaintiffs).

Where a non-moving party has failed to present sufficient evidence to withstand judgment as a matter of law under Rule 50, the Court may not enter judgment in favor of the moving party without first apprising the non-moving party of the material deficiencies in the evidence and affording it an opportunity to present additional evidence on the dispositive facts to correct those deficiencies. Waters v. Young, 100 F.3d 1437, 1441-42 (9th Cir.1996) (reversing judgment and remanding case for new trial after entry of judgment as matter of law due to district court's failure to apprise plaintiff of evidentiary deficiencies and to afford plaintiff opportunity to present evidence to correct deficiencies). This condition applies regardless of whether the non-moving party is represented by counsel. See id. at 1442.

DISCUSSION

Several of the arguments advanced by defendants in their motions, if accepted by the Court, would be dispositive of plaintiffs' claims, and therefore it would be unnecessary for the Court to reach the non-dispositive arguments. Because, however the Court is obligated to provide plaintiffs an opportunity to correct all their evidentiary deficiencies, the Court addresses all of defendants' arguments in order that plaintiffs are aware of all the evidentiary deficiencies in their case and that they understand the consequences of failing to correct these deficiencies.

A. The Joint Motion

1. Evidence Regarding Proximate Cause of Frank White's Death

Defendants' first argument is essentially one of proximate cause. Citing Myers v. Philip Morris Cos., Inc., 28 Cal.4th 828, 123 Cal.Rptr.2d 40, 50 P.3d 751 (2002), and Naegele v. R.J. Reynolds Tobacco Co., 28 Cal.4th 856, 123 Cal. Rptr.2d 61, 50 P.3d 769 (2002), defendants contend that they cannot be held liable on plaintiffs' claims for conduct occurring during the immunity period established in California Civil Code § 1714.45, namely January 1, 1988, through December 31, 1997; they claim that they can be held liable only for conduct occurring outside the immunity period. In light of their immunity for conduct occurring during this period, defendants assert that plaintiffs have not offered sufficient evidence for a reasonable jury to find that their products proximately caused the decedent's death. Specifically, they explain that although Dr. Wong testified that the decedent's death was caused by chronic obstructive pulmonary disease (COPD) and that "smoking" caused the decedent's COPD, there was no evidence of the extent to which the decedent's smoking outside the immunity period—the time prior to January 1, 1988, and after December 31, 1997—caused the decedent's COPD.

Plaintiffs do not dispute or otherwise question defendants' contention that they cannot be held liable for conduct during the immunity period. Further, the Court previously considered this argument in adjudicating the parties' motions in limine and noted its agreement, (see Order Adjudicating Motions in Limine and Addressing Other Pretrial Matters ("MIL Order") at 21-22), and the Court perceives no reason to reconsider its previous conclusion. Accordingly, the Court agrees that defendants cannot be held liable for their sale of cigarettes or other conduct occurring during the ten-year immunity period established by California Civil Code § 1714.45.

Plaintiffs, however, insist that they have introduced sufficient evidence to support a finding that the decedent's smoking outside the immunity period caused his COPD. Their opposition on this point consists only of the following: "Almost all of FRANK WHITE'S smoking occurred outside of the Immunity [sic] Period [sic]. Consequently, Defendants' position has no merit." Thus, the essence (and entirety) of plaintiffs' opposition appears to be their position that a jury could reasonably conclude that, based solely on the fact that the vast majority of the time during which decedent smoked took place outside the immunity period, it is more likely than not that the decedent's smoking outside the immunity period was a substantial factor in bringing about his COPD (which, according to Dr. Wong, was a substantial factor in bringing about his death).

The Court observes that an underlying premise of plaintiffs' argument is that the jury can draw from the evidence tendered at trial the inference that the length of time during which the decedent smoked is correlated with the likelihood of the decedent's developing COPD. Under California law, a "judgment may be supported by inference." Carrau v. Marvin Lumber & Cedar Co., 93 Cal.App.4th 281, 289, 112 Cal.Rptr.2d 869 (2001). But not all inferences are permissible: Although the inference may be based on common experience, see Engalla v. Permanente Med. Group, Inc., 15 Cal.4th 951, 975, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997), it must be a reasonable conclusion from the evidence and may not be based on "`suspicion, imagination, speculation, surmise, conjecture or guesswork.'" Carrau, 93 Cal.App.4th at 289, 112 Cal.Rptr.2d 869 (quoting Beck Dev. Co. v. S. Pac. Transp. Co., 44 Cal.App.4th 1160, 1204, 52 Cal. Rptr.2d 518 (1996)). Accordingly, the Court must determine whether, based on the evidence presented in plaintiffs' case-in-chief and on the jurors' common experience, the jury may permissibly draw the inference that plaintiffs desire them to draw.

Having reviewed the evidence tendered thus far, the Court concludes that the jury may not permissibly draw this inference. A review of the record reveals that there is no evidence that directly speaks to the issue of whether or to what extent the length of the period of time during which the decedent smoked was correlated with his developing COPD. But even if the jury considers other evidence in the record and attempts to infer from that evidence whether there was such a correlation, the Court concludes that the jury may not reasonably reach such an inference.

The potentially relevant evidence consists of the following: With regard to the decedent's smoking history, the evidence at trial establishes that: the decedent was born in 1918; he began smoking around 1930; he smoked Camel brand cigarettes, manufactured by defendant R.J. Reynolds Tobacco Co. ("Reynolds"), from approximately 1930 to 1973; and he smoked Marlboro brand cigarettes, manufactured by defendant Philip Morris Inc. ("Philip Morris") from 1973 to his death in 1999. As for the decedent's medical history, the entirety of the relevant evidence consists of the following: Dr. Wong testified that he first saw the decedent on October 2, 1998, and that at their first meeting, the decedent had COPD, (Tr. 627:9-23); and Dr. Wong provided expert testimony that in his opinion the decedent's "smoking" was "a cause of his COPD", (Tr. 657:3; accord Tr. 730:22).

This evidence is insufficient to support a reasonable inference that it is more likely than not that the decedent's smoking outside the immunity period caused his COPD. There is no evidence as to when the decedent first developed COPD; no evidence as to how long one...