Donovan v. Philip Morris USA, Inc.

• Decision Date: 12 December 2014
• Docket Number: Civil Action No. 06–12234–DJC.
• Citation: 65 F.Supp.3d 251
• Court: U.S. District Court — District of Massachusetts
• Parties: Kathleen DONOVAN and Patricia Cawley, on behalf of themselves and others similarly situated, Plaintiff, v. PHILIP MORRIS USA, INC., Defendant.

65 F.Supp.3d 251

Kathleen DONOVAN and Patricia Cawley, on behalf of themselves and others similarly situated, Plaintiff
v.
PHILIP MORRIS USA, INC., Defendant.

Civil Action No. 06–12234–DJC.

United States District Court, D. Massachusetts.

Filed Dec. 12, 2014.

65 F.Supp.3d 254

Christopher Weld, Jr., Edward Foye, Todd & Weld LLP, Kevin T. Peters, Arrowood Peters LLP, David C. Strouss, Michael A. Lesser, Andrea Marino Landry, Thornton Law Firm LLP, Steven J. Phillips, Boston, MA, Erik Shawn, Jerome H. Block, Stephanie L. Busse, Steven Phillips, Levy, Phillips & Konisberg, Aryeh L. Taub, Victoria E. Phillips, Phillips & Paolicelli, LLP, New York, NY, for Plaintiff.

Diane P. Sullivan, Weil, Gotshal & Manges LLP, Princeton, NJ, John K. Sherk, III, Shook, Hardy & Bacon LLP, Kansas City, MO, Lauren R. Goldman, Mayer Brown LLP, New York, NY, Tammy B. Webb, Shook, Hardy & Bacon LLP, San Francisco, CA, Curtis L. Perry, Shook, Hardy & Bacon L.L.P., Tampa, FL, Edward Foye, Todd & Weld LLP,

65 F.Supp.3d 255

Kenneth J. Parsigian, U. Gwyn Williams, Latham & Watkins LLP, Boston, MA, Gregory P. Stone, Truc T. Do, Munger, Tolles & Olson LLP, Los Angeles, CA, Judith Bernstein–Gaeta, Arnold & Porter, LLP, Robert A. McCarter, III, Shook, Hardy & Bacon LLLP, Washington, DC, for Defendant.

MEMORANDUM AND ORDER

CASPER, District Judge.

I. Introduction

Kathleen Donovan (“Donovan”) and Patricia Cawley (“Cawley”) (collectively, the “Plaintiffs”) bring this class action against Defendant Philip Morris USA, Inc. (“Philip Morris”). D. 29. Plaintiffs have moved to strike a number of affirmative defenses asserted by Philip Morris. D. 243; D. 245; D. 247; D. 249; D. 251; D. 254; D. 257. Plaintiffs have also moved for partial summary judgment on the breach of warranty claim and “proximate causation” (regarding issues of injury and risk). D. 259. After extensive briefing and oral argument on these motions and for the reasons stated below, the Court GRANTS Plaintiffs' motion to strike Philip Morris's thirty-sixth affirmative defense respecting the adequacy of a legal remedy, D. 247; DENIES IN PART and GRANTS IN PART Plaintiffs' motion for partial summary judgment, D. 259; DENIES Plaintiffs' motion to strike Philip Morris's thirty-third affirmative defense regarding an alternative safer design, D. 251; GRANTS IN PART and DENIES IN PART Plaintiffs' motion to strike all defenses based upon class members' conduct, D. 257; DENIES Plaintiffs' motion to strike Philip Morris's twenty-fourth affirmative defense regarding superseding and intervening cause, D. 249; GRANTS IN PART Plaintiffs' motions to strike Philip Morris's fourteenth, sixteenth and thirty-eighth affirmative defenses respecting damages, D. 245 and D. 243; and GRANTS IN PART and DENIES IN PART Plaintiffs' motion to strike Philip Morris's second and seventeenth affirmative defenses respecting timeliness, D. 254.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law.” Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000). The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.2000) ; see Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets its burden, the nonmoving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano–Isern, 605 F.3d 1, 5 (1st Cir.2010). The Court “view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009).¹

65 F.Supp.3d 256

III. Procedural History

This case has had a long, somewhat complicated history since Donovan and Cawley filed this action on December 14, 2006. D. 1. The Court shall not repeat that full history, but instead refers to the recitation of same in Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 914 N.E.2d 891 (2009) ( “Donovan I ”), Donovan v. Philip Morris USA, Inc., 268 F.R.D. 1 (D.Mass.2010) (“Donovan II ”) and Donovan v. Philip Morris USA, Inc., No. 06–12234–DJC, 2012 WL 957633 (D.Mass. Mar. 21, 2012) (“Donovan III ”). In a nutshell, Plaintiffs have brought claims for breach of the implied warranty of merchantability for the marketing of cigarettes that were allegedly defectively designed and unreasonably dangerous and claims under Mass. Gen. L. c. 93A. D. 29. The relief sought by Plaintiffs is a court-supervised medical surveillance program for the early detection of lung cancer, known as low-dose computed tomography (“LDCT”), which Plaintiffs allege will provide a means to identify and diagnose lung cancer at an early stage, when the cancer is still curable. Id. at ¶¶ 3–13, 70–76.

The Court only recounts the procedural history relevant to the pending motions. On March 21, 2012, the Court issued Donovan III, D. 351, denying Philip Morris's motion for decertification to the class, and notified the parties that due to ongoing litigation regarding the procedure for disseminating class notice, the Court would deny Plaintiffs' pending motions to strike and their motion for partial summary judgment without prejudice to renew once the Court had decided the outstanding notice issues. 3/21/2012 docket entry.

On September 25, 2013, Plaintiffs notified the Court that they had completed the Court-approved notice plan. D. 407. In response, the Court ordered the parties to confer and file a joint status report and proposed scheduling order for the remainder of the case through trial. D. 410. The parties subsequently submitted a proposed schedule and notified the Court that Plaintiffs wished to revive their pending motions to strike and their motion for partial summary judgment. D. 412. The parties also requested an opportunity to submit supplemental briefings on the pending motions to address recent changes in the law and other factual developments. Id. Over a course of months, the parties submitted a number of supplementary briefs on the pending motions.² The Court heard argument on Plaintiffs' pending motions on June 26, 2014 and took the matters under advisement. D. 443.

IV. Factual Background

This class action lawsuit was filed against Philip Morris on December 14, 2006. D. 1. The complaint—filed on behalf of individuals who, as of February 26, 2013: (a) are residents of Massachusetts,

65 F.Supp.3d 257

(b) are fifty years of age or older, (c) have cigarette smoking histories of twenty pack-years³ or more using Marlboro cigarettes, (d) smoke Marlboro cigarettes, or quit smoking Marlboro cigarettes on or after December 14, 2005, (e) are not diagnosed as suffering from lung cancer or under investigation by a physician for suspected lung cancer as of the date of any judgment being entered, or relief obtained, in this action, (f) have smoked Marlboro cigarettes within the Commonwealth of Massachusetts—alleges that Philip Morris designed, marketed and sold Marlboro cigarettes that delivered an excessive and dangerous level of carcinogens. D. 1; D. 29; D. 403 (adopting D. 400 and amending the class definition). Plaintiffs accuse Philip Morris of breaching the implied warranty of merchantability by marketing cigarettes that were defectively designed and unreasonably dangerous and of violating Mass. Gen. L. c. 93A, §§ 2, 9, which prohibits “unfair and deceptive” trade practices. D. 29 at ¶¶ 78–110.

Plaintiffs do not seek money damages or exemplary damages. Id. ¶ 2. Instead, Plaintiffs seek to compel Philip Morris to provide them with a court-supervised program of medical surveillance for early detection of lung cancer utilizing a technique known as LDCT scans of the chest. Id. ¶ 3.

V. Discussion

The Court will address each of Plaintiffs' motions in turn. However, where possible, discussion of related issues has been grouped together.

A. Adequacy of a Legal Remedy (D. 247)

Plaintiffs have moved to strike Philip Morris's thirty-sixth affirmative defense, which asserts that the claims for relief are barred because Plaintiffs and class members have an adequate remedy at law. D. 247; D. 30 at 28. Philip Morris argues that there remains a genuine issue of material fact as to whether each member of the class would be unable to obtain the features of the LDCT remedy through existing programs at local hospitals if they were awarded money damages. D. 290 at 4.

Plaintiffs contend that this Court, in the context of class certification (and later denial of the motion to decertify the class), has already...