Estate of Alicano Ayala v. Philip Morris, Inc., No. Civ. 02-2175 (PG).

• Decision Date: 15 May 2003
• Docket Number: No. Civ. 02-2175 (PG).
• Citation: 263 F.Supp.2d 311
• Parties: ESTATE OF Pedro ALICANO AYALA, et al., Plaintiffs, v. PHILLIP MORRIS, INC, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

263 F.Supp.2d 311

ESTATE OF Pedro ALICANO AYALA, et al., Plaintiffs, v. PHILLIP MORRIS, INC, et al., Defendants.

No. Civ. 02-2175 (PG).

United States District Court, D. Puerto Rico.

May 15, 2003.

COPYRIGHT MATERIAL OMITTED

Francisco Padilla-Rodriguez, San Juan, PR, for Estate of Pedro Alicano-Ayala, Hector Rodriguez-Rivera, Irma E. Alicano-Gonzalez, Conjugal Partnership Rodriguez-Alicano, Javier I. Ramirez-Alicano, Luis A. Ramirez-Alicano, plaintiffs.

Francisco A. Besosa, Adsuar, Muniz, Goyco & Besosa, San Juan, PR, for Lorillard Tobacco Co., defendant.

Salvador Antonetti-Zequeira, Fiddler, Gonzalez & Rodriguez, San Juan, PR, for R.J. Reynolds Tobacco Company, defendant.

William A. Graffam, Jimenez, Graffam & Lausell, San Juan, PR, for Brown & Williamson Tobacco Co., British American Tobacco, defendants.

Pedro J. Santa-Sanchez, O'Neill & Borges, San Juan, Mary Elizabeth McGarry, New York, NY, for British American Tobacco, P.L.C., defendant.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

Before the Court is Defendants R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Corporation's (hereinafter "Defendants R.J. Reynolds et al") "Motion to Dismiss Plaintiffs' First Amended Complaint," (Defs.' Mot. Dismiss, Docket No. 27), and Plaintiffs' "Reply to Certain Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint," (Pls.' Opp'n Mot. Dismiss, Docket No. 31). For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.

BACKGROUND

Plaintiffs Hector Rodríguez Rivera, Irma Alicano González, Javier I. Ramírez Alicano, and Luis A. Ramirez Alicano, invoked this Court's jurisdiction under 28 U.S.C. § 1332 and filed suit against the Defendants under Article 1802 of the Puerto Rico Civil Code. (Am. Compl., Docket No. 23).¹ Plaintiffs claim that Defendants entered into a conspiracy to defraud the public and conceal information regarding the hazards of smoking tobacco products; that this conspiracy led Mr. Pedro Alicano Ayala to a life of heavy smoking that prevented him from "making a conscious decision whether or not to smoke," (Am.Compl.¶ 47); and that Mr. Alicano died from lung cancer and other respiratory illnesses caused by his many years of smoking, (Am.Compl.¶¶ 46-47).

Plaintiffs contend that starting in 1953 the Defendants engaged in a conspiracy to deny and misrepresent the hazards of smoking. In furtherance of this conspiracy, Defendants allegedly created the "Tobacco Industry Research Committee" and "made false and misleading statements to the public through press releases, advertising, and public statements ... that were intended to be heard by the consuming public." (Am.Compl.¶¶ 26-28). One of these releases was the famous "Frank Statement to Cigarette Smokers," published in the 1950's, that questioned the reports suggesting that smoking was hazardous. (Am. Compl ¶ 28). The goal was to conceal information that confirmed the hazards of cigarette smoking and question "the research and conclusive evidence published by numerous sources and authorities in the field" suggesting a link between smoking and respiratory illnesses. (Am. Compl.¶¶ 29-34).

Mr. Alicano was allegedly a victim of this conspiracy to conceal and defraud. The Amended Complaint is not clear as to when Mr. Alicano started smoking: at one point it states that he had been a smoker "since a young age," but it also alleges that Mr. Alicano smoked for "a period longer than 20 years" and that he had been smoking three packs of cigarettes a day "for about ten to fifteen years" before 1989. Mr. Alicano exhibited symptoms of respiratory problems in 1989, as he suffered from frequent attacks of bronchitis and "a persistent cough." (Am.Compl.¶ 43). By 1991, with his condition worsening, Mr Alicano was living under his daughter's care and received treatment in the Veterans Administration Hospital in San Juan. (Am.Compl.¶ 44). According to the Amended Complaint, Mr. Alicano required "a special bed," "chocked frequently," and "could not move outside a close radius within the house because he would dangerously suffer shortness of breath." (Am. Compl.¶ 44). In 1993 Mr. Alicano was diagnosed with lung cancer, and he died on April 3, 1994. Plaintiffs claim that Mr. Alicano's death "was due to a condition or illness directly related to or caused by cigarette smoking." (Am.Compl.¶ 46).

Defendants R.J. Reynolds et al. advance two grounds for dismissal. First, they argue that the claims are time-barred. (Defs.' Mot. Dismiss, at 4-15). The Plaintiffs filed suit eight years after Mr. Alicano's death, yet they "give no real explanation as to why they did not know of the Decedent's cancer diagnosis and its alleged link to smoking at the time of the Decedent's diagnosis or his death." (Defs.' Mot. Dismiss, at 3). According to Defendants R.J. Reynolds et al., there was sufficient public information to suggest that Plaintiffs "must have known well before November 2001 the potential causes of the Decedent's illness and death." (Defs.' Mot. Dismiss, at 3). "If Plaintiffs did not know, it was due solely to their lack of diligence." (Defs.' Mot Dismiss, at 3). Defendants R.J. Reynolds et al. also claim that dismissal is proper for failure to comply with Federal Rule of Civil Procedure 8(a). (Defs.' Mot. Dismiss, at 4).

Plaintiffs argue that their cause of action is not time-barred because the fraudulent actions by the Defendants prevented them "from gaining the necessary certainty to proceed legally." (Pls.' Opp'n Mot. Dismiss, at 2). According to Plaintiffs, "legal certainty" of the defendants' liability is necessary to activate the statute of limitations. (Pls.' Opp'n Mot. Dismiss, at 4). Defendants' concealment actions prevented them from knowing they had "a valid cause of action" and tolled the statute of limitations in this case. Moreover, Plaintiffs argue that "a medical certification where tobacco smoke is identified as the cause of cancer, or other illnesses, is a recent fenomenom [sic]." (Pls.'s Opp'n Mot. Dismiss, at 10). The physicians that treated Mr. Alicano allegedly never told Plaintiffs about the links between cigarette smoking and lung cancer. (Pls.' Opp'n Mot. Dismiss, at 10). According to the Amended Complaint, "only after recent events was that plaintiff[s] acquired the knowledge that [they] had a valid cause of action and that Pedro Alicano's death was an act which deserved redress ordered by the courts." (Am.Compl.¶ 47). The Plaintiffs allegedly gained legal certainty on November 2001, when they read some unidentified information in the newspaper that prompted them to investigate further. (Am.Compl.¶ 47).

MOTION TO DISMISS STANDARD

Federal Rule of Civil Procedure 12(b)(6) allows a party to request dismissal of an action for "failure to state a claim upon which relief can be granted." Fed. R.Civ.P. 12(b)(6). When ruling on a 12(b)(6) motion a court must accept all well-pleaded factual averments as true and must draw all reasonable inferences in the plaintiffs favor. Berezin v. Regency Savings Bank, 234 F.3d 68, 70 (1st Cir.2000); Negrón-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). A Court should not dismiss a complaint for failure to state a claim unless it is clear that plaintiff will be unable to recover under any viable theory. Garita Hotel Ltd. Partnership v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir.1992). "A complaint must set forth a factual allegation either directly or inferential respecting each material element necessary to sustain recovery under some actionable legal theory." Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir.1997).

"It is well established that affirmative defenses ... may be raised in a motion to dismiss an action for failure to state a claim." Blackstone Realty LLC v. FDIC, 244 F.3d 193, 197 (1st Cir.2001). In the case of the affirmative defense of statute of limitations, dismissal "is entirely appropriate when the pleader's allegations leave no doubt that an asserted claim is time-barred." LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998); see also Aldahonda-Rivera v. Parke Davis & Co., 882 F.2d 590, 592 (1st Cir.1989) ("When a defendant raises an affirmative defense that is obvious on the face of plaintiffs pleadings, and the court makes the ruling based only on those pleadings, the motion is treated as a Rule 12(b)(6) motion to dismiss.").

DISCUSSION

The Puerto Rico Civil Code provides a one-year statute of limitations for personal injury claims under Article 1802. 31 P.R. Laws Ann. § 5298(2) (2000). This one-year period activates after the date of accrual of the claim. Espada v. Lugo, 312 F.3d 1, 3 (1st Cir.2002); see also 31 P.R. Laws Ann. § 5299 ("The time for prescription of all kinds of actions, when there is no special provision to the contrary, shall be counted from the day on which they could have been instituted."). A claim accrues, and thus can be instituted, when the injured party has (1) notice of her injury and (2) "knowledge of the likely identity of the tortfeasor." Espada, 312 F.3d at 3. Notice of the injury exists when there are "some outward or physical signs through which the aggrieved party may become aware and realize that he [or she] has suffered an injurious aftereffect, which when known becomes a damage even if at the time its full scope and extent cannot be weighed." Rodriguez-Suris v. Montesinos, 123 F.3d 10, 13 (1st Cir.1997) (quoting Delgado Rodriguez v. Nazario De Ferrer, 121 D.P.R. 347, 1988 WL 580813 (1988)). This is a subjective test requiring "actual" knowledge of both the injury and the author. Rodriguez-Suris, 123 F.3d at 15-16. Knowledge of the author of the injury requires "some level of reasonable likelihood of legal liability on the part of the person or entity that caused the injury." Id. at 14. The law does not require, however, knowledge of "the exact name of the tortfeasor or the precise intracorporate relationships." Kaiser v. Armstrong World Indus., Inc., 872 F.2d...