Estate of White v. R.J. Reynolds Tobacco Co., S-97-4301.

• Decision Date: 25 July 2000
• Docket Number: No. S-97-4301.,S-97-4301.
• Citation: 109 F.Supp.2d 424
• Parties: ESTATE OF Edward D. WHITE, by Suzanne WHITE, Administratrix; and Suzanne White, in her own right Plaintiffs, v. R.J. REYNOLDS TOBACCO COMPANY and Brown & Williamson Tobacco Corporation, Defendants.
• Court: U.S. District Court — District of Maryland

109 F.Supp.2d 424

ESTATE OF Edward D. WHITE, by Suzanne WHITE, Administratrix; and Suzanne White, in her own right Plaintiffs, v. R.J. REYNOLDS TOBACCO COMPANY and Brown & Williamson Tobacco Corporation, Defendants.

No. S-97-4301.

United States District Court, D. Maryland.

July 25, 2000.

COPYRIGHT MATERIAL OMITTED

Donald S. Saiontz, Law Office, Baltimore, Md, Henry I. Greenberg, Greenberg Law Office, Baltimore, Md, Stephanie J. Hartley, Law Office, Jacksonville, FL, Norwood S. Wilner, Law Office, Jacksonville, FL, for Suzanne White, in her own right, plaintiff.

Denise A. Fee, Jones, Day, Reavis & Pogue, Washington, DC, Peter J. Biersteker, Jones, Day, Reavis & Pogue, Washington, DC, Paul R. Reichert, Geoffrey K. Beach, Jones, Day, Reavis & Pogue, Washington, DC, Wade R. Wright, Stephanie E. Parker, Kim Purcell Pike, Jones, Day, Reavis & Pogue, Washington, DC, Scott C. Walker, Law Office, Columbus OH, David B. Alden, Jones, Day, Reavis & Pogue, Cleveland, OH, for R.J. Reynolds Tobacco Company, defendant.

George A. Nilson, Piper & Marbury, Baltimore, MD, Raymond G. Mullady, Jr., Piper Marbury Rudnick & Wolfe, LLP, Baltimore, MD, Paul Joseph Day, Piper and Marbury, Baltimore, MD, for Brown & Williamson Tobacco Corporation, defendant.

MEMORANDUM OPINION

SMALKIN, District Judge.

Now before the Court is defendants' joint motion for summary judgment on plaintiffs' wrongful death and survivorship claims that defendants, cigarette manufacturers, caused the death of Edward White, a smoker who developed lung and brain cancers. Also before the Court is defendants' motion to strike the affidavit of plaintiffs' expert, Allan Feingold, M.D. The motion for summary judgment has been fully briefed, and no oral hearing is deemed necessary. Local Rule 105.6 (D.Md.). For the reasons that follow, defendants' motion for summary judgment will be granted.¹

I. SUMMARY JUDGMENT STANDARDS

Summary judgment shall be entered If "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The non-moving party is entitled to the benefit of all reasonable inferences from the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). But the court should consider only reasonable inferences from the evidence. As the Fourth Circuit has stated, "[I]t is the province of the jury to resolve conflicting inferences front circumstantial evidence. Permissible inferences must still be within the range of reasonable probability, however, and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture." Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir.), cert. denied, 358 U.S. 908, 79 S.Ct. 234, 3 L.Ed.2d 229 (1958).

II. DISCUSSION

Plaintiffs' decedent, Edward D. White, began to smoke in 1952, at age sixteen, and smoked for over thirty years. He smoked "Kools" (made by B & W) since the early 1960s, and then, in 1978, he switched to "Winstons" (made by RJR). Mr. White began to smoke while he lived in Pennsylvania, where he attended public schools. He moved to Maryland as a young adult, where he lived most of his smoking life. In 1984, he quit smoking (by some accounts). In 1995, in Pennsylvania, he was diagnosed with cancer, and he died on December 18, 1996. On November 19, 1997, plaintiffs filed a complaint in the Circuit Court for Baltimore City, which was removed to this Court on December 12, 1997.

Plaintiffs' seventeen-count, forty-page, complaint contains three general theories of recovery: (1) civil conspiracy; (2) negligence; and (3) strict products liability.² The negligence and strict liability theories are based on defective design and failure to warn claims. The complaint also contains loss of consortium claims and a request for punitive damages.

A. Conflict of Law

Plaintiffs' view is that Pennsylvania law applies, because that is where Mr. White's cancer was diagnosed, and defendants' view is that Maryland law applies, because that is where Mr. White's cancer began. Maryland's choice of law rules control. Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Maryland adheres to the lex loci delecti principle in tort cases, which states that the locus of a tort is where the last act required to complete it occurred. Wells v. Liddy, 186 F.3d 505, 521 (4th Cir.1999). Here, the last act was Mr. White's diagnosis of cancer, which occurred in Pennsylvania.

Nevertheless, the Court's view is that Maryland law, applies for the reasons stated in Farwell v. Un, 902 F.2d 282 (4th Cir.1990), a diversity wrongful death/survivorship action. In that case, the wife of a suicide victim sued two doctors in a Maryland district court. The alleged wrongful conduct occurred in Maryland (not putting victim into protective custody), and the last act to complete the alleged tort (the suicide) occurred in Pennsylvania. The district court applied a "common sense" exception to the lex loci rule and applied Maryland law, and the Fourth Circuit upheld the application of Maryland law. Id. at 286. According to the Fourth Circuit, Maryland's wrongful death statute (which a federal court sitting in Maryland looks to for choice of law, determinations) "specifically identified the locus of the `wrongful act' ... as the critical choice of law determinant in wrongful death actions with multi-state connections." Id. at 287. Thus, there is a "place-of-wrong's-standard-of-care" exception to the classic lex loci rule, thereby displacing in this context the "last-act-to-complete-the-tort" aspect of that rule. Id. Guided by Farwell in this case, this Court concludes that Maryland lay applies because most of the wrongful acts charged to defendants occurred in Maryland, where Mr. White lived most of his smoking life.

B. Dr. Feingold's Affidavit

Dr. Allan Feingold is a medical doctor with specialties in internal medicine and pulmonary medicine. Although the Court will deny defendants' motion to strike Dr. Feingold's affidavit, most of Dr. Feingold's lengthy (ninety pages) affidavit is irrelevant and thus inadmissible under Federal Rules of Evidence 701-703, and for that reason insufficient to stave off summary judgment. See Fed.R.Civ.P. 56(e). It is plain that the affidavit is a boilerplate affidavit, prepared with the purpose of submitting it in any cigarette case that may arise, by simply changing the case name at the bottom of each page, with the hope that it will create a dispute of material fact on some issue. One example of the irrelevant content of Dr. Feingold's affidavit is the discussion, complete with graphs, of "vegetable consumption and cigarette smoking"³ — not an issue before this Court. The narrow issues that Dr. Feingold discusses that are relevant are insufficient to create a triable issue under Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), as discussed post.

C. Civil Conspiracy

Plaintiffs allege (for about fourteen pages) that defendants conspired with, among others, Philip Morris Inc., Liggettt & Myers Tobacco Co., the Tobacco Institute Research Counsel, and the Tobacco Institute, for the general purpose of keeping the public misinformed about the dangers of smoking. It is well established that a conspiracy, or agreement to do a wrongful act, is not itself a tort; rather, some act must be committed by one of the parties in furtherance of that agreement, which is itself a tort, and which injured plaintiffs. See Alexander & Alexander, Inc. v. B. Dixon Evander & Assoc., 336 Md. 635, 645 n. 8, 650 A.2d 260 (1994) ("`conspiracy' is not a separate tort capable of independently sustaining an award of damages in the absence of other tortious injury to the plaintiff"); Robinson v. Parks, 76 Md. 118, 135, 24 A. 411 (1892) ("[A] conspiracy cannot be made the subject of a civil action, unless something is done which, without the conspiracy, would give a right of action."). Thus, plaintiffs must show that defendants committed some underlying tort. The Court rules that plaintiffs may base their conspiracy claim on the underlying tort of fraudulent misrepresentation only.⁴ A fraudulent misrepresentation claim may include concealment of a material fact with the inend to defraud, provided the plaintiff suffers damage as a result, and if "there exists a separate duty of disclosure to plaintiff by defendant." Finch v. Hughes Aircraft Co., 57 Md.App. 190, 232, 469 A.2d 867 (1984), cert. denied, 300 Md. 88, 475 A.2d 1200 (1984), cert. denied, 469 U.S. 1215, 105 S.Ct. 1190, 84 L.Ed.2d 336 (1985).

Among the several elements that plaintiffs must prove to succeed on a fraudulent misrepresentation claim is that the plaintiff (here, plaintiffs' decedent) reasonably relied on the misrepresentations. See Alleco Inc. v. Harry & Jeanette Weinberg Foundation, Inc., 340 Md. 176, 195, 665 A.2d 1038 (1995), 340 Md. 176, 665 A.2d 1038 (1995) (listing elements of fraud). See also Philip Morris Inc. v. The Honorable Edward J. Angeletti, 358 Md. 689, 751 n. 29, 752 A.2d 200 (2000) (decertifying statewide tobacco class action case and noting that fraudulent misrepresentation/omission claims against cigarette manufacturer "require not only proof of reliance but proof of reliance of such on an individual basis."); see also id. at 230 n. 25, 752 A.2d 200 ("[c]entral not only to the reliance element in a civil claim of fraud in [Maryland] but to the very tort itself is that there have been some sort of misrepresentation by the defendant to the plaintiff, i.e. some communication or material omission which the plaintiff relied upon and which caused him or her injury").

Plaintiffs make the bald assertion that "Mr. White's conduct demonstrates a substantial reliance on the circumstances of Defendants'...