Evans v. Lorillard Tobacco Co., 042840A
| Decision Date | 07 February 2007 |
| Docket Number | 042840A |
| Citation | 2007 MBAR 004 |
| Parties | Willie Evans as Executor[1] v. Lorillard Tobacco Co. et al.[2] |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Troy, Paul E., J.
The plaintiff, Willie Evans ("Plaintiff") commenced this action alleging that defendants Lorillard Tobacco Co. ("Lorillard"), Garber Bros., Inc. ("Garber"), George Melhado & Co. ("Melhado"), and Franklin Wholesalers, Inc. ("Franklin") (collectively "Defendants"), caused the death of his mother Marie R. Evans ("Evans"), through their design, marketing, distribution, and sale of Newport brand cigarettes. The action is before this court on the Defendants' motions to dismiss[3] the Plaintiff's complaint. For the following reasons, the Defendants' motions are DENIED in part and ALLOWED in part.
For purposes of a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations in the Plaintiff's complaint.
Newport cigarettes contain menthol which works "to facilitate the initiation of smoking and the development of a smoking habit in children." Complaint, ¶20. Lorillard is the designer, manufacturer, distributor, and seller of Newport cigarettes. During the time Evans purchased and smoked Newport cigarettes, defendants Garber, Melhado, and Franklin distributed Newport cigarettes in the areas where Evans lived and worked.
Growing up in the Orchard Park housing project in Roxbury, Massachusetts, Evans attended Newport cigarette giveaway events in her neighborhood starting in approximately 1957 when she was about nine years old. At these giveaway events, Lorillard representatives gave her free samples of Newport cigarettes despite her age. When she was a young teenager, Evans began smoking the Newport cigarettes she received at the giveaway events not only because they were free, but also because she was influenced by Lorillard's marketing of Newport cigarettes. Lorillard advertised Newport cigarettes in Jet and Ebony, African-American magazines to which Evans had access. The advertisements showed attractive African-American men and women smoking Newport cigarettes and described the cigarettes as "fresher than any other menthol cigarette." Id. ¶18. Lorillard also used "various misleading euphemisms to conceal the true role of nicotine, such as 'satisfaction,' 'impact,' 'strength,' 'rich aroma,' and 'pleasure.' " Id. ¶23. Evans was addicted to Newport cigarettes for over forty years, smoking at least one and a half packs a day to as many as four packs a day.
Lorillard promised[4] the public that it would lead the effort to discover and disclose the truth about smoking and health, recognizing that such research and disclosures Id. ¶52. Through industry research spanning decades, Lorillard has learned that the nicotine in cigarettes is addictive, and that Newport cigarettes cause such diseases as lung cancer and contain carcinogenic elements that increase the dangers of smoking. Rather than fulfill its promise to disclose this information to smokers such as Evans, however, Lorillard has concealed and suppressed the true facts about the health hazards of smoking Newport cigarettes, denied that nicotine is addictive, and, until recently, claimed that nicotine is important to cigarettes for taste.
Therefore, Lorillard's knowledge of the material facts about smoking, health, and addiction was vastly superior to the knowledge of Evans and other members of the general public who purchased, used, and consumed Lorillard's cigarettes. Public access to these facts known by Lorillard has been exclusively within its control." Id. ¶43. Moreover, Lorillard has controlled the nicotine content in Newport cigarettes in order to create and sustain addiction in smokers such as Evans. In fact, in April 1994, Lorillard's then President and Chief Executive Officer, Andrew H. Tisch ("Tisch") testified under oath before the Congressional Subcommittee on Health and the Environment that nicotine is not addictive.
At the time Evans began smoking Newport cigarettes, Evans did not know that cigarette smoking causes illnesses such as cancer, she did not know that the nicotine in Newport cigarettes is addictive, and she did not know that Lorillard added menthol to Newport cigarettes in order to encourage the development of smoking habits in children. Evans had a heart attack in 1984 when she was approximately thirty-eight years old, at which time she learned that smoking causes diseases and that the addition of menthol made Newport cigarettes more dangerous to her health than cigarettes without the addition of menthol.
Evans made several futile attempts to quit smoking after her 1984 heart attack. By the time she was diagnosed with small cell lung cancer in December 2001, the cancer had already spread to her brain, liver, and adrenal glands, and her doctor told her she had three to six months to live. Evans underwent four chemotherapy treatments that rendered her bedridden and unable to eat. Evans died on June 20, 2002.
As executor of Evans estate, the Plaintiff filed a complaint against the Defendants alleging fraud and misrepresentation (Count I, against Lorillard); voluntary undertaking of a duty (Count II, against Lorillard); breach of warranty (Count III, against the Defendants); public nuisance (Count IV, against Lorillard); battery (Count V, against Lorillard); violations of G.L.c. 93A, §9 (Count VI, against the Defendants); negligence (Count VII, against the Defendants); and wrongful death (Count VIII, against the Defendants).
In deciding a motion brought pursuant to Rule 12(b)(6), the court must accept as true the complaint's well-pleaded factual allegations and any reasonable inferences in the plaintiff's favor that may be drawn from those allegations. Fairneny v. Savogran Co., 422 Mass. 469, 470 (1996). A "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41 45-46 (1957). The court must give the complaint a generous reading and the plaintiff the benefit of the doubt. New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 29 (1988); Kipp v. Kuelcer, 7 Mass.App.Ct. 206, 210 (1979). A "rule 12(b)(6) motion is ordinarily not the proper vehicle for testing the factual sufficiency of a plaintiff's claims[;]" rather, a motion for summary judgment is more appropriate. Reardon v. Commissioner of Corr., 20 Mass.App.Ct. 946, 947 (1985); Wrightson v. Spaulding, 20 Mass.App.Ct. 70, 72 (1985).
The Defendants have moved to dismiss the Plaintiff's claims against them for failure to state a claim upon which relief can be granted because the Plaintiff cannot satisfy the essential elements of the claims and because, as to conduct that the Plaintiff alleges occurred after June 30, 1969, certain claims are preempted by the Federal Cigarette Labeling and Advertisement Act.
The Defendants allege that insofar as the Plaintiff's complaint concerns the Defendants' alleged conduct occurring after June 30, 1969, it is preempted by the Federal Cigarette Labeling and Advertisement Act ("FCLAA"), set forth at 15 U.S.C. §§1331-1341. With the FCLAA, Congress "crafted a comprehensive federal scheme governing the advertising and promotion of cigarettes." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001). Section 1334 of title 15 of the United States Code, titled "Preemption," "unequivocally precludes the requirement of any additional statements on cigarette packages provided in [15 U.S.C.] §1333." Id. at 542, citing 15 U.S.C. §1334(a).[5] The preemption provision further provides that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." 15 U.S.C. §1334(b) (emphases added); see Lorillard Tobacco Co., 533 U.S. at 542 ("Without question, the second clause is more expansive than the first; it employs far more sweeping language to describe the state action that is pre-empted"). The statute expressly states that the effective date of 15 U.S.C. §1334 is July 1, 1969.
The Supreme Court in Cipollone v. Liggett Group, Inc. addressed the issue of whether this preemption provision "encompassed state common-law claims." 505 U.S. 504, 516 (1992).[6] Acknowledging the presumption against preemption, the Court held that common-law damages actions impose "requirements and prohibitions" because such actions "are premised on the existence of a legal duty," and that "the phrase 'state law'... include[s] common law as well as statutes and regulations." Id. at 522. "Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted[,]" however, id. at 517 (emphasis added); therefore, the Court had to consider individually each of the plaintiff's "common-law claims to determine whether it [was] in fact preempted." Id. at 523.
"The central inquiry in each case is straightforward:... whether the legal duty that is the predicate of the common-law damages action constitutes a requirement or prohibition based on smoking and health... imposed under State law with respect to... advertising or promotion, giving that...
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