Floyd v. Brown & Williamson Tobacco Corp.

• Decision Date: 02 April 2001
• Docket Number: No. CIV. A. 00-2952.,CIV. A. 00-2952.
• Parties: Calvin FLOYD on behalf of himself and as Trustee Ad Litem of Hilda Odessa Floyd, Plaintiff, v. BROWN & WILLIAMSON TOBACCO CORP., British American Tobacco Industries, Liggett Group Inc., Lorillard Tobacco Co., Philip Morris U.S.A., R.J. Reynolds Tobacco Co., and R.J.R. Nabisco Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

159 F.Supp.2d 823

Calvin FLOYD on behalf of himself and as Trustee Ad Litem of Hilda Odessa Floyd, Plaintiff, v. BROWN & WILLIAMSON TOBACCO CORP., British American Tobacco Industries, Liggett Group Inc., Lorillard Tobacco Co., Philip Morris U.S.A., R.J. Reynolds Tobacco Co., and R.J.R. Nabisco Inc., Defendants.

No. CIV. A. 00-2952.

United States District Court, E.D. Pennsylvania.

April 2, 2001.

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Calvin Floyd, pro se, Pittsburg, PA.

J. Kurt Straub, Obermayer, Rebmann, Maxwell & Hippel, LLP, Philadelphia, PA, for Liggett Group Inc.

Brendan J. Torregrossa, Dechert Price & Rhoads, Philadelphia, PA, for Phillip Morris U.S.A., R.J. Reynolds Tobacco Co.

MEMORANDUM

DuBOIS, District Judge.

Presently before the Court are two motions to dismiss the Complaint — the Joint Motion of Defendants Philip Morris Incorporated (incorrectly named Philip Morris U.S.A.) ("Philip Morris") and R.J. Reynolds Tobacco Company ("R.J.Reynolds") ("Joint Motion") (Document No. 3, filed June 16, 2000) and the Motion of Defendant Liggett Group Inc. ("Liggett") (Document No. 4, filed June 23, 2000). For the reasons set forth below, the motions will be granted in part and denied in part as to all defendants.

I. PROCEDURAL HISTORY

On February 8, 2000, plaintiff Calvin Floyd ("plaintiff" or "Floyd") filed a pro se Complaint in the Philadelphia County Court of Common Pleas on behalf of his deceased mother and himself against the defendant cigarette manufacturers for injuries allegedly sustained as a result of smoking cigarettes. Plaintiff seeks compensatory damages and punitive damages from each defendant, on the following causes of action, set forth in 13 counts: (1) failure to warn; (2) design defect; (3) negligence; (4) gross negligence; (5) fraudulent misrepresentation; (6a)¹ negligent misrepresentation; (6b) intentional infliction of emotional distress; (7) fraud and deceit; (8) breach of implied warranty; (9) breach of express warranty; (10) strict liability; (11) violation of consumer protection statutes; (12) conspiracy to misrepresent and conceal the material facts; and (13) civil conspiracy.

On June 9, 2000, Philip Morris and R.J. Reynolds removed the action to this Court, on diversity grounds. On June 16, 2000, Philip Morris and R.J. Reynolds jointly moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Liggett separately moved to dismiss under Rule 12(b)(6) on June 23, 2000. Numerous defenses are raised in the two motions including statute of limitations and failure to plead with specificity.

II. Background

The case is based on plaintiff's allegations that his mother's death and his health problems were caused by cigarette smoking. The background facts as set forth in the Complaint may be summarized as follows:

Plaintiff began smoking cigarettes in 1959 and smoked for 28 years thereafter. See Complaint ¶¶ 9, 10. It is unclear from the Complaint in what year he finally stopped smoking — he says both 1987 and 1988. See Complaint ¶¶ 9, 10, 17. In From 1959 to 1965, plaintiff smoked Camels and Pall Malls; in 1965 he switched to Tarytons and Salems. In 1966, plaintiff resumed smoking Pall Malls, which he continued to smoke, together with Kools and Newports, until 1987 or 1988. See Complaint ¶¶ 14-16. Plaintiff does not identify the manufacturers of the brands of cigarettes he says he smoked.²

In 1989, plaintiff was treated in a Pittsburgh hospital for chest pains and hypertension "soon" developed. Plaintiff also complained of arrhythmia and palpitations at that time. During the 1990s, the exact dates are not clear from the Complaint, plaintiff was given medication for hypertension. See Complaint ¶¶ 17-18.

Plaintiff's mother, Hilda O. Floyd died in August 1988. She began smoking in 1942 at age 18. She smoked Lucky Strike, Old Gold, Phillip Morris, Chesterfield, Pall Mall, L & M, Winston, Salem, Marlboro, Belair, Newport, Kool, Camel, and Parliament brand cigarettes. See Complaint ¶¶ 1-8.

III. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. Fed.R.Civ.P. 12(b)(6). In considering a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in a complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). The Court must only consider those facts alleged in the complaint in considering such a motion. See ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994). A complaint should be dismissed if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

Plaintiff is proceeding pro se in this case. The Court is mindful of the instruction that it should broadly construe normal pleading requirements when handling pro se submissions. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (holding pro se complaint "to less stringent standards than formal pleadings drafted by lawyers").

IV. DISCUSSION

A. Wrongful Death and Survival Act Claims

Plaintiff asserts a wrongful death claim and a survival claim on behalf of his mother, Hilda Floyd, who died in August 1988. He attributes her death to smoking. See Complaint ¶ 7. The Court concludes that even if there was a causal link between smoking and her death, any claims made on behalf of Hilda Floyd are barred by the applicable statute of limitations.

"Federal courts sitting in diversity cases must apply the substantive laws of the states in which they sit, and statutes of limitations are considered substantive." Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir.1985) (citing Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)); Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 (3d Cir.1976). In Pennsylvania, the statute of limitations for wrongful death and survival actions is two years from the date of death. See 42 Pa. Cons. Stat. Ann. § 5524(2) (West 2000). Additionally, even if the cause of death is not discovered until much later, the discovery rule cannot be used to extend the time for filing wrongful death and survival actions beyond the statutory period. See Pastierik v. Duquesne Light Co., 514 Pa. 517, 523, 526 A.2d 323, 326 (Pa.1987).

As Hilda Floyd died in August 1988, the two-year statutory period for filing wrongful death and survival actions expired in August 1990. Therefore, plaintiff's wrongful death and survival actions against all defendants brought on behalf of Hilda Floyd must be dismissed. In view of this ruling, the Court need not address the remaining arguments made by the moving defendants with respect to the claims asserted on behalf of Hilda Floyd.

B. Gross Negligence Claim — Count 4

Plaintiff pleads both negligence (Count 3) and gross negligence (Count 4) claims. Under Pennsylvania law, degrees of negligence are not generally recognized. See Ferrick Excavating & Grading Co. v. Senger Trucking Co., 506 Pa. 181, 191, 484 A.2d 744, 749 (1984). Rather the term "gross negligence" refers to a standard of care, rather than to a separate claim. Therefore, the gross negligence count, Count 4, will be dismissed.

C. Personal Injury Claims — Counts 1, 2, 3, 6b, and 10

Five of plaintiff's remaining personal injury claims, failure to warn (Count 1), design defect (Count 2), negligence (Count 3), intentional infliction of emotional distress (Count 6b)³, and strict liability (Count 10), will be addressed together. With respect to these claims, plaintiff alleges that the cigarettes the defendants produced caused his hypertension, arrhythmia and palpitations. See Complaint ¶¶ 17-18. The Court concludes that all of these personal injury claims are barred by the applicable statute of limitations, and will be dismissed on that ground.

Under Pennsylvania law, the statute of limitations for the above personal injury claims is two years. See 42 Pa. Cons.Stat. Ann. §§ 5524(2), 5524(7) (West 2000).⁴ This applies to claims based upon theories of failure to warn, see Clewell v. Upjohn Co., 1995 WL 708534, *3 (E.D.Pa. Nov.20, 1995) (citing 42 Pa. Cons.Stat. § 5524); design defect, see Barnes v. American Tobacco Co., 984 F.Supp. 842, 857 (E.D.Pa. 1997); intentional infliction of emotional distress, see Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178, 1186 (1984); Bougher v. University of Pittsburgh, 882 F.2d 74, 80 (3d Cir.1989); and negligence and strict liability, see Dreischalick v. Dalkon Shield Claimants Trust, 845 F.Supp. 310, 314 (W.D.Pa.1994).

Usually, the statute of limitations for a claim which arises under Pennsylvania law begins to run at "the occurrence of the final significant event necessary to make the claim suable." Barnes v. American Tobacco Co., 161 F.3d 127, 152 (3d Cir.1998) (citing Mack Trucks, Inc. v. Bendix-Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3d Cir.1966)). "As a general rule, it is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to initiate suit within the prescribed period." Crouse v. Cyclops Indus., 560 Pa. 394, 403, 745 A.2d 606, 611 (Pa.2000) (citing Hayward v. Medical Ctr. of Beaver County., 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992)); see also Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). In some cases, the application of the "discovery rule" will toll the running of the limitations period until "the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by...