Ford v. R.J. Reynolds Tobacco Co.
| Decision Date | 11 August 2021 |
| Docket Number | CASE NO. 4:20CV1551 HEA |
| Citation | 553 F.Supp.3d 693 |
| Parties | Eugene FORD, Plaintiff, v. R.J. REYNOLDS TOBACCO CO., & Schnuck Markets, Inc., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Allan B. Kaiser, Tein Malone PLLC, Pinecrest, FL, for Plaintiff.
Carl L. Rowley, Kevin C. McGinley, Thompson Coburn LLP, St. Louis, MO, for Defendant R.J. Reynolds Tobacco Company.
This matter is before the Court on Defendant R.J. Reynolds Tobacco Co.’s, motion to dismiss Counts I, II, III, & IV pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative a more definite statement under Fed. R. Civ. P. 12(e), [Doc. No. 12]. Plaintiff brings claims for strict products liability, (design defect)(Count I), negligent design, (Count II), fraudulent concealment, (Count III), and concealment fraud conspiracy, (Count IV), and strict liability, (Count V). For the reasons set forth below, the motion will be granted in part and denied in part.
Plaintiff initially filed a Petition in the 22nd Judicial Circuit Court of the City of St. Louis, Missouri on September 19, 2020, alleging that he developed lung cancer
as the result of smoking cigarettes manufactured by Defendant R.J. Reynolds and sold by Defendant Schnuck Markets. Plaintiff brought claims for strict products liability, negligent design, fraudulent concealment, and concealment fraud conspiracy against Defendant R.J. Reynolds, (RJR). Plaintiff brought a single claim for strict products liability against Defendant Schnuck Markets.
Defendant R.J. Reynolds removed the case to this Court on October 29, 2020, invoking the Court's diversity jurisdiction under 28 U.S.C. § 1332. Although Schnuck Markets is a resident of Missouri, R.J. Reynolds argued that complete diversity still existed because Schnuck Markets was fraudulently joined. The Court denied Plaintiff's motion to remand and dismissed Schnuck Markets as a defendant on January 27, 2021.
Plaintiff began smoking cigarettes in the early 1970's when he was around age of fifteen. Initially he only smoked intermittently, limited Winston cigarettes that he "confiscated" from his father. After about a year of smoking sporadically, Plaintiff was able to buy his own cigarettes. He switched brands to Kool menthol cigarettes at 16. Plaintiff continued to smoke for almost 50 years, smoking Winston, Kool and Salem cigarettes.
Throughout his years of smoking, Plaintiff has seen and heard public statements made by the cigarette industry, including RJR, Brown and Williamson, and the Tobacco Institute, denying that smoking causes cancer
and other rare diseases. They made these statements despite the fact that cigarettes contain potentially dangerous ingredients. Additionally, throughout his years of smoking, Plaintiff saw advertisements that promoted cigarettes as "cool" and used misleading euphemisms. Plaintiff does not claim that the cigarettes he purchased did not contain the federally mandated warning, but rather alleges that the public statements and advertisements made by the cigarette industry caused confusion and ultimately lead him to believe that cigarettes were not yet proven to cause cancer or other serious illnesses.
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. When considering a Rule 12(b)(6) motion, the Court must assume the factual allegations of the complaint to be true and construe them in favor of the plaintiff. Neitzke v. Williams , 490 U.S. 319, 326–27, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). The Court is not bound to accept as true a legal conclusion couched as a factual allegation. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
To survive a Rule 12(b)(6) motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). Although "specific facts are not necessary," the plaintiff must allege facts sufficient to "give fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).
A plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. A complaint "must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id. at 562, 127 S.Ct. 1955. This standard "simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the claim or element]." Id. at 556, 127 S.Ct. 1955. The issue is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of [her] claim." Twombly, 550 U.S. at 556, 127 S.Ct. 1955.
Defendant argues that Plaintiff's claims should be dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). First Defendant argues that Plaintiff's design defect claims are impliedly preempted or in the alternative fail to state a claim because they do not identify a specific design defect, but rather rely on the fact that all cigarettes are harmful. Second, Defendant argues that Plaintiff's fraud claims must be dismissed because they are merely refashioned failure to warn claims which are preempted by the Federal Cigarette Labelling and Advertising Act.
In Count I and II, Plaintiff alleges that the cigarettes designed and manufactured by Defendant and its predecessors in interest were in an unreasonably dangerous and defective condition to users. Plaintiff specifically alleges that the use of flue-cured tobacco and manipulation of the amount of nicotine in the cigarettes were design choices that rendered the cigarettes unreasonably dangerous. Defendant, relying on Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), argues that these claims are preempted because the United States Supreme Court has recognized that cigarettes are a legal product and a "ban on tobacco products would plainly contradict congressional policy." Brown & Williamson , 529 U.S. at 139, 120 S.Ct. 1291. Plaintiff challenges Defendant's characterization of his claim, arguing that his claim attacks specific design choices rather than cigarettes more generally and therefore would not result in a functional ban of cigarettes as contemplated in Brown & Williamson . Plaintiff also argues that regardless of the characterization of the claims, they are not preempted. He relies in part on Graham v. R.J. Reynolds Tobacco Co. , 857 F.3d 1169, 1190 (11th Cir. 2017), which emphasized that Brown & Williamson did not address the states’ power to regulate tobacco or preemption.
Chief Judge Sippel recently addressed this very issue in Andrews v. R.J. Reynolds Tobacco Company, Cause Number: 4:20CV1583 RWS, 2021 WL 3472504 (E.D. Mo. August 6, 2021) Judge Sippel found Plaintiff's design defect claims are not preempted.
The issue in Brown & Williamson , was whether the Food and Drug Administration had authority under the Food, Drug, and Cosmetic Act, to regulate tobacco products. Food & Drug Admin. v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000). The Supreme Court analyzed the history of tobacco legislation and the implications of FDA regulation and concluded that regulation by the FDA would require it to ban the sale of tobacco, which would contradict congressional intent to allow their sale but inform consumers of the risk. Brown & Williamson , 529 U.S. at 137, 120 S.Ct. 1291. The Court did not address whether states could ban tobacco and did not consider the issue of state sovereignty. Since Brown & Williamson was decided in 2000, some courts have determined that design defect claims that would result in functional bans on tobacco products are preempted based on the Supreme Court's interpretation of congressional intent in Brown & Williamson . But others have not. In 2009, the Ninth Circuit indicated in dicta that such preemption is unwarranted. The Ninth Circuit stated in Hunter v. Phillip Morris USA that the plaintiff's product liability claim did not "present an obstacle to the congressional policy concerning the regulation of tobacco." Hunter v. Philip Morris USA, 582 F.3d 1039, 1048 (9th Cir. 2009). The Ninth Circuit noted that since the Supreme Court issued its decision in Brown & Williamson , Congress had repealed the provision of the Agricultural Adjustment Act of 1938 that had articulated a federal policy in support of the sale of tobacco. Id. In 2017, the Eleventh Circuit, in an en banc decision, "conclude[d] that federal tobacco laws do not preempt state tort claims based on the dangerousness of all the cigarettes manufactured by the tobacco companies." Graham v. R.J. Reynolds Tobacco Company , 857 F.3d 1169, 1186 (11th Cir. 2017) cert. denied , ––– U.S. ––––, 138 S. Ct. 646, 199 L.Ed.2d 530 (2018). In its decision the Eleventh Circuit noted that a state "may employ its police power to regulate cigarette sales and to impose tort liability on cigarette manufacturers" unless there is a "clear and manifest purpose of Congress" to supersede such "historic police power." Graham , 857 F.3d at 1191. It also examined laws related to tobacco regulation and determined that there was no indication that "Congress created a regulatory scheme that does not tolerate tort...
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