Glassner v. Reynolds Tobacco Co.

Decision Date23 June 2000
Docket NumberNo. 99-3952,99-3952
Citation2000 WL 1229061,223 F.3d 343
Parties(6th Cir. 2000) John J. Glassner, Executor for the Estate of Ella J. Glassner, deceased, Plaintiff-Appellant, v. R. J. Reynolds Tobacco Company; Philip Morris, Inc., Defendants-Appellees. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 99-00796--David D. Dowd, Jr., District Judge. [Copyrighted Material Omitted] Chris T. Nolan, Peter D. Janos, PERANTINIDES & NOLAN, CO., Akron, Ohio, for Appellant.

Robert C. Weber, Dennis L. Murphy, JONES, DAY, REAVIS & POGUE, Cleveland, Ohio, Jeffrey J. Jones, JONES, DAY, REAVIS & POGUE, Columbus, Ohio, Mary M. Bittence, Diane P. Chapman, BAKER & HOSTETLER, Cleveland, Ohio, Thomas J. Frederick, Matthias A. Lydon, Julie Soloway, Joseph J. Zaknoen, WINSTON & STRAWN, Chicago, Illinois, for Appellees.

Before: KEITH, MERRITT, and COLE, Circuit Judges.

OPINION

R. GUY COLE, JR., Circuit Judge.

Plaintiff-Appellant John J. Glassner, individually and as executor for the estate of Ella J. Glassner, appeals the district court's decision dismissing his wrongful death action against Defendants-Appellees R. J. Reynolds Tobacco Co. and Philip Morris, Inc., ("Defendants")1 for failure to state a claim upon which relief could be granted pursuant to Fed. R. Civ. P. 12(b)(6). Glassner's eight-count Complaint originally was filed in the Summit County Court of Common Pleas and subsequently was removed to the United States District Court for the Northern District of Ohio based upon diversity jurisdiction; it alleges the following: Fraud/Deceit (Count I); Conspiracy (Count II); Negligence (Count III); Strict Liability (Count IV); Negligent Misrepresentation (Count V); Consumer Fraud (Count VI); Malicious Conduct (Count VII); and Survivorship (Count VIII). Glassner appeals the district court's decision, assigning error to the court's determination that (1) the Ohio Product Liability Act ("OPLA"), Ohio Rev. Code §§ 2307.71-2307.79, bars his claims for negligence, strict liability, negligent misrepresentation, and malicious conduct (Counts III, IV, V, and VII) based upon the "common knowledge" doctrine; (2) Ohio law bars his common law fraud claim (Count I) on the ground that, because the health risks associated with smoking are common knowledge, any reliance on Defendants' alleged misrepresentations or concealment of those risks is not justifiable; and (3) because his common law fraud claim fails as a matter of law, his derivative conspiracy claim (Count II) also must fail. Glassner does not appeal the district court's dismissal of his consumer fraud and survivorship claims (Counts VI and VIII), and therefore, those issues are not before us.

For the reasons that follow, we AFFIRM the decision of the district court.

BACKGROUND

Plaintiff's decedent, Ella J. Glassner, began smoking Defendants' tobacco products in 1969. The Complaint alleges that "[a]s a direct and proximate result of decedent's reliance on Defendants' misrepresentations, omissions and concealments, the Plaintiff's decedent, Ella Glassner, age 67, died on March 8, 1997." Although the Complaint does not indicate Ella Glassner's cause of death, it alleges that Defendants knew their tobacco products caused various smoking-related diseases and sought to "mislead, confuse, and conceal from the public the true dangers associated with smoking cigarettes." Glassner alleges that Defendants "engaged in an ongoing conspiracy to actively misrepresent, omit and conceal the truth about nicotine in order to sustain the addictions of existing cigarette smokers and to hook thousands of new smokers every day, including Plaintiff's decedent . . . . Not only did the Tobacco Industry know, misrepresent, omit, and conceal that nicotine is an addictive drug, Plaintiff and other cigarette consumers are informed and believe that the Tobacco Industry . . . manipulates and controls the levels of nicotine in these products to create and sustain the addiction."

DISCUSSION

We review de novo a district court's dismissal for failure to state a claim upon which relief can be granted. See Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a "complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (internal quotations and citation omitted).

We must treat as true all of the well-pleaded allegations of the complaint. All allegations must be construed in the light most favorable to the plaintiff. In order for a dismissal to be proper, it must appear beyond doubt that the plaintiff would not be able to recover under any set of facts that could be presented consistent with the allegations of the complaint.

Bower v. Federal Express Corp., 96 F.3d 200, 203 (6th Cir. 1996) (citations omitted). Furthermore, under Rule 9(b) of the Federal Rules of Civil Procedure, a complaint alleging fraud must allege with particularity those circumstances constituting fraud. See VanDenBroeck v. CommonPoint Mortgage Co., 210 F.3d 696, 701 (6th Cir. 2000).

When federal jurisdiction is based upon diversity of citizenship under 28 U.S.C. § 1332, as is the case here, we are bound by the substantive law of the state in which the action originally was brought. See Erie R.R. v. Tomkins, 304 U.S. 64, 78 (1938). Neither party disputes the district court's determination that OPLA governs Glassner's claims of negligence, strict liability, negligent misrepresentation, and malicious conduct (Counts III, IV, V, VII). Further, neither party disputes that Glassner's fraud/deceit claim (Count I) is governed by Ohio common law. Before we address the question of whether Glassner stated a claim upon which relief can be granted under either OPLA or Ohio common law, however, it is necessary to consider whether any or all of Glassner's claims are preempted by federal law.

I. Preemption

In 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331 et seq., which became effective on January 1, 1966. Section 4 of the Act mandated that all cigarettes sold or distributed in the United States have a warning on the package stating: "CAUTION: CIGARETTE SMOKING MAY BE HAZARDOUS TO YOUR HEALTH." 15 U.S.C. § 1333 (1965). Section 5 of the Labeling Act was captioned, "Preemption" and stated:

(a) No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be required on any cigarette package.

(b) No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.

15 U.S.C. § 1334 (1965).

The Public Health Cigarette Smoking Act of 1969, which became effective on July 1, 1969, amended the 1965 Act and called for stronger warning labels on cigarette packages, requiring that from then on, the warning had to state that smoking is dangerous to one's health rather than simply stating that smoking may be hazardous. See 15 U.S.C. § 1333 (1969). The 1969 Act also modified the preemption provision of the 1965 Act by amending § 5(b) to read as follows:

No 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) (1969).

In Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) (plurality opinion), the Supreme Court addressed the scope of both the 1965 and 1969 Act insofar as they preempted various state law damages claims. In Cipollone, the plaintiff asserted that the defendant cigarette manufacturers were responsible for the death of his mother, a long-time smoker. The plaintiff alleged that defendants breached express warranties contained in their advertising, failed to warn consumers about smoking's hazards, fraudulently misrepresented those hazards to consumers, and conspired to deprive the public of medical and scientific information about smoking, all in derogation of duties under New Jersey law. See id. at 508. The question before the Cipollone Court was whether the 1969 Act, or its 1965 predecessor, preempted plaintiff's common law claims against the defendants.

Cippolone held that the preemptive scope of each Act was governed entirely by the express language contained in Section 5. The Court determined that because each Act contained a provision defining the scope of the preemptory effect of that Act, those provisions must be construed narrowly and matters beyond their reach were not preempted. See id. at 517. The Court concluded that Section 5 of the 1965 Act did not preempt state law damages actions. See id. at 518-20. However, in analyzing the 1969 Act, the Court found that the broad language of Section 5(b), as amended, extended the Act's preemptive reach to include some, but not all, common law damages actions. See id. at 520-21. Ultimately, the Court found it necessary to look beyond the labels attached to plaintiff's common law claims and, instead, to evaluate each claim to determine whether it was in fact preempted by the 1969 Act. See id. at 523.

Cippolone recognized that in order to decide whether any claim is preempted, a court must first determine "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 clause a fair but narrow reading." Id. at 523-24 (quoting 15 U.S.C. § 1334(b)). The Court then analyzed the preemptive effect of the 1969 Act on each of plaintiff's claims, concluding that plai...

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