Hearn v. R.J. Reynolds Tobacco Co.

• Decision Date: 19 August 2003
• Docket Number: No. CIV-02-1517-PHX-ROS.,CIV-02-1517-PHX-ROS.
• Court: U.S. District Court — District of Arizona
• Parties: Roger HEARN, personally and as personal representative of the estate of Winona M. Hearn, his deceased wife, and Lori Ann Peterson, daughter of the decedent, Plaintiffs, v. R.J. REYNOLDS TOBACCO COMPANY, a fully owned subsidiary of R.J Reynolds Tobacco Holdings, Inc., Brown & Williamson Inc., a foreign corporation and a subsidiary of British American Tobacco Industries, Plc., a foreign corporation, and entity, Brown & Williamson Tobacco Corp., Defendants.

279 F.Supp.2d 1096

Roger HEARN, personally and as personal representative of the estate of Winona M. Hearn, his deceased wife, and Lori Ann Peterson, daughter of the decedent, Plaintiffs, v. R.J. REYNOLDS TOBACCO COMPANY, a fully owned subsidiary of R.J Reynolds Tobacco Holdings, Inc., Brown & Williamson Inc., a foreign corporation and a subsidiary of British American Tobacco Industries, Plc., a foreign corporation, and entity, Brown & Williamson Tobacco Corp., Defendants.

No. CIV-02-1517-PHX-ROS.

United States District Court, D. Arizona.

August 19, 2003.

COPYRIGHT MATERIAL OMITTED

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Patrick Allen Plummer, Plummer & Associates PLC, Phoenix, AZ, for Plaintiffs.

Brian Michael Goodwin, Lori V. Berke, Shughart, Thomson & Kilroy PC, Howard Ross Cabot, Christopher Stuart Coleman, Brown & Bain, PA, Phoenix, AZ, Scott C. Walker, Jeffrey J. Jones, Columbus, OH, for Defendants.

ORDER

SILVER, District Judge.

I. Introduction

Plaintiffs, Robert Hearn, personally and on behalf of his deceased wife, Winona M. Hearn, and her daughter Lori Ann Peterson, seek relief for damages they have suffered as a result of Winona Hearn's smoking-related death. The Defendants in this action, producers of the cigarettes consumed by Winona Hearn, include R.J. Reynolds Tobacco Holdings Inc., British American Tobacco Industries, Plc., and Brown & Williamson Tobacco Corporation. Defendants petition this Court to dismiss Plaintiffs' Complaint. For the reasons stated below, this Court will grant in part and deny in part Defendants' Motion to Dismiss.

II. Background

A. Relevant Facts

For a substantial period of time, Winona Hearn purchased and smoked cigarettes manufactured by the Defendants (Complaint at ¶ 21) (Doc. # 1) (attached to Notice of Removal). She began smoking in 1950 at the age of sixteen, allegedly induced into the habit via extensive advertising campaigns sponsored by Defendants (Response at 8). Plaintiffs allege that Winona was not aware of all detrimental risks that smoking posed to her health when she began the habit (Id. at ¶ 22). Moreover, Plaintiffs allege that when Winona finally became aware of the risks, upon enaction of the Federal Labeling Act in 1969, it was too late to stop due to the severity of her addiction (Id. at ¶ 24). Plaintiffs allege that Winona was diagnosed with lung cancer in April of 2000, resulting in her death in November of the same year (Id. at ¶ 23). Further, it is claimed that if Winona Hearn had known about the risks smoking posed to her health early enough she would have quit (Id. at ¶ 24). Plaintiffs list a number of injuries suffered by Winona Hearn prior to her death and after she learned she had cancer, including but not limited to lung cancer, shortness of breath, anxiety, fear, mental and emotional distress, which are allegedly attributable to the conduct of the Defendants (Id. at ¶ 25).

B. Procedural History

On August 8, 2002 Plaintiffs filed their Complaint, alleging twelve separate counts against Defendants including: (1) negligence; (2) strict liability; (3) false representation; (4) breach of implied warranty; (5) breach of warranty of fitness for a particular purpose; (6) common law wrongful death; (7) statutory wrongful death; (8) punitive damages; (9) negligent infliction of emotional distress; (10) fraudulent concealment; (11) civil conspiracy; and (12) survival claims.¹ (Doc. # 1)². Thereafter, Defendants jointly filed a timely Motion to Dismiss, relying primarily on the "common knowledge" doctrine relating to the dangers of smoking and the preemption doctrine under the Federal Labeling Act (Doc. # 11). Plaintiffs filed a timely Response, asserting that the Federal Labeling Act does not bar their claims and that the dangers of smoking were not commonly known when Winona began to smoke (Doc. # 14). Defendants filed a timely Reply, reiterating the applicability of both doctrines (Doc. # 21).³ For reasons mentioned below, the Court will grant in part and deny in part Defendants' Motion to Dismiss.

III. Discussion

A. Jurisdiction and Applicable Law

The purported amount of compensatory and punitive damages sought by Plaintiffs appears to exceed $75,000. Moreover, upon filing their Complaint, Plaintiffs and Defendants shared no common citizenship—Plaintiffs were citizens of Arizona, Idaho or Utah, and Defendants were neither incorporated nor had any principle place of business in Arizona, Idaho or Utah. Therefore, this Court possesses subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332, diversity jurisdiction. Both parties have stipulated and established that Arizona substantive law applies in resolving the following issues (see Responses to Judge Silver's Order on Supplemental Briefing on Choice of Law Issues, Doc. # 30, 31).

B. Legal Standard for Motion to Dismiss

A court may not dismiss a complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Barnett v. Centoni, 31 F.3d 813, 813 (9th Cir.1994) (citing Buckey v. Los Angeles, 957 F.2d 652, 654 (9th Cir.1992)); see Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). "The federal rules require only a `short and plain statement of the claim showing that the pleader is entitled to relief.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 (9th Cir. 1997) (quoting Fed.R.Civ.P. 8(a)). "The Rule 8 standard contains a powerful presumption against rejecting pleadings for failure to state a claim." Id. at 249 (quotation marks omitted). "All that is required are sufficient allegations to put defendants fairly on notice of the claims against them." McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991) (citing Conley, 355 U.S. at 47, 78 S.Ct. 99; 5 C. Wright & A. Miller, Federal Practice & Procedure § 1202 (2d ed.1990)). Indeed, though "`it may appear on the face of the pleadings that a recovery is very remote and unlikely[,] ... that is not the test.'" Gilligan, 108 F.3d at 249 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). "`The issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Id.

When analyzing a complaint for failure to state a claim, "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the non-moving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.1996); see Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977). In addition, the district court must assume that all general allegations "embrace whatever specific facts might be necessary to support them." Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir.1994), cert. denied, 515 U.S. 1173, 115 S.Ct. 2640, 132 L.Ed.2d 878 (1995) (citations omitted).

"Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988); see William W. Schwarzer et al., Federal Civil Procedure Before Trial § 9:187, at 9-46 (2002) (Judge R. Silver, contributing editor). Alternatively, dismissal may be appropriate when the plaintiff has included sufficient allegations disclosing some absolute defense or bar to recovery. See Weisbuch v. County of L.A., 119 F.3d 778, 783, n. 1 (9th Cir.1997) ("If the pleadings establish facts compelling a decision one way, that is as good as if depositions and other ... evidence on summary judgment establishes the identical facts."); see also Federal Civil Procedure Before Trial § 9:193, at 9-47 (Judge R. Silver, contributing editor).

"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990); see Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.2001). Indeed, "a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss." Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 (9th Cir.1998) (citing Harrell v. United States, 13 F.3d 232, 236 (7th Cir.1993)). "`However, material which is properly submitted as part of the complaint may be considered' on a motion to dismiss." Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.), cert. denied, 512 U.S. 1219, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994) (quoting Hal Roach Studios, 896 F.2d at 1555 n. 19) (emphasis in original); see Federal Civil Procedure Before Trial § 9:212, at 9-54 (Judge R. Silver, contributing editor). In addition, "even if the plaintiff's complaint does not explicitly refer to" a document, "a district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies" because this prevents "plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based[.]" Parrino, 146 F.3d at 705-06. At this stage of the litigation, however, the district court must resolve any ambiguities in the considered documents in the plaintiff's favor. See Int'l Audiotext Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir.1995); see also Smith, 84 F.3d at 1217; Miree, 433 U.S. at 27 n. 2, 97 S.Ct. 2490; Federal Civil Procedure Before Trial § 9:212.1c, at 9-55.

C. Analysis

1. Restatement (Second) of Torts Argument

Defendants argue that the Restatement (Second) of Torts requires dismissing Plaintiffs' claims for (1) negligence, (2) strict liability, (3) breach of implied warranty, and (4) breach of fitness for a particular purpose. Specifically, Defendants argue that (1)...