Hollar v. Philip Morris Inc.
| Decision Date | 07 July 1998 |
| Docket Number | No. 1:97 CV 00667.,1:97 CV 00667. |
| Citation | 43 F.Supp.2d 794 |
| Parties | Joann HOLLAR, Individually and as Fiduciary of the Estate of David Hollar, Plaintiff, v. PHILIP MORRIS INCORPORATED, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Mark R. Chilson, Dayton, OH, pro se.
Walter L. Cofer, shook, Hardy & Bacon, Kansas City, pro se.
Tammy B. Coker, Shook, Hardy & Bacon, Kansas City, MO, pro se.
Thomas J. Collin, Thompson, Hines & Flory, Cleveland, OH, pro se.
Mark A. Dover, Shook, Hardy & Bacon, Kansas City, MO, for defendant represented by Dover.
John R. Fraser, Shook, Hardy & Bacon, Kansas City, pro se.
Craig E. Gustafson, Shook, Hardy & Bacon, Kansas City, pro se.
Henry J. Hilow, Cleveland, OH, pro se.
David J. Hooker, Thompson, Hine & Flory, Cleveland, OH, pro se.
Steven Klugman, Debevoise & Plimpton, New York City, pro se.
Ronald S. Kopp, Roetzel & Andress, Akron, OH, pro se.
Samuel R. Martillotta, Mansour, Gavin, Gerlack & Manos, Cleveland, OH, pro se.
John F. McCaffrey, McLaughlin & McCaffrey, Cleveland, OH, pro se.
Patrick M. McLaughlin, McLaughlin & McCaffrey, Cleveland, OH, pro se.
R. Bryan Nace, Laybourne, Smith, Gore & Goldsmith, Akron, OH, pro se.
Matthew Charles O'Connell, Reminger & Reminger, Cleveland, OH, pro se.
John J. Repcheck, Sharlock, Repcheck & Mahler, Pittsburgh, PA, pro se.
Thomas D. Schroeder, Womble, Carlyle, Sandridge & Rice, Winston-Salem, NC, pro se.
A. Russell Smith, Laybourne, Smith, Gore & Goldsmith, Akron, OH, pro se.
Thomas A. Swihart, Fort Wayne, IN, pro se.
Richard A. Vadnal, Reminger & Reminger, Cleveland, OH, pro se.
Keith W. Vaughhan, Womble, Carlyle, Sandridge & Rice, Winton-Salem, NC, pro se.
James R. Vaughn, Roetzel & Andress, Akron, OH, pro se.
Robert Francis Ware, Jr., Thompson, Hine & Flory, Cleveland, OH, pro se.
Jerome F. Weiss, Cleveland, OH, pro se.
Harry Zirlin, Debevoise & Plimpton, New York City, pro se.
This matter is before the Court on the Motion of the Tobacco Defendants (Philip Morris, Inc., R.J. Reynolds Tobacco Company ("RJR"), The Tobacco Institute, Inc. ("TI") and Council for Tobacco Research USA, Inc. ("CTR")) to Dismiss the Amended Complaint (Document # 78) and the Motion of TI for reconsideration of its Motion to Dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). (Document # 44).1 For the reasons stated below, the Motion of the Tobacco Defendants to Dismiss the Amended Complaint is granted in part and denied in part. TI's Motion for Reconsideration is denied.
This action was originally filed by Plaintiffs David and Joann Hollar in the Court of Common Pleas for Cuyahoga County. Defendants removed the case to this Court on March 13, 1997, pursuant to 28 U.S.C. § 1446(b) on the ground that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332. The Complaint asserted claims of strict liability, negligent, wilful and wanton misconduct, fraud and misrepresentation, strict liability for misrepresentation, express warranty, implied warranty, and conspiracy and concerted action against the tobacco defendants2 and claims of strict liability, negligence and wanton misconduct, express warranty, implied warranties, fraud and misrepresentation, and conspiracy and concerted action against the asbestos defendants — The Babcock & Wilcox Company, Union Boiler Company, Cleaver Brooks, Power Plant Services, Metropolitan Life Insurance Company and unidentified John Doe defendants.3 Plaintiff David Hollar sought compensatory damages for lung cancer and asbestos related diseases and punitive damages. Plaintiff Joann Hollar sought damages for loss of services and consortium.
The Amended Complaint adds 12 paragraphs in the introductory section concerning nicotine and its addictive effects and adds 46 paragraphs, consisting mainly of statements or advertisements from the late fifties, sixties and early seventies, attributed to the tobacco defendants, to the fraud and misrepresentation claim. Plaintiff also added 8 paragraphs to the conspiracy and concerted action claim; primarily concerning the dissemination of information by TI and the formation of CTR (formerly TIRC).
Plaintiff David Hollar died prior to the filing of the Amended Complaint. Plaintiff Joann Hollar, acting as executrix of David Hollar's estate, brings the Amended Complaint as a wrongful death and survivorship action. Except for the added paragraphs, the causes of action against the Tobacco Defendants remain the same.4
Plaintiff alleges that during the period between 1971 and 1995, David Hollar smoked Marlboro cigarettes which were manufactured by Defendant Philip Morris and Winston cigarettes which were manufactured by RJR. (Amended Complaint ¶ 11). Joann Hollar smoked Winston and Marlboro cigarettes from 1968 to the present, and alleges that David Hollar would have breathed and been exposed to smoke from the cigarettes. (Amended Complaint ¶ 12).
The Tobacco Defendants contend that the Amended Complaint fails to state a claim upon which relief may be granted in that Plaintiff's claims are governed by the Ohio Product Liability Act, Ohio Rev.Code §§ 2307.71-2307.80, 2315.20, ("the Act") which precludes liability against manufacturers of products, like cigarettes, where the purported risks are a matter of common knowledge. Defendants also contend that Plaintiff's fraud and breach of warranty claims should be dismissed because they are vague and conclusory and do not satisfy the pleading requirements of Fed. R.Civ.P. 9(b) and 8(a). Moreover, if the fraud claim is dismissed, the conspiracy/concert of action claim should also be dismissed for lack of an underlying tort. Finally, RJR asserts that it was never properly served with the Summons and Complaint and thus, the action should be dismissed against it.
Plaintiff counters that her strict liability claims are not barred by the common knowledge defense because the tobacco industry mislead and confused the public with respect to the hazards of smoking and those deceptive efforts negated any reports of dangers and nullified any warnings. Further, Plaintiff contends that her warranty claims, specifically her implied warranty claim, was not eliminated by the Act and that her common law fraud claim was adequately pled and satisfies the particularity requirements of Fed.R.Civ.P. 9(b). Finally, Plaintiff contends that RJR received notice of this action through service on its parent, has not been prejudiced and should not be dismissed for any insufficiency in service of process. The issues have been exhaustively briefed by both sides and the Tobacco Defendants' Motion to Dismiss is now ready for decision.
TI filed a Motion to Dismiss pursuant to Rule 12(b)(2) on May 9, 1997, which was denied by marginal ruling on September 26, 1997. TI filed a Motion to Reconsider on October 15, 1997.5 Plaintiff filed a Memorandum in Opposition to TI's Motion for Reconsideration and TI was granted leave to file supplemental authority in support of its Motion for Reconsideration. TI's Motion is now fully briefed and argued and ready for decision.
Federal courts apply the law of the forum state, subject to the limits of the Due Process Clause of the Fourteenth Amendment, to determine whether personal jurisdiction exists over a defendant. "[T]he defendant must be amenable to suit under the forum state's long-arm statute and the due process requirements of the Constitution must be met." Reynolds v. International Amateur Athletic Fed'n., 23 F.3d 1110, 1115 (6th Cir.1994) citing In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220, 224 (6th Cir.1972).
Under the procedural framework which governs Rule 12(b)(2) motions, the plaintiff bears the burden of establishing that jurisdiction exists. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir.1996). In her Amended Complaint, Plaintiff alleges that TI is a tobacco industry trade organization with a principal place of business in Washington, D.C. (Amended Complaint ¶ 7). The Amended Complaint refers to numerous statements, advertisements and articles attributed to TI, mainly from the sixties, seventies and a couple from the early eighties; however, there is no indication that these statements were published or distributed in Ohio. (Amended Complaint ¶¶ 51-56) Plaintiff also avers that "TI has intentionally sought to influence people in Ohio and promote smoking and the tobacco industry ...." (Amended Complaint ¶ 100) (Amended Complaint ¶ 101). Plaintiff also alleges that (Amended Complaint ¶ 102). Further, TI is alleged to have used spokepersons who traveled around the country speaking to organizations and groups and who appeared on shows such as Larry King Live, The McNeil/Lehrer Report, Good Morning America, Today and the network news. (Amended Complaint ¶ 103). In addition, Plaintiff contends that TI produced brochures or handouts regarding the history and current economic impact of the tobacco...
To continue reading
Request your trial
-
Shepherd Investments Intern. v. Verizon Commun.
...a non-resident defendant's state lobbying activities when determining personal jurisdiction. See, e.g., Hollar v. Philip Morris Inc., 43 F.Supp.2d 794, 801-02 n. 6 (N.D.Ohio 1998). However, I find more persuasive such decisions as Chamberlain v. American Tobacco Co., No. 1-96 CV 2005, 1999 ......
-
Wright v. Brooke Group Ltd.
...Co., 84 F.Supp.2d 263, 273 (D.R.I.2000) (refusing to blindly apply Comment i to bar plaintiff's claims); Hollar v. Philip Morris Inc., 43 F.Supp.2d 794, 806-07 (N.D.Ohio 1998); Paugh v. R.J. Reynolds Tobacco Co., 834 F.Supp. 228, 230-31 (N.D.Ohio 1993). But see Estate of Edward D. White v. ......
-
Bragg v. Linden Research, Inc.
...in a national trade publication, coupled with defendant's shipment of the product into the forum state); Hollar v. Philip Morris Inc., 43 F.Supp.2d 794, 802-03 (N.D.Ohio 1998) (holding specific personal jurisdiction existed over tobacco company that made false representations regarding smok......
-
Hearn v. R.J. Reynolds Tobacco Co.
...even when the smokers allege alteration of the tobacco by addition of "foreign" substances. See, e.g., Hollar v. Philip Morris, Inc., 43 F.Supp.2d 794, 807 (N.D.Ohio 1998); Jones v. American Tobacco Co., 17 F.Supp.2d 706, 718 (N.D.Ohio 1998); Paugh v. R.J. Reynolds Tobacco Co., 834 F.Supp. ......