Huddleston v. R.J. Reynolds Tobacco Co.

• Decision Date: 16 September 1999
• Docket Number: No. CIVA1:98-CV-1865-TWT.,CIVA1:98-CV-1865-TWT.
• Citation: 66 F.Supp.2d 1370
• Parties: James HUDDLESTON as the Representative of Elizabeth Irene Huddleston, deceased, and as the Executor of the Will and Estate of Elizabeth Irene Huddleston, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

66 F.Supp.2d 1370

James HUDDLESTON as the Representative of Elizabeth Irene Huddleston, deceased, and as the Executor of the Will and Estate of Elizabeth Irene Huddleston, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, Defendant.

No. CIVA1:98-CV-1865-TWT.

United States District Court, N.D. Georgia, Atlanta Division.

September 16, 1999.

COPYRIGHT MATERIAL OMITTED

Gary P. Bunch, Office of Gary Bunch, Atlanta, GA, for plaintiff.

Stephanie Ethel Parker, Michael Joseph McConnell, Shannon Arthur Singleton, Jones Day Reavis & Pogue, Atlanta, GA, defendant.

ORDER

THRASH, District Judge.

This is a civil RICO and fraud action against a tobacco company brought by the spouse of a deceased cigarette smoker. It is before the Court on the Defendant's (1) First Motion for Summary Judgment [Doc. 16]; (2) Motion to File Supplementary Brief in Support of First Motion for Summary Judgment [Doc. 32]; (3) Motion to Strike Certain Portions of the Plaintiff's Affidavit filed in Response to First Motion for Summary Judgment [Doc. 33]; (4) Second Motion for Summary Judgment [Doc. 46]; and (5) Motion to Submit Supplemental Authority in Support of First Motion for Summary Judgment [Doc. 47]. The Defendant's unopposed Motion to Submit Supplemental Authority [Doc. 47] is granted. The Plaintiff has filed no written opposition to the Defendant's Motions to File Supplementary Brief and to Strike Certain Portions of the Plaintiff's Affidavit. The Defendant's unopposed Motion to File Supplementary Brief [Doc. 32] is therefore granted. The Plaintiff filed his Affidavit in response to the Defendant's First Motion for Summary Judgment. (Doc. 24, Plaintiff's Affidavit). The Defendant seeks to strike paragraphs 5, 6, 7, 14 and 15 of the Plaintiff's Affidavit as contradictory to his sworn deposition testimony. The Court finds that the Plaintiff's testimony in these paragraphs does contradict the testimony in the Plaintiff's deposition. (Plaintiff's Dep. at 98-113, 184, 213-214). Thus, in addition to being unopposed, the Defendant's Motion to Strike paragraphs 5, 6, 7, 14, and 15 of the Plaintiff's affidavit [Doc. 33] is granted because statements in an affidavit that contradict sworn deposition testimony cannot be used to create a genuine issue of material fact to defeat summary judgment. See Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 658-59 (11th Cir.1984). The Court will grant the first summary judgment motion for the reasons stated below. The second summary judgment motion is denied as moot.

I. BACKGROUND

This is a diversity case brought by Plaintiff James Huddleston against Defendant R.J. Reynolds, a New Jersey corporation having its principal place of business in North Carolina. The Defendant manufactures, advertises, promotes and sells cigarettes throughout the United States including Georgia. The Plaintiff brings this action as the survivor of his wife, Elizabeth Irene Huddleston, who died on March 30, 1998, and as the executor of her estate. In the Complaint, it is alleged that Mrs. Huddleston smoked the Defendant's cigarettes from the time she began smoking in 1939 or 1940 until her death in 1998.

In his Amended Complaint, the Plaintiff alleges that his wife died from metastatic oat cell carcinoma, which was allegedly caused by her smoking cigarettes manufactured by the Defendant. The Plaintiff alleges that the Defendant deliberately exposed her to cigarettes the company knew to be hazardous. Plaintiff alleges she became addicted to cigarettes because of the Defendant's tortious conduct. This tortious conduct stems from Defendant's alleged knowledge of the harmful health effects caused by cigarettes. The Plaintiff alleges that the Defendant (1) has spent millions of dollars each year in advertising and promoting cigarettes; (2) has made public statements and advertisements stating that tobacco smoking is not harmful or addictive when it knew the opposite; and (3) has given false and fraudulent information to the public, Congress, and the scientific community. To counter public concerns over these health implications, Defendant allegedly formed the Tobacco Industry Research Committee (TIRC), later known as the Council for Tobacco Research (CTR). Defendant allegedly conspired with other cigarette manufacturers to either mislead or conceal from the public the addictive nature of nicotine, Defendant's control of nicotine levels in its cigarettes, and the true purpose of the CTR.

The Plaintiff also alleges that Defendant helped fund the Tobacco Institute. The alleged purpose of this institute consisted of lobbying the government and "creating doubt about the health charge (of smoking) without actually denying it." (Doc. 14, Amended Complaint, ¶ 44). In support of his allegations, the Plaintiff points to Tobacco Institute advertising characterizing the organization's goals. The Plaintiff also alleges that Defendant was responsible for misleading testimony before Congress that "there is no medical or scientific basis for viewing cigarette smoking as an `addiction.'" (Doc. 14, Amended Complaint, ¶ 52). The Plaintiff also alleges that the Defendant manipulated nicotine levels in cigarettes. This manipulation allegedly assured continued addiction by smokers such as the Plaintiff's wife, thereby preserving Defendant's market. The Plaintiff alleges that these and other tortious acts by the Defendant deprived her of material facts regarding the dangers of smoking.

Specifically, the Plaintiff makes three claims. He asserts in Count One that the Defendant violated Georgia's Racketeer Influenced and Corrupt Organizations Act (RICO), O.C.G.A. § 16-14-1, et seq. The alleged RICO violations stem from the Defendant's action in concert with other tobacco companies and marketers to misrepresent their efforts in performing scientific research. Along with this research, the Defendant allegedly fashioned advertising and marketing campaigns to conceal the dangerous health impact caused by cigarettes. The Plaintiff asserts in Count Two that the Defendant intentionally exposed her to a hazardous substance. In Count Three, the Plaintiff asserts fraud by the Defendant in misrepresenting the health hazards of cigarettes. The Plaintiff seeks compensatory and punitive damages. The Defendant has filed two summary judgment motions [Doc. 16, 46] with respect to all of the claims asserted against it.

Plaintiff was deposed after the Defendant filed its first motion for summary judgment. He testified that his wife really enjoyed smoking. (Huddleston Dep. pp. 94-95). She never tried to quit and never sought help from a doctor to quit smoking. (Id., at 95-96). She read romance novels. (Id., at 97). She did not keep up with the news. (Id., at 98). She seldom read newspapers or magazines. (Id., at 100-101). She never discussed with him any articles she read about smoking. (Id., at 99-100). She mostly watched soap operas on television and did not watch the news on television. (Id., at 103). She never talked to him about anything she saw on television about smoking. (Id., at 105). He never discussed with her the warning labels on cigarettes. (Id., at 109). He never saw her read any advertisements about cigarettes. (Id., at 110). He never discussed cigarette advertisements with his wife. (Id., at 11). He and his wife never discussed the Tobacco Institute or the Council for Tobacco Research (Id., at 113-114). There is no other admissible evidence in the record of Mrs. Huddleston's reliance upon any of the Defendant's alleged misrepresentations.

II. SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the non movant. Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

At the summary judgment stage, the court's function is not to weigh the evidence to determine the truth of the matter, but to determine whether a genuine issue of material fact exists for trial. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510. "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir.1995). "Where the record taken as a whole could not lead a rationale trier of fact to find for the nonmoving party," summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

III. DISCUSSION

In the First Motion for Summary Judgment, the Defendant contends that the Plaintiff's fraud and Georgia RICO claims in Counts One and Three fail because he cannot establish that Mrs. Huddleston relied on any of the Defendant's alleged misinterpretations or omissions. The Defendant contends that the Plaintiff's claim in Count Three fails because Georgia law does not recognize a cause of action for "intentional exposure to hazardous substance." The Defendant next contends that the Plaintiff's (1) post-1969 failure to warn claims are preempted by federal law and should be dismissed and (2) pre-1969 failure to warn claims fail because the...