Insolia v. Philip Morris Inc.
| Decision Date | 19 May 1999 |
| Docket Number | No. 97-C-0347-C.,97-C-0347-C. |
| Citation | 53 F.Supp.2d 1032 |
| Parties | Vincent INSOLIA and Karen Insolia, Billy Mays and Phyllis Mays, Maureen Lovejoy and Lee Lovejoy, Physicians Plus Insurance Corporation, party joined pursuant to Wis.Stat. sec. 803.03, Plaintiffs, v. PHILIP MORRIS INCORPORATED; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; Liggett Group Inc.; The Council for Tobacco Research — U.S.A., Inc.; and The Tobacco Institute, Inc., Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
James A. Olson, Lawton & Cates, S.C., Madison, WI, for Insolia, Vincent, Insolia, Karen.
Thomas J. Basting, Sr., Brennan, Steil, Basting & MacDougall, Janesville, WI, for State of Wisconsin.
Richard Schmidt, Boardman, Suhr, Curry & Field, Madison, WI, for Physicians Plus Ins. (Invol Plaintiff).
Michael T. Graham, Jackson, Lewis, Schnitzler and Krupman, Chicago, IL, for Associates' Health and Welfare.
Mullen J. Dowdal, Asst U.S. Attorney, Madison, WI, for Shalala, Donna.
Michael L. Zaleski, Quarles & Brady, Madison, WI, for Philip Morris Incorporated.
James Clark, Foley & Lardner, Milwaukee, WI, for R.J. Reynolds Tobacco Company.
Timothy J. Pike, Peterson, Johnson & Murray S.C., Milwaukee, WI, for Brown & Williamson Tobacco Corp.
Ralph A. Weber, Reinhart, Boerner, Van Deuren Norris & Rieselbach, S.C., Milwaukee, WI, for B.A.T. Industries P.L.C.
Bruce A. Schultz, Coyne, Niess, Schultz, et al., Madison, WI, for Lorillard Tobacco Company.
Robert B. Raschke, Lindquist & Vennum, Minneapolis, MN, for Liggett Group Inc.
James F. Gebhart, Attorney at Law, Madison, WI, for Hill & Knowlton, Inc.
John H. Schmid, Axley Brynelson, Madison, WI, for The Council for Tobacco Research.
John Koeppl, Attorney at Law, Madison, WI, for The Tobacco Institute, Inc.
This is a civil action for money damages brought by three former smokers and their spouses against the country's major cigarette manufacturers and two tobacco industry trade organizations. The centerpiece of plaintiffs' complaint is an omnibus conspiracy allegation, charging that defendants have engaged in a variety of tortious conduct aimed at recruiting new smokers and insuring that current smokers remain hooked. In addition, plaintiffs have brought stand-alone claims for negligence, strict liability and intentional exposure to a hazardous substance. In light of the number of individual bases of recovery grouped within these broad theories of liability, plaintiffs' claims are best presented in a table:
Theory of Liability Individual Claim
Negligence • Manufacture
• Marketing
• Warnings regarding addiction and
health risks
Strict Liability • Design
• Manufacture
• Marketing
Intentional Exposure to a Hazardous Substance Manipulation of nicotine and cigar
Conspiracy • Restraint and suppression of research
regarding the health risks of
smoking
• Intentional misrepresentation of
health risks and addiction
• Fraudulent concealment of health
risks and addiction
• Manipulation of nicotine and cigarette
additives and concealment of
manipulation
• Negligence
• Negligent failure to warn
• Strict liability
The case is before the court on nine separate motions for summary judgment filed by defendants. Again, a table is useful:
Docket # Brought By Against Claims
1. 223 All defendants Insolia All claims
2. 226 All defendants All plaintiffs • Intentional exposure to a hazardous
substance
• Conspiracy to commit negligence
• Conspiracy to commit strict liability
• Negligent manufacture
• Negligent marketing
3. 229 All defendants Mays All claims
4. 232 All defendants All plaintiffs • Negligent manufacture
• Negligent marketing
• Strict liability: design, manufacture
and marketing
• Conspiracy to commit strict liability
5. 238 Brown & Williamson, Lovejoy and All claims
Mays
6. 241 All defendants All plaintiffs • Conspiracy to intentionally misrepresent
risks of smoking and
addiction
• Conspiracy to fraudulently conceal
risks of smoking and addiction
• Conspiracy to suppress research
regarding risks of smoking and
addiction
• Conspiracy to fail to warn
• Negligent failure to warn
• Negligent marketing
7. 244 All defendants All plaintiffs • Negligent failure to warn
• Conspiracy to fail to warn
• Conspiracy to commit fraudulent
concealment
• All other claims based on duty
to disclose information
8. 247 Tobacco Institute All plaintiffs All claims
9. 251 Council for Tobacco All plaintiffs All claims
Research
(Although the captions of the motions brought by all defendants indicate that defendant Liggett Group, Inc. has not joined in these motions, Liggett has since elected to do so (dkt # 255)). The second, fourth and sixth motions target nearly all of the claims raised by plaintiffs. I conclude that these three motions will be granted in most respects. Defendants are entitled to summary judgment on plaintiffs' claims of strict liability, negligent manufacture, negligent marketing, conspiracy to commit negligence and conspiracy to commit strict liability. These claims all hinge on proof that cigarettes are an unreasonably dangerous and defective product. Plaintiffs have failed to come forward with sufficient proof to create a genuine dispute of fact on this issue. Because there is also no proof that plaintiffs relied on any statement made by defendants and no proof that any information concealed by defendants played a material role in plaintiffs' decisions to continue smoking, summary judgment is warranted with respect to plaintiffs' claims that defendants conspired to suppress research, commit intentional misrepresentation and commit fraudulent concealment. Similarly, plaintiffs cannot establish that a causal connection exists between their decisions to continue smoking and defendants' alleged failure to disclose information about the risks associated with smoking when there is no evidence that any type of warning would have made a difference. Without proof of legal causation, defendants are entitled to summary judgment on plaintiffs' negligent failure to warn claims. Finally, summary judgment will be granted on plaintiffs' claim of intentional exposure to a hazardous substance. No such cause of action exists in Wisconsin and this court does not have the authority to create one unilaterally.
This leaves plaintiffs' claim that defendants have conspired to manipulate the nicotine content of cigarettes and to conceal such manipulation. I am unable to find any direct reference to this allegation in any of the briefs submitted by defendants. Arguably, this claim could be grouped with plaintiffs' misrepresentation claims. If this was defendants' intention, I do not believe that their brief put plaintiffs on notice of it. Defendants will have two weeks within which to inform the court whether they intend to move for summary judgment on plaintiffs' remaining claim. A decision on all other motions filed by all other defendants will be stayed pending resolution of this matter.
On a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997). For the purpose of deciding defendants' motions for summary judgment, I find from the parties' proposed findings of fact that there is no genuine dispute with respect to...
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