De Jesus Rivera v. R.J. Reynolds Tobacco Co., No. CIV.03-1099(JAF).

• Decision Date: 04 May 2005
• Docket Number: No. CIV.03-1099(JAF).
• Citation: 368 F.Supp.2d 148
• Parties: Elisa DE JESUS RIVERA, et al., Plaintiffs, v. R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

368 F.Supp.2d 148

Elisa DE JESUS RIVERA, et al., Plaintiffs, v.R.J. REYNOLDS TOBACCO COMPANY, et al., Defendants.

No. CIV.03-1099(JAF).

United States District Court, D. Puerto Rico.

May 4, 2005.

COPYRIGHT MATERIAL OMITTED

Amarilys Arocho-Maldonado, Arocho Maldonado Law Office, Utuado, PR, Archie Jennings, St. Thomas, VI, Myrna E. Ayala-Diaz, San Juan, PR, for Plaintiffs.

James R. Johnson, L. Christine Buchanan, Jason E. Keehfus, Robin A. Schmahl, Jones Day, M. Derek Harris, Atlanta, GA, Rosalie Irizarry-Silvestrini, Clotilde Rexach-Benitez, Fiddler, Gonzalez & Rodriguez, San Juan, PR, for Defendants.

OPINION AND ORDER

FUSTE, District Judge.

Plaintiffs, Elisa de Jesús Rivera; Jorge Antonio Rivera; José Alberto Rivera; Idaly Rivera de Jesús; Maribel Rivera de Jesús, individually and as guardian and natural mother of Jessica M. Vázquez Rivera; Miguelina Rivera de Jesús; Jorge Luis Rivera de Jesús; Osvaldo Rivera de Jesús; Humberto Rivera de Jesús; Luis Antonio Rivera de Jesús; and Angel David Mateo Rivera; ("Plaintiffs"), bring this tobacco products liability action against DefendantsR.J. Reynolds Tobacco Company("Defendant Reynolds"); R.J.R. Nabisco, Inc.("DefendantR.J.R. Nabisco"); Nabisco Group Holdings ("Defendant Nabisco"); and Liggett & Myers Tobacco Company("Defendant Liggett").Plaintiffs allege that Defendants are liable under various state and federal causes of action for Jorge Esteban Rivera Rodríguez' death.Docket DocumentNo. 1.Plaintiffs seek compensatory and punitive damages, and attorney's fees.Id.

Defendant Reynolds moves for summary judgment.Docket DocumentNos. 62, 69.Plaintiffs oppose the motion.Docket DocumentNo. 72.

I.Factual and Procedural Synopsis

We derive the facts from our March 31, 2004, opinion and order, as well as from the parties' pleadings and statements of material fact.Docket DocumentNos. 30, 62, 73, 74, 99.Plaintiffs are the family members of Jorge Esteban Rivera Rodriguez, ("Decedent").

Defendant Reynolds is a cigarette manufacturing company.

Decedent began smoking in 1956.He continued smoking as many as three packs of cigarettes per day over the ensuing forty-six years.Throughout his adult life, Decedent kept abreast of current events, by frequently watching daytime and evening television news programs and reading newspapers.Over the course of several decades, Decedent's family members (including Plaintiffs) and medical care providers had advised him to stop smoking because of the associated health risks.Decedent frequently laughed when warned of smoking's dangers, sometimes responding that "we all have to die of something."Decedent's wife and doctors read aloud warnings and health-related articles in an attempt to convince him to stop smoking.After discussing the cigarette package warning label with a doctor, Decedent responded, "I read it, and I understand it, but I'm not stopping."Decedent had friends and relatives who had died of smoking-related illnesses.Decedent attempted unsuccessfully to stop smoking in 1998, when he was diagnosed with tongue and mouth cancer and again warned of the risks of continued smoking.

Decedent died on February 3, 2002, at age eighty-two.

Plaintiffs filed the present complaint on January 31, 2003, alleging that Decedent died as a result of diseases caused by smoking cigarettes manufactured by Defendants.Docket DocumentNo. 1.Plaintiffs alleged the following ten causes of action: (1) strict liability; (2) negligence; (3) failure to warn; (4) breach of the Labeling Act;(5) breach of local law by non-compliance with federal law; (6) consumer expectation; (7) design defect; (8) loss of consortium; (9) fraud; and (10) violation of Puerto Rico Penal CodeArticle 189, 33 L.P.R.A. § 4307(2003).Id.

On June 19, 2003, Defendant Reynolds moved to dismiss counts 3, 4, 5, 9, and 10 under Federal Rules of Civil Procedure 9(b) and 12(b)(6).Docket DocumentNo. 6.On July 10, 2003, Defendant Liggett moved to join Defendant Reynolds' motion to dismiss.Docket DocumentNo. 15.Because on August 28, 2003, Plaintiffs filed an amended complaint, Docket DocumentNo. 20,Defendant Reynolds renewed its motion to dismiss on September 16, 2003, and Defendant Liggett renewed its motion to dismiss on February 20, 2004.Docket DocumentNos. 26, 29.On March 31, 2004, we granted Defendants' motion to dismiss, finding that the failure-to-warn claims were preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331-1341(1997& Supp.2004).Docket DocumentNo. 30.

Plaintiffs' surviving claims are counts 1, 2, 6, 7, and 8.Id.We also consider Plaintiffs' pre-1969 failure-to-warn claims, which were not preempted by the Labeling Act.

On December 2, 2004, Defendant Reynolds moved for summary judgment, arguing that: (1)Plaintiffs' claims are time-barred; (2) the claims are precluded by the doctrine of conflict preemption; (3)Plaintiffs' negligence and strict liability design-defect claims fail because the cigarette designs were not defective under the consumer expectations test and the inherent dangers were known; and (4) there is no evidence to support Plaintiffs' pre-1969 failure-to-warn claims because the dangers of smoking were, at the time, well known.Docket DocumentNo. 62.On January 24, 2005, Defendant Liggett moved to join Defendant Reynolds' summary judgment motion.Docket DocumentNo. 69.On February 1, 2005, Plaintiffs filed an opposition to Defendants' summary judgment motion, arguing, inter alia, that: (1) preemption did not apply; (2) the cause of action did not accrue until Decedent's death, rendering the claims timely; (3) the failure to require Spanish-language warnings on cigarette packages is an equal protection violation; and (4) Decedent's smoking history prior to 1969 renders Defendants liable for wrongful death because the warnings were insufficient, the dangers of smoking were not common knowledge, and Defendants' cigarettes are defectively designed and are responsible for Decedent's death.Docket DocumentNo. 73.On April 21, 2005, we dismissed the claims against Defendant Liggett in accordance with Plaintiffs' dismissal stipulation.Docket DocumentNos. 126, 139.

II.

Motion for Summary Judgment Standard UnderRule 56(c)

The standard for summary judgment is straightforward and well-established.A district court should grant a motion for summary judgment"if the pleadings, depositions, and answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgement as a matter of law."FEDERAL RULES OF CIVIL PROCEDURE.R. CIV. P. 56(c);seeLipsett v. Univ. of P.R.,864 F.2d 881, 894(1st Cir.1988).A factual dispute is "material" if it "might affect the outcome of the suit under the governing law," and "genuine" if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).

The burden of establishing the nonexistence of a genuine issue as to a material fact is on the moving party.SeeCelotex Corp. v. Catrett,477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).This burden has two components: (1) an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and (2) an ultimate burden of persuasion, which always remains on the moving party.Seeid.In other words, "[t]he party moving for summary judgement, bears the initial burden of demonstrating that there are no genuine issues of material fact for trial."Hinchey v. NYNEX Corp.,144 F.3d 134, 140(1st Cir.1998).This burden "may be discharged by showing that there is an absence of evidence to support the nonmoving party's case."Celotex,477 U.S. at 325, 106 S.Ct. 2548.After such a showing, the "burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor."DeNovellis v. Shalala,124 F.3d 298, 306(1st Cir.1997)(citingCelotex,477 U.S. at 322-25, 106 S.Ct. 2548).

Although the ultimate burden of persuasion remains on the moving party and the court should draw all reasonable inferences in favor of the nonmoving party, the nonmoving party will not defeat a properly supported motion for summary judgment by merely underscoring the "existence of some alleged factual dispute between the parties"; the requirement is that there be a genuine issue of material fact.Anderson,477 U.S. at 247-48, 106 S.Ct. 2505;Goldman v. First Nat'l Bank of Boston,985 F.2d 1113, 1116(1st Cir.1993).In addition, "factual disputes that are irrelevant or unnecessary will not be counted."Anderson,477 U.S. at 248, 106 S.Ct. 2505.Under Rule 56(e) of the Federal Rules of Civil Procedure, the non-moving party"may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial."FEDERAL RULES OF CIVIL PROCEDURE.R. CIV. P. 56(e);see alsoAnderson,477 U.S. at 256, 106 S.Ct. 2505.Summary judgment exists to "pierce the boilerplate of the pleadings,"Wynne v. Tufts Univ. Sch. of Med.,976 F.2d 791, 794(1st Cir.1992), and "determine whether a trial actually is necessary."Vega-Rodríguez v. P.R. Tel. Co.,110 F.3d 174, 178(1st Cir.1997).

III.Analysis

Because common knowledge of smoking's dangers, together with the applicability of the preemption doctrine, are fatal to Plaintiffs' claims, we need explore only these two issues, and none others presented in Defendants' motion for summary judgment or Plaintiffs' reply.Docket DocumentNos. 62,72.

A.Common Knowledge

In order to succeed on their design-defect and pre-1969 failure-to-warn claims, Plaintiffs must show that ordinary consumers were unaware of smoking's dangers when Decedent became a smoker...