Johnson v. Brown & Williamson Tobacco Corp., No. Civ.A. 99-40161-NMG.
| Decision Date | 08 November 2000 |
| Docket Number | No. Civ.A. 99-40161-NMG. |
| Parties | Paul M. JOHNSON, As Executor of the Estate of Maureen P. Johnson, Plaintiff, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Burton A. Nadler, Emily S. Bromley, Petrucelly & Nadler, Boston, MA, for Paul M. Johnson, Executor of the Estate of Maureen P. Johnson, plaintiff.
John H. Henn, David R. Geiger, Evan Georgopoulos, Foley, Hoag & Eliot, Boston, MA, for Brown & Williamson Tobacco Corporation, defendant.
Plaintiff, Paul M. Johnson ("Johnson"), as executor of the estate of his wife, Maureen P. Johnson, has brought this tobacco products liability action against defendant, Brown & Williamson Tobacco Corp. ("B & W"), under several state common law theories, claiming that his wife contracted lung cancer and died as a result of smoking cigarettes manufactured by B & W. Pending before this Court is B & W's motion to dismiss the complaint (Docket No. 5) on grounds that 1) all of Johnson's claims are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq., and 2) the complaint fails to state any claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
The decedent, Mrs. Johnson, began smoking Kool brand cigarettes, which are manufactured by B & W, in 1965 at the age of sixteen. For the rest of her life, she smoked between one and two packs of cigarettes per day. In or around August of 1996, the decedent was diagnosed with small cell lung cancer, and was informed by her doctors that her pulmonary illnesses were the direct result of smoking cigarettes. Mrs. Johnson died on April 5, 1997.
Johnson filed the instant action on September 20, 1999 in Massachusetts Superior Court and B & W removed to this Court based upon diversity jurisdiction. The complaint is formally divided into five counts: 1) negligence, 2) breach of warranty, 3) civil conspiracy, 4) fraud, and 5) wrongful death. However, there is some overlap among the counts and each count incorporates by reference all preceding portions of the complaint.
Count I charges B & W with negligence in 1) breaching its duty to warn decedent of the health risks of smoking ("negligence claim based on failure to warn"), and 2) failing to adequately test and design its products ("negligence claim based on defective design").
Count II claims that B & W breached an express warranty and implied warranties of merchantability and fitness for a particular purpose, M.G.L. c. 106, §§ 2-313, 2-314, and 2-315, respectively, by selling tobacco products that were defective and unreasonably dangerous to foreseeable users when used as intended. Specifically, Johnson claims that 1) B & W's cigarette products failed to contain sufficient instructions on how to consume cigarettes more safely ("breach of warranty claim based on failure to warn"), and 2) B & W failed to incorporate several design alternatives that would allegedly have made their cigarettes safer ("breach of warranty claim based on defective design claim").
Count III alleges that B & W, along with other leading cigarette manufacturers, was involved in a civil conspiracy to conceal the harmful effects of cigarette smoking from the public through a variety of deceitful tactics.
Count IV claims that B & W's actions fraudulently induced Mrs. Johnson to begin smoking cigarettes resulting in extreme pain and ultimately her death from lung cancer as well as severe emotional distress to the plaintiff and his family.
Finally, Count V charges B & W with wrongful death based upon the claims made in Counts I through IV.
B & W responds by moving to dismiss under Fed.R.Civ.P. 12(b)(6). It argues that 1) all of Johnson's claims are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq., 2) the complaint fails to plead elements of legal theories or basic factual allegations necessary to each of the five Counts, and 3) the complaint fails to plead fraud with the specificity required by Fed.R.Civ.P. 9(b).
A motion to dismiss for failure to state a claim may be granted only if it appears, beyond doubt, that the plaintiffs can prove no facts in support of their claim that entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court must accept all factual averments in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). The Court is also required to look only to the allegations of the complaint and, if under any theory they are sufficient to state a cause of action, a motion to dismiss the complaint must be denied. Knight v. Mills, 836 F.2d 659, 664 (1st Cir.1987).
A complaint alleging claims for injuries allegedly resulting from smoking cigarettes must be evaluated in light of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq. The United States Supreme Court traced the history of the Act in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In 1964, an advisory committee convened by the Surgeon General issued a report warning of health hazards associated with cigarette smoking. In partial reliance on that report, the Federal Trade Commission ("the FTC") promulgated a rule, to take effect January 1, 1965, that would have made it a violation of the Federal Trade Commission Act to fail to disclose in all advertising and on all cigarette packaging that cigarette smoking is dangerous to health and may cause death from cancer and other diseases. Id. at 513, 112 S.Ct. 2608.
At the same time, several states enacted laws regulating the advertising and labeling of cigarettes. Fearing conflicting state and federal regulation, Congress directed the FTC to postpone enforcement of its new regulation for six months and, in July of 1965, passed the Federal Cigarette Labeling and Advertising Act ("the 1965 Act"). Id. at 513-14, 112 S.Ct. 2608. The Act sought to ensure, inter alia, that
commerce and the national economy may be ... not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.
15 U.S.C. § 1331(2)(B).
Section 4 of the Act mandated the following warning on cigarette packages sold in the United States: "CAUTION: CIGARETTE SMOKING MAY BE HAZARDOUS TO YOUR HEALTH." Cipollone, 505 U.S. at 514, 112 S.Ct. 2608. Section 5 of the Act addressed the congressional concern with non-uniform state cigarette advertising and labeling laws by giving the Act preemptive effect:
(a) No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be required on any cigarette package.
(b) No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.
15 U.S.C. § 1334(b) (1966), amended by 15 U.S.C. § 1334(b) (1969).
In 1969, Congress enacted the Public Health Cigarette Smoking Act of 1969 ("the 1969 Act") which amended the 1965 Act in several ways, but most importantly for the instant case by expanding the preemptive effect of § 5:
(b) No requirement or prohibition based on smoking and health shall be imposed under State law with respect to advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.
Cipollone, 505 U.S. at 515, 112 S.Ct. 2608.
In Cipollone, the Supreme Court compared the broader 1969 Act § 5 to its 1965 Act counterpart. In Part IV of the opinion, the majority stated that § 5 of the 1965 Act "only pre-empted state and federal rulemaking bodies from mandating particular cautionary statements [on cigarette labels and in cigarette advertisements] and did not pre-empt state-law damages actions." Id. at 519-20, 112 S.Ct. 2608. In Part V of the opinion, a plurality of the Court noted that § 5 of the 1969 Act, preempts claims to the extent that they rely "not simply [on] `statement[s]' but rather `requirement[s] or prohibition[s] ... imposed under State law.'" Id. at 520, 112 S.Ct. 2608. Further, it was determined that the 1969 Act "reaches beyond statements `in the advertising' [of cigarettes] to obligations `with respect to the advertising or promotion' of cigarettes." Id. Accordingly, the Court found that the 1969 Act would indeed preempt post-1969 state common-law claims if
the legal duty that is the predicate of the common-law damages action constitutes a "requirement or prohibition based on smoking and health ... imposed under State law with respect to ... advertising or promotion," giving that clause a fair but narrow reading.
Id. at 524, 112 S.Ct. 2608. Applying this test, the Court found several exceptions to the 1969 Act's preemptive effect:
6) fraudulent misrepresentation claims based on false statements of material fact, and
7) claims of conspiracy to misrepresent material facts or engage in other predicate acts that are not themselves preempted.
Id. at 524-30, 112 S.Ct. 2608; see also Penniston v. Brown & Williamson Tobacco Corp., 2000 WL 1585609, No....
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