Little v. Brown & Williamson Tobacco Corp.

• Decision Date: 04 January 2001
• Docket Number: No. CIV.A.2:98-1879-23.,CIV.A.2:98-1879-23.
• Court: U.S. District Court — District of South Carolina
• Parties: Suzanne Q. LITTLE, Individually and as Personal Representative of the Estate of Samuel Martin Little, Deceased, Plaintiff, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Individually and as Successor by Merger to the American Tobacco Company, and R.J. Reynolds Tobacco Company, Defendants.

243 F.Supp.2d 480

Suzanne Q. LITTLE, Individually and as Personal Representative of the Estate of Samuel Martin Little, Deceased, Plaintiff, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Individually and as Successor by Merger to the American Tobacco Company, and R.J. Reynolds Tobacco Company, Defendants.

No. CIV.A.2:98-1879-23.

United States District Court, D. South Carolina, Charleston Division.

January 4, 2001.

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Cynthia Anne Solomon, Frederick Baker Baker, Ness Motley Loadholt Richardson and Poole, Mt. Pleasant, SC, for Plaintiff.

Wilburn Brewer, Jr., Nexsen Pruet Jacobs and Pollard, Colombia, SC, Jennifer N. Stephens, S. Stewart Haskins, Gordon A. Smith, King and Spalding, Atlanta, GA, Paul A. Dominick, Nexsen Pruet Jacobs Pollard and Robinson, Charleston, SC, Thomas E. Riley, Bruce G. Sheffler, Gregory M. Loss, Chadbourne and Parke, New York City, W. Randall Bassett, Atlanta, GA, Randal S. Baringer, Jones Day Reavis and Pogue, Cleveland, OH, Mark Christopher Fava, Atlanta, GA, for Defendants.

ORDER

DUFFY, District Judge.

This matter is before the court upon Defendant R.J. Reynolds Tobacco Company's ("Reynolds") and Defendant Brown & Williamson Tobacco Company's ("B & W") motions for summary judgment on Plaintiff Suzanne Little's claims to recover for the alleged smoking-related injuries of her late husband, Samuel Martin Little.

I. BACKGROUND

Viewed in the light most favorable to Plaintiff Suzanne Little ("Plaintiff), the facts of this case are as follows: Martin Little smoked his first cigarette in approximately 1956 at the age of eleven, and began smoking cigarettes regularly in approximately 1961 at the age of sixteen. M. Little 10/26/98 Dep. at 116-20; M. Little 3/22/99 Dep. at 10-11. From about the age of sixteen until sometime in the 1970's, Mr. Little regularly smoked Reynolds' Winston cigarettes, a higher tar, higher nicotine brand. M. Little 10/26/98 Dep. at 114-16 (stating that, being "pretty much brand-loyal," he smoked Winston for fifteen years or longer). At some point in the 1970's, Mr. Little began trying several different low-tar brands in an attempt to switch to a "healthier" cigarette, with his ultimate goal being to use low-tar, lownicotine cigarettes as a "stepping stone" to quitting smoking altogether. Id. at 128; M. Little 2/24/99 Dep. at 50-51. In the course of switching down, Mr. Little tinkered with several different low-tar brands, including Carlton, Barclay, Winston Lights, and what he recalls as "Ultra." M. Little 2/24/99 Dep. at 64, 66-67; M. Little 3/22/99 Dep. at 88-89. Though Mr. Little could not recall the exact order in which he experimented with the various brands, he eventually settled on Carlton as his regular low-tar brand. Id.; M. Little 2/24/99 Dep. at 50-51, 60-61. However, despite numerous attempts to quit, Mr. Little was unsuccessful, and he continued to smoke Carlton regularly until doctors diagnosed him with lung cancer in late 1995. M. Little 10/27/98 Dep. at 264-66. Shortly thereafter, in December 1995, Mr. Little was finally able to quit smoking altogether. Id.

Mr. Little originally brought this action on May 26, 1998 in state court. Defendants removed the case to this court on June 26, 1998. On May 1, 1999, Mr. Little passed away. Plaintiff filed a Second Amended Complaint on July 9,1999.

On June 9, 2000, Reynolds filed the instant motion for summary judgment, accompanied by a supporting memorandum. Brown & Williamson did likewise on the same date, followed by an amended memorandum on June 14. Plaintiff filed separate response memoranda to both motions on June 30, and Reynolds and B & W replied separately on July 24.

II. SUMMARY JUDGMENT STANDARD

To grant a motion for summary judgment, this court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All evidence should be viewed in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). "[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991). "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The "obligation of the nonmoving party is `particularly strong when the nonmoving party bears the burden of proof.'" Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.1995) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990)). Summary judgment is not "a disfavored procedural shortcut," but an important mechanism for weeding out "claims and defenses [that] have no factual bases." Celotex, All U.S. at 327, 106 S.Ct. 2548.

III. DISCUSSION

A. Whether the Statute of Limitations Bars Plaintiffs Claims against Defendants

Reynolds and B & W¹ contend that while Mr. Little was not diagnosed with lung cancer until December 1995, discovery has revealed that Mr. Little had actual, or at least constructive, knowledge of an injury caused by his cigarette smoking as early as 1993. Since Mr. Little filed this lawsuit on May 26, 1998, Defendants maintain that the court should grant summary judgment on Plaintiffs claims because they are untimely under South Carolina's three-year statute of limitations, S.C.Code Ann. §§ 15-3-530(5) & (7) (Law. Co-op.1976).

"The burden of establishing the bar of the statute of limitations rests upon the one interposing it, ... and where the testimony is conflicting upon the question, it becomes an issue for the jury to decide." Broum v. Finger, 240 S.C. 102, 124 S.E.2d 781, 786 (1962) (citations omitted). South Carolina's three-year limitations period commences running "after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action." S.C.Code Ann. § 15-3-535. As stated by the South Carolina Supreme Court.

[t]he exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist. The statute of limitations begins to run from this point and not when advice of counsel is sought or a fullblown theory of recovery developed.

Wiggins v. Edwards, 314 S.C. 126, 442 S.E.2d 169, 170 (1994) (quoting Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 278 S.E.2d 333, 334 (1981)). This is an objective determination in which courts must focus on the date of discovery of the injury, not the date of discovery of the wrongdoer:

The important date under the discovery rule is the date that a plaintiff discovers the injury, not the date of the discovery of the identity of another alleged wrongdoer. If, on the date of injury, a plaintiff knows or should know that she had some claim against someone else, the statute of limitations begins to run for all claims based on that injury.

Id. (quoting Tollison v. B & J Mack Co., 812 F.Supp. 618, 620 (D.S.C.1993)). Thus, under South Carolina case law, after a plaintiff has discovered or should have discovered his injury, his claims arising out of that injury have accrued and the three-year statute of limitations begins running, even if he does not know the full extent of his injuries.

In this case, on June 2, 1993, Mr. Little underwent a general physical examination, performed by his treating physician Dr. John Dubois. During the examination, Mr. Little requested a chest x-ray. As stated in the Radiology Report, that x-ray revealed "a 1.5 cm nodular density overlying the left second anterior rib, which likely represents a[sic] intraosseous process, but a pulmonary parenchymal nodule cannot be excluded." Radiology Report 6/2/93, Def. Reynolds' Ex. C. Defendants point out that several experts have testified that the nodular density discovered on Mr. Little's June 1993 x-ray was the same cancer that was diagnosed two-and-a-half years later in December 1995.

Defendants thus contend that Mr. Little knew, or should have known, about his cancer in 1993 for several reasons. First, Defendants maintain that Dr. Dubois reviewed the June 1993 x-ray and Radiology Report, concluded that it was "abnormal," and informed Mr. Little of his conclusion. However, an examination of Dr. Dubois' deposition testimony reveals otherwise:

Q: All right. And your testimony is that you did, in fact, advise Mr. Little of the results of this 1993 chest x-ray, correct?

A: Yeah. It's my standard practice to notify patients of the results of their tests, because they want to know it. And we do that every day; we do that. But I don't have the documentation that it was ever done, so I don't know what I said or did.

Q: Now, the radiologists had advisedthe two radiologists who prepared the report had advised that Mr. Little needed a follow-up x-ray, correct?

A: Correct.

Q: Did you tell Mr. Little that he needed a follow-up x-ray?

A: I have no documentation of that.

Q: Do you know one way or another?

A: ...