McCracken v. R.J. Reynolds Tobacco Co.
| Decision Date | 14 February 2019 |
| Docket Number | CIVIL ACTION No. 17-4495 |
| Parties | TED A. MCCRACKEN, et al. v. R.J. REYNOLDS TOBACCO COMPANY, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Smoking cigarettes since 1966, a worker exposed to asbestos now seeks damages from cigarette manufacturers for causing him to become addicted to nicotine which he claims led to emphysema in the past few years. He pro se alleges the manufacturers defectively designed tobacco products to encourage addiction and one of the manufacturers failed to warn of the risks from 1966-1969. Believing the manufacturers designed tobacco to make him an addict is different than proving it after discovery. Following discovery, we review evidence and do not try cases based on public perception. The worker seeks judgment in his favor on a design defect in his favored tobacco products arguing the manufacturers are barred from presenting a defense based on Judge Kessler's 2006 thousands of fact findings demonstrating cigarette manufacturers' liability for racketeering in their marketing. But absent showing one of Judge Kessler's findings on the manufacturer's marketing conduct confirms the manufacturers designed cigarettes to make him an addict, we cannot bar the manufacturer's causation defense. The manufacturers present unrebutted evidence defeating a possible finding of causation. We must enter judgment when there is no competent evidence on causation other than relying on findings in other cases or in inapplicable public sources. The worker also fails to show infliction of emotional distress. We enter summary judgment for the manufacturers in the accompanying Order.
Ted A. McCracken smoked about a pack of cigarettes from 1966 until 2015 and has since reduced his smoking to half a pack a day.2 He preferred cigarettes manufactured by R.J. Reynolds Tobacco Company (RJR), ITG Brands, LLC, and Republic Tobacco, L.P. but mostly smoked Kool cigarettes. He also smoked non-menthol cigarette tobacco, Top roll-your-own cigarettes, Newport cigarettes, and Dutch Master cigars.3
Doctors diagnosed Mr. McCracken with emphysema and chronic obstructive pulmonary disease (COPD) a few years ago.4 Mr. McCracken claims his emphysema causes him shortness of breath, headaches, and inability to walk moderate distances.5 Mr. McCracken takes inhalers and drugs to help him quit smoking.6 Dr. James H. Dovnarsky, M.D. prescribed Mr. McCracken nasal inhalants and ibuprofen.7 He discussed with Mr. McCracken the risks of continued smoking, including increased risk of emphysema and lung cancer.8 Dr. Dovnarsky noted Mr. McCracken had "heavy, direct exposure to asbestos on a regular basis in the 1970's" when he worked with cement.9 He also noted "Chronic bronchitis related to chronic tobacco use."10 Dr. James Brown, M.D. assessed Mr. McCracken with "Emphysema: secondary to smoking and also has potential occupational exposures"11 and diagnosed him with "Tobacco use disorder."12 Dr. Brown noted Mr. McCracken had at least three years of exposure to asbestos.13
Mr. McCracken admits seeing the Surgeon General's warnings: "Warning: Cigarette smoking may be dangerous to your health" on cigarette packs beginning in 1966.14 He knew cigarette packs contained warnings cigarettes caused heart disease, lung cancer, and emphysema.15 Mr. McCracken thought "six or seven" different warnings appeared on cigarette packs,16 but he "didn't pay much attention to it."17 Mr. McCracken's father, mother, and brother told him to stop smoking because of its negative health effects when Mr. McCracken was in junior high school.18Later, his wife Goretti McCracken19 and his doctors20 told him to quit smoking. Despite this advice, he kept smoking and now argues ammoniated ingredients in the cigarettes turned him into a nicotine addict. Mr. McCracken attaches various documents, including newspaper articles, statements of public officials, and a report in the Federal Register to argue the manufacturers designed their tobacco products to make sure he became addicted to their products.21
The manufacturers dispute their products caused Mr. McCracken's injury. RJR denied manipulating the nicotine levels of its cigarettes.22 It used ammoniated reconstituted tobacco as a blend component in Kool King cigarettes from 1993 through 2001.23 The manufacturers also adduced expert testimony after examining Mr. McCracken. Dr. Bhushan S. Agharkar, M.D. opined Mr. McCracken did not have a "tobacco use disorder" and "was not addicted to nicotine"24 after reviewing his medical records and testimony. Dr. Agharkar reasoned Mr. McCracken did not have trouble reducing his smoking in 2015, did not exhibit withdrawal symptoms, and did not evidence such a strong craving for nicotine it affected his ability to carry out routine responsibilities.25 The manufacturers also presented the expert testimony of Dr. Charles D. Garner, PhD, RJR's vice president of next generation products/submission & engagement in scientific and regulatory affairs. He opined RJR "does not use ammonia to increase the addictiveness of its cigarettes."26
Mr. McCracken kept smoking despite the warnings on tobacco products.27 Republic admits it did not include warnings smoking could cause emphysema or Top products contained tar, nicotine, or carcinogens.28 The manufacturers presented the expert testimony of Gregg L. Michel, PhD, who testified to the "widespread availability of information about the health risks of smoking."29 He opined Mr. McCracken would have known smoking presented health risks after 1964.30
Mr. McCracken then pro se sued the manufacturers. After dismissing his first complaint and examining Mr. McCracken's Second Amended Complaint, we allowed Mr. McCracken to proceed on his two remaining theories under Pennsylvania Law: (1) a design defect claim alleging the manufacturers manipulated the amount of nicotine in their cigarettes to encourage continued addiction asserting both strict liability and negligence theories, and (2) a failure to warn claim against Republic alleging its cigarette packages failed to display product information data, ingredients contained within the products, and warnings about smoking.31 We permitted Mr. McCracken to file a Third Amended Complaint, in which he included a new claim for intentional infliction of emotional distress and Ms. McCracken brought a claim for loss of consortium.32 Mr. McCracken testified he has not seen Ms. McCracken, who lives in Cameroon, Africa, since 2011.33 She has never come to the United States.34 Mr. McCracken sends her "a couple hundred" dollars every month.35
All parties now move for summary judgment.36 We granted the parties leave to supplement their motions based on later discovery.37 Mr. McCracken attempted to meet his burden (or create issues of fact) by attaching documents, including newspaper articles, articles from health websites, a report in the Federal Register, and public statements from government agencies.38
Mr. McCracken argues he is entitled to summary judgment on his design defect claim because the manufacturers are collaterally estopped from contesting his claims under Judge Kessler's detailed factual findings in United States v. Philip Morris, a case brought by the Department of Justice challenging cigarette manufacturers for their marketing strategies as a racketeering conspiracy.39 The manufacturers argue offensive collateral estoppel does not applyand they are entitled to summary judgment because Mr. McCracken has failed to adduce causation evidence. We agree with the manufacturers.
The doctrine of collateral estoppel, also called "issue preclusion," "ensures that once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation."40 "The prerequisites for the application of issue preclusion are satisfied when: (1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment."41
Mr. McCracken was not a party in United States v. Philip Morris case. When, as here, a non-party to an earlier litigation asserts issue preclusion against a defendant from the earlier litigation, the party hopes to succeed under a theory known as "non-mutual offensive collateral estoppel, [which] presents a unique potential for unfairness."42 "For non-mutual offensive issue preclusion, [the four] traditional elements are necessary but not sufficient."43 Nonmutual offensive collateral estoppel may present unfairness if "the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant," or if "the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result."44 It also risks incentivizing plaintiffs "to adopt a 'wait and see' attitude, in the hope that the first action by another plaintiff will result in a favorable judgment."45
Mr. McCracken asserts collateral estoppel bars the manufacturers from a defense based on Judge Kessler's decision in United States v. Philip Morris USA Inc., also referred to as the "DOJCase."46 The United States sued nine cigarette manufacturers under the Racketeer Influenced and Corrupt Organizations Act, alleging they engaged in a conspiracy to deceive the public about the dangers of nicotine through many methods including denying "nicotine is a highly addictive drug which they manipulated in order to sustain addiction."47 The defendants in the DOJ Case...
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