Owens Corning v. RJ Reynolds Tobacco Co.

• Decision Date: 18 March 2004
• Docket Number: No. 2001-CA-01285-SCT.,2001-CA-01285-SCT.
• Citation: 868 So.2d 331
• Court: Mississippi Supreme Court
• Parties: Owens CORNING v. R.J. REYNOLDS TOBACCO COMPANY; British American Tobacco (Investments) Limited, f/k/a British American Tobacco Company Limited; Brown & Williamson Tobacco Corporation, Individually and as Successor by Merger to the American Tobacco Company; Philip Morris Usa Inc., f/k/a Philip Morris Incorporated; Altria Group, Inc., f/k/a Philip Morris Companies, Inc.; Liggett Group, Inc., Liggett & Myers, Inc., Lorillard Tobacco Company; Batus Holdings, Inc., f/k/a Batus, Inc.; RJR Nabisco, Inc., Brooke Group, Ltd.; American Brands; Fortune Brands, Inc.; Loews Corporation; Council for Tobacco Research-U.S.A, Inc., f/k/a The Tobacco Industry Research Committee; And The Tobacco Institute, Inc.

868 So.2d 331

Owens CORNING v. R.J. REYNOLDS TOBACCO COMPANY; British American Tobacco (Investments) Limited, f/k/a British American Tobacco Company Limited; Brown & Williamson Tobacco Corporation, Individually and as Successor by Merger to the American Tobacco Company; Philip Morris Usa Inc., f/k/a Philip Morris Incorporated; Altria Group, Inc., f/k/a Philip Morris Companies, Inc.; Liggett Group, Inc., Liggett & Myers, Inc., Lorillard Tobacco Company; Batus Holdings, Inc., f/k/a Batus, Inc.; RJR Nabisco, Inc., Brooke Group, Ltd.; American Brands; Fortune Brands, Inc.; Loews Corporation; Council for Tobacco Research-U.S.A, Inc., f/k/a The Tobacco Industry Research Committee; And The Tobacco Institute, Inc.

No. 2001-CA-01285-SCT.

Supreme Court of Mississippi.

March 18, 2004.

Walter Garner Watkins, Jr., Alexandra Francoise Markov, Nathaniel Alandas Armistad, Tim D. Gray, Jackson, Thomas Gerry Bufkin, Daniel J. Mulholland, Carroll Rhodes, Hazlehurst, Richard L. Forman, Walter G. Watkins, III, Matthew S. Steffey, Richard A. Brown, Jackson, attorneys for appellant.

Michael B. Wallace, Rebecca L. Hawkins, Walker (Bill) Jones, III, Stuart G. Kruger, Tiffanee N. Wade, Jackson, James L. Shannon, Willie James Perkins, Greenwood, Bruce R. Tepikian, Craig E. Proctor, Brian A. Jackson, Stephen E. Scheve, Mark C. Carroll, Jackson, James E. Upshaw, Lonnie D. Bailey, Greenwood, William F. Riley, Natchez, Keith W. Vaughan, Kurt D. Weaver, Michael W. Ulmer, Lewis W. Bell, Robert L. Gibbs, Christopher A. Shapley, Andrea La'Verne Ford Edney, S. Jonathan Silverman, James Lawton Robertson, Mark P. Caraway, Jackson, Patrick S. Davies, Mark E. Lowes, Brooke Ferris, III, Vincent T. Chang, Thomas A. Cook, Ridgeland, Jesse Lee Howell, David L. Wallace, Susan St. Denis, William E. Hoffmann, William L. Durham, II, Jon Mark Weathers, Hattiesburg, Rick Noton, Trent L. Walker, Canton, James Lawrence Wilson, Columbus, Alex A. Alston, Jeffrey P. Hubbard, Jackson, Edward Blackmon, Canton, Joe R. Colingo, Pascagoula, Richard O. Burson, Laurel, Richard Marion Truly, Fayette, Bryan Howard Callaway, Greenwood, John Vanderstar, Paul Taylor, attorneys for appellees.

EN BANC.

COBB, Justice, for the Court.

¶ 1. This is an appeal from a grant of summary judgment in favor of the defendants, R.J. Reynolds Tobacco Company, et. al. ("Tobacco Defendants"), in the Jefferson County Circuit Court. The original suit was filed in 1996. Owens Corning was joined as a plaintiff in 1998. Partial summary judgment was granted in favor of Tobacco Defendants in July 2000. In July, 2001, the trial court entered summary judgment in favor of Tobacco Defendants based on the "remoteness doctrine" and directed entry of final judgment against all of Owens Corning's claims pursuant to M.R.C.P. 54(b). Owens Corning timely appealed this ruling presenting one issue for review:

WHETHER OWENS CORNING'S CLAIMS OF UNJUST ENRICHMENT/RESTITUTION, FRAUD, AND VIOLATION OF MISSISSIPPI'S ANTITRUST STATUTE ARE BARRED BY THE "REMOTENESS DOCTRINE."

¶ 2. Tobacco Defendants have cross-appealed, challenging unfavorable trial court decisions on the issues of statute of limitations, laches, change of venue and production of "Bliley"¹ documents, only if this Court reverses or modifies the summary judgment. Because we affirm the trial court's summary judgment, we do not reach the cross-appeal issues.

FACTS

¶ 3. This case was originally filed in 1996 by a single plaintiff, Ezell Thomas, in the Circuit Court of Jefferson County, Mississippi. Thomas, an admitted lifelong smoker, filed suit against, among others, R.J. Reynolds Tobacco Company, complaining that smoking Salem cigarettes damaged his health.

¶ 4. In October of 1998, the circuit court granted Thomas's motion to amend his complaint to join 25 individuals and a corporation, Owens Corning, as plaintiffs. Owens Corning is a Toledo, Ohio, based Fortune 500 company that is the world's largest producer of building materials. Thomas's amended complaint also joined additional tobacco companies and asbestos companies as defendants. The 26 individuals complained that smoking and asbestos exposure damaged their health; Owens Corning, a former producer of asbestos materials, complained that the tobacco companies were liable for its expenditures on past and future asbestos claims where the asbestos claimants also smoked. Thus, Thomas's individual claim was transformed from an individual action against R.J. Reynolds and other tobacco companies to a mass action by 26 individual smokers against tobacco companies and asbestos companies and a "national action" by Owens Corning against the tobacco industry. The Owens Corning claims have since been severed from the individual plaintiffs' claims of the original suit. The subject of this appeal is the case between plaintiff-appellant Owens Corning and defendants-appellees Tobacco Defendants.

¶ 5. Thomas's desire to join Owens Corning as a plaintiff rather than as an asbestos defendant is unusual. However, according to Thomas's amended complaint, Owens Corning had reached a settlement agreement with the individual plaintiffs on their asbestos personal injury claims. As part of that agreement, Owens Corning agreed to pay Thomas, and each Jefferson County resident² asbestos claimant with whom it had settled, an additional $80,000 if it was successful in its action against the tobacco defendants. In addition, Owens Corning agreed to donate at least $1.5 million for educational scholarships in Jefferson County.³ Considering Thomas's interest in Owens Corning's claim against Tobacco Defendants, it is not surprising that he desired to join Owens Corning as a plaintiff in his action.

¶ 6. Owens Corning states that it has been required to pay compensatory damages, both by way of judgment and settlement, which ought to have been borne by Tobacco Defendants. Owens Corning avers several theories of liability based on Tobacco Defendants' wrongful conduct: indemnity, unjust enrichment/restitution, fraud, misrepresentation, intentional infliction of emotional distress, conspiracy to defraud and fraudulent concealment, and antitrust violations. In July, 2000, the trial court granted Tobacco Defendants' motion for partial summary as to Owens Corning's indemnity claim. In July of 2001, the trial court entered summary judgment in favor of Tobacco Defendants based on the "remoteness doctrine" and directed entry of the judgment against all Owens Corning's claims.

DISCUSSION

¶ 7. The standard for granting summary judgment is set forth in Miss. R. Civ. P. 56. We review de novo the granting or denying of summary judgment and examine all the evidentiary matters before us—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant is given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party's favor. The party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must set forth specific facts showing that there are indeed genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). A motion for summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984).

Review of Asbestos-Tobacco Litigation History

¶ 8. Efforts by asbestos companies to reduce their liability for lung disease, through the courts and legislatures, have been ongoing for over 20 years. See Kan M. Nawaday, Note, Apportioning Asbestos-Tobacco Liability in Falise v. American Tobacco, 88 Cornell L.Rev. 1142, 1145-46 (2003). Certain lung diseases, such as asbestosis and mesothelioma, are attributed exclusively to asbestos exposure, and even though there is a consensus that asbestos exposure may also cause lung cancer, doctors generally attribute lung cancer most significantly to smoking. Id. at 1146. Thus, asbestos companies have attempted to reduce their liability for lung cancer suffered by asbestos claimants through (1) apportioning fault to a plaintiff for contributing to his own injury by smoking,⁴ (2) bringing separate contribution actions against the tobacco companies for combined injuries to claimants, and most recently (3) bringing direct actions against tobacco companies to recover legal and medical costs incurred due to wrongful conduct of tobacco companies. These suits have found mixed success. Some courts have allowed reductions in damage awards to claimants based on contributory or comparative negligence of the claimant, but most have found against asbestos companies in the separate contribution actions. The contribution actions fail for the same reasons that individuals have not been successful against the tobacco companies: many jurisdictions do not allow separate contribution actions where a defendant was not named in the initial suit; and tobacco companies are not liable under strict liability doctrine, therefore, other theories must be proven. The direct action cases, as discussed below, have failed for lack of proximate cause.

¶ 9. The tobacco companies' settlement with the States in 1997⁵ initiated the most recent wave of cases. The Seventh Circuit calls these "me-too" cases. International Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund v. Philip Morris, Inc., 196 F.3d 818 (7th Cir.1999).⁶ The direct action cases have been based on fraud, misrepresentation, unjust enrichment, state and federal antitrust violations, RICO violations, and others. Although there have been some successes at the trial court level, none of these cases has...