Philip Morris Usa, Inc. v. Christensen

• Decision Date: 04 August 2006
• Docket Number: No. 68, September Term, 2005.,68, September Term, 2005.
• Citation: 394 Md. 227,905 A.2d 340
• Parties: PHILIP MORRIS USA, INC., et al. v. Nona K. CHRISTENSEN, et al.
• Court: Court of Special Appeals of Maryland

905 A.2d 340

394 Md. 227

PHILIP MORRIS USA, INC., et al. v. Nona K. CHRISTENSEN, et al.

No. 68, September Term, 2005.

Court of Appeals of Maryland.

August 4, 2006.

COPYRIGHT MATERIAL OMITTED

Robert C. Heim (Joseph Patrick Archie of Dechert L.L.P., Philadelphia, PA, James K. Archibald of Venable L.L.P., Baltimore), for Philip Morris USA, Inc., for Petitioners.

Edward J. Lilly (Theodore M. Flerlage of Law Offices of Peter G. Angelos, Baltimore), on brief, for Respondents.

Michael B. Minton, Bruce D. Ryder, Thompson Coburn L.L.P., St. Louis, MO, Edward C. Schmidt, Thompson Coburn L.L.P., Washington, D.C., and Kathleen M. McDonald, Kerr McDonald, L.L.P., Baltimore, Attorneys for Lorillard Tobacco Company.

Kathleen M. McDonald, Kerr McDonald, L.L.P., Baltimore, Attorneys for Giant Food L.L.C., Crown Service, Inc., George J. Falter Co., Inc., and A & A Candy Tobacco Company.

Aaron H. Marks, Nancy Straub, Kasowitz, Benson, Torres & Friedman, L.L.P., New York, NY, Deborah L. Robinson, Peter A. Woolson, Robinson Woolson, P.A., Baltimore, Attorneys for Liggett Group, Inc.

Hugh F. Young, Jr., Esq., Product Liability Advisory Counsel, Inc., Reston, VA, Robert Dale Klein, Esq., Michelle R. Callender, Esq., Wharton Levin Ehrmantraut & Klein, P.A., Annapolis, for amicus curiae Brief of the Product Liability Advisory Counsel, Inc.

Denis C. Mitchell, Esq., Stein, Mitchell and Mezines, Washington, D.C., for amicus curiae Brief of Maryland Trial Lawyers Association.

Argued before BELL, C.J., and RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, J.

This case concerns the statute of limitations and whether the commencement of a class action suspends the applicable statute of limitations as to asserted members of the class who would have been parties had the suit been permitted to continue as a class action. We are presented with two issues. First, in a matter of first impression before this Court, we must determine whether, and under what circumstances, the pendency of a putative class action tolls the statute of limitations for the members of the putative plaintiff class who are not named plaintiffs in the action. We shall affirm the judgment of the Court of Special Appeals on this issue, and hold that the pendency of a putative class action tolls the statute of limitations on the causes of action asserted in the class action complaint for the putative plaintiff class members, but only when the class action complaint gives the defendants in the class action complaint fair notice of the claims of the putative class member who claims the benefits of tolling.

Second, we must determine whether the Court of Special Appeals was correct in vacating the trial court's grant of summary judgment in favor of petitioner Giant Food, LLC ("Giant") against respondents and remanding the case to the Circuit Court for reconsideration of this issue in light of Benjamin v. Union Carbide, 162 Md.App. 173, 873 A.2d 463 (2005). We granted certiorari in this case and affirmed the Court of Special Appeals in Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 904 A.2d 511 (2006). Accordingly, we shall vacate the judgment of the Court of Special Appeals on this issue, and remand the case to the Court of Special Appeals with instructions to vacate the Circuit Court's grant of summary judgment in favor of Giant, and to remand the case to the Circuit Court for reconsideration of this issue in light of our opinion in Georgia-Pacific.

I.

On August 13, 2001, respondent Nona Christensen ("Ms. Christensen"), in her individual capacity and in her capacity as the personal representative of her deceased husband, Russell Christensen ("Mr. Christensen"), brought a survival and wrongful death action against petitioners. In her complaint, Ms. Christensen alleged causes of action for strict liability for failure to warn, fraudulent misrepresentation, and civil conspiracy. She sought to recover compensatory and punitive damages, including damages for loss of consortium. On September 25, 2002, the complaint was amended to add Mr. Christensen's adult children, Lowell Christensen and Lisa Marie Christensen, as plaintiffs.

Petitioners Philip Morris USA Inc., Lorillard Tobacco Co., and Liggett Group, Inc. are manufacturers of cigarette products. Petitioners Giant, Crown Service, Inc., George J. Falter Co., Inc., and A & A Tobacco Company, Inc. are involved in the distribution and sale of cigarette products.

With the exception of Giant, petitioners were all defendants in a prior putative class action suit filed in the Circuit Court for Baltimore City, which was before us on a petition for a writ of mandamus in Philip Morris v. Angeletti, 358 Md. 689, 752 A.2d 200 (2000).¹ In that case, we explained the procedural history of the litigation of the Philip Morris class action litigation as follows:

"On May 24, 1996, [the named plaintiffs] filed a complaint in the Circuit Court for Baltimore City against all manufacturers of tobacco and their Maryland distributors, as well as two industry trade groups and a marketing and public relations firm, the majority of whom have jointly filed the petition now before this Court. Seeking both compensatory and punitive damages as well as injunctive relief, [the named plaintiffs] assert claims on behalf of themselves and all similarly situated Maryland residents (a) who have suffered or continue to suffer from physical injuries or disease caused by smoking cigarettes or using smokeless tobacco products, and/or (b) who are nicotine dependent and plead addiction as an injury. [The named plaintiffs'] Fourth Amended Complaint alleges ten counts, eight of which embody traditional causes of action sounding in tort and contract: fraud and deceit, negligent misrepresentation, intentional infliction of emotional distress, negligence, breach of express and implied warranties, strict product liability, and conspiracy. In addition, the complaint avers that Petitioners have violated several provisions of the Maryland Consumer Protection Act, codified at Maryland Code (1975, 2000 Repl.Vol.) §§ 13-101 to 13-501 of the Commercial Law Article. Lastly, Respondents plead a cause of action heretofore unrecognized in Maryland, requesting equitable/injunctive relief in the form of court-supervised, defendant-funded `medical monitoring' of the classes, to detect, prevent and treat future disease, and to treat addiction.

"[The named plaintiffs] filed a Motion for Class Certification on September 5, 1997. Following oral argument on the motion, the Circuit Court issued an Order and Memorandum Opinion on January 28, 1998, granting the Motion for Class Certification. More specifically, the court approved for class action treatment, under Maryland Rule 2-231(b)(3), [the named plaintiffs'] eight traditional tort and contract causes of action and single consumer protection claim. In addition, the trial judge found [the named plaintiffs'] claim for medical monitoring appropriate for prosecution as a class action, under Rule 2-231(b)(2)."

Philip Morris, 358 Md. at 699-701, 752 A.2d at 205-06 (footnotes omitted). On February 19, 1998, the Circuit Court issued a class certification order certifying the named plaintiffs' proposed class. See id. at 701-02, 752 A.2d at 206-07.

After the Circuit Court issued this class certification Order, the defendants in the Philip Morris class action litigation petitioned this Court for a writ of mandamus directing the Circuit Court to vacate the class certification Order. We granted the petition and issued a writ of mandamus on June 15, 2000 directing the Circuit Court to vacate its class certification Order. Id. at 787-89, 752 A.2d at 254-55.

Mr. Christensen was not a named plaintiff in the Philip Morris class action litigation, nor did he file a motion to intervene as a plaintiff. He did, however, participate in the litigation. On May 11, 1999, he provided an affidavit on behalf of the named plaintiffs, discussing his smoking habit and his lung cancer. Further, on June 30, 1999, he testified at a de bene esse deposition, in which he also discussed his lung cancer diagnosis and the history of his cigarette use.

Returning to the case sub judice, petitioners moved for summary judgment in the Circuit Court on September 4, 2003, arguing that all of respondents' claims were barred by the statutes of limitations. The Circuit Court granted the motion on November 19, 2003. In its memorandum opinion in support of the Order, the Circuit Court concluded that Mr. Christensen was on inquiry notice by the Spring of 1998 of his claims against petitioners, rendering respondents' survival claims untimely. The Circuit Court rejected respondents' argument that the statute of limitations was tolled in any way by the pendency of the Philip Morris class action. The court held that respondents' wrongful death claims were also untimely, reasoning that Maryland's wrongful death statute does not permit a wrongful death plaintiff to maintain a cause of action once the statute of limitations for causes of action arising out of the underlying wrongful acts has run.

Respondents noted a timely appeal to the Court of Special Appeals. In a reported opinion, that Court reversed the judgment of the Circuit Court as to all petitioners except Giant, vacated the judgment of the Circuit Court granting summary judgment to petitioner Giant and remanded the case to that court for further consideration on the issue of Giant's summary judgment motion. See Christensen v. Philip Morris, 162 Md.App. 616, 875 A.2d 823 (2005). The Court of Special Appeals held that the pendency of the Philip Morris class action tolled the statute of limitations for Mr. Christensen's claims against the Philip Morris petitioners, and reversed the Circuit Court's grant of summary judgment to the Philip Morris petitioners on this basis. See Christensen, 162 Md.App. at 659, 875 A.2d at 848. Because Giant was not a defendant in the Philip Morris class action litigation,...