Prado Alvarez v. R.J. Reynolds Tobacco Co., Civ. 03-1645(JP).

Decision Date05 April 2004
Docket NumberNo. Civ. 03-1645(JP).,Civ. 03-1645(JP).
Citation313 F.Supp.2d 61
PartiesVirginia PRADO ALVAREZ, et al., Plaintiffs v. R.J. REYNOLDS TOBACCO CO., Defendant
CourtU.S. District Court — District of Puerto Rico

Amarilys Arocho-Maldonado, Arocho Maldonado Law Office, Utuado, PR, Archie Jennings, St. Thomas, VI, Myrna E. Ayala-Diaz, Edif Asociacion de Maestros, Hato Rey, PR, for Plaintiffs.

Diane P. Flannery, Emily C. Baker, James R. Johnson, Jason E. Keehfus, John F. Yarber, L. Christine Buchanan, Ryan E. Harden, Robin A. Schmahl, Jones, Day, Reavis & Pogue, Atlanta, GA, Rosalie Irizarry-Silvestrini, Clotilde Rexach-Benitez, Fiddler Gonzalez & Rodriguez, P.S.C., Hato Rey, PR, Jorge R. Roig-Colon, Fiddler, Gonzalez & Rodriguez, San Juan, PR, for Defendant.

OPINION AND ORDER

PIERAS, Senior District Judge.

I. INTRODUCTION

Decedent, who smoked Winston cigarettes for over 40 years, died from a cigarette-related illness. Plaintiffs now bring the instant complaint alleging that Defendant marketed a defective, unreasonably unsafe product to consumers, failed to warn consumers as to the dangers of the product, and willfully manipulated nicotine levels in cigarettes to ensure consumer addiction to cigarettes. Plaintiffs claim that Defendant is therefore strictly liable for the damages they suffered as a result of Decedent's death. In the alternative, they allege that Defendant's conduct was negligent. Finally, Plaintiffs allege that Defendant committed fraud by marketing a product it knew was inherently dangerous and by actively concealing information about the dangers of smoking from the public.

Defendant R.J. Reynolds now moves for summary judgment (docket No. 80), stating that all Plaintiffs' claims in negligence and strict liability are precluded by the doctrine of conflict preemption, that Plaintiffs have not provided evidence that Defendant's product was defective, that Plaintiffs have not provided evidence that a safer design of their product was feasible that Defendant had no duty to warn Decedent of the dangers of smoking, that this alleged failure to warn was not the cause of the Decedent's addiction to smoking, that there is no evidence to support Plaintiffs' fraud, misrepresentation, and concealment claims, that Plaintiffs' addiction claims are time-barred, and that there is no evidence that Defendant violated Article 189 of the Puerto Rico Penal Code. Plaintiffs' oppose Defendant's motion (docket No. 111).

II. UNCONTESTED FACTS

The following are the uncontested facts, as agreed to by the parties and submitted to the Court (docket No. 78):

1. Plaintiff Virginia Prado Alvarez and Decedent were married. (See First Am. Compl. ¶¶ 2, 4.)

2. Plaintiffs Mayra Janette Garcia Prado, Edgardo Garcia Prado, Orlando Garcia Prado, Ivellise Garcia Prado, Francisco Garcia Prado, Javier Garcia Prado, and Carmen Garcia Prado are the children of Plaintiff Virginia Prado Alvarez and the Decedent. (See First Am. Compl. at ¶ 3.)

3. Joham Garcia Adorno is the grandchild of the Decedent. (See First Am. Compl. at ¶ 3.)

4. Francisco Garcia Lopez, the decedent, was born June 12, 1934. (8/18/03 V. Prado Dep. at 7.)

5. Mr. Garcia Lopez died on October 13, 2002.

6. No autopsy was performed on the Decedent at the family's request. (8/18/03 V. Prado Dep. at p. 130.)

7. R.J. Reynolds Tobacco Company ("Reynolds") is a New Jersey corporation with its principal place of business at Fourth & Main Street, Winston-Salem, North Carolina, 27102. (Reynolds' Answer to Plffs.' First Am. Compl. at ¶ 5.)

8. Reynolds, as a corporation, acts through its directors, officers and employees, to the extent those individuals are acting within the scope of their employment. (Reynolds' Answer to Plffs.' First Am. Compl. at ¶ 8.)

9. At all relevant times, Winston cigarettes were designed, tested, manufactured, marketed and sold by Reynolds. (Reynolds' Answer to Plffs.' First Am. Compl. at ¶ 5.)

10. The cigarettes manufactured by Reynolds, including Winston, have been marketed and sold in the United States, and Puerto Rico. (Reynolds' Answer to Plffs.' First Am. Compl. at ¶ 5.)

11. Reynolds marketed and sold Winston cigarettes in Puerto Rico from 1954 to the present date. (Reynolds' Response to Plffs.' First Set of Interrogatories at No. 3; see also Reynolds' Response to Plffs.' First Set of Requests for Admissions of Fact at No. 30.)

12. Decedent began smoking in 1960 at age 25. (8/18/03 V. Prado Dep. at pp. 14-15.)

13. "[Y]ears ago" Plaintiffs Virginia Prado Alvarez and Mayra Janette Garcia Prado, the Decedent's daughter, talked about how the Decedent was smoking too much. (8/21/03 M. Garcia Dep. at pp. 22-23.)

14. Decedent did not want his children to smoke "because then they become addicted to smoking." (8/18/03 V. Prado Dep. at 28.)

15. The only brand of cigarettes the Decedent used was Winston. (V. Prado Aff. at ¶ 2.)

16. Winston cigarettes always have contained tobacco and nicotine is a naturally occurring constituent of tobacco. (Reynolds' Response to Plffs.' First Set of Requests for Admission of Facts at No. 41, 31.)

17. Winston king size full flavor cigarettes are manufactured utilizing white paper with cork color tipping paper. (Reynolds' Response to Plffs.' First Set of Requests for Admission of Facts at No. 36.)

18. Reynolds has advertised cigarettes to adult smokers in the United States, including Puerto Rico, and has advertised some or all of its products in printed media, on billboards and by other legally permissible means. (Reynolds' Answer to Plffs.' First Am. Compl. at ¶ 6, 31.)

19. Reynolds admits that its cigarettes were expected to reach adult consumers. (Plffs.' Initial Scheduling Conference Memo at p. 5.)

20. The manufacture, transport and sale of cigarettes is legal under federal law and the laws of the Commonwealth of Puerto Rico. (Plffs.' Resp. to First Request for Admission of Facts, Request No. 14.)

21. The federal government has enacted legislation directly addressing smoking and health on at least seven occasions since 1965. (Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, at 137, 151, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)).

22. From 1966-1970 every package of cigarettes sold by Reynolds in the States, territories, including Puerto Rico, districts and other areas subject to the Federal Cigarette Labeling and Advertising Act, contained the warning "CAUTION: Cigarette Smoking May Be Hazardous To Your Health."

23. From 1970-1985 every package of cigarettes sold by Reynolds in the States, territories, including Puerto Rico, districts and other areas subject to the Federal Cigarette Labeling and Advertising Act, contained the warning "WARNING: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous To Your Health."

24. From 1985 until the present every package of cigarettes sold by Reynolds in the States, territories, including Puerto Rico, districts and other areas subject to the Federal Cigarette Labeling and Advertising Act, has contained one of four rotating warnings: (1) "SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy," (2) "SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks To Your Health," (3) "SURGEON GENERAL'S WARNING: Smoking By Pregnant Women May Result In Fetal Injury, Premature Birth And Low Birth Weight," or (4) "SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide."

25. In 1969, the federal government amended the Federal Cigarette Labeling and Advertising Act to prohibit cigarette advertising on any medium of electronic communication subject to Federal Communication Commission jurisdiction. (15 U.S.C. § 1335).

26. The Federal Cigarette Labeling and Advertising Act requires the Federal Trade Commission to report annually on "current practices and methods of cigarette advertising and promotion." (15 U.S.C. § 1337).

27. Cigarettes have significant and inherent health risks for a number of serious diseases, and may contribute to causing those diseases in some individuals. (Reynolds' Answer to Plffs.' First Am. Compl. at ¶ 9.)

28. In response to consumer demand and public concern and criticism over the alleged health risks associated with smoking, Reynolds has, over time, developed many technological innovations that have produced a progressive decline in sales-weighted average "tar" and nicotine yields in cigarettes. Since the mid-1950's, Reynolds and its competitors have devoted extensive resources to achieve this decline. Techniques incorporated in cigarettes over the last 40+ years which reduce "tar" and nicotine include: tobacco blending, filtration, reconstituted tobacco, increased paper porosity, reduced tobacco weight, expanded tobacco, and filter ventilation. Design changes such as the development of more porous cigarette paper, improved filtration, and the use of expanded tobacco and reconstituted tobacco made general reduction possible. By utilizing one or more of these techniques, cigarette manufacturers can offer smokers a variety of cigarettes with a range of "tar" and nicotine levels. Indeed, today there are commercially available cigarettes that yield "tar" and nicotine at exceptionally low levels. Reynolds and its competitors developed many technological innovations that resulted in a progressive decline in sales-weighted average "tar" and nicotine yields in cigarettes — from about 38 mg "tar" per cigarette in the 1950's to about 12 mg "tar" per cigarette today, and from about 2.7 mg nicotine in the 1950's to about 0.8 mg nicotine per cigarette today. As a consequence, the sales-weighted average "tar" and nicotine yields of U.S. cigarettes have declined by 67% during the past 40-plus years. These "tar" and nicotine reductions have largely been achieved through innovations in cigarette design — innovations pioneered by Reynolds and its competitors in the United States. The 1979 Surgeon General's Report...

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