Sackman v. Liggett Group, Inc.

• Decision Date: 09 June 1997
• Docket Number: No. 93 CV 4166 (ADS).,93 CV 4166 (ADS).
• Citation: 965 F.Supp. 391
• Parties: Janet and Joseph SACKMAN, Plaintiffs, v. LIGGETT GROUP, INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

965 F.Supp. 391

Janet and Joseph SACKMAN, Plaintiffs, v. LIGGETT GROUP, INC., Defendant.

No. 93 CV 4166 (ADS).

United States District Court, E.D. New York.

June 9, 1997.

Humphrey, Farrington & Mcclain, P.C., Independence, MO, for Plaintiffs; Kenneth B. McClain, Gregory, Leyh, of counsel.

Kelly, Sackman, Spollen & Upton, Greenlawn, NY, for Plaintiffs; David Sackman, of counsel.

Kasowitz, Benson, Torres & Friedman, New York City, for Defendant; Michael M. Fay, Aaron H. Marks, of counsel.

Debevoise & Plimpton, New York City, for Intervenors Council for Tobacco Research, U.S.A., Inc.; Steven Klugman, Harry Zirlin, of counsel.

Wachtell, Lipton, Rosen & Katz, New York City, for Intervenors Philip Morris, Inc.; Herbert M. Wachtell, Peter C. Hein, David M. Murphy, of counsel.

Chadbourne & Parke, New York City, for Intervenor Brown & Williamson Tobacco Corp.

Jones, Day, Reavis & Pogue, New York City, for Intervenor R.J. Reynolds Co.

Shook, Hardy & Bacon, Kansas City, MO, for Intervenor Lorillard Tobacco Co.; Billy Randles, of counsel.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge:

This lawsuit arises from the claims of the plaintiffs, Janet Sackman ("Sackman" or the "plaintiff") and her husband Joseph Sackman ("Joseph" collectively the "plaintiffs") against the defendant Liggett Group, Inc. ("Liggett" or the "defendant") based on personal injuries sustained by the plaintiff which she contends were the result of her smoking cigarettes manufactured by the defendant. According to the plaintiffs, Liggett concealed information regarding the health risks of smoking. As a result, Sackman asserts that she continued to smoke, unaware of the attendant dangers, and she was diagnosed with lung cancer in 1990 Presently before the Court is the motion of the defendant for summary judgment with respect to the plaintiffs' Eighth Count contained in the First Amended Complaint ("Amended Complaint") alleging a claim for civil conspiracy.

I. Background

The facts underlying this lawsuit are set forth in this Court's Memorandum of Decision and Order dated May 25, 1996. See Sackman v. Liggett Group, Inc., 167 F.R.D. 6, 9-10 (E.D.N.Y.1996) ("Sackman I"). Familiarity with this decision is presumed and the detailed facts will not be repeated. The Amended Complaint alleged claims for products liability, negligence, breach of warranty, fraud, civil conspiracy and loss of consortium. In Sackman I, the Court granted Liggett's first motion for summary judgment based on statute of limitations grounds, in part. The Court dismissed the plaintiffs' claims grounded in fraud and breach of warrant and denied the motion with regard to the Sackmans' claims based on negligence, products liability and loss of consortium. For reasons set forth in the record on August 23, 1996, Sackman's civil conspiracy claim was not addressed. At a result, the Court granted the defendant leave to file second motion for summary judgment with respect to this claim

The allegations contained in Count Eight are as follows:

EIGHTH COUNT

45. Plaintiff Janet Sackman repeats the allegations contained in paragraphs 1 through 44 of this First Amended Complaint as if set forth fully in this Count, and alleges:

46. Defendant Liggett Group, Inc., as a member of the tobacco industry was or should have been at all times relevant to the events described in this Complaint, in possession of medical and scientific data indicating that the use of its cigarettes was hazardous to the health of consumers, but, because of pecuniary motives, defendant Liggett Group, Inc. ignored and failed to act upon the pertinent medical and scientific data and conspired to deprive the public, and particularly the consumers of the defendant's product, of the pertinent medical and scientific data.

47. Defendant Liggett Group, Inc.'s failure to communicate to the public scientific facts in its possession, and its collaboration with others in the tobacco industry to misrepresent fact constitute overt actions to keep the public ignorant of hazards associated with tobacco smoking.

48. As a direct and proximate result of defendant Liggett Group, Inc.'s willful, wanton and conspiratorial acts and omissions, gross negligence, conscious indifference and utter disregard for the life, health, safety and welfare of the plaintiff, Janet Sackman, has developed lung cancer, was caused to sustain other personal injuries, has undergone and in the future will undergo great pain and suffering, was and is unable to attend to her usual occupation and activities was and in the future will be required to spend money for medical care and has sustained and will sustain other losses.

WHEREFORE, plaintiff Janet Sackman demands punitive damages against defendant Liggett Group Inc., together with interest and costs of suit.

According to the plaintiffs, these allegations allege a claim for conspiracy to market a defective product

II. Discussion

A. Summary judgment standard

As stated in Sackman I, a court may grant summary judgment only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact, Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995); Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir.1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).

According to the Second Circuit "[s]ummary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir.1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir.1996); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed.R.Civ.P. 56(e)). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510; see Vann v. New York City, 72 F.3d 1040 (2d Cir.1995).

However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. Kulak v. City of New York, 88 F.3d 63, 70 (2d Cir. 1996). If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant summary judgment is unavailable. Holt v. KMI-Continental, Inc., 95 F.3d 123, 128 (2d Cir.1996); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). Finally, the Court is charged with the function of "issue finding", not "issue resolution." Gallo v. Prudential Residential Servs., Ltd., Partnership, 22 F.3d 1219, 1224 (2d Cir.1994).

It is within this framework that the Court addresses the grounds for the present motion for summary judgment to dismiss the Eighth Count alleging a claim for civil conspiracy.

B. Liggett's motion

The parties agree that in New York a claim for civil conspiracy is not an independent tort, but rather, is a derivative claim of an underlying substantive tort. See, e.g., Innovative Networks, Inc. v. Satellite Airlines Ticketing Ctrs., Inc., 871 F.Supp. 709, 731 (S.D.N.Y.1995), citing, Danahy v. Meese, 84 A.D.2d 670, 446 N.Y.S.2d 611, 614 (4th Dep't 1981); Cunningham v. Hagedorn, 72 A.D.2d 702, 422 N.Y.S.2d 70, 73 (1st Dep't 1979); see also Schlotthauer v. Sanders, 153 A.D.2d 729, 545 N.Y.S.2d 196, 197 (2d Dep't 1989). "Under New York law, a defendant may be held liable in tort for conspiracy to do an unlawful thing, or to do a lawful thing in an unlawful manner." Arlinghaus v. Ritenour, 622 F.2d 629 (2d Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980) (internal quotation omitted). "The entire theory of conspiracy is that two or more persons are acting together to effectuate an unlawful purpose. This assumes an agreement to so act, either by express assent, or by inference from conduct." Sluys v. Gribetz, 842 F.Supp. 764, 767 (S.D.N.Y.), aff'd, 41 F.3d 1503 (2d Cir.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995).

A claim for civil conspiracy "is merely the string whereby the plaintiff seeks to tie together those who, acting in concert, may be held responsible in damages for any overt act or acts." Rutkin v. Reinfeld, 229 F.2d 248, 252 (2d Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 50, 1 L.Ed.2d 60 (1956); John's Insulation, Inc. v. Siska Constr. Co., 774 F.Supp. 156, 161-62 (S.D.N.Y.1991). Accordingly, allegations of conspiracy are only appropriate for the purpose of establishing joint liability by co-participants in a particular tortious conduct. Grove Press, Inc. v. Angleton, 649 F.2d 121, 123 (2d Cir.1981); Valdan Sportswear v. Montgomery Ward & Co., 591 F.Supp. 1188, 1191 (S.D.N.Y.1984).

At the outset of the analysis, the Court notes that the only possible bases for their civil conspiracy cause of action are the plaintiffs' negligence and products liability claims. However, as Justice Siracuse aptly recognized in Lindsay v. Lockwood, 163 Misc.2d 228, 625 N.Y.S.2d 393 (Sup. Ct. Monroe Cty.1994), because a claim of conspiracy requires a showing of intentional conduct, "there can hardly be conspiracy to commit negligence." Id. 625 N.Y.S.2d at 396. Indeed, numerous courts of other jurisdictions have reached the same conclusion. See Sonnenreich v. Philip Morris Inc., 929 F.Supp. 416, 419 (S.D.Fla.1996) (recognizing in the...