Shaw v. Brown & Williamson Tobacco Corp.

• Citation: 973 F.Supp. 539
• Decision Date: 15 August 1997
• Docket Number: Civil No. B-95-3280.
• Parties: Robert T. SHAW and Beatrice Shaw, v. BROWN & WILLIAMSON TOBACCO CORP.
• Court: U.S. District Court — District of Maryland

973 F.Supp. 539

Robert T. SHAW and Beatrice Shaw, v. BROWN & WILLIAMSON TOBACCO CORP.

Civil No. B-95-3280.

United States District Court, D. Maryland.

August 15, 1997.

COPYRIGHT MATERIAL OMITTED

Ronald J. Levasseur and Linda W. Buckel, Cumberland, MD, for Plaintiffs.

Francis J. Burch, Raymond G. Mullady, and Robert G. Blue, Baltimore, MD, for Defendant.

WALTER E. BLACK, Jr., Senior District Judge.

Presently pending before the Court are a Motion to Dismiss (Paper 4) and a Motion to Dismiss Counts IX and X of Amended Complaint (Paper 12), both filed on behalf of defendant Brown & Williamson Tobacco Corporation ("Brown & Williamson"). On October 31, 1995, plaintiffs Robert T. Shaw ("Shaw") and Beatrice Shaw, who are husband and wife, filed a products liability lawsuit against Brown & Williamson. Their eight-count complaint alleges battery (Count I); products liability/defective design (Count II); products liability/defective design inherently unreasonable risk (Count III); products liability/manufacturing defect (Count IV); strict liability/abnormally dangerous activity (Count V); negligent misrepresentation (Count VI); breach of warranty (Count VII); and loss of consortium (Count VIII). Plaintiffs had filed an identical action in the Circuit Court for Allegany County, Maryland on October 30, 1995, the day before filing the instant action. On February 20, 1996, plaintiffs filed an amended complaint, alleging the additional counts of negligence (Count IX) and intentional misrepresentation (Count X).

In these motions, defendant contends that dismissal is appropriate as to plaintiffs' claims for battery, manufacturing misrepresentation, breach of warranty, negligent failure to warn, negligent manufacture, and intentional misrepresentation. Defendant asserts that the battery claim is time barred, and further maintains that plaintiffs cannot establish that defendant had the requisite intent to commit a battery. Defendant submits that plaintiffs' manufacturing defect fails to state a claim upon which relief can be granted in strict liability or negligence, because it contains no more than a "bald statement" of a manufacturing defect. As to plaintiffs' abnormally dangerous activity claim, defendant asserts that the design, manufacture, marketing, and distribution of cigarettes is not an abnormally dangerous activity under Maryland law. Alternatively, defendant contends that this claim is defective because plaintiffs have failed to allege that the manufacture or marketing of cigarettes is abnormally dangerous in relation to where it occurs and because defendant did not own or control the land where Shaw was injured. Defendant maintains that plaintiffs' breach of implied warranty claim is statutorily time-barred.

Defendant submits that plaintiffs' claims for negligent misrepresentation, negligent failure to warn, and intentional misrepresentation are preempted by the Public Health Cigarette Smoking Act of 1969, Pub.L. 91-222 (1970), as amended, 15 U.S.C. §§ 1331-1340 (hereinafter the "1969 Act"). Further, defendant asserts that the negligent misrepresentation claim must fail because plaintiffs have not alleged that defendant made an affirmative misrepresentation as required under Maryland law, and that the intentional misrepresentation claim both fails to state the circumstances of the alleged fraud with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure, and fails to state a claim for intentional misrepresentation either by affirmative statement or by concealment.

Opposing the motions, plaintiffs maintain that they have stated claims upon which relief can be granted as to each count in their complaint. The Court will address plaintiffs' specific contentions below.¹

I.

Plaintiffs allege the following facts. Robert T. Shaw was employed as a long distance truck driver with the Kelly-Springfield Tire Company from 1968 to 1991. From May 1, 1973 to November 14, 1984, Shaw routinely traveled in an enclosed truck with a co-worker who smoked Raleigh cigarettes, which are manufactured, produced, and distributed by Brown & Williamson. Shaw did not smoke cigarettes at any time during his employment with Kelly-Springfield. Nevertheless, Shaw was diagnosed with lung cancer in 1992. Shaw and his wife allege that he developed lung cancer as a result of his exposure to second-hand or environmental tobacco smoke (hereinafter "ETS") emitted from the Raleigh cigarettes.

II.

Since the Court has not considered any materials outside of the pleadings, this motion will be addressed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The rule provides for dismissal of a complaint for failure to state a claim upon which relief can be granted.

Due to the severe impact of dismissals, the Court will grant Rule 12(b)(6) motions "only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989); De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir.1991). The Fourth Circuit has long held "that a motion to dismiss for failure to state a claim for relief should not be granted unless it appears to a certainty that the plaintiff would he entitled to no relief under any state of facts which could be proved in support of his claim." Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969) (citation omitted); Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 n. 4 (4th Cir.1993), cert. denied sub nom., American Home Products Corp. v. Mylan Lab., Inc., 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994); Brooks v. City of Winston-Salem, North Carolina, 85 F.3d 178, 182 (4th Cir.1996). In reviewing the pleadings, the Court must accept all of the plaintiff's well-pleaded allegations as true, and must construe them in the light most favorable to the plaintiff. Custer v. Sweeney, 89 F.3d 1156, 1163 (4th Cir.1996) (citing Mylan Lab., Inc., 7 F.3d at 1134).

III. Preemption

The Court will first consider defendant's contention that plaintiffs' claims for negligent misrepresentation, negligent failure to warn, and intentional misrepresentation are preempted by the 1969 Act.

The Supremacy Clause provides that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2. Thus, state law that conflicts with federal law is "without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981) (citing M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819)). A preemption analysis "start[s] with the assumption that the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that [is] the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Accordingly, "`the purpose of Congress is the ultimate touchstone'" of a preemption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222-23, 11 L.Ed.2d 179 (1963)).

The Supreme Court has explained that congressional intent "may be `explicitly stated in the statute's language or implicitly contained in its structure and purpose.'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)). "In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (internal quotations and citations omitted).

On the other hand, when Congress enacts a provision defining the preemptive reach of a statute, "`there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation," id. at 517, 112 S.Ct. at 2618 (quoting California Federal Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987)), so long as the "provision provides a `reliable indicium of congressional intent with respect to state authority.'" Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618 (quoting Malone, 435 U.S. at 505, 98 S.Ct. at 1190). Matters beyond the preemptive reach of such a provision are not preempted. Cipollone, 505 U.S. at 517, 112 S.Ct. at 2617-18. Thus, when an act contains a section that explicitly addresses preemption, the Court's task is to "identify the domain expressly preempted by" the section. Id.

In 1964, an advisory committee convened by the Surgeon General issued a report stating that "[c]igarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action." H.R.Rep. 98-805, 98th Cong., 2d. Sess. 7 (May 23, 1984), 1984 U.S.C.C.A.N. 3718, 3720. In response to this report and to an effort by the Federal Trade Commission (FTC) to regulate the advertising and labeling of cigarettes, Congress enacted the Federal Cigarette Labeling and Advertising Act in July 1965. Pub.L. 89-92 (1965), as amended, 15 U.S.C. §§ 1331-1340 (hereinafter the "1965 Act"). Section 2 of the 1965 Act established the policy of Congress and the purpose of the Act "with respect to any relationship between smoking and health" and declared the competing dual purposes that have, in some form, remained a part of the labeling act for the past thirty-two years: (1) adequately informing the public that cigarette smoking may be hazardous to your health; and (2) protecting the national economy from the burden imposed by diverse, nonuniform and confusing cigarette labeling and advertising regulations. Pub.L. 89-92, § 2 (1965). In accordance...