Tompkin v. American Brands, Inc.

• Decision Date: 03 August 1998
• Docket Number: No. 174.,No. 184.,No. 5:94 CV 1302.,No. 188.<SMALL><SUP>1</SUP></SMALL>,5:94 CV 1302.,174.,184.,188.<SMALL><SUP>1</SUP></SMALL&gt
• Citation: 10 F.Supp.2d 895
• Parties: Jocelyn TOMPKIN, Executrix, et al., Plaintiffs, v. AMERICAN BRANDS, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

10 F.Supp.2d 895

Jocelyn TOMPKIN, Executrix, et al., Plaintiffs, v. AMERICAN BRANDS, INC., et al., Defendants.

No. 5:94 CV 1302.

No. 174.

No. 184.

No. 188.¹

United States District Court, N.D. Ohio, Eastern Division.

August 3, 1998.

Michael E. Ciccolini, Germano, Rondy & Ciccolini, Akron, OH, A. Russell Smith, R. Bryan Nace, Laybourne, Smith, Gore & Goldsmith, Akron, OH, for plaintiffs.

Mary M. Bittence, Diane P. Chapman, Wade A. Mitchell, Baker & Hostetler, Cleveland, OH, Walter L. Cofer, Craig E. Gustafson, Lucy E. Mason, John R. Fraser, Shook, Hardy & Bacon, Kansas City, MO, for Philip Morris Incorporated, defendant.

Robert D. Monnin, Hugh Kevin McNeelege, Thompson, Hine & Flory, Cleveland, OH, Thomas P. Meaney, Jr., Kenneth J. Walsh, Eric E. Kinder, Tyler Lee Mathews, McDonald, Hopkins, Burke & Haber, Cleveland, OH, James V. Kearney, Francis K. Decker, Jr., Patrick J. Carty, Jeffrey M. Goodman, Latham & Watkins, New York, NY, Marc E. Kasowitz, Marie V. Santacroce, Michael M. Fay, Kasowitz, Benson, Torres & Friedman, New York, NY, for Liggett Group, Inc. fka Liggett & Myers, Inc., defendant.

Walter L. Cofer, Craig E. Gustafson, Kansas City, MO, Samuel R. Martillotta, Mansour, Gavin, Gerlack & Manos, Cleveland, OH, Patrick M. McLaughlin, John F. McCaffrey, McLaughlin & Caffrey, Cleveland, OH, Lorillard Tobacco Company, Lorillard, Inc., defendants.

David S. Cupps, J. Scott Jamieson, Vorys, Sater, Seymour & Pease, Columbus, OH, Thomas E. Riley, David Wallace, Danielle Pareja Langhoff, Chadbourne & Parke, New York, NY, for American Tobacco Company, defendant.

MEMORANDUM OPINION

DOWD, District Judge.

Before the Court are the following motions:

(1) motion for summary judgment on behalf of defendants The American Tobacco Company, Phillip Morris Incorporated, Lorillard Tobacco Company and Lorillard, Inc. (Docket No. 174 with Affidavit/Report, Docket No. 183);² and (2) motion for summary judgment on behalf of defendant Liggett Group Inc. (Docket No. 188 with Exhibits, Docket No. 189).³

For the reasons discussed below, both motions for summary judgment are GRANTED.

I. BACKGROUND

On February 2, 1998, plaintiff Jocelyn Tompkin, individually and as executrix of the estate of David Tompkin, filed her Third Amended Complaint (hereafter, "Complaint")⁴ against The American Tobacco Company (by its successor by merger Brown & Williamson Tobacco Corporation); Philip Morris, Incorporated; Liggett Group, Inc., fka Liggett & Myers, Inc.; Lorillard Tobacco Company, fka P. Lorillard Co.; and Lorillard, Inc.⁵

Count One of the Complaint sets forth all of the party information and further alleges that from 1950 through 1966, plaintiff's decedent smoked various brands of cigarettes manufactured and sold by the defendants.⁶ Plaintiff's decedent corrected this allegation at depositions taken for use at trial. He testified that he quit smoking in 1965, not 1966. (Tompkin Deposition of November 8, 1994 [hereafter "First Dep."],⁷ at 28; Tompkin Deposition of November 18, 1994 [hereafter "Second Dep."],⁸ at 10).

Count Two of the Complaint sets forth a claim for strict products liability alleging that the relevant cigarettes presented "a risk ... more dangerous than a reasonable consumer would have expected[]" (Compl.¶ 13), "were in an unsafe and defective condition at the time they left the possession of each of the Defendants[]" (Compl.¶ 14), "were purchased and used by David Tompkin without substantial change in the condition in which they were in [sic] when manufactured and sold by Defendants[ ]" (Compl.¶ 15), were defective "as a result of the Defendants' failure to provide adequate warnings regarding the health consequences of cigarette smoking[]" (Compl.¶ 16), and "were also defective in that [they] caused addiction and dependency." (Compl.¶ 17).

Count Three sets forth a claim for negligent, wilful and wanton "fail[ure] to adequately warn of the adverse health consequences of cigarette smoking[,]" (Compl.¶ 2), including "cancer, heart disease, and other adverse health consequences." (Compl.¶ 19). It is alleged that this negligence included "the manner in which [defendants] tested, researched, sold, promoted, and advertised the cigarettes that they manufactured and sold." (Compl.¶ 20).

Count Four sets forth a claim for fraud and misrepresentation "in the manner in which [Defendants] advertised their cigarette products in that they failed to give any warnings regarding the adverse consequences of smoking in the advertisements for their cigarette products, and in fact, represented and advertised their cigarette products as healthful products that could be used without any fear of adverse consequences." (Compl.¶ 23). This count further alleges that these representations were made "for the sole purpose of inducing Decedent to purchase their cigarettes[,]" (Compl.¶ 24), that the decedent relied to his detriment upon the representations in various advertisements (Compl.¶ 25), and that the decedent would not have used the cigarette products if he had known the representations were false (Compl.¶ 24).

Count Five sets forth a claim for strict liability for misrepresentation, alleging that defendants' products "were defective as they did not conform to the Defendants' representations concerning the character, quality and safety of the cigarettes[.]" (Compl.¶ 27).

Count Six sets forth a claim for breach of express warranty, alleging that "Defendants expressly warranted that smoking the cigarettes that they manufactured and sold did not present any significant health consequences[]" (Compl.¶ 29) and that this warranty was breached in that the cigarettes "in fact caused cancer and other severe adverse health consequences, including death." (Compl.¶ 30).

Count Seven sets forth a claim for breach of implied warranty, asserting that "Defendants impliedly warranted that [their] products were merchantable and fit for the ordinary purposes for which they were used and Decedent relied upon such implied warranties." (Compl.¶ 32). This count further alleges that defendants "knew and should have known that David Tompkin was relying upon each of the Defendants' skills and judgments to select and furnish a suitable product[.]" (Compl.¶ 33).

Count Eight sets forth a claim of conspiracy and concerted action alleging that defendants, "in possession of medical and scientific data that indicated that the use of their cigarettes were [sic] hazardous to the health of consumers since at least 1950, but prompted by pecuniary motives, ... individually and as members of the tobacco industry, ignored and failed to act upon that ... data and conspired and acted in concert to deprive the public ... of that ... data[.]" (Compl.¶ 36). This concerted action was allegedly undertaken by the defendants in their capacity as members of The Tobacco Institute (Compl.¶ 37) and The Council for Tobacco Research USA, Inc. (Compl.¶¶ 38-39).

Count Nine sets forth a claim for damages resulting from David Tompkin's having been diagnosed with bronchogenic carcinoma. (Compl.¶ 43). Count Ten is a claim for wrongful death brought on behalf of his estate. (Compl.¶¶ 46-47). Count Eleven is a loss of consortium claim brought by Jocelyn Tompkin. (Compl.¶ 49).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. When considering a motion for summary judgment, "the inferences to be drawn from the underlying facts contained in [affidavits, pleadings, depositions, answers to interrogatories, and admissions] must be viewed in the light most favorable to the party opposing the motion." U.S. v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). See, e.g., U.S. v. Hodges X-Ray, Inc., 759 F.2d 557, 562 (6th Cir.1985) and cases cited therein. The Court's favorable treatment of facts and inferences, however, does not relieve the nonmoving party of the responsibility "to go beyond the pleadings" to oppose an otherwise properly supported motion for summary judgment under Rule 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party satisfies his or her burden to show an absence of evidence to support the nonmoving party's case, Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548, the party in opposition "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the showing required of the nonmoving party by Rule 56 does not go so far as to require that all opposition evidence be in a form admissible at trial, the rule does require the nonmoving party who has the burden of proof at trial to oppose a proper summary judgment motion "by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves. ..." Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548. General averments or conclusory allegations of an affidavit, however, do not create specific fact disputes for summary judgment purposes. See Lujan v. National Wildlife Federation, 497 U.S. 871 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Furthermore, unsworn statements and affidavits composed of hearsay and nonexpert opinion evidence, "do not satisfy Rule 56(e) and must be disregarded." See Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 968-69 (6th Cir.1991) (quoting State Mutual Life Assurance Co. v. Deer Creek Park, 612 F.2d 259, 264 (6th Cir.1979) and citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Nor may a party "create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts ... earlier deposition testimony." Reid v. Sears Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986...