Tuosto v. Philip Morris Usa Inc.

• Decision Date: 19 November 2009
• Docket Number: No. 05 Civ. 9384 (PKL).,05 Civ. 9384 (PKL).
• Parties: John TUOSTO as proposed Administrator of the Estate of Rita Tuosto and John Tuosto, Individually, Plaintiff, v. PHILIP MORRIS USA INC., Defendant.
• Court: U.S. District Court — Southern District of New York

672 F.Supp.2d 350

John TUOSTO as proposed Administrator of the Estate of Rita Tuosto and John Tuosto, Individually, Plaintiff, v. PHILIP MORRIS USA INC., Defendant.

No. 05 Civ. 9384 (PKL).

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

November 19, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Law Offices of Joseph M. Lichtenstein, P.C., Joseph M. Lichtenstein, Esq., Mineola, NY, for Plaintiff.

Hunton & Williams LLP, Scott E. Hershman, Esq., Stephen R. Blacklocks, Esq., New York, NY, for Defendant Philip Morris USA Inc.

OPINION AND ORDER

PETER K. LEISURE, District Judge.

Plaintiff John Tuosto brings this suit individually and as the administrator of the estate of his deceased wife, Rita Tuosto (collectively, "Tuosto"). Rita Tuosto allegedly smoked cigarettes manufactured by Defendant Philip Morris USA Incorporated ("PMUSA") from the late 1960s or early 1970s until her death on October 5, 2003. Tuosto alleges that PM USA's cigarettes caused Rita Tuosto's death, giving rise to five causes of action: fraud and misrepresentation; strict liability for design defect; negligence; loss of consortium; and wrongful death.

On August 21, 2007, the Court granted PM USA's motion to dismiss Tuosto's First Amended Complaint and granted Tuosto leave to replead some, but not all, of his original claims. Tuosto v. Philip Morris USA Inc. (Tuosto I), No. 05 Civ. 9384, 2007 WL 2398507 (S.D.N.Y. Aug. 21, 2007). Tuosto filed a Second Amended Complaint, and PM USA, in turn, made a renewed motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth herein, the Court grants PM USA's Motion and dismisses Tuosto's claims with leave to replead.

BACKGROUND

I. Prior History

Tuosto initiated this action in New York state court in September 2005. On November 4, 2005, PM USA removed the action to this Court pursuant to 28 U.S.C. § 1441. Following removal, PM USA moved to dismiss Tuosto's Amended Complaint pursuant to Fed.R.Civ.P. 12(c). Tuosto asserted six causes of action in his First Amended Complaint: fraud and misrepresentation; concerted action;¹ strict products liability for defective design, failure to warn and failure to test;² negligence; loss of consortium; and wrongful death. In its decision of August 21, 2007, the Court dismissed all of Tuosto's claims. See Tuosto I, 2007 WL 2398507.

The Court gave Tuosto leave to replead most of his causes of action, but explicitly denied this leave for certain claims. Specifically, the Court held that some elements of Tuosto's claims of fraud were barred by the Noerr-Pennington doctrine and the Cigarette Labeling and Advertising Act ("CLAA"). Tuosto I, 2007 WL 2398507, at *5-6. The Noerr-Pennington doctrine bars civil actions challenging conduct that constitutes "petitioning legislatures, administrative bodies, [or] the courts." Id., at *5 (quoting Hamilton v. Accu-tek, 935 F.Supp. 1307, 1316-17 (E.D.N.Y.1996)). The Court held that Tuosto's allegations stemming from PM USA's representations to Congress did not fall under the doctrine's exceptions, and thus were barred. Id., at *5-6.

Tuosto was also denied leave to replead elements of his fraud claims that were pre-empted by the CLAA. Id., at *6-7. The CLAA established "a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health...." 15 U.S.C. § 1331. As discussed at greater length below, this Act pre-empts common law actions for damages predicated on a legal duty that "constitutes a `requirement or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising and promotion' ...." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 524, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (ellipses in original). Tuosto repeats, and indeed amplifies, the claims that the Court found pre-empted in its 2007 decision.

The Court further dismissed with prejudice Tuosto's claims of strict products liability and negligent failure to warn. Tuosto I, 2007 WL 2398507, at *11, 14. These claims rely on the existence of a duty owed by PM USA "to include stronger and more specific warnings relating to smoking and health on PM USA's products and in PM USA's advertisements." Id., at *14. Such claims are explicitly barred by the CLAA. See id., at *11. Tuosto does not replead these claims in his Second Amended Complaint.

II. The Parties

For the purposes of a motion to dismiss, the Court takes all "well-pleaded factual allegations" as true. See Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 87 (2d Cir.2009) (quoting Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009)). The following facts are taken from Plaintiff's pleadings and do not constitute findings of the Court. The Court notes that Tuosto does not allege substantially different facts from those in his First Amended Complaint. See Tuosto I, 2007 WL 2398507, at *l-3.

Plaintiff Rita Tuosto was born in New York in 1956 and remained a resident of that state for her entire life. (Second Am. Compl. ¶ 9.) She began smoking in her teen years and was unable to quit despite efforts to do so. (Id.) Rita Tuosto always smoked cigarettes manufactured by PM USA. (Id.) In 2003, Rita Tuosto was diagnosed with lung cancer and died on October 5 of that year. (Id. ¶ 10.) Plaintiff John Tuosto married the decedent in 1980 and the two remained married until Rita Tuosto's death. (Id. ¶ 12.) He is now the proposed administrator of her estate. (Id. ¶ 11.)

PM USA is a Virginia corporation with its principal place of business in the State of New York and which regularly does and solicits business in the State of New York. (Id. ¶¶ 13-14.) PM USA manufactures cigarettes, including the "Philip Morris" and "Marlboro" brands. (Id. ¶ 13.)

Tuosto's factual allegations can be separated into two broad categories. First, Tuosto makes a series of allegations related to PM USA's knowledge of the health risks of cigarettes and communications with customers regarding these risks. Second, Tuosto makes allegations regarding the health and physiological effects of cigarettes, and especially nicotine, as well as PM USA's cigarette manufacturing process. The Court assumes these well-pleaded facts to be true for the purposes of this motion to dismiss.

III. PM USA's Research and Representations to Customers

PM USA has advertised its cigarette brands using, for example, point of purchase marketing and the iconic image of the "Marlboro Man." (Id. ¶¶ 20-23, 127-28, 139.) Tuosto alleges that PM USA has also paid to have its products featured in movies and television programs. (Id. ¶¶ 129-39.)

Tuosto alleges that PM USA has been concerned about the health implications of cigarettes and the potentially deleterious effects of these implications upon its business since the 1930s. (See id. ¶ 24.) These concerns increased in the early 1950s after the publication of two major studies that highlighted the health dangers of smoking. (See id. ¶¶ 37-38.) On December 15, 1953, after the release of these studies, the presidents of leading tobacco companies met at the Plaza Hotel in New York City along with the public relations agency Hill and Knowlton. (Id. ¶ 39.) At this meeting, and through subsequent communications, the leaders of the tobacco companies and Hill and Knowlton discussed the appropriate public relations stance for the industry to take in response to these studies. (Id. ¶¶ 39-41.) As a result of this meeting, the Tobacco Industry Research Committee ("TIRC") was established on December 15, 1953. (Id. ¶¶ 42-45.) In 1964, the TIRC changed its name to the Council for Tobacco Research-USA ("CTR"). (Id. ¶ 46.)

On January 4, 1954, PM USA and other cigarette manufacturers released "A Frank Statement to Cigarette Smokers," a full-page newspaper advertisement that appeared in 448 newspapers across the United States, and that announced the formation and purpose of the TIRC. (Id. ¶ 49.) The advertisement stated that TIRC would be established as a way for the cigarette companies to assist in the research on the relationship between tobacco use and health. (Id. ¶ 50.)

In 1962, two independent researchers stated that quitting smoking could reduce the chances of cancer in ex-smokers; however, PM USA did not inform the public of these findings. (Id. ¶ 121.)

In 1958, the tobacco companies formed a trade association named the Tobacco Institute ("TI"). (Id. ¶ 47.) In 1970, the TI ran an advertisement entitled "A Statement About Tobacco and Health." (Id. ¶ 53.) This advertisement stated that the TI assisted scientists in researching tobacco, health, and certain diseases that had been linked to tobacco use. (Id.) The TI released additional advertisements in 1970. (Id. ¶ 54.) One such unidentified advertisement stated that the tobacco industry supported research into the link between tobacco and health. (Id.)

Internal industry documents created between 1956 and 1981 reveal that industry insiders were aware at the time of possible links between cancer and cigarette smoking. (Id. ¶¶ 64-73.) The se documents also reveal that insiders knew that the CTR and other tobacco trade associations were not impartial. (Id.) In 1993, a former 24-year employee of CTR publicly revealed that CTR was, in fact, a lobby for cigarette companies. (Id. ¶¶ 71.)

IV. Nicotine and the Cigarette Manufacturing Process

Nicotine, which is found in cigarettes, has been recognized as addictive and as having adverse health consequences by medical organizations such as the Office of the U.S. Surgeon General, the World Health Organization, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Society of Addiction Medicine, and the Medical Research Council in the United Kingdom. (Id. ¶¶ 86-90.) PM USA has known of nicotine's addictive properties since at least 1960, as evidenced by a series of internal reports. (Id. ¶¶ 90-95.) Researchers working for PM USA...