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• TIMOTHY ANDERSON, Plaintiff-Appellee vs RACHEAL ANDERSON nka HILL, Defendant-Appellant (PDF) 

{¶1} Defendant-appellant, Racheal Anderson nka Hill, appeals a decision of the Warren County Common Pleas Court, Domestic Relations Division, regarding custody and parenting time matters involving her daughter. For the reasons set forth below, we affirm the decision of the trial court. . . .

On April 3, 2008, Marilyn moved the court to modify Racheal's parenting time with Victoria, and further moved the court for an order prohibiting all parties from smoking cigarettes in Victoria's presence. Marilyn argued that Victoria had expressed concerns, fears and reluctance over spending time with her mother, and had returned home from parenting time smelling of cigarette smoke as a result of Racheal smoking in her home and car. Marilyn also requested that a guardian ad litem be appointed for Victoria. . . .

In her third assignment of error, Racheal challenges the trial court's imposition of a no-smoking ban upon the parties. Specifically, she argues that there was no evidence before the court that Victoria suffered from any health problems or had an increased sensitivity to smoke, and she contends that there must be some evidence that a child suffers physical harm before the court can restrict a parent from engaging in a lawful activity. Racheal also points to the fact that the smoking ban is not limited to the parties' homes or to the parties themselves, and argues that the ban has effectively restricted the places where she can take Victoria.

{¶31} The trial court adopted the magistrate's finding that although there was no evidence presented to indicate that Victoria has any health problems or an increased sensitivity to cigarette smoke, it was not in Victoria's best interest to be exposed to such an activity. Indeed, other Ohio courts have made reference to the "avalanche of authoritative scientific studies" which indicate that "secondhand smoke constitutes a real and substantial danger to children because it causes and aggravates serious diseases in children, which danger is both a 'relevant factor' and a 'physical health factor'" that a trial court is required to consider in making a best interest determination under R.C. 3109.04(F). In Day, the Fifth District Court of Appeals found no abuse of discretion in the trial court's imposition of a no-smoking ban, noting that the Ohio Supreme Court has recognized conclusions made by the United States Surgeon General, as well as other health agencies, that "secondhand smoke impairs the respiratory health of thousands of young children." Id., quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health . . . . Regardless of the condition of their health, secondhand smoke is considered a danger to all children.

{¶32} Based on the foregoing, Racheal has not shown that the trial court's decision to restrict Victoria's exposure to cigarette smoke was arbitrary, unconscionable, or unreasonable so as to constitute an abuse of its discretion.

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RJR v. FDA 

The question before the Court is whether Plaintiffs have met their burden of showing the need for the “extraordinary remedy” of a preliminary injunction against enforcement of the MRTP provision. Tennessee Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). In determining whether to issue a preliminary injunction, courts consider four factors: (a) whether the movant has a strong likelihood of success on the merits; (b) whether the movant would suffer irreparable injury without the injunction; (c) whether issuance of the injunction would cause substantial harm to others; and (d) whether the public interest would be served by the issuance of the injunction. . . .

Assuming that the MRTP provision implicates the First Amendment, it seems likely that its restrictions on speech are constitutionally permissible. . . .

In sum, the Court concludes that Plaintiffs have little likelihood of success on the merits of their facial First Amendment challenge to the MRTP provision except on the theory that it operates as a prior restraint on speech and lacks a reasonable time limit for FDA review. . . .

Having considered each of the required factors, the Court finds that the “extraordinary remedy” of a preliminary injunction is unwarranted.

29

III. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion is DENIED.

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• DONOVAN v. PHILIP MORRIS USA, INC.  

In this case, it is not merely the risk of cancer of which the plaintiffs have notice, but the substantial increase in the risk of cancer, as reflected in their complaint. Because the harm involves subclinical changes that only will be discovered by a physician, notice most likely will take the form of advice by a physician, together with a recommendation for diagnostic testing conformably with the medical standard of care. In short, the statute begins to run when (1) there is a physiological change resulting in a substantial increase in the risk of cancer, and (2) that increase, under the standard of care, triggers the need for available diagnostic testing that has been accepted in the medical community as an efficacious method of lung cancer screening or surveillance.

As previously discussed, medical monitoring expense is the plaintiffs' only arguably provable damages. They could not have sued for pain and suffering or lost earning capacity. This is not a case where plaintiffs recovered damages for pain and suffering, lost earning capacity, but only some medical expenses based on existing medical technology. These plaintiffs, or so they allege, had absolutely no remedy until LDCT technology appeared. If they can establish these circumstances, which are unusual and perhaps unique to medical monitoring claims, then their claims are timely. This is a question that cannot be resolved on the record before us; it must be resolved on a motion for summary judgment or, if genuine issues of material fact remain, by a jury. The plaintiffs also must show that the standard of care of the reasonable physician did not call for monitoring of any precancerous condition prior to the statute of limitations period, not just that the technology at that time was less effective for monitoring.

We answer the second certified question in the negative, subject to determination as we have outlined it.

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• POUR HOUSE, INC. v. OHIO DEPT. OF HEALTH  

{¶20} Appellee argues on appeal that R.C. 3794.02(A) contemplates a burden shifting analysis. Appellee contends that once it proves that smoking has occurred, the burden shifts to the proprietor to prove it did not permit smoking2500much like an affirmative defense. We disagree. Appellee must prove each of the elements of a smoking violation. Ohio Adm.Code 3701-52-08(E) (requiring findings of smoking violations to be supported by preponderance of the evidence). Permitting smoking is an element of the smoking violation, not an affirmative defense.

{¶21} Because the trial court erred in interpreting R.C. 3794.02(A), we sustain Pour House's first and second assignments of error. This disposition renders the Pour House's third assignment of error moot. App.R. 12(A)(1)(c).

{¶22} Having sustained the Pour House's first and second assignments of error, we reverse the judgment of the Franklin County Court of Common Pleas. We remand this matter to the trial court with instructions to remand it to Lucas County to determine whether or not Pour House violated R.C. 3794.02(A) under the standard set forth in this decision.

Judgment reversed and cause remanded with instructions.

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WHITELEY v. R.J. REYNOLDS TOBACCO COMPANY  

Defendants urge us to reverse the judgments, contending: (1) plaintiffs were collaterally estopped by a special verdict in Whiteley I from showing Whiteley's reliance upon false statements by agents of defendants and, therefore, the trial court erred in admitting evidence of such statements by various entities and organizations alleged to be agents of defendants; (2) the jury's findings of Whiteley's reliance on false promises or other misrepresentations by defendants was unsupported by substantial evidence; and (3) the personal injury action (as distinguished from the wrongful death action) was barred by the statute of limitations.

We shall affirm the judgments.

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• WHITELEY v. R.J. REYNOLDS TOBACCO COMPANY  

Defendants Philip Morris Inc. (Philip Morris) and R.J. Reynolds Tobacco Company (R.J. Reynolds) appeal from judgments in favor of plaintiffs in a combined wrongful death and survival action by the estate and the surviving spouse and children of Leslie Whiteley (Whiteley), a smoker who was diagnosed with lung cancer in 1998 and who died in July 2000.

This is the second appeal by defendants. . . .

On retrial, the jury rendered verdicts in favor of plaintiffs on their causes of action for false promise and negligent misrepresentation. For the personal injury claims, the jury awarded Whiteley's estate $90,640 for past economic damages, which was increased to $225,000 based on a previous stipulation. It awarded Leonard Whiteley $30,000 for pre-death loss of consortium. The jury awarded plaintiffs damages of $2,345,964 on the wrongful death claims. Deadlocking on the issue of whether there was sufficient evidence of malice to warrant punitive damages against Philip Morris, the jury assessed $250,000 punitive damages against R.J. Reynolds on the false promise cause of action. Following a limited retrial of the punitive damages claim against Philip Morris, the jury found in favor of Philip Morris. Judgment was entered against R.J. Reynolds on July 13, 2007, and against Philip Morris on November 19, 2007. These consolidated appeals followed.

Defendants urge us to reverse the judgments, contending: (1) plaintiffs were collaterally estopped by a special verdict in Whiteley I from showing Whiteley's reliance upon false statements by agents of defendants and, therefore, the trial court erred in admitting evidence of such statements by various entities and organizations alleged to be agents of defendants; (2) the jury's findings of Whiteley's reliance on false promises or other misrepresentations by defendants was unsupported by substantial evidence; and (3) the personal injury action (as distinguished from the wrongful death action) was barred by the statute of limitations.

We shall affirm the judgments. . . .

A. Evidence at the Second Trial

Whiteley's deposition testimony was presented at both the first and second trials. She testified that, in February 1998, she had what she called "chronic bronchitis" for approximately a week. It was "a cold that got worse. As the symptoms got worse, then I went to seek medical care." She saw Dr. LaMonica one time at the Ojai Valley Community Health Center. Whiteley's testimony continued as follows:

"Q. Did Dr. LaMonica tell you that smoking was, in his opinion, a likely cause of your chronic bronchitis?

"A. Yes.

"Q. Was your chronic bronchitis at that time, in your opinion, causing you appreciable pain?

"A. Yes, it was.

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DOJ TRANSCRIPTS AND DEPOSITIONS NOW ONLINE 

THIS IS IT!

The Ronald M. Davis Tobacco Deposition & Trial Testimony Archive at Tobacco Documents Online (TDO) has the collected transcripts and depositions of UNITED STATES OF AMERICA v. PHILIP MORRIS INC-complete with abstracts(!)

MANY THANKS to the staff of Michigan Public Health Institute's Center for Tobacco Use Prevention & Research.

FEAST!

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DC Court of Appeals Denies Tobacco’s Request for Rehearing en banc 

On Sept. 22, 2009, 9 judges of the US Court of Appeals for the DC Circuit turned down Defendants' request for a rehearing of their appeal before all the judges of the Court. There's only one option left for tobacco defendants now: the US Supreme Court.

The PDF is here.

Full text of the order: . . .

O R D E R

Upon consideration of the petitions of Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Altria Group Inc., and British American Tobacco (Investments) Ltd. for rehearing en banc, and the absence of a request by any member

of the court for a vote, it is

ORDERED that the petitions be denied.

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• UNITED STATES OF AMERICA v. PHILIP MORRIS USA INC.: Transcripts, Depositions, Exhibits 

Commonwealth Brands, Inc. et al v. United States of America et al  

09/30/2009 42 NOTICE of Appearance by Nicholas J. Bagley, Daniel Tenny, Sarang Damle, and Mark Freeman on behalf of United States of America, United States Food and Drug Administration, Margaret Hamburg, Kathleen Sebelius (Bagley, Nicholas) Modified to add additional attorneys on 10/1/2009 (CDF). (Entered: 09/30/2009)

09/30/2009 43 RESPONSE to Motion re 3 MOTION for Preliminary Injunction MOTION for Hearing filed by United States of America, United States Food and Drug Administration, Margaret Hamburg, Kathleen Sebelius. Replies due by 10/14/2009. (Chaifetz, Samantha) (Additional attachment(s) added on 10/1/2009: # 1 Main Document, # 2 Proposed Order) (CDF). (Entered: 09/30/2009)

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COMMONWEALTH, et. al. v. USA: Case Summary ($$) 

Date filed: 08/31/2009

Date of last filing: 09/30/2009

Case Summary

Office: Bowling Green

Filed: 08/31/2009

Jury Demand: None

Demand:

Nature of Suit: 440

Cause: 28:2201 Declaratory Judgement

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• IN RE: LIGHT CIGARETTES MARKETING AND SALES PRACTICES LITIGATION MDL No. 2068: TRANSFER ORDER  

Before the entire Panel: Plaintiffs in five actions pending, respectively, in the Southern District of California, the District of Colorado, the Southern District of Florida, the Eastern District of New York, and the Southern District of Texas have moved, pursuant to 28 U.S.C. § 1407, to centralize this litigation in the Southern District of Florida.1 This litigation currently consists of eleven actions: four pending in the Eastern District of New York, two in the Northern District of Illinois, and one each in the Southern District of California, the District of Colorado, the Southern District of Florida, the District of Maine, and the Southern District of Texas, as listed on Schedules A and B.2

The briefing and oral argument on this Section 1407 motion largely centered on whether three of the eleven actions – Eastern District of New York Caronia and McLaughlin and Northern District of Illinois Cleary – should be excluded from centralized proceedings, thus limiting centralization to the eight actions listed on Schedule A, in which only Philip Morris USA Inc. (Philip Morris) and/or Altria Group, Inc. (Altria) are named as defendants. Philip Morris supports centralization as so defined, as do moving plaintiffs in their reply brief. . . .

The following defendants responded in opposition to inclusion of McLaughlin and Cleary in centralized proceedings: British American Tobacco (Investments) Limited, B.A.T. Industriesp.l.c., Lorillard Tobacco Co., Philip Morris, R.J. Reynolds Tobacco Co., Brown & WilliamsonTobacco Corp., and Liggett Group LLC. Philip Morris, which is the only defendant in Caronia, also responded in opposition to inclusion of that action. . . .

We conclude that the District of Maine is an appropriate transferee district for pretrial proceedings with respect to the eight actions listed on Schedule A. The earliest filed of the eight actions is pending in that district, and that action is substantially more advanced than any of the other actions. Moreover, Chief Judge John A. Woodcock, Jr., has the time and experience to steer this litigation on a prudent course.

IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the District of Maine are transferred to the District of Maine and, with the consent of that court, assigned to the Honorable John A. Woodcock, Jr., for coordinated or consolidated pretrial proceedings with the action pending in that district and listed on Schedule A.

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MILHELM ATTEA & BROS., INC. v. PHILIP MORRIS USA, INC.  

Now, upon reading and filing the affidavit of Joseph E. Zdarsky sworn to February 10, 2009, the affidavit of Frank Attea sworn to February 10, 2009, the notice of motion with proof of service thereof, the opposing affirmation of Richard T. Sullivan dated February 20, 2009, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be, and the same hereby is, denied.

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MULFORD v. ALTRIA GROUP, INC.  

Plaintiffs are smokers and have brought a class action suit against Defendants who they allege manufactured "lowered tar" or "Lights" filtered cigarettes. (Memorandum Opinion and Order at 2, Docket No. 83, filed March 16, 2007). Plaintiffs allege that Defendants violated the New Mexico Unfair Trade Practices Act ("UPA") by falsely representing that their product is "light" and/or delivers "lowered tar and nicotine" in comparison to regular cigarettes, fraudulently concealing the true nature of their "Lights" cigarettes. (Id. At 24-25). . . .

Philip Morris asked the Court to reconsider its Order because (1) the Fifth Circuit's decision in Brown is contrary to this Court's Order, and (2) the various FTC statements and FTC's enforcement conduct shows that the FTC's express policy is to permit the "lights" and "lowered tar and nicotine" descriptors on packages. The United States Supreme Court's decision in Good abrogated Brown and held that neither FTC's various decisions with respect to statements of tar and nicotine nor the FTC's inaction regarding "light" descriptors justifies preemption of state deceptive practices rules. The Court will deny Philip Morris' Motion for Reconsideration.

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• CLEARY v. PHILIP MORRIS, INC.  

Brian Cleary and Rita Burke, representing a putative class, have sued several tobacco companies and tobacco-related entities. This case was filed in state court in 1998. Defendant Lorillard Tobacco Co. removed it to this Court after plaintiffs filed a third amended complaint on March 3, 2009. In their third amended complaint, plaintiffs make several claims against the defendants on behalf of Illinois residents. Among other claims, plaintiffs allege that defendants deceptively marketed "low tar," "light," and "ultra light" cigarettes as being safer than regular cigarettes, although they were equally dangerous. Defendants have moved for judgment on the pleadings with respect to these claims on the ground that they are time-barred. For the following reasons, the Court grants the motion as to the defendants other than Philip Morris but defers ruling as to Philip Morris. . . .

For the foregoing reasons, the Court grants defendants' motion for judgment on the pleadings concerning Count 3 of the third amended complaint [docket no. 85] as to all defendants other than Philip Morris. The Court directs Philip Morris to show cause, by no later than September 21, 2009, why the Court should not vacate the state court's interlocutory order dismissing the light cigarettes claim. Pending ruling on that matter, the Court defers consideration of whether the Marlboro Lights claims in the third amended complaint relate back to the date the plaintiffs filed the first amended complaint. The case is set for a status hearing on September 23, 2009 at 9:30 a.m.

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