Tobacco.org

• NAUGLE v. PHILIP MORRIS, et. al. (PDF) 

37. As a direct and proximate result of smoking cigarettes manufactured and sold by one or more Defendants, Plaintiff suffered from one or more of the diseases and medical

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conditions described, including emphysema/COPD, which was caused by her addiction to cigarettes that contain nicotine and each of which manifested during the class period.

COUNT I: STRICT LIABILITY . . .

COUNT II: FRAUD BY CONCEALMENT . . .

COUNT III: CONSPIRACY TO COMMIT FRAUD BY CONCEALMENT . . .

COUNT IV: NEGLIGENCE . . .

COUNT V: BREACH OF EXPRESS WARRANTY . . .

COUNT VI: BREACH OF IMPLIED WARRANTY

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

• 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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• 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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• HUNTER v. PHILIP MORRIS, et. al. (PDF) 

The question of the preemption of state law by federal tobacco legislation has been addressed numerous times. Today, we address the preemption issue in the context of the doctrine of fraudulent joinder, which is invoked to achieve diversity jurisdiction. We hold that the district court erroneously allowed the defendants-appellees to achieve diversity jurisdiction by its incorrect finding that the plaintiffs-appellants’ state law claims were preempted and constituted fraudulent joinder. Because the district court should have remanded the action to state court, we vacate the judgment and remand with instructions to remand the action to state court. . . .

In sum, the Altria defendants have failed to overcome the presumption against removal because Hunter’s complaint does not indicate that she has obviously failed to state a claim against ACC. Accordingly, the district court erred in concluding that ACC was fraudulently joined. The Altria defendants further have failed to establish a clear conflict between Hunter’s claim and federal law. Implied preemption therefore does not apply. Because ACC was not fraudulently joined, there was no complete diversity of citizenship, and the case should have been remanded to the state court. Appellants shall recover their costs on appeal from Appellees. 

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• PHILIP MORRIS, et. al. v. USA: Appeal From The Judgment Of The United States District Court For The District Of Columbia (PDF) ($$) 

Pursuant to FED. R. APP. P. 41(d)(2) and D.C. Circuit Rule 41(a)(2), Defendants respectfully move this Court to stay issuance of its mandate pending the filling and disposition of timely petitions for writs of certiorari. This Court recognized the substantial nature of the arguments raised by Defendants—and the risk of irreparable harm confronting Defendants—when it issued a stay pending appeal. For similar reasons, a stay is also warranted pending the filing and disposition of Defendants’ petitions for certiorari.

A stay is appropriate because the Panel’s opinion raises substantial questions for certiorari, including: (1) whether a court of appeals is required to undertake de novo review of factual findings in a case that squarely implicates a defendant’s First Amendment rights; (2) whether corporations can be part of an “association in fact” RICO enterprise; and (3) whether jurisdiction over this case was extinguished by the enactment of new federal legislation that imposes comprehensive regulation on every aspect of Defendants’ business. The balance of equities also weighs strongly in favor of a stay because, in the absence of a stay, Defendants would be required to incur substantial, unrecoverable expenses to comply with the district court’s injunctions during the pendency of their petitions for certiorari. No other party would be prejudiced by the issuance of a stay because Defendants’ business will continue to be subject to stringent government oversight by the States and the federal Government while their petitions for certiorari are pending.

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• PHILIP MORRIS, et. al. v. USA: Order denying rehearing en banc (PDF) ($$) 

BEFORE: Sentelle, Chief Judge, and Ginsburg,* Henderson,* Rogers, Tatel, Garland,* Brown, Griffith, and Kavanaugh,* Circuit Judges

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

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• COMMONWEALTH BRANDS, et. al. v. FDA (PDF) 

COMMONWEALTH BRANDS, INC.; CONWOOD COMPANY, LLC; DISCOUNT TOBACCO CITY & LOTTERY, INC.; LORILLARD TOBACCO COMPANY; NATIONAL TOBACCO COMPANY, L.P.;and R.J. REYNOLDS TOBACCO COMPANY,

v.

UNITED STATES OF AMERICA; UNITED STATES FOOD AND DRUG ADMINISTRATION; MARGARET HAMBURG, Commissioner of the United States Food and Drug Administration; and KATHLEEN SEBELIUS, Secretary of the United States Department of Health* and Human Services, . . .

WHEREFORE, Plaintiffs pray that this Court:

(A) enter a judgment declaring the Act’s speech restrictions, both individually and collectively, to be an unconstitutional abridgement of Plaintiffs’ free speech rights under the First Amendment to the United States Constitution;

(B) enter a judgment declaring that the Act’s warning label and black-and-white text provisions, individually and collectively, effect an unconstitutional taking in violation of the Fifth Amendment to the United States Constitution;

(C) enter a judgment declaring that the Modified Risk Tobacco Products provision violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution;

(D) enter a judgment declaring that the provision allowing modification by the Secretary of the outdoor advertising ban violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution;

(E) enter a judgment declaring that the Act’s restrictions herein challenged collectively effect an unconstitutional taking in violation of the Fifth Amendment to the United States Constitution;

(F) enter a judgment declaring that the Act’s provisions allowing the enactment of additional or more stringent laws is an unconstitutional infringement of Plaintiffs’ free speech

rights and an unconstitutional delegation of legislative power to entities outside the Legislative Branch;

(G) enter, after hearing, a preliminary injunction, pending final resolution of this action, enjoining Defendants from taking any action to enforce the Act;

(H) enter a permanent injunction enjoining Defendants from enforcing the Act’s restrictions herein challenged; and

(I) grant Plaintiffs such additional or different relief as it deems just and proper, including an award of reasonable attorneys’ fees and the costs of this action. 6. In short, while each of these provisions individually violates the Constitution, collectively, the Act’s provisions cut off nearly every currently-available avenue of tobacco advertising and marketing. In so doing, they run afoul of Plaintiffs’ rights to free speech and due process, and effectuate an unconstitutional taking of private property, in violation of the First and Fifth Amendments by, among other things, chilling Plaintiffs’ right to participate in scientific and political debates surrounding their products, unduly restricting Plaintiffs’ right to engage in commercial speech, and confiscating Plaintiffs’ packaging, advertising, and intellectual property for an anti-tobacco message drafted by the Government. Plaintiffs therefore respectfully request that this Court declare the challenged provisions of the Act in violation of the First and/or Fifth Amendments to the United States Constitution and enjoin the Government from enforcing these unconstitutional provisions.

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• STATE OF MONTANA v. PHILIP MORRIS, INC., et al.,  

 “participating manufacturers” (PMs), while the tobacco companies that are not signatories to the MSA are known as “non-participating manufacturers” (NPMs).

¶3 In exchange for the Settling States’ release of all claims, the PMs agreed to certain marketing restrictions and to make annual payments to the Settling States “for the advancement of public health” and “the implementation of important tobacco-related public health measures.” The PMs do not make payments directly to individual Settling States; rather, each PM is required to make a single, nationwide payment into an escrow account, and the amounts are then allocated among the Settling States. Each PM’s individual contribution to the account is based on its market share. Likewise, each Settling State receives an “allocable share” of the sum of all payments made by the PMs in the year in question. Montana’s allocable share is 0.4247591%. The State received $24.8 million in MSA funds in 2006; $25.8 million in 2007; and $34.6 million in 2008.

¶4 The MSA assigns several responsibilities to an “Independent Auditor,” which is defined as “a major, nationally recognized, certified public accounting firm.”3 Specifically, the Independent Auditor

shall calculate and determine the amount of all payments owed pursuant to [the MSA], the adjustments, reductions and offsets thereto (and all resulting carry-forwards, if any), the allocation of such payments, adjustments, reductions, offsets and carry-forwards among the Participating Manufacturers and among the Settling States, and shall perform all other calculations in connection with the foregoing . . . .

In calculating the PMs’ annual payments, the Independent Auditor takes the base amount owed by the PMs for the calendar year and then applies a series of adjustments, , , ,

¶6 The present litigation concerns the PMs’ annual payments for 2006. The PMs had lost the requisite percentage of market share in 2003, and an economic consulting firm

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had determined that the disadvantages imposed by the MSA were a “significant factor” contributing to that loss. Thus, the PMs asked the Independent Auditor to offset their 2006 payments by the amount of the 2003 NPM Adjustment. In response, the Settling States contended that they each had enacted Qualifying Statutes which were in full force and effect in 2003 and that the Independent Auditor should presume, in the absence of substantial evidence to the contrary, that state officials had “diligently enforced” those statutes. The PMs, however, argued that the Independent Auditor must “presume just the opposite,” i.e., that the statutes had not been diligently enforced.

¶7 The Independent Auditor declined to apply the NPM Adjustment to the PMs’ 2006 payments. . . .

the dispute in the present case, as framed in the State’s motion, is whether Montana diligently enforced a Qualifying Statute. We reject the PMs’ attempts to repackage the dispute in this case as something it clearly is not. . . .

¶28 The District Court erred in granting the PMs’ motion to compel arbitration. We accordingly reverse the District Court’s order and remand this case for further proceedings consistent with this Opinion.

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• SCOTT RODRIGUES, Plaintiff, v. EG SYSTEMS, INC. d/b/a SCOTTS LAWNSERVICE, Defendant. (PDF) 

The plaintiff, Scott Rodrigues, brings suit under both Massachusetts General Laws chapter 214, § 1B, and the Employee Retirement Income Security Act anti-discrimination provision (“ERISA Section 510”), 29 U.S.C. § 1140, alleging that defendant, EG Systems, Inc. d/b/a Scotts LawnService (“Scotts”), violated his right to privacy under the Massachusetts statute and unlawfully discharged him to avoid paying him denied benefits under Scotts’ medical insurance plan. Scotts has moved for summary judgment on both claims; Rodrigues has moved for partial summary judgment as to the ERISA Section 510 claim. . . .

Rodrigues does not qualify as a participant in the plan under these provisions. He worked for Scotts for only two weeks and his “regular” employment was clearly made contingent on his successful passing of the background check and urinalysis screening. He was not yet eligible for benefit coverage under the Scotts plan. The letter offering him employment states, “This offer is contingent upon successful completion of a pre-hire screening required of all Scotts’ associates which includes but is not limited to a drug screen (including nicotine test where applicable by law) and criminal history.” (Id. Ex. L, 2) (emphasis added).

Rodrigues contends that he would have become a regular, full-time employee, and thus a participant, if Scotts had not wrongfully relied on the discovery of nicotine in the urinalysis to terminate his incipient employment. He invokes statements like one from the Vartanian case to the effect that an employer should not be able through its own misfeasance to defeat an employee’s standing. . . .

there is a simple reason why Rodrigues may not sue. Section 510 forbids discrimination by a variety of employment-related actions, but it does not, by its terms, forbid discrimination by means of a decision not to hire. In Becker v. Mack Trucks, Inc., 281 F.3d 372, 379-83 (3d Cir. 2002), the Third Circuit examined both the text and the purpose of Section 510 and concluded that it does not apply to hiring decisions. . . .

Becker’s reasoning is sound. A person such as Rodrigues, who has only a contingent offer of employment, does not have an expectation of benefits under the potential employer’s ERISA plan that Section 510 protects.

IV. Conclusion

For the foregoing reasons, the defendant’s Motion for Summary Judgment (dkt. no. 49) is GRANTED, and the plaintiff’s Motion for Partial Summary Judgment (dkt. no. 55) is DENIED.

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• TRUCANO et. al. v. SOUTH DAKOTA