Opinion
6:21-cv-00671-TMC-JDA
02-09-2022
David Earl Sutherland, Plaintiff, v. R.J. Reynolds Tobacco Company, Inc.; Brown & Williamson Tobacco Corporation; Lorillard Tobacco Company; Phillip Morris USA, Inc., Defendants.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on Defendants' motion to dismiss. [Doc. 39.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases involving litigation by individuals proceeding pro se and to submit findings and recommendations to the District Court.
Plaintiff is an inmate in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Broad River Correctional Institution. Plaintiff filed this action on February 26, 2021 [Doc. 1] and subsequently submitted a Complaint on the Court's form [Doc. 1-4]. On August 19, 2021, Defendants filed a motion to dismiss the Amended Complaint. [Doc. 39.] The next day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff, who is proceeding pro se, of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 41.] On September 13, 2021, the Clerk filed a response from Plaintiff opposing Defendants' motion, and on September 20, 2021, Defendants filed a reply. [Docs. 47; 53.] The motion is now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, construing the filing date in the light most favorable to Plaintiff, this action was filed on February 26, 2021. [Doc. 1 at 32 (Complaint verification signed on February 26, 2021).]
The Court construes these documents together as the Amended Complaint. [Docs. 1; 1-4.]
The facts in this Background section are taken directly from Plaintiff's Amended Complaint. [Docs. 1; 1-4.]
Plaintiff alleges that he is a citizen of the State of South Carolina. [Doc. 1-4 at 6.] He alleges that Defendant Brown & Williamson Tobacco Corporation (“Brown & Williamson”) was incorporated under the laws of Kentucky and has its principal place of business in Kentucky [id. at 7 ¶ 2(b)]; that Defendant Lorillard Tobacco Company (“Lorillard”) (f/k/a Lorillard Tobacco Company, Inc.) was incorporated in North Carolina and had its principal place of business in North Carolina [id. ¶ 2(c)]; and that Defendant Phillip Morris USA, Inc. (“Phillip Morris”) (f/k/a Altria Group, Inc.) is incorporated in Virginia and has its principal place of business in Virginia [id. ¶ 2(d)]. Plaintiff alleges that Defendant R.J. Reynolds Tobacco Company, Inc. (“R.J. Reynolds”) is a citizen of North Carolina. [Id. at 6.] Plaintiff alleges that Brown & Williamson and Lorillard have both merged with R.J. Reynolds, which has assumed those companies' liabilities. [Id. ¶ 2(b), (c).]
This action arises primarily from Plaintiff's claim that Defendants, who are corporations in the tobacco industry, made false statements about the safety of their products that proximately caused Plaintiff to use their products, to the detriment of his health. [Docs. 1; 1-4.] Regarding those misrepresentations, Plaintiff alleges that in about 1972, when he was about nine years old, Phillip Morris advertised that its Pall-mall menthol filtered light cigarette brands were lower in tar and nicotine and safer and healthier than its regular cigarette brands. [Docs. 1 ¶¶ 15-16 (internal quotation marks omitted); 1-4 at 10 ¶ 5.] He also alleges that Phillip Morris ran television advertisements representing that Marlboro menthol filtered light cigarettes were lower in tar and nicotine and safer than its regular cigarettes. [Doc. 1-4 at 9 ¶ 1.] Plaintiff further alleges that, on or about April 14, 1994, when Plaintiff was about 26 years old, Brown & Williamson's former president and chief executive officer, Thomas E. Sanderfur, acting in the course and scope of his employment for Brown & Williamson, represented in a nationally televised Congressional subcommittee hearing and in a subsequent television news interview that nicotine was not addictive and that Brown & Williamson did not manipulate the amount of nicotine in its cigarettes. [Docs. 1 ¶¶ 17-18; 1-4 at 9-10 ¶¶ 3-4.] And Plaintiff alleges that on or about April 14, 1994, Lorillard's former chairman and chief executive officer, Andrew H. Tisch and its former vice chairman and chief operating officer, Alexander Spear, both stated in a television news interview following the Congressional subcommittee hearing that nicotine is not addictive, and they denied that their companies manipulated the amount of nicotine contained in their cigarettes. [Docs. 1 ¶¶ 22-23; 1-4 at 12 ¶¶ 9-10.]
Plaintiff alleges that he heard and was otherwise aware of each of these statements and that he relied on the truth of those statements in deciding to purchase and use the tobacco products at issue. [Docs. 1 ¶¶ 19; 24; 1-4 at 1 ¶ 2, 10 ¶ 5, 12 ¶ 11.] Plaintiff alleges that as a proximate result of using those products, he suffered a heart attack on or about December 26, 2014, among other injuries. [Doc. 1-4 at 9-13 ¶¶ 2, 5-6, 11.]
Based on the alleged misrepresentations, Plaintiff alleges intentional fraud and intentional fraudulent misrepresentation [id. at 14-18 ¶¶ 1-15], and intentional fraudulent concealment [id. at 18-20 ¶¶ 16-20]. Plaintiff also alleges conspiracy to commit fraud and concealment. [Id. at 20-22 ¶¶ 21-27.] That cause of action is based on an allegations that on or about March 15, 1961, Phillip Morris, Brown & Williamson, and Lorillard agreed to threaten another company, Liggett Group, Inc. (“Liggett Group”), not to make, design, or market a healthier and safer cigarette and to conceal their agreement from the general public [id. at 20 ¶ 21]; and that on or about January 22, 1974, the same three companies agreed to secretly blend reconstituted tobaccos containing harmful ingredients in their tobacco products, including Marlboro menthol filtered light cigarettes and Newport menthol filtered light cigarette brands [id. ¶¶ 22-23].
Plaintiff further alleges negligence/gross negligence based on the aforementioned alleged breaches of Defendants' duty not to intentionally make untrue statements as well as their duty to take reasonable measures to ensure that their products were reasonably safe. [Id. at 22-23 ¶¶ 28-32.] And Plaintiff alleges a violation of his Eighth Amendment right not to be subjected to deliberate indifference to his health and safety based on Defendants' awareness of the dangers of their products. [Id. at 23-25 ¶¶ 33-38.]
For his relief, Plaintiff seeks declaratory relief and monetary damages, including special and punitive damages. [Id. at 27-30 ¶¶ 49-51, 53-59.]
Although the alleged statements were made many years prior to his bringing suit, Plaintiff alleges that Defendants' fraudulent concealment of the true facts and of their deception prevented him from discovering the falsity of the statements he relied on. [Doc. 1 ¶¶ 33-53.] On this basis, he alleges that he is entitled to equitable tolling of the applicable statutes of limitations for each of his claims under the theories of equitable estoppel and fraudulent concealment. [Id.; Doc. 1-4 at 25-27 ¶¶ 40, 42-48.]
APPLICABLE LAW
Liberal Construction of Pro Se Pleadings
Plaintiff is proceeding pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the party proceeding pro se could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the pro se party's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.. The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557; see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
DISCUSSION
Statute of Limitations
Defendants' first argue that all of Plaintiff's claims are time-barred. [Docs. 39-1 at 3-4; 53 at 1-3.]
As the Fourth Circuit has explained:
Ordinarily, a defense based on the statute of limitations must be raised by the defendant through an affirmative defense, see Fed. R. Civ. P. 8(c), and the burden of establishing the affirmative defense rests on the defendant. It follows, therefore, that a motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred. But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense “clearly appear[] on the face of the complaint.”Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc) (alteration in original, citations omitted).
Defendants maintain that a three-year limitations period applies to each of Plaintiff's claims. [Doc. 39-1 at 3-4.] They also contend that because Plaintiff admits that his heart attack occurred on December 26, 2014, the three-year period began to run on that date and expired three years later with regard to each claim. [Id.] Because Plaintiff did not bring his action until 2021, Defendants argue it should be dismissed as time-barred. [Id.] The Court disagrees.
Even assuming that Defendants' analysis is correct regarding how the applicable statutes of limitations would apply were Plaintiff not entitled to equitable tolling, as the Court has noted, Plaintiff alleges that he is entitled to equitable tolling of the statute of limitations on the basis of the doctrines of fraudulent concealment and equitable estoppel. [Docs. 1 ¶ 33-53; 1-4 at 25-27 ¶¶ 40, 42-48; see also Doc. 47-2 at 5.] Although Defendants do not specifically acknowledge Plaintiff's reliance on fraudulent concealment and equitable estoppel, they do maintain that “South Carolina law provides that a personal injury action must be commenced within three years after the party the party knew or by exercise of reasonable diligence should have known that he had a cause of action.” [Id. at 2.] Defendants argue that “a person of common knowledge and experience would have been on notice of the potential claim when Plaintiff suffered his heart attack on December 26, 2014.” [Id.] However, Plaintiff alleges that he learned of the falsity of the statements at issue in December 2019 [Docs. 1 at 15 ¶ 48, 1-4 at 25 ¶ 40], and Defendants do not explain how the allegations in Plaintiff's Amended Complaint establish that Plaintiff should have been aware in 2014 of the falsity of the alleged representations on which he bases most of his claims or of the alleged conspiracy on which he bases his conspiracy claim. Accordingly, this case does not present the “rare circumstance” where it is clear from the face of the complaint that the claims are time barred and thus Defendants are not entitled to dismissal based on the statute of limitations.
As Judge Lydon recently explained:
The fraudulent concealment doctrine “applies in situations ‘where the defendant has wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action.'” Edmonson v. Eagle Nat'l Bank, 922 F.3d 535, 549 (4th Cir. 2019) (citing English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987)). “Under this doctrine, because of the defendant's wrongful acts of concealment, the plaintiff is not aware of the facts giving rise to his claim within the limitations period.” Id.
Equitable estoppel is similar. If proven, it “operates to deny a party ‘the right to plead or prove an otherwise important fact.'” Maher v. Tietex Corp., 331 S.C. 371, 500 S.E.2d 204, 209 (App. 1998) (citing Parker v. Parker, 313 S.C. 482, 443 S.E.2d 388, 391 (1994)). The party asserting estoppel must show “(1) conduct by the party estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the true facts.” Id. (citing Brayboy v. Ewing, 311 S.C. 272, 428 S.E.2d 731, 732 (App. 1993)). That party must also show that he “(1) lack[ed] [ ] knowledge and [ ] the means of knowledge of the truth as to the facts in question; and (2) reliance upon the conduct of the party estopped.” Id. (citing Brayboy, 428 S.E.2d at 732).Harrell v. BMW of N. Am., LLC, 517 F.Supp.3d 527, 537 (D.S.C. 2021) (footnotes omitted and alterations in original).
The Court notes that Plaintiff also argues that the statute of limitations should be tolled under S.C. Code § 15-3-40 because he was disabled at the time he suffered his heart attack. [Doc. 47-2 at 2.] Defendants argue that this provision applies only to those under age 18 and the insane. [Doc. 53 at 1.] Because this issue is not material to Defendants' entitlement to dismissal of Plaintiff's claims, the Court declines to address this issue at this time.
Deliberate Indifference Claim
Defendants also argue that Plaintiff's deliberate indifference claim under the Eighth Amendment should be dismissed because Defendants are not state actors and cannot be sued for violations of the Eighth Amendment. [Doc. 39-1 at 4-5.] Plaintiff does not dispute Defendants' legal argument and indeed concedes that his deliberate indifference claim should be dismissed. The Court agrees. See Stepheney v. Publix's Food Store Pharmacys CEO, No. 1:11-cv-3402-MBS-SVH, 2012 WL 2502722, at *3 (D.S.C. Jan. 20, 2012) (“[P]urely private conduct such as that alleged in this case, no matter how wrongful, injurious, fraudulent, or discriminatory, is not actionable under 42 U.S.C. § 1983.”), Report and Recommendation adopted by 2012 WL 2500368 (D.S.C. June 27, 2012). Accordingly, the Court recommends that Defendants' motion to dismiss be granted as to Plaintiff's deliberate indifference claim.
Preemption
Defendants finally argue that they are entitled to dismissal of all of Plaintiff's claims because they are preempted by federal law. [Docs. 39-1 at 5-9; 53 at 3.] Defendants contend that “Plaintiff's entire lawsuit appears to be that Defendants should be held liable for (1) manufacturing and selling cigarettes, and (2) complying with the federal Labeling Act, ” and Defendants further maintain that “each of these theories is squarely preempted by federal law.” [Doc. 39-1 at 5.] The Court concludes, however, that Defendants are not entitled to dismissal on this basis.
Article VI, cl. 2, of the United States Constitution 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.” It is well established that in addressing questions of preemption, courts must begin their analysis “with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The Fourth Circuit has explained that there are three different types of federal preemption that courts recognize: “(1) express preemption, in which Congress expressly states its intent to preempt state law”; “(2) field preemption, in which Congress occupies a certain field by regulating so pervasively that there is no room left for the states to supplement federal law”; and “(3) conflict preemption, arising when state law is preempted “to the extent it actually conflicts with federal law.” United States v. South Carolina, 720 F.3d 518, 528-29 (4th Cir. 2013) (internal quotation marks omitted). “The Supreme Court has instructed that conflict preemption includes cases where compliance with both federal and state regulations is a physical impossibility, and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. at 529 (internal quotation marks omitted).
Defendants argue that Plaintiff's claims should be dismissed on the bases of conflict preemption and express preemption. [Docs. 39-1 at 5-9; 53 at 3.] The Court will address their arguments seriatim.
Conflict Preemption
Defendants argue that Plaintiff's claims are barred by conflict preemption to the extent the claims attempt to hold Defendants liable merely for manufacturing and selling cigarettes. [Doc. 39-1 at 5-7.] Defendants maintain that in Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), the Supreme court decided that Congress intends to allow cigarettes to continue to be sold, and Defendants contend that allowing them to incur tort liability for selling cigarettes would stand as an obstacle to accomplishing that goal. [Doc. 39-1 at 6-7.] The Court does not agree with Defendants' analysis.
First, Defendants fail to appreciate the issues that the Court decided in Brown & Williamson. In Brown & Williamson, the Court addressed the issue of whether the Food and Drug Administration (“FDA”) had jurisdiction to regulate tobacco products on the basis that nicotine qualifies as a drug within the meaning of the Federal Food, Drug, and Cosmetic Act (“FDCA”). Brown & Williamson, 529 U.S. at 125-26. Analyzing the history of tobacco legislation and the implications of FDA regulation, the Court concluded that were the FDA to regulate tobacco, the FDA would be required to ban its sale, which would contradict Congress's intent to allow tobacco sales but to inform consumers of the associated dangers. Id. at 137. Importantly, the Court's decision that Congress intended that a federal agency created by Congress lacked the authority to impose a nationwide ban on cigarettes does not address whether a state could impose a statewide ban pursuant to its police powers. Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1190 (11th Cir. 2017) (en banc). The latter question raises issues of state sovereignty that were wholly separate from the issues decided in Brown & Williamson. Id.
In any event, after Brown & Williamson, Congress enacted legislation that directly addressed states' authority. The Family Smoking Prevention Control Act (the “FSCPA”) specified that the FDA was not authorized to ban all cigarette sales. 21 U.S.C. § 387g(d)(3). At the same time, the FSPCA provided, with an exception not relevant here,
that nothing in that subchapter shall be construed to limit the authority of . . . a State or political subdivision of a State . . . to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age.21 U.S.C. § 387p(a)(1). The effect of that clause is to “expressly preserve[] localities' traditional power to adopt any measure relating to or prohibiting the sale of tobacco products.” United States Smokeless Tobacco Mfg. Co. LLC v. City of New York, 708 F.3d 428, 434 (2d Cir. 2013) (internal quotation marks omitted). Thus, there is no basis for Defendants' contention that subjecting them to possible state-law tort liability for selling cigarettes would stand as an obstacle to Congress's intentions.
For these reasons, the Court recommends denying Defendants' motion to dismiss to the extent Defendants rely on conflict preemption.
Express Preemption
Defendants also argue that Plaintiff's claims should be dismissed on the basis of express preemption to extent they merely allege failure to comply with the Federal Cigarette Labeling and Advertising Act (the “Labeling Act”), 15 U.S.C. §§ 1331 et seq. [Doc. 39-1 at 7-9.] The Court disagrees with this argument as well.
In 1969, Congress passed the Public Health Cigarette Smoking Act (the “Act”). Pub. L. 91-222, 84 Stat. 87 (1970). The Act amended certain provisions of the Labeling Act, which had established a comprehensive federal regulation scheme addressing the types of warning labels that sellers must place on cigarette packages and advertisements. Section 4 of the Act prohibited cigarette sales absent a conspicuous label warning on the cigarette packages stating: “Warning: The Surgeon General Has Determined That Cigarette Smoking is Dangerous To Your Health.” 84 Stat 88. Congress amended the Act to provide that, in place of the prior warning, sellers would be required to employ one of the following four warnings on a rotating basis:
The 2009 Family Smoking Prevention and Tobacco Control Act (“the FSPTCA”) amended the Labeling Act. One result of that legislation was that it required stronger and more specific health warnings. See Pub. L. No. 111-31, § 201, 123 Stat. 1776, 1842-43 (2009).
• SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy
• SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Heath
• SURGEON GENERAL'S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight
• SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon MonoxidePub. L No. 98-474, 98 Stat. 2200, 2201-03 (1984). Section 5 of the Act addresses preemption. It states as follows:
No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.15 U.S.C. § 1334(b). The Supreme Court addressed the scope of this preemption in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), a case brought on behalf of a woman who had died of lung cancer after smoking three defendant cigarette manufacturers' cigarettes from 1942 to 1984. The Cipollone Court issued a plurality decision construing the preemption provision to preempt both common-law rules and other positive enactments. As Judge C. Weston Houck explained:
The Supreme Court held that the Act preempted post-1969 claims that are predicated upon a “failure to warn” theory and on the theory that the defendants committed fraudulent misrepresentation by creating advertisements which neutralized the effect of federally mandated warning labels. [Cipollone, 505 U.S.] at 524-25, 527-28. The test for determining whether a claim is preempted is whether the claim would require the imposition under state law of a requirement or prohibition based on smoking and health with respect to
advertising and promotion. Id. A court must examine a fraud claim against a cigarette manufacturer and determine whether the claim is predicated upon a duty not to deceive or upon a duty based on smoking and health. Id. A plaintiff may not simply re-label its failure to warn claims as fraudulent concealment claims. See Id. at 524-25 (holding that “insofar as [failure to warn claims] require a showing that [the defendants'] post-1969 advertising and promotion should have included additional, or more clearly stated warnings, those claims are preempted”).
In short, the Act preempts claims which allege that the cigarette manufacturers failed to warn of the dangers of smoking and which allege that warnings used in cigarette advertising promotion or packaging are inadequate. The Act does not preempt claims that a cigarette manufacturer affirmatively engaged in deceit by concealing material facts that it had a duty to disclose through some means other than advertising or promotion. Id. at 508, 527-29. Nor does the Act preempt fraud, even if those fraudulent statements are made in advertisements. Id. at 524-25.Aldana v. RJ Reynolds Tobacco Co., No. 2:06-cv-3366-CWH, 2007 WL 3020497, at *3-4 (D.S.C. Oct. 12, 2007) (footnotes omitted).
The Supreme Court revisited the preemption provision in Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). In Reilly, the Court relied on Cipollone's analysis in a case involving regulations promulgated by the Massachusetts attorney general “in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age . . . [and] in order to prevent access to such products by underage consumers.” Reilly, 533 U.S. at 533 (alterations in original and internal quotation marks omitted). In that case, the Court held that because the challenged regulations specifically targeted advertising tending to promote tobacco use among children rather than generally prohibiting false or misleading statements, the Cipollone analysis dictated that the regulations should be preempted. Id. at 546-51.
Then in 2007, Judge Houck interpreted the preemption provision in Aldana. In that case, the plaintiff brought her case based on injuries she suffered from smoking cigarettes manufactured by the defendants. 2007 WL 3020497, at *1. The plaintiff alleged that she smoked Marlboro Lights and Ultra Lights because she believed they were less harmful than other cigarettes. She further alleged:
[S]ometime between the 1940s and 1960s, the defendants conducted research and discovered nicotine is addictive. The defendants allegedly concealed their knowledge of nicotine's addictiveness from the public and from public health officials. In order to maximize profits, the defendants manipulated the amount of nicotine in cigarettes so that users would become addicted. The defendants repeatedly insisted that smoking was desirable and denied that their cigarette products containing nicotine were addictive despite their knowledge to the contrary. For example, on April 14, 1994, the chief executives of each of seven tobacco companies, including the defendant tobacco companies in this case, testified before Congress that nicotine is not addictive. Thereafter, Phillip Morris [one of the defendants] took out a full-page newspaper advertisement that stated, “Phillip Morris does not believe cigarette smoking is addictive.”
In 1966, the FTC notified the defendant cigarette manufacturers that it would test cigarettes for tar and nicotine using the Cambridge Filter Method, in which a machine simulated smoking and tested the level of tar in cigarettes. As a result, the defendants began to manufacture “low tar” or “light” cigarettes. The defendants soon realized that: (1) the public believes that low tar cigarettes are safer than other cigarettes; consequently, addicted smokers switch to low tar cigarettes instead of quitting smoking altogether; and (2) in order to achieve a satisfactory hit of nicotine, smokers smoke low tar cigarettes differently than regular cigarettes. For example, smokers take more or deeper puffs or block ventilation holes in the filter. Consequently, smokers ingest the same amount of nicotine and tar from regular and low tar
cigarettes. Although the defendants were aware of the public's misperceptions, the defendants did not correct them. Instead the defendants promoted and sold cigarettes by deceptively concealing and fraudulently and negligently misrepresenting the highly addictive nature of their cigarette products.Id. (footnote omitted).
Applying the Cipollone test, Judge Houck held that failure-to-warn claims were preempted, but claims for fraudulent misrepresentation were not. Id. at *5, 7. He also held that the plaintiff's product liability and negligence claims alleging that the defendants' cigarettes were defectively designed were not preempted except to the extent that the plaintiff alleged that the defendants' failure to include adequate warnings in the packaging and advertising of their cigarette products. Id. at *4. And he held that a claim that the defendants neutralized warnings was preempted because it was “predicated on a state-law prohibition against statements in advertising that tend to minimize the health hazards associated with smoking.” Id. at *5.
Judge Houck explained that “[t]he Act does not preempt claims of fraudulent misrepresentation, ” but “a court must examine a fraud claim against a cigarette manufacturer to determine whether the claim is a true fraud claim or whether [it] is a relabeled preempted claim.” Id.
Finally, the following year, the Supreme Court again had occasion to apply the Cipollone framework. In Altria Group, Inc. v. Good, 555 U.S. 70 (2008), cigarette smokers brought suit against a cigarette manufacturer and its parent company claiming that the defendants violated the Maine Unfair Trade Practices Act because their “advertising fraudulently conveyed the message that their ‘light' cigarettes deliver less tar and nicotine to consumers than regular brands despite [the defendants'] knowledge that the message was untrue.” Id. at 73. The defendants argued that such a legal theory was “more analogous to the ‘warning neutralization' claim found to be pre-empted in Cipollone.” Id. at 81. But the Supreme Court disagreed, holding that the claim at issue “allege[d] a breach of the duty not to deceive, ” which, “like the duty imposed by the state common-law rule at issue in Cipollone, has nothing to do with smoking and health.” Id. at 82.
Applying the principles from all of these cases, the Court concludes that Plaintiff's claims do not run afoul of the Cipollone rule. That is so because Plaintiff's claims of intentional fraud and intentional fraudulent misrepresentation [Doc. 1-4 at 14-18 ¶¶ 1-15]; intentional fraudulent concealment [id. at 18-20 ¶¶ 16-20]; and negligence/gross negligence [id. at 22-23 ¶¶ 28-32] are all based, at least in part, on Defendants' breach of their general duties not to deceive and mislead Plaintiff and are not based on any specific duties relating to smoking and health. See Altria, 555 U.S. at 82. [See Doc. 1-4 at 9 ¶ 1 (alleging that Phillip Morris represented “‘that Marlboro menthol filtered light cigarette[s] were lower in tar and lighter in taste and less in nicotine and . . . safer than its Marlboro regular unfiltered cigarettes'”); id. at 10 ¶¶ 3-4 (alleging that Brown & Williamson represented that “‘[n]icotine is not addictive, and Brown & Williamson . . . does nothing in the manufacture of its tobacco products[] ‘that increase[s] the level of nicotine above that which is naturally found in the tobacco plant, nor does it artificially increase nicotine in its tobacco products” (internal quotation marks omitted)); id. at 12 ¶¶ 10-11 (alleging that Lorillard represented “‘that nicotine is not addictive” and that Lorillard did not “‘manipulate[] the amount of nicotine contained in its cigarettes'”). And Plaintiff's claim for conspiracy to commit fraud and concealment [id. at 20-22 ¶¶ 21-27] is based on the allegation that Defendants conspired to prevent Liggett Group from designing, making, or marketing a safer and healthier cigarette and to blend reconstituted tobaccos containing harmful ingredients. It is in no sense a dressed-up failure-to-warn claim either, and Defendants do not so much as suggest any argument to the contrary. For these reasons, the Court recommends denying Defendants' motion to dismiss to the extent the motion relies on express preemption grounds.
Given Defendants' brief and general argument that each of Plaintiff's claims is entirely preempted, the Court has not sought to do Defendants' work for them by identifying subsidiary legal theories that may be preempted under the reasoning of Cipollone. See Clayton v. Nationwide Mut. Ins. Co., 260 F.Supp.3d 514, 521 (D.S.C. 2017) (“As a October 13, 2021 Greenville, South Carolina general rule, parties may not outsource their legal research to the court or otherwise foist upon it the necessary legwork to flesh out a legal claim or defense.”). Rather, the Court merely concludes that Defendants are not entitled to dismissal, on preemption grounds, of any of Plaintiff's causes of action.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that Defendants' motion to dismiss [Doc. 39] be GRANTED IN PART AND DENIED IN PART. The undersigned recommends that the motion be GRANTED as to Plaintiff's Eighth Amendment deliberate indifference claim but otherwise be DENIED.
IT IS SO RECOMMENDED.