The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELLEN ANDREWS, )
)
Plaintiff, )
)
vs. ) Case No. 4:20 CV 1583 RWS
)
R.J. REYNOLDS TOBACCO CO., )
et al., )
Defendants. )
MEMORANDUM AND ORDER
This case is before me on Defendant R.J. Reynolds Tobacco Co.’s, motion
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) or in the alternative a more definite
statement under Fed. R. Civ. P. 12(e). ECF No. [10]. Plaintiff Ellen Andrews
brings claims for strict products liability, fraud, and negligence. ECF No. [1-1].
For the reasons set forth below, I will grant in part and deny in part the
Defendant’s motion.
BACKGROUND
Plaintiff initially filed a Petition in the 21st Judicial Circuit Court of the
County of St. Louis, Missouri on September 13, 2020, alleging that she developed
chronic obstructive pulmonary disease and lung cancer as the result of smoking
cigarettes manufactured by Defendant R.J. Reynolds and sold by Defendant
Schnuck Markets. Plaintiff brought claims for strict products liability, negligent
design, fraudulent concealment, and concealment fraud conspiracy against
Defendant R.J. Reynolds. Plaintiff brought a single claim for strict products
liability against Defendant Schnuck Markets.
Defendant R.J. Reynolds removed the case to the federal court on November
6, 2020, invoking the Courts diversity jurisdiction under 28 U.S.C. § 1332.
Although Schnuck Markets is a resident of Missouri, R.J. Reynolds argued that
complete diversity still existed because Schnuck Markets was fraudulently joined. I
denied the Plaintiff’s motion to remand and dismissed Schnucks as a defendant on
December 18, 2020. Plaintiff then notified the Court that a motion to consolidate
was filed in the related case, Eugene Ford v. R.J. Reynolds Tobacco Co., Case No.
4:20-cv-1551-HEA. The motion was denied on June 28, 2021. Therefore,
Reynold’s motion to dismiss, which was filed prior to the motion to remand, is
now ready for consideration.
STATEMENT OF FACTS
Andrews began smoking in the early 1970’s at the age of fifteen. Initially
she only smoked intermittently, limited by her ability to sneak Viceroy cigarettes
from her mother. This continued for approximately two years. Then she switched
to Newport Menthol cigarettes and quickly became a regular smoker. Andrews
continued to smoke and has been a regular smoker for more than 30 years,
smoking Viceroy, Newport, and Kool cigarettes. These cigarettes contained
flue-cured tobacco, menthol, and nicotine, which all contributed to their dangerous
and addictive nature.
Throughout her thirty-plus years of smoking, Andrews has seen and heard
public statements made by the cigarette industry, including RJR Lorillard, Brown
and Williamson, and the Tobacco Institute, denying that smoking causes cancer
and other rare diseases. They made these statements despite the fact that cigarettes
contain potentially dangerous ingredients. Additionally, throughout her years of
smoking, Andrews saw advertisements that promoted cigarettes as cool and used
misleading euphemisms. Andrews does not claim that the cigarettes she purchased
did not contain the federally mandated warning, but rather alleges that the public
statements and advertisements made by the cigarette industry caused confusion and
ultimately lead her to believe that cigarettes were not yet proven to cause cancer or
other serious illnesses.
LEGAL STANDARD
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure is to test the legal sufficiency of the complaint. When
considering a Rule 12(b)(6) motion, I must assume the factual allegations of the
complaint to be true and construe them in favor of the plaintiff. Neitzke v.
Williams, 490 U.S. 319, 326–27, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). I am
not, however, bound to accept as true a legal conclusion couched as a factual
allegation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007).
To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (quoting Twombly, 550 U.S. at 570). Although “specific facts are not
necessary,” the plaintiff must allege facts sufficient to “give fair notice of what the
... claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89,
93, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (quoting Twombly, 550 U.S. 544,
555 (2007)).
A plaintiff’s obligation to provide the “grounds” of her “entitlement to
relief” requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. A complaint
“must contain either direct or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable legal theory.” Id. at 562.
This standard “simply calls for enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of [the claim or element].” Id. at 556. The issue is
not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled
to present evidence in support of [her] claim.” Twombly, 550 U.S. at 556.
DISCUSSION
The Defendant argues that Plaintiff’s claims should be dismissed for failure
to state a claim under Fed. R. Civ. P. 12(b)(6). First Defendant argues that
Plaintiff’s design defect claims are impliedly preempted or in the alternative fail to
state a claim because they do not identify a specific design defect, but rather rely
on the fact that all cigarettes are harmful. Second, Defendant argues that Plaintiff’s
fraud claims must be dismissed because they are merely refashioned failure to
warn claims which are preempted by the Federal Cigarette Labelling and
Advertising Act.
COUNTS I AND II (DESIGN DEFECT AND NEGLIGENT DESIGN)
Preemption
In Count I and II, Plaintiff alleges that the cigarettes designed and
manufactured by the defendants and their predecessors in interest were in an
unreasonably dangerous and defective condition to users. Plaintiff specifically
alleges that the use of flue-cured tobacco and manipulation of the amount of
nicotine in the cigarettes were design choices that rendered the cigarettes
unreasonably dangerous. Defendant, relying on Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 120 S. Ct. 1291, 146 L. Ed. 2d 121
(2000), argues that these claims are preempted because the United States Supreme
Court has recognized that cigarettes are a legal product and a “ban on tobacco
products would plainly contradict congressional policy.” Brown & Williamson,
529 U.S. at 139. Plaintiff challenges Defendant’s characterization of her claim,
arguing that her claim attacks specific design choices rather than cigarettes more
generally and therefore would not result in a functional ban of cigarettes as
contemplated in Brown & Williamson. Plaintiff also argues that regardless of the
characterization of the claims, they are not preempted. She relies in part on
Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1190 (11th Cir. 2017),
which emphasized that Brown & Williamson did not address the states’ power to
regulate tobacco or preemption.
Plaintiff’s design defect claims are not preempted. The issue in Brown &
Williamson, was whether the Food and Drug Administration had authority under
the Food, Drug, and Cosmetic Act, to regulate tobacco products. Food & Drug
Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S. Ct. 1291,
146 L. Ed. 2d 121 (2000). The Supreme Court analyzed the history of tobacco
legislation and the implications of FDA regulation and concluded that regulation
by the FDA would require it to ban the sale of tobacco, which would contradict
congressional intent to allow their sale but inform consumers of the risk. Brown &
Williamson, 529 U.S. at 137. The Court did not address whether states could ban
tobacco and did not consider the issue of state sovereignty. Since Brown &
Williamson was decided in 2000, some courts have determined that design defect
claims that would result in functional bans on tobacco products are preempted
based on the Supreme Court’s interpretation of congressional intent in Brown &
Williamson. But others have not. In 2009, the Ninth Circuit indicated in dicta that
such preemption is unwarranted. The Ninth Circuit stated in Hunter v. Phillip
Morris USA that the plaintiff’s product liability claim did not “present an obstacle
to the congressional policy concerning the regulation of tobacco.” Hunter v. Philip
Morris USA, 582 F.3d 1039, 1048 (9th Cir. 2009). The Ninth Circuit noted that
since the Supreme Court issued its decision in Brown & Williamson, Congress had
repealed the provision of the Agricultural Adjustment Act of 1938 that had
articulated a federal policy in support of the sale of tobacco. Id. In 2017, the
Eleventh Circuit, in an en banc decision, “conclude[d] that federal tobacco laws do
not preempt state tort claims based on the dangerousness of all the cigarettes
manufactured by the tobacco companies.” Graham v. R.J. Reynolds Tobacco
Company, 857 F.3d 1169, 1186 (11th Cir. 2017) cert. denied, 138 S. Ct. 646
(2018). In its decision the Eleventh Circuit noted that a state “may employ its
police power to regulate cigarette sales and to impose tort liability on cigarette
manufacturers” unless there is a “clear and manifest purpose of Congress” to
supersede such “historic police power.” Graham, 857 F.3d at 1191. It also
examined laws related to tobacco regulation and determined that there was no
indication that “Congress created a regulatory scheme that does not tolerate tort
liability based on the dangerousness of all cigarettes manufactured by the tobacco
companies but tolerates tort actions based on theories with a more limited scope.
Id. at 1188.
I find the reasoning in Graham persuasive. When considering preemptions,
Courts begin “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.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77, 129 S. Ct. 538,
172 L. Ed. 2d 398 (2008). Here, the Defendant asks me to find that state law is
impliedly preempted because it conflicts with Congress’s clear policy in favor of
the sale of cigarettes. But in 2004, Congress repealed the provision of the
Agricultural Adjustment Act of 1938 that had articulated federal policy in support
of the marketing of tobacco. See AMERICAN JOBS CREATION ACT OF 2004,
PL 108–357, October 22, 2004, 118 Stat 1418, Title VI Fair and Equitable
Tobacco Reform, § 611(a). As discussed in detail in Graham, the statement of
purpose in the Labeling Act, 15 U.S.C. § 1331, does not reflect a federal objective
to preserve cigarette sales. Graham, 857 F.3d at 1187–88. Additionally, the
enforcement of state products liability laws does not create an obstacle to the
accomplishment and execution of the purposes and objectives of Congress.
Graham, 857 F.3d at1187-88.
Additionally, even if the logic in Brown & Williamson applied, the
Plaintiff’s design defect claim would not result in a functional ban on cigarettes.
Defendant argues that the Plaintiff’s claim based on flue-cured tobacco, nicotine
manipulation, and the addition of flavors apply to all cigarettes, but the Plaintiff is
challenging specific design choices regarding flavor additions and nicotine levels.
See McCracken v. R.J. Reynolds Tobacco Co., No. CV 17-4495, 2018 WL
2304041, at *5–6 (E.D. Pa. May 21, 2018); Bougopoulos v. Altria Grp., Inc., 954
F. Supp. 2d 54, 61 (D.N.H. 2013). Additionally, for her design defect claim to
succeed, Plaintiff must also establish causation. Therefore, “[s]tate common law
only affords a remedy to individuals who can establish that tobacco products rather
than their own negligence or disregard of the inherent risks of tobacco caused them
to suffer injuries.” Richardson v. R.J. Reynolds Tobacco Co., 578 F. Supp. 2d
1073, 1078 (E.D. Wis. 2008).
Therefore, I conclude that federal law does not impliedly preempt plaintiff's
claims. Defendant's arguments are insufficient to overcome the presumption
against preemption and the principle that courts should read a federal statute as
preempting state law only if Congress clearly indicates an intention to do so.
Failure to State a Design Defect Claim Under Missouri Law
Plaintiff states a claim for strict products liability under Missouri Law.
Defendant argues that Plaintiff fails to state a claim for a design defect under both
the strict products liability and negligent design theories because she did not plead
a specific design flaw or causation and because she failed to meet the basic
pleading standards under Fed. R. Civ. P. 8. But as discussed earlier, Plaintiff
specifically alleged design defects based on nicotine manipulation and the use of
additive flavors to make the cigarettes more addictive and easier to smoke.
Under Missouri law, “[a] manufacturer is liable under a strict liability
product defect claim “if the product was in an unreasonably dangerous defective
condition when put to a reasonably anticipated use, and the plaintiff was damaged
as a direct result of such defective condition as existed when the product was sold.”
Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 791 (Mo. Ct. App.
2008) (quoting Richcreek v. Gen. Motors Corp., 908 S.W.2d 772, 775 (Mo. Ct.
App. 1995); § 537.760. To prove a claim of strict products liability for defective
design, a plaintiff must prove that “(1) the defendant sold a product in the course of
its business; (2) the product was then in a defective condition, unreasonably
dangerous when put to a reasonably anticipated use; (3) the product was used in a
manner reasonably anticipated; and (4) plaintiff was damaged as a direct result of
the defective condition that existed when the product was sold.” Engel v. Corrigan
Co.-Mech. Contractors, Inc., a Div. of Corrigan Bros., Inc., 148 S.W.3d 28, 30
(Mo. Ct. App. 2004) (citation omitted). “The core concern in strict tort liability law
is safety. Therefore, the primary inquiry in a design defect case is whether the
product—because of the way it is designed—creates an unreasonable risk of
danger to the consumer or user when put to normal use.” Nesselrode v. Exec.
Beechcraft, Inc., 707 S.W.2d 371, 375 (Mo. 1986) (internal citations removed).
And in Missouri, “the concept of unreasonable danger, which is determinative of
whether a product is defective in a design case, is presented to the jury as an
ultimate issue without further definition.” Id.
Here Plaintiff alleged that Defendant manipulated the amount of nicotine
and used added flavors to make the cigarettes more addictive and easier to inhale.
This is sufficient at this stage to state a claim for design defect. Therefore, the
Defendant’s motion as to Counts I and II will be denied.
COUNTS III AND IV (FRAUD)
In Count III, Plaintiff alleges that Defendant fraudulently concealed
information that Defendant had a duty to disclose, and in Count IV, Plaintiff
alleges that Defendant conspired with other cigarette manufacturers and the
Tobacco Institute and Counsel for Tobacco Research to conceal material
information from consumers. Defendant argues that Plaintiff’s fraud claims are
repackaged failure to warn claims and therefore are preempted by the Federal
Cigarette Labeling and Advertising Act. Defendant also argues that it did not have
a duty to disclose, and that Plaintiff’s fraud claims are time-barred and fail to meet
the heightened pleading standard under Fed. R. Civ. P. 9(b). Plaintiff argues that
her claims are not based on a “duty ‘based on smoking and health,’” but on a duty
not to deceive or commit fraud and therefore are not preempted. She also argues
that her claim satisfies Fed. R. Civ. P. 9(b).
Preemption
Plaintiff’s claims for fraudulent concealment and fraud concealment
conspiracy are partially preempted. The Federal Cigarette Labeling and
Advertising Act preempts state law claims “based on smoking and health … with
respect to the advertising or promotion of any cigarettes the packages of which are
labeled in conformity with the provisions of this Act.” Pub.L. 91–222, 84 Stat.
87, as amended, 15 U.S.C. § 1331-1340. Based on this statute, in Cipollone v.
Liggett Group, Inc., the Supreme Court held that fraudulent concealment claims
are preempted by the Federal Cigarette Labelling and Advertising Act, but only to
the extent that they do not rely on a duty to disclose facts through channels other
than advertising or promotion. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 527–
29, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992). Accordingly, the Plaintiff’s claim
regarding fraudulent concealment is partially preempted. It is preempted to the
extent it alleges the Defendant has a duty to disclose information regarding the
health and safety of cigarettes via advertising or promotion.
Statute of Limitations
Defendant next argues that Plaintiff’s fraud claims are barred by the statute
of limitations. “Missouri Revised Statute § 516.120(5) sets a five-year statute of
limitations on claims based on fraud. Subsection (5) further provides that a cause
of action based on fraud shall be “deemed not to have accrued until the discovery
by the aggrieved party, at any time within ten years, of the facts constituting the
fraud.” Wallace v. R.J. Reynolds Tobacco Co., No. 09-01011-CV-W-REL, 2011
WL 13290652, at *1 (W.D. Mo. Sept. 27, 2011); Mo. Rev. Stat. § 516.120(5).
“Missouri courts have consistently interpreted this section to limit the statute of
limitations for fraud to a fifteen year maximum.” Id. (collecting cases). Defendant
argues that the fraud claims are time-barred because they do not allege any
fraudulent conduct taking place after September 13, 2005, 15 years prior to the
filing date. Plaintiff counters by arguing that the alleged the fraud is ongoing.
Plaintiff’s fraudulent concealment claim is time-barred because she does not
allege any fraudulent acts occurring after September 13, 2005. Plaintiff details the
history of the tobacco industry’s position regarding the health of the cigarettes, but
she does not allege any specific concealment or fraudulent statements that occurred
from 2005-2020. See Wallace v. R.J. Reynolds Tobacco Co., No. 09-01011-CV-
W-REL, 2011 WL 13290652, at *1 (W.D. Mo. Sept. 27, 2011). But her
concealment fraud conspiracy claim is not time barred. The Eighth Circuit and
Missouri courts have held that conspiracy claims are not subject to the ten-year
discovery period like fraud claims. Rather they are governed by Mo. Rev. Stat.
§516.120. Carr v. Aubuchon, 969 F.2d 714, 716 (8th Cir. 1992); May v. AC&S,
Inc., 812 F. Supp. 934, 943 (E.D. Mo. 1993); Steinhilber v. Thompson, No. 90-
0377-CV-W-9, 1991 WL 219393 at *4 (W.D. Mo. 1991); Kansas City v. W.R.
Grace & Co., 778 S.W.2d 264, 273 (Mo. App. 1989). The limitations in conspiracy
cases begin to run upon the “occurrence of the last overt act charged resulting in
damage to the plaintiff.” Kansas City v. W.R. Grace & Co., 778 S.W.2d 264, 273
(Mo. App. 1989). A key element then of the limitations period is damages. Rippe
v. Sutter, 292 S.W.2d. 86, 90-91 (Mo. 1956). Thus, when the act giving rise to the
cause of action does not cause damages immediately, the period of limitations will
date from when the resulting damage is sustained and capable of ascertainment.
See Kansas City v. W.R. Grace & Co., 778 S.W.2d 264, 273 (Mo. App. 1989).
Since Plaintiff was not diagnosed with cancer until 2019, the limitations period has
not run. Therefore, I will also examine Defendant’s argument regarding Fed. R.
Civ. P. 9(b) to determine if the fraud claim is substantively flawed, requiring
dismissal of both the underlying fraud claim and the conspiracy claim. See Wallace
v. R.J. Reynolds Tobacco Co., 2011 WL 13290652 (W.D. Mo. Sep. 27, 2011).
Federal Rule of Civil Procedure 9(b)
Additionally, Plaintiff fails to meet the pleading standards required by Fed.
R. Civ. P. 9(b). In order to prevail on her fraudulent concealment claims, Plaintiff
must establish silence or concealment of facts that amounted to actual fraud and “a
legal duty to disclose on the part of the fraud-feasor arising from a relation of trust,
from confidence, inequality of condition, or superior knowledge which is not
within the fair and reasonable reach of the other party.” Mash v. Brown &
Williamson Tobacco Corp., No. 4:03CV0485 TCM, 2004 WL 3316246, at *11
(E.D. Mo. Aug. 26, 2004) (citing VanBooven v. Smull, 938 S.W.2d 324, 328 (Mo.
Ct. App. 1997)). “A plaintiff seeking to recover for fraudulent concealment must
show all of the following: (1) the fact was not within the fair and reasonable reach
of the plaintiff; (2) the plaintiff was unable to discover the concealed information;
and (3) plaintiff exercised reasonable diligence.” Littlefield v. Edmonds, 172
S.W.3d 903, 907 (Mo. Ct. App. 2005) (citing Keefhaver v. Kimbrell, 58 S.W.3d
54, 60 (Mo. Ct. App. 2001)). Additionally, Plaintiff’s complaint must meet the
requirements of Fed. R. Civ. P. 9(b), which mandates a heightened pleading
standard for fraud-based claims. See Drobnak v. Andersen Corp., 561 F.3d 778,
783–84 (8th Cir. 2009). To satisfy Fed. R. Civ. P. 9(b)’s requirements the
complaint “must allege ‘such matters as the time, place, and contents of false
representations, as well as the identity of the person making the misrepresentations
and what was obtained or given up thereby.’” Id. “Conclusory allegations that a
defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the
rule.” Id. “To determine whether a party has satisfied Rule 9(b), courts look to ‘the
complexity or simplicity of the transaction or occurrence, the relationship of the
parties and the determination of how much circumstantial detail is necessary to
give notice to the adverse party and enable him to prepare a responsive pleading.”
Corval Constructors, Inc. v. Tesoro Ref. & Mktg. Co., LLC, No.
19CV01277ECTBRT, 2019 WL 5260483, at *7 (D. Minn. Oct. 17, 2019) (quoting
Payne v. United States, 247 F.2d 481, 486 (8th Cir. 1957) (8th Cir. 1957).
To the extent the Plaintiff’s fraud claims are not preempted, they fail to
satisfy the heightened pleading standards of Fed. R. Civ. P. 9(b). First, although
Plaintiff provides a few specific statements made by tobacco companies and the
Tobacco Institute, most of the allegations made by Plaintiff do not allege specific
fraudulent statements. Plaintiff’s complaint also fails to adequately allege that the
concealed facts were not within her fair and reasonable reach, that she was unable
to discover the concealed information, or that she exercised reasonable diligence.
Although Plaintiff states generally that she has heard, seen, and read about the
public pronouncements made by cigarette companies and the Tobacco Institute,
she fails to indicate when, where or how she heard or saw the statements that
allegedly concealed material information. See In re Gen. Motors Corp. Anti-Lock
Brake Prod. Liab. Litig., 966 F. Supp. 1525 (E.D. Mo. 1997), aff'd sub nom. Briehl
v. Gen. Motors Corp., 172 F.3d 623 (8th Cir. 1999). She also failed to identify any
specific facts Defendant allegedly concealed. See Wallace v. R.J. Reynolds
Tobacco Co., No. 09-01011-CV-W-REL, 2010 WL 11579047, at *3 (W.D. Mo.
Aug. 12, 2010). Plaintiff also failed to indicate that she exercised reasonable
diligence or that the information concealed was not “within the fair and reasonable
reach of the Plaintiff.” Littlefield, 172 S.W.3d at 907; see also In re EpiPen Direct
Purchaser Litig., No. 20-CV-0827 (ECT/TNL), 2021 WL 147166, at *7 (D. Minn.
Jan. 15, 2021); Whittington v. Nordam Grp. Inc., 429 F.3d 986, 996 (10th Cir.
2005).
Since Plaintiff failed to plead her fraud claims with the particularity required
under Fed. R. Civ. P. 9(b), both the fraudulent concealment claim and the
concealment fraud conspiracy claims will be dismissed.
PUNITIVE DAMAGES
Plaintiff concedes that her claim for punitive damages is premature under
Mo. Rev. Stat. § 510.261. Thus, the claim for punitive damages will be stricken.
CONCLUSION
For the reasons discussed above, I will deny the Defendant’s motion to
dismiss as to the Plaintiff’s strict products liability claim and negligent design
claim (Counts I and IJ) but will grant the motion as to Plaintiffs fraudulent
concealment claim and concealment fraud conspiracy claim (Counts HI & IV).
Accordingly,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss, ECF No.
[10] is DENIED as to Counts I and II and GRANTED as to Counts II and IV.
IT IS FURTHER ORDERED that Plaintiff's Motion for Relief, ECF No.
[33] is GRANTED. A separate order setting a Rule 16 conference will be issued.
Oita te
RODNEY W. SIP
UNITED STATES DISTRICT JUDGE
Dated this 6th day of August 2021.
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