The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BARRY PERKINS )
)
Plaintiff, )
)
v. ) No. 4:20-cv-1663-RWS
)
R.J. REYNOLDS TOBACCO CO., )
& SCHNUCK MARKETS, INC. )
)
Defendants. )
AMENDED 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. [11]. Plaintiff Barry Perkins 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 Defendant’s motion.
BACKGROUND
Plaintiff initially filed a Petition in the 22nd Judicial Circuit Court for the
City of St. Louis, Missouri on August 23, 2020, alleging that he developed bladder
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, relying on diversity jurisdiction under 28 U.S.C. §
1332, removed the case to the federal court on November 25, 2020. 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,
Reynolds’s motion to dismiss, which was filed prior to the motion to remand, is
now ready for consideration.
STATEMENT OF FACTS
Perkins began smoking in 1962 at the age of 13. He primarily smoked Kool
cigarettes, which are designed, manufactured, and sold by Brown and Williamson
(B & W) and R.J. Reynolds. By the late-1960’s Perkins was a regular smoker,
smoking between 1and 2 packs per day. Perkins tried to quit but was unsuccessful,
so he remains a regular smoker to this day. The Kool cigarettes he smoked
contained flue cured tobacco, menthol, and nicotine, which all contributed to their
dangerous and addictive nature. In 2019, Perkin’s was diagnosed with bladder
cancer, which he alleges was caused by his smoking.
When Perkins began smoking, he was aware of the Marlboro Man and knew
that “if you wanted to be cool, you smoked a Kool.” And throughout his years of
smoking, Perkins saw print, television, and radio ads that influenced his decision to
continue smoking. He also heard and read about public statements made by the
tobacco industry, including R.J. Reynolds and B & W, denying that smoking
caused cancer or other rare diseases. The tobacco industry made these statements
despite the fact that cigarettes contain potentially dangerous ingredients. Perkins
now claims that the public statements and advertisements made by the cigarette
industry caused confusion and lead to his belief that cigarettes were not yet proven
to cause cancer and other serious illness. This belief influenced Perkin’s decision
to continue smoking and ultimately led to his cancer diagnosis.
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 his “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 his claim.” Twombly, 550 U.S. at 556.
DISCUSSION
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 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. Next, Defendant argues 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 III (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 his claim,
arguing that his 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. He relies, in part on
Graham v. R.J. Reynolds Tobacco Company, 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. Brown &
Williamson, 529 U.S. 120. 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 its 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 Co.,
857 F.3d 1169, 1186 (11th Cir. 2017). 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, 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, Fair and Equitable Tobacco Reform Act §
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 at1187-88. 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 his 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
The Plaintiffs state 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 he did not plead a
specific design flaw or causation and because he 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 III will be denied.
COUNTS II (FAILURE TO WARN)
In Count II Plaintiff alleges that prior to 1969, the cigarettes he purchased
did not warn users of their dangerous or addictive nature. Plaintiff claims that
Defendant’s failure to warn of the dangers influenced his decision to start smoking
and his eventual addiction to cigarettes and diagnosis with bladder cancer. In
Missouri, to state a claim for strict liability failure to warn, the plaintiff must allege
that “(1) the defendant sold the product in question in the course of its business; (2)
the product was unreasonably dangerous at the time of sale when used as
reasonably anticipated without knowledge of its characteristics; (3) the defendant
did not give adequate warning of the danger; (4) the product was used in a
reasonably anticipated manner; and (5) the plaintiff was damaged as a direct result
of the product being sold without an adequate warning.” Moore v. Ford Motor Co.,
332 S.W.3d 749, 756 (Mo. 2011)(citing Tune v. Synergy Gas Corp., 883 S.W.2d
10, 13 (Mo. 1994)). Defendant does not dispute that Plaintiff provided sufficient
allegations to plausibly establish the first four element, but Defendant argues that
Plaintiff did not plead facts to establish that his bladder cancer was caused by
Defendant’s failure to warn. In particular Defendant argues that Plaintiff’s decision
to continue smoking after warnings were added to cigarette packaging belies any
claim that an adequate warning would have influenced his decision to start
smoking in the first place.
There are two aspects to proving causation in failure to warn cases.
Id. at 761. First, Plaintiff must establish cause in fact by showing the product in
question caused the Plaintiff’s injury. Id. Second, Plaintiff must establish
proximate cause. In order to establish proximate cause in a failure to warn case, the
“plaintiff[] must show that a warning would have altered the behavior of the
individual[]…” Id. In Missouri, courts aid plaintiffs by presuming that a warning
will be heeded. Id. This presumption assumes that a reasonable individual will act
accordingly when given adequate information. Id.
In this case, Plaintiff alleges that he began smoking at the age of 13, Cmpl. ¶
70, prior to the passage of the Federal Cigarette Labelling Act. Federal Cigarette
Labeling and Advertising Act, Pub. L. No. 89-92, 79 Stat. 282. Additionally,
Plaintiff alleges that had there been a warning, more likely than not he would not
have begun smoking. Cmpl. ¶ 79. He also alleged that he attempted to quit but
failed. Cmpl. ¶ 73. Defendant argues that Plaintiff’s decision to continue smoking
for 50 years after warning labels were affixed to cigarette packaging, rebuts the
presumptions that Plaintiff would have heeded the warning. But this ignores the
addictive nature of cigarettes and Plaintiff’s alleged attempts to quit smoking. See
Smith, 275 S.W.3d at 788–89. At this stage Plaintiff has made sufficient
allegations to state a claim for failure to warn prior to 1969. Therefore,
Defendant’s motion will be denied as to this claim.
COUNTS IV AND V (FRAUD)
In Count IV, Plaintiff alleges that Defendant fraudulently concealed
information that Defendant had a duty to disclose, and in Count V, 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 his 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. He also argues that his 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 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 he 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
he 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 his
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. Ct. App. 1989), abrogated on other
ground by Ellison v. Fry, 437 S.W.3d 762 (Mo. 2014). 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, 778 S.W.2d at 273. 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, 778
S.W.2d at 273. 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 also
substantively flawed, requiring dismissal of the conspiracy claim. See Wallace,
2011 WL 13290652.
Federal Rule of Civil Procedure 9(b)
Plaintiff fails to meet the pleading standards required by Fed. R. Civ. P. 9(b).
In order to prevail on his 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, Plaintiffs’ 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 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 his fair and reasonable reach, that he was unable to discover
the concealed information, or that he exercised reasonable diligence. Although
Plaintiff states generally that he has heard, seen, and read about the public
pronouncements made by cigarette companies and the Tobacco Institute, he fails to
indicate when, where or how he 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). He 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). Finally, Plaintiff failed to indicate that he exercised reasonable
diligence or alternatively 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 his 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.
CONCLUSION
For the reasons discussed above, I will deny the Defendant’s motion to
dismiss as to Plaintiff's strict products liability, negligent design, and failure to
warn claims (Counts IJ, II, HJ), 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. [11] is DENIED as to Counts I, II, and UI and GRANTED as to Counts IV
and V.
IT IS FURTHER ORDERED that Plaintiff's Motion for Relief, ECF No.
[39] is GRANTED. A separate order setting a Rule 16 conference will be issued.
UNITED STATES DISTRICT JUDGE
Dated this 11th day of August 2021.
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