Opinion
Case No. 1:00-CV-534
November 20, 2001
OPINION
This matter is before the Court to determine Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint for Failure to State a Claim. The Motion has now been fully briefed and oral argument is unnecessary in light of the extensive briefing and the questions presented.
PROCEDURAL BACKGROUND
Defendants are all manufacturers of tobacco products, which products allegedly caused the death of Coreine Wendling of lung cancer. Coreine Wendling was allegedly a life-time smoker of the following brands of cigarettes — Winston, Marlboro, Merit, Benson and Hedges, Kool, Salem, Eve, Vantage and Basic. (Third Amended Complaint at ¶ 13.) This suit was filed on July 21, 2000. On December 27, 2000, Coreine Wendling died. Subsequent to her death, this action was stayed while the Estate of Coreine Wendling was legally constituted and Casey N. Booth was appointed as the Personal Representative of the Estate. ( See Stipulation staying litigation, Dkt. No. 50.)
After the appointment of the Personal Representative, the Third Amended Complaint was filed for the purpose of adding the successor Plaintiff and amending Plaintiff's claims to include requests for relief relating to Coreine Wendling's wrongful death. The Third Amended Complaint was filed on July 24, 2001 and states only state law claims premised on the Court's diversity jurisdiction. These claims include: Count 1-Fraud; Count 2-gross negligence; Count 3-violation of Michigan's Consumer Protection Act (Mich. Comp. Laws § 445.901 et seq.); and Count 4-breach of warranty.
Relating to the fraud claim, Plaintiff alleges that Defendants jointly agreed and conspired to mislead the public by advertising campaigns conducted between 1953 and the filing of the Complaint. More particularly, Plaintiff alleges that Defendants misled the consuming public by issuing intentionally false statements relating to the safety of tobacco products and the addictiveness of nicotine, and made intentionally false denials that they were manipulating nicotine levels in cigarette to addict consumers. (Third Amended Complaint at ¶ 34.) These statements include the following: statements disputing negative health effects of cigarettes made after an alleged agreement between manufacturers at the Plaza Hotel in New York in 1953, including statements made by the Tobacco Institute on behalf of manufacturers; statements in an advertisement in the Wall Street Journal on January 4, 1954 (entitled "A Frank Statement to Smokers"); statements in a press release of the Tobacco Institute, dated November 27, 1959; statements in a press release of the Tobacco Institute, dated July 6, 1961; statements of Joseph Cullmann, III, former president of Phillip Morris, on January 3, 1971 aired on the CBS program Face the Nation; statements of James Johnston, former CEO of R.J. Reynolds Tobacco Company, to a nationally televised hearing of the House Subcommittee on Health on April 14, 1994; and statements posted on the Brown and Williamson Internet Site in 1999 which disputed whether smoking was addictive. (Third Amended Complaint at ¶¶ 19, 24, 41-46.) According to the Third Amended Complaint, the decedent relied upon these intentional false statements in continuing to consume tobacco and this reliance caused her death of lung cancer. (Third Amended Complaint at ¶¶ 48 and 49.)
Relating to the gross negligence claim, Plaintiff alleges that the manufacture and sale of these tobacco products to Coreine Wendling constituted gross negligence. More particularly, Plaintiff alleges that the products constituted the sale of an "adulterated product" in violation of a Michigan statute (Mich. Comp. Laws § 750.27) criminalizing the sale of adulterated products. ( Id. at 9 55.) Plaintiff also alleges that the products contained many deleterious additives and that the products became more dangerous by the manipulation of nicotine levels by the Defendant manufacturers. ( Id. at ¶¶ 52-57.) Plaintiff alleges that the grossly negligent adulteration of the tobacco products caused the decedent's death. ( Id. at ¶¶ 59-63.)
The only additive referenced by name in the Complaint is nicotine.
Relating to the Consumer Protection Act claims, Plaintiff alleges that fraud and gross negligence of Defendants constituted violations of the Michigan Consumer Protection Act. More particularly, Plaintiff alleges that the following provisions of the Act were violated by Defendants' conduct: § 445.903(a), causing a probability of confusion as to the approval or certification of the goods sold; § 445.903(c), misrepresenting that the goods sold have approval, certification, benefits or qualities not possessed; § 445.903(e), misrepresenting that the goods are of a particular standard, quality or grade; § 445.903(n), causing a probability of confusion as to the legal rights and remedies of consumers; § 445.903(p), inconspicuously disclaiming or limiting warranties of merchantability and fitness; § 445.903(s), failing to reveal material facts about the goods which tend to mislead consumers; § 445.903(t), entering into consumer transactions in which consumers mistakenly waive rights and benefits without conspicuous waivers; § 445.903(bb), making material misrepresentations which mislead consumers; and § 445.903(cc), failing to disclose material facts relating to the transaction. ( Id. at ¶ 65.) According to the Third Amended Complaint, Plaintiff detrimentally relied upon the acts of Defendants in violation of the Act and this reliance caused the decedent's wrongful death. ( Id. at ¶¶ 67-68.)
Relating to the warranty claims, Plaintiff alleges that Defendants made the following express and implied warranties: that their products were reasonably fit for their intended use; that their products were not dangerous and deleterious to health; that their products were not addictive; and that their products did not cause lung cancer. Plaintiff further alleges that each of these warranties were breached and that the breach of the warranties proximately caused the decedent's death. ( Id. at ¶¶ 72-75.)
Defendants' Motion to Dismiss Plaintiff's Claims for Failure to State a Claim was filed on August 15, 2001. The Motion has now been fully briefed.
LEGAL STANDARDS
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King Spalding, 467 U.S. 69, 73 (1984). The allegations of the complaint must be construed in the favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The rules generally require only a "short and plain statement of the claim" and not detailed allegations. Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 168 (1993). Nevertheless, the complaint "must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). The Court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
LEGAL ANALYSIS
Defendants assert that each of Plaintiff's legal theories are barred by the Michigan Products Liability Act, Mich. Comp. Laws § 600.2945-2949a, and more particularly the common knowledge defense codified as part of the statute. This argument warrants a review of the pertinent parts of the statute and the now extensive case precedents relating to tobacco.
Michigan Compiled Laws § 600.2947(5) provides:
A manufacturer or seller is not liable in a product liability action if the alleged harm was caused by an inherent characteristic of the product that cannot be eliminated without substantially compromising the product's usefulness or desirability, and that is recognized by a person with ordinary knowledge common to the community.
Michigan Compiled Laws § 600.2948(2) provides:
A Defendant is not liable for failure to warn of a material risk that is or should be obvious to a reasonably prudent product user or a material risk that is or should be a matter of common knowledge to persons in the same or similar position as the person upon whose injury or death the claim is based in a Product Liability action.
Michigan Compiled Laws § 600.2949a provides:
In a Product Liability action, if the Court determines that at the time of manufacture or distribution the Defendant had actual knowledge that the product was defective and that there was a substantial likelihood that the defect would cause the injury that is the basis of the action, and Defendant willfully disregarded that knowledge in the manufacture of the product, then Sections 2946(4), 2497(12)(4) and 2948(2) do not apply.
Michigan Compiled Laws § 600.2945(h) defines a "product liability action" as follows:
"Product Liability action" means an action based on a legal or equitable theory of liability brought for the death of a person or for injury to a person or damage to property caused by or resulting from the production of a product.
Michigan Compiled Laws § 600.2945(i) defines "production" as follows:
"Production" means manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, inspection, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging, or labeling.
This Act was enacted by the Michigan legislature in 1978 for the purpose of limiting the liability of product manufacturers in part because of the high costs of liability insurance for manufacturers. In re certified Questions from Sixth Circuit Court of Appeals, 331 N.W.2d 456, 466 (Mich. 1982) (citing Products Liability Task Force, 58 Mich. Bar J. 524, 525 (1979); Jorae v. Clinton Crop Service, 465 F. Supp. 952 (E.D.Mich., 1979)). In light of the legislative history, the Michigan Supreme Court in the above case determined that the definition of a "product liability action" was necessarily broad and was not intended to be limited to suits brought for negligence. Id. For the same reason, the Jorae court, cited with approval by the Michigan Supreme Court in the above decision, held that "common defenses" under the statute applied regardless of the theory of the product liability action brought. Jorae, 465 F. Supp. at 954-55. See also Owens v. Brown and Williamson Tobacco Corp., 187 F.3d 637, 1999 W.L. 617968 (6th Cir. Aug. 12, 1999) (unpublished decision) (applying common knowledge defense under Act to state and federal tort claims against tobacco manufacturer). Indeed, the definitions of the terms "product liability action" and "production" make clear that the defenses available under the statute are intended to be applied to all manner of product liability suits including those deriving from the "selling," "advertising" and "marketing" of the offending products.
The Act was amended again in 1995, once again, for the purpose of adding restrictions and defenses applicable to product liability suits. Dean, Michigan Court Rules Practice: Forms, § 51.01.5 (2001 West Supp.).
The Owens court noted, in dismissing claims under the common knowledge defense in section 2948(5), that the plaintiff had not alleged that the manufacturer could have eliminated the dangers of the product without compromising the desirability of the product. The Court, in this case, also notes that Plaintiff has failed to make this allegation and presumably could not make the allegation truthfully given the nature of tobacco and the state of science.
Thus, the Court accepts as true Defendants' premise that all of Plaintiff's legal and equitable product liability theories are subject to the defenses listed in the Act, including the common knowledge defense.
Plaintiff does not really contest, and should not, that the dangers of tobacco smoking were "recognized by a person with ordinary knowledge common to the community" at the great majority of times that the decedent smoked the cigarettes in question. This was wisely not contested because the Surgeon General of the United States has placed warning labels on cigarettes since 1966 indicating the possible health dangers to smokers and because a large number of authoritative court decisions have recognized that the dangers of smoking have been common knowledge since 1966. See, e.g., Food and Drug Administration v. Brown and Williamson Tobacco Corp., 529 U.S. 120, 138 (2000). Indeed, the Sixth Circuit has repeatedly held, as a matter of law, that common knowledge defenses, both under Michigan's statute and parallel statutes in other states, preclude product liability suits by smokers. See Glassner v. R.J. Reynolds Tobacco Co., 223 F.3d 343 (6th Cir. 2000) (affirming dismissal under Ohio statute); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988) (affirming dismissal under Tennessee product liability statute); Owens v. Brown Williamson Tobacco Corp., 187 F.3d 637, 1999 W.L. 617968 (6th Cir. Aug. 12, 1999) (affirming dismissal under Michigan statute); Amendola v. R.J. Reynolds Tobacco Co., 198 F.3d 244, 1999
As indicated in the Glassner decision cited infra those warnings were strengthened in 1969 to better inform smokers of the risks imposed by smoking.
For the sake of the trees in the forests, the Court will not cites the dozens of cases cited by Defendants for this proposition. The diligent reader is, however, referred to Defendants' Memorandum at 3-6 and Appendix A, for those cases.
W.L. 1111515 (6th Cir. Nov. 24, 1999) (affirming dismissal under Ohio statute); Consumers of Ohio v. Brown and Williamson Tobacco Corp., 52 F.3d 325, 1995 W.L. 234620 (6th Cir. April 19, 1995) (affirming dismissal under Ohio statute).
Two interesting legal issues do surround the operation of the common knowledge defense in this case. First, what should be done, in applying the defense, as to a smoker whose use of tobacco both pre— and post-dates federal warnings? Second, what should be done as to a smoker who allegedly was misled concerning the dangers of cigarettes because of the undisclosed manipulation of nicotine levels by tobacco companies (which was not widely known before Congressional hearings in 1996)? A just answer to these questions would seem to preclude dismissal as to at least some of Plaintiff's claims. However, this Court is not addressing these questions in the absence of any precedent. The Glassner decision by the Sixth Circuit Court of Appeals previously considered both of these issues.
On the subject of smoking before and after the 1966 labeling, the Glassner court commented with approval on the decision in Amendola, which held that, where a tobacco user started her use before the federal warnings and ending the use significantly after the implementation of federal warnings, the user's claims were precluded by the common knowledge defense. Glassner, 223 F.3d at 352. In the words of the Glassner court, the "proper focus" in applying the defense is the time the smoker quits smoking. Id.
On the subject of nicotine manipulation, the Glassner court held that, notwithstanding the information disclosed in the Waxman hearings about undisclosed nicotine manipulation by the tobacco companies, the dangers of smoking were sufficiently well-known as to require dismissal of tort claims under the common knowledge defense. Glassner, 223 F.3d at 351. Given the Glassner decision, the Court is required to conclude that the alleged circumstances of this case require the application of the common knowledge defense under the Michigan statute.
Plaintiff has urged that under the particular wording of the Michigan statute the common knowledge defense should not apply because it is suspended by the operation of section 2949a of the statute, which suspends the operation of the defense in the event that the manufacturer knowingly disregards its knowledge that the product is "defective" in manufacturing the product. This argument fails for two reasons. First, Michigan's statute provides two, separate and significantly different, common-knowledge defenses-one under section 2948(2), applicable only to failure to warn claims, and the other under section 2947(5), which is generally applicable to tort claims. According to section 2949a, proof of "knowing disregard" of a "defective" product only suspends the defense under section 2948(2); it has no effect on the common knowledge defense under section 2947(5). Second, a plethora of cases cited by Defendants, including the Sixth Circuit Court of Appeals' decisions in Roysdon and Amendola, have determined as a matter of law that ordinary cigarettes are not "defective" products, such that section 2949a cannot apply.
Indeed, the Restatement (Second) of Torts, in its commentary, describes ordinary tobacco as a product, which though dangerous, is not "unreasonably dangerous" considering that its dangerous characteristics are inherent and commonly known. See Restatement (Second) of Torts, § 402A comment i.
For this and the other reasons stated in Defendants' Motion, Plaintiffs' claims will be dismissed for failure to state a claim for which relief may be granted.
CONCLUSION
Therefore, Defendants' Motion to Dismiss will be granted and this suit dismissed with prejudice.
JUDGMENT
In accordance with the Opinion of this date;IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Third Amended Complaint (Dkt. No. 72) is GRANTED and Plaintiff's Third Amended Complaint is DISMISSED WITH PREJUDICE.