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MAGNUS v. FORTUNE BRANDS
March 18, 1999
ANDREA MAGNUS, ALAN MAGNUS, CHARLOTTE LEAVITT AS THE ADMINISTRATIX OF THE ESTATE OF FRIEDA CHASE, AND CHARLOTTE LEAVITT INDIVIDUALLY, PLAINTIFFS,
FORTUNE BRANDS, INC., F/K/A AMERICAN BRANDS, INC., THE AMERICAN TOBACCO COMPANY, PHILIP MORRIS INCORPORATED, PHILIP MORRIS COMPANIES, INC., LIGGETT GROUP, INC., N/K/A BROOKE GROUP, LTD., LIGGETT & MYERS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, BROWN & WILLIAMSON INDUSTRIES, INC., INDIVIDUALLY AND AS SUCCESSOR BY MERGER OF FORTUNE BRANDS, INC., F/K/A AMERICAN BRANDS, INC; AND THE AMERICAN TOBACCO COMPANY; THE TOBACCO INSTITUTE, INC. AND THE COUNCIL FOR TOBACCO RESEARCH-USA, INC., DEFENDANTS.
The opinion of the court was delivered by: Gershon, District Judge.
Plaintiffs Andrea Magnus ("Magnus"), Alan Magnus and Charlotte
Leavitt individually and as the administratrix of the estate of
Frieda Chase ("Chase") bring an action against cigarette
manufacturers, their current or former parent holding companies
and two industry-related associations to recover damages for
personal injuries allegedly suffered as a result of smoking
cigarettes. Magnus suffers from cancer of the larynx, emphysema
and/or other serious illnesses. Chase suffered from cancer of the
throat, emphysema, and/or other serious illnesses before she died
during the pendency of this action. Plaintiff Alan Magnus is
Andrea Magnus's husband.
Defendants Liggett & Myers Tobacco Co., Brown & Williamson
Tobacco Corporation ("Brown & Williamson"), Philip Morris
Incorporated ("Philip Morris"), and the American Tobacco Company
(collectively, the "Manufacturing Defendants") all manufacture or
used to manufacture cigarettes.
Defendant Liggett Group, Ltd. is the parent of Liggett & Myers
Tobacco Co. Defendant Philip Morris Companies, Inc. is the parent
of Philip Morris. Defendant Brown & Williamson Industries, Inc.
is the parent of Brown & Williamson. Defendant Fortune Brands,
Inc. (formerly known as American Brands, Inc.) used to maintain
the American Tobacco Company as a subsidiary until it sold the
company to Brown & Williamson in 1995. None of these defendants
(collectively, the "Corporate Parents") manufactures or
Plaintiffs sue defendants, individually and as co-conspirators,
aiders and abettors and concerted actors and allege: (1) failure
to warn, (2) fraud and deceit, (3) negligent and defective
design, (4) strict liability, (5) breach of an express warranty,
and (6) breach of an implied warranty. Specifically, plaintiffs
claim that defendants failed to warn that cigarette smoking
causes cancer and is addictive; distributed deceptive information
regarding the addictive nature of nicotine and the health risks
of smoking cigarettes; and intentionally controlled and continue
to control the levels of nicotine in cigarettes to maintain and
maximize their addictive effect.
Plaintiffs' motion to amend the complaint to add additional
factual allegations is granted. For the reasons set forth below,
defendants' motion to partially dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(6)(6)*fn1 is granted in part
and denied in part.
When exercising diversity jurisdiction, a district court
applies the choice of law rules of the state in which it sits in
order to determine which state's law is applicable to the matter
before the court. Klaxon Co. v. Stentor Electric Mfg. Co.,
313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). "[U]nder New
York conflicts principles, controlling effect is accorded to the
law of the jurisdiction which has the greatest concern with, or
interest in, the specific issue raised in the litigation." David
Tunick, Inc. v. E.W. Kornfeld, 813 F. Supp. 988, 994 (S.D.N Y
1993) (quotations and citations omitted). Where, as here, conduct
regulating laws are at issue, and the parties are domiciled in
different states, the place of injury is generally the
determining factor. See Cooney v. Osgood Machinery, Inc.,
81 N.Y.2d 66, 74, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993).
Plaintiffs allege that Magnus is a resident of New Jersey and
that her exposure to defendants' products and her illnesses
occurred in New Jersey. Thus, defendants agree that Magnus's
claims are governed by New Jersey law. Plaintiffs further allege
that Chase was a resident of Maine and that her exposure to
defendants' products and her resulting illnesses occurred in
Maine. Defendants, however, do not agree that Leavitt's claims as
the administratrix of Chase's estate are governed by Maine law.
Nonetheless, they offer no ground for applying the law of any
other state. Therefore, Maine law will be applied here.
"[A] complaint should not be dismissed for failure to state a
claim unless it appears beyond a doubt that plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957). When considering a motion to dismiss, the
court "must accept the material facts alleged in the complaint as
true and construe all reasonable inferences in the plaintiff's
favor." Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d
Cir. 1995), quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d
Cir.), cert. denied, 513 U.S. 836, 115 S.Ct. 117, 130 L.Ed.2d
63 (1994). A motion is dismiss "is addressed solely to the face
of the pleadings, and `[t]he court's function . . . is not to
weigh the evidence that might be presented at trial but merely to
determine whether the complaint itself is legally sufficient.'"
Tinlee Enterprises, Inc. v. Aetna Casualty & Surety Co.,
834 F. Supp. 605, 607 (E.D.N.Y. 1993) (quoting Goldman v. Belden,
754 F.2d 1059, 1067 (2d Cir. 1985)).
Claims for Failure to Warn, Fraud and Deceit, and Implied
The Labeling Act mandates uniform warning labels on packages of
cigarettes. The purpose of the Labeling Act is to adequately
inform the public of the dangers of cigarette smoking while
simultaneously protecting commerce and the national economy.
See 15 U.S.C. § 1331. The Labeling Act at 15 U.S.C. § 1334(b)
also contains an express preemption provision, which reads:
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 ...