Mr. Tompkins' wife and son are the Plaintiffs in this action.
They have brought suit against Defendant R.J. Reynolds Tobacco
Company ("RJR") as the manufacturer of Camel cigarettes. Their
complaint alleges fraud and misrepresentation, products
liability, negligence, personal injury, breach of warranty,
wrongful death and loss of consortium. Federal jurisdiction is
based upon diversity of citizenship.
Presently before the Court is (1) RJR's appeal from a decision
by Magistrate Judge Gustave J. DiBianco denying RJR's request for
a protective order pertaining to particular evidence, (2)
Plaintiffs' motion to amend their complaint, (3) Plaintiffs'
motion to strike certain of Defendant's affirmative defenses, and
(3) RJR's motion for summary judgment.
I. RJR's Appeal from Magistrate Judge DiBianco's Decision
In the course of discovery, Plaintiffs' expert witness, K.
Michael Cummings, Ph. D., prepared a report in which he refers to
and quotes from a document entitled "RJR Research and Development
Activities Fact Team Memorandum — Volume III" ("R & D Memo").
Defendant objected to the use of this report and sought the
imposition of a protective order on the grounds that the R & D
Memo is subject to attorney-client and work product privileges.
Magistrate Judge DiBianco denied Defendant's motion in an order
dated October 21, 1998.
A. Standard of Review
The parties disagree as to what standard of review applies on
appeal. RJR argues the Court should conduct a de novo review,
because the question of whether the privileges apply is a mixed
question of law and fact. See Def.'s Mem. of Law in Supp. of
Appeal, at 8.
Yet under Fed.R.Civ.P. 72(a), whenever a magistrate judge
determines "nondispositive matters," the district court on appeal
may set aside such a determination only if "clearly erroneous or
contrary to law." The Rule reflects the standard of review set
forth in 28 U.S.C. § 636(b)(1)(A). Section 636(b)(1)(A) also
identifies what is to be considered a "dispositive matter," such
that anything not included is classified by default as a
"nondispositive matter." Discovery disputes fall into the latter
category, and the Eastern District of New York has clearly
explained that pre-trial discovery matters "include issues of
privilege." Commodity Futures Trading Comm'n v. Standard Forex,
Inc., 882 F. Supp. 40, 42 (E.D.N.Y. 1995) (citations omitted).
Moreover, district courts within the Second Circuit consistently
have applied the "clearly erroneous or contrary to law" standard
of review when privilege determinations are appealed. See, e.g.,
Springwell Corp. v. Falcon Drilling Co., Inc., No. 96 CIV 7463,
1998 WL 352533, at *1 (S.D.N.Y. July 1, 1998) (Sotomayor, J.);
Bertolotti v. Teamsters Local 814 Pension Fund, No. 95-CV-5261,
1998 WL 12169, at *2 (E.D.N.Y. Jan. 8, 1998); New York State
Teamsters Council Prepaid Legal Servs. Plan v. Primo & Centra,
159 F.R.D. 386, 387-88 (N.D.N.Y. 1995). This Court therefore will
apply that same standard to the appeal of Magistrate Judge
An order is clearly erroneous when "the reviewing court is left
with the definite and firm conviction that a mistake has been
committed." Primo & Centra, 159 F.R.D. at 387 (internal
quotation marks omitted). An order is contrary to law "when it
fails to apply or misapplies relevant statutes, case law or rules
of procedure." Thompson v. Keane, No. 95 Civ. 2442, 1996 WL
229887, at *1 (S.D.N.Y. May 6, 1996) (internal quotation marks
omitted). Considering that magistrate judges are given broad
discretion with respect to pre-trial discovery matters, reversal
is warranted only when that discretion is abused. Abrams v.
General Elec. Co., No. 95-CV-1734, 1997 WL 458446, at *1
(N.D.N.Y. Aug. 4, 1997).
B. Applicable Law
Because this Court is sitting in diversity, a question arises
as to whether the privilege issues raised in this case are
governed by federal or state law. With respect to the
attorney-client privilege, it is governed by state law. See
Fed.R.Evid. 501; Shamis v. Ambassador Factors Corp.,
34 F. Supp.2d 879, 892 (S.D.N.Y. 1999). In their letter briefs to
Magistrate Judge DiBianco, both parties acknowledged that in this
context, New York law applies.*fn1 While this distinction is not
drawn in the order on appeal, and although the magistrate judge's
opinion relies primarily on federal common law, the order is not
contrary to the law of New York. For "`New York law governing the
attorney-client privilege [N.Y.C.P.L.R. § 4503] is generally
similar to accepted federal doctrine, albeit with certain
variants.'" Shamis, 34 F. Supp.2d at 892 (quoting Bowne of New
York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 470 (S.D.N Y
With respect to the work product privilege, federal law
controls. See Bowne, 150 F.R.D. at 471. Guidance is found
primarily in Fed.R.Civ.P. 26(b)(3). See id. Since Magistrate
Judge DiBianco cited federal law cases addressing a claimed work
product privilege, this Court need only ensure that the relevant
law was appropriately applied.
C. Whether the Decision on Appeal is Clearly Erroneous or
Contrary to Law
The party seeking the protection of a privilege — in this case
RJR — must prove the privilege exists and that such privilege has
not been waived. See Shamis, 34 F. Supp.2d at 892; Bowne, 150
F.R.D. at 470-71; see also Iron Workers Local Union No. 17 Ins.
Fund v. Philip Morris, Inc., 35 F. Supp.2d 582, 590 (N.D.Ohio
1999). In his October 21, 1998 order, Magistrate Judge DiBianco
assumed arguendo that the attorney-client and work product
privileges apply. Magistrate Judge DiBianco nevertheless denied
RJR's request for a protective order, having found that RJR on
three separate occasions waived its right to assert privileges
over the R & D Memo. This Court will also presume, without
deciding, that the asserted privileges apply because in reviewing
Magistrate Judge DiBianco's order, his determination that RJR
waived its privileges is neither clearly erroneous nor contrary
1. History of the R & D Memo
The facts pertaining to the R & D Memo are largely undisputed.
Whether the R & D Memo is a privileged document was an issue in a
prior lawsuit brought in Minnesota District Court, State v.
Philip Morris. On March 7, 1998, the Minnesota District Court
ordered the production of the R & D Memo, along with thousands of
other documents, after adopting a special master's report. RJR
and the other defendants attempted to obtain interlocutory review
from the higher state courts and the United States Supreme Court,
but failed. The documents were eventually produced subject to a
protective order barring public release.
Meanwhile, the congressional House Commerce Committee issued
subpoenas on February 19, 1998 to the CEOs of the parent
corporations of RJR and other cigarette manufacturers who were
defendants in the Minnesota Philip Morris litigation. The
Committee sought to receive copies of the 39,000 documents
released in the Philip Morris case, including the R & D Memo.
The defendants asserted the same privileges being decided upon in
state court, and a letter was written to the House Committee
Chair, dated March 12, 1998, asking for a delay in deciding the
privilege issue until appellate review from the state court
decision could be exhausted. The Committee chair did so, and when
the appellate stays expired on April 6, 1998, he ruled that the
claims of privilege would not be recognized. He also informed the
parties that unless the documents were turned over immediately,
he would begin contempt proceedings. That same day, the tobacco
companies complied with his order.
Although the tobacco companies requested the materials be kept
confidential, the Committee released them onto the Internet on
April 22, 1998. RJR issued a press release when this occurred,
claiming that "[t]aken as a whole — and not selectively out of
context — these documents more than demonstrate that our company
responsibly researched, manufactures and markets its products to
adult smokers." Ex. to Def.'s Mem. of Law, Tab F.
In May 1998, State v. Philip Morris settled. Incorporated in
the consent judgment was a provision permitting the plaintiffs to
seek court approval for public disclosure of those documents that
were subject to a protective order, over which the defendants had
asserted a privilege but for which no privilege was found to
exist. The plaintiffs sought said approval, and the court
initially granted it. The defendants opposed the order, and
subsequently secured a stay of the release pending resolution of
a motion to vacate the order. The stay however, did not apply to
documents posted by Congress on the Internet, which included the
R & D Memo.
2. Whether RJR Waived Its Privileges When It Entered into the
Settlement Agreement/Consent Judgment in the Minnesota
Philip Morris Case
Magistrate Judge DiBianco found that RJR waived any privileges
when it entered into the consent judgment in Philip Morris
permitting the plaintiffs to seek public disclosure of those
documents for which a privilege was claimed but found not to
exist. Magistrate Judge DiBianco cannot be said to have
misapplied the law upon which he relied for his conclusion. See
United States v. International Bhd. of Teamsters, 961 F. Supp. 665,
673 (S.D.N.Y. 1997), aff'd 119 F.3d 210 (2d Cir. 1997)
(holding that a party waives the attorney-client privilege when
it voluntarily consents to the disclosure of any significant part
of the communication in issue); Grumman Aerospace Corp. v.
Titanium Metals Corp. of Am., 91 F.R.D. 84, 90 (E.D.N.Y. 1981)
(holding that when a party discloses an item to an adversary,
even in the context of settlement, a waiver of the work product
privilege is effected).
Furthermore, nothing in New York case law holds to the contrary
insofar as the waiver of the attorney-client privilege is
concerned. In New York, only a client may waive the privilege.
See N.Y.C.P.L.R. § 4503(a). Such waiver may be achieved by
publicly disclosing the matter in issue. See Jakobleff v.
Cerrato, Sweeney & Cohn, 97 A.D.2d 834, 835, 468 N.Y.S.2d 895
(2d Dep't 1983). Having been a party to the Minnesota Philip
Morris settlement, RJR thereby can be considered to have waived
its privilege over the R & D Memo by consenting to its public
disclosure, on the condition that the plaintiffs in that case
apply for a court order. Nor has RJR raised the argument that its
attorneys consented to the settlement agreement without RJR's
What RJR does contend in its appeal papers is that the consent
judgment allowed the plaintiffs to do no more than apply to the
Minnesota court for the public release of certain documents, and
that nowhere in the consent judgment did RJR waive its right to
oppose this application. RJR emphasizes that it did oppose the
application and obtained a partial stay. Yet RJR cites no
authority either to support its interpretation of the consent
judgment or to undermine the conclusion that the failure to
include language preserving RJR's right to object is tantamount
to effecting a waiver of any applicable privileges. RJR bears the
burden of proof,
and its failure to show how Magistrate Judge DiBianco's
interpretation of the consent judgment is contrary to law gives
this Court no basis upon which to mandate a reversal on appeal.
Moreover, three courts outside this Circuit*fn2 have reached
the same conclusion. They held that RJR waived its privileges
over the R & D Memo because the Philip Morris consent
judgment/settlement agreement contained no provision preserving
RJR's right to oppose the plaintiffs' application for the release
of documents. See Iron Workers Local Union No. 17 Ins. Fund, 35
F. Supp.2d at 591-94; State v. Philip Morris Inc., No.
97-CV-328, slip op. at 8-9 (Wis.Cir.Ct., Branch 11, Dane County
Oct. 21, 1998); State v. Philip Morris, No. 96122017/CL211487,
slip op. at 17-20 (Baltimore City Cir.Ct. Aug. 5, 1998).
3. Whether RJR Waived Its Privileges When It Released the R &
D Memo to the House Commerce Committee
Magistrate Judge DiBianco further found that RJR waived its
privileges when it turned over the R & D Memo to the House
Commerce Committee in response to the Committee's subpoena. RJR
contends that once the Committee Chair rejected the privilege
claims, it had no choice but to comply with the congressional
subpoena or else risk being held in contempt. Although Magistrate
Judge DiBianco acknowledged the limited choices available to RJR
once its privilege claims were ruled upon, he nevertheless
faulted RJR for failing to exhaust all avenues available for
pressing its privilege claims before the Committee Chair. See
Westinghouse Elec. Corp. v. Republic of the Philippines,
951 F.2d 1414, 1427 n. 14 (3d Cir. 1991) (noting that a subpoenaed
party will waive applicable privileges if it does not continue to
challenge the subpoena and withhold requested documents until
ordered to do so).
Magistrate Judge DiBianco relied heavily upon the recent
decision in Commonwealth v. Philip Morris, No. 95-7378-J, 1998
WL 1248003 (Mass.Sup.Ct. July 30, 1998). He agreed with that
court's observation that RJR is experienced in dealing with
congressional subpoenas. Consequently, the fact that only one
letter was written to the Committee Chair did not, in Magistrate
Judge DiBianco's mind, satisfy RJR's burden to show that it made
a concerted effort to convince the Chair to sustain its privilege
assertions — especially when the thrust of this one letter was
not to explain the basis for finding that a privilege applied,
but rather to ask for a delay in ruling on the issue of privilege
until after appellate review was exhausted in Minnesota. Without
any evidence to show that RJR pursued all available avenues
before the Chair rejected its claims of privilege, Magistrate
Judge DiBianco concluded that RJR waived those privileges.
On appeal, RJR offers no evidence that its efforts to persuade
the Committee Chair were greater than those recognized by the
magistrate judge, such that the factual basis for Magistrate
Judge DiBianco's decision cannot be characterized as clearly
erroneous. Although RJR considers it "telling" that the
magistrate judge failed to identify what other steps RJR could
have pursued short of standing in contempt, see Def.'s Br., at
14, RJR is mistaken in believing it is the Court's responsibility
to do so.*fn3 RJR carries the burden of proof to establish that
a privilege exists. As a result, RJR must show not only what
steps it took to challenge the congressional subpoena, but also
that those steps represent the fullest extent of
options available. With RJR having failed to do so, Magistrate
Judge DiBianco's order is not clearly erroneous.
Nor can the magistrate judge's decision be said to be contrary
to law. It both relies upon the legally-recognized principle that
a party must take steps to preserve claims of privilege against a
subpoena, and parallels so closely the decision by the
Massachusetts Superior Court. Furthermore, case law suggests that
mere objections to Congress' refusal to extend a privilege are
insufficient to contest a congressional subpoena. See Sanders v.
McClellan, 463 F.2d 894, 899 (D.C.Cir. 1972). Instead, a party
may need to risk standing in contempt by refusing to comply with
the subpoena, thereby causing the legislators to seek a contempt
citation and refer the citation to the Attorney General. See
id. If prosecution were to result, the party could present in
court its argument in favor of finding a privilege. See id.
Applying these principles to this case, RJR's efforts clearly
fell short. The tobacco company failed even to register an
objection with the Commerce Committee after the Chair denied its
privilege requests. Instead, RJR turned over the requested
documents on the same day the Chair's decision was issued.
As a final consideration, other courts have determined that RJR
failed to take reasonable steps to resist compliance with or
mount a challenge to the congressional subpoena, thereby waiving
any applicable privileges. See Iron Workers Local Union No. 17
Ins. Fund, 35 F. Supp.2d at 594-96; State v. R.J. Reynolds
Tobacco Co., No. CJ-96-1499, Tr. of Proceedings at 67-69
(Okla.Dist.Ct. Oct. 20, 1998).
4. Whether RJR Waived Its Privileges When It Issued Its April
22, 1998 Press Release
Last of all, Magistrate Judge DiBianco found that RJR waived
its privileges by issuing its April 22, 1998 press release at the
time Congress released the R & D memo, along with numerous other
documents, onto the Internet. In light of Plaintiffs' claims
against RJR for fraud and misrepresentation, products liability,
negligence and breach of warranty, and the fact that statements
in the press release indicate that the documents released onto
the Internet — including the R & D Memo — illustrate how RJR has
responsibly researched, manufactured and marketed its product,
Magistrate Judge DiBianco reasoned that RJR has put the R & D
Memo "at issue." As such, he held that the company could not now
claim a privilege after having used the occasion of the R & D
Memo's release to tout its own virtues.
Although courts within this Circuit have applied a fairness
test to determine whether a party has implicitly waived a
privilege, thereby causing the communication at issue to be
disclosed, that test was applied to claims asserted within the
context of litigation. See, e.g., United States v. Bilzerian,
926 F.2d 1285, 1292 (2d Cir. 1991); Worthington v. Endee, 177
F.R.D. 113, 116-17 (N.D.N.Y. 1998); Tribune Co. v.
Purcigliotti, No. 93 Civ. 7222, 1997 WL 10924, at *5, 7
(S.D.N.Y. Jan. 10, 1997), modified in part by 1998 WL 175933
(S.D.N.Y. Apr.14, 1998). Among the common characteristics of an
implied waiver is that a litigant places the protected
communication "at issue" through an affirmative act, such as
claiming an affirmative defense. See Worthington, 177 F.R.D. at
116. RJR's press release however, is an extrajudicial statement
that may be subject to "no waiver or only a narrow one." Tribune
Co., 1997 WL 10924, at *5. The Second Circuit has held that
extrajudicial disclosure of attorney-client communication does
not constitute waiver where the client does not subsequently use
that communication in a judicial proceeding. See In re von
Bulow, 828 F.2d 94, 102 (2d Cir. 1987).
While the magistrate judge's order appears to be contrary to
law in that it applied the fairness doctrine solely to RJR's
press release without first considering whether RJR's affirmative
defenses ultimately placed the R & D Memo at
issue, no need exists to explore the parameters of this question.
Nor is it necessary to analyze whether the press release
constitutes a voluntary disclosure on the part of RJR, such that
a waiver of the privileges could stand on this basis. See State
v. R.J. Reynolds Tobacco Co., No. CJ-96-1499, Tr. of Proceedings
at 70 ("I believe that this [April 22, 1998] press release
demonstrates and is further evidence . . . in support of
voluntary disclosure."). Magistrate Judge DiBianco's order that
RJR effected a waiver of privileges has already been affirmed on
two independent grounds.
5. Existence of Contrary Conclusions in Case Law
This Court acknowledges that a split exists among courts that
have addressed the precise question of whether RJR waived any
privileges applicable to the R & D Memo. See Iron Workers Local
Union No. 17 Ins. Fund, 35 F. Supp.2d 582 (waiver by entering
into consent judgment and complying with congressional subpoena);
State v. Philip Morris Inc., slip op. (no waiver by complying
with congressional subpoena or issuing press release, but waiver
by entering into consent judgment); State v. R.J. Reynolds
Tobacco Co., Tr. of Proceedings (waiver by complying with
congressional subpoena); State v. Philip Morris, slip op. (no
waiver by complying with congressional subpoena, but waiver by
entering into consent judgment and issuing press release);
Commonwealth v. Philip Morris Inc., slip op. (waiver by
complying with congressional subpoena); Reed v. Philip Morris
Inc., Civ. No. 5070-96, Tr. of Proceedings (D.C.Super.Ct. June
25, 1998) (no waiver by entering into consent judgment); State
v. American Tobacco Co., No. 96-2-15056-8, slip op.
(Wash.Super.Ct. May 1, 1998) (no waiver by complying with
Yet while authority may exist to support RJR's position, the
more critical inquiry on appeal is whether authority exists to
support Magistrate Judge DiBianco's decision. As the foregoing
analysis illustrates, this Court cannot conclude that the
magistrate judge "fail[ed] to apply or misapplie[d] relevant
statutes, case law or rules of procedure." Thompson, 1996 WL
229887, at *1. Consequently, his order is not contrary to law.
Moreover, remembering that magistrate judges are afforded much
discretion in making pre-trial discovery determinations, this
Court can find no basis for believing that Magistrate Judge
DiBianco abused his discretion such as to warrant a reversal.
Accordingly, Magistrate Judge DiBianco's October 21, 1998 Order
is affirmed, and RJR's motion for a protective order is denied.
II. Plaintiffs' Motion to Amend the Complaint
On October 27, 1998 — after this lawsuit was initiated — the
New York Supreme Court, Appellate Division, issued a decision
explaining that allegations of fraud must include examples of
misrepresentation upon which a cigarette user relied. See Small
v. Lorillard Tobacco Co., Inc., 252 A.D.2d 1, 15, 679 N.Y.S.2d 593
(1st Dep't 1998), aff'd 94 N.Y.2d 43, 698 N.Y.S.2d 615,
720 N.E.2d 892 (1999). Plaintiffs wish to amend their complaint to
reference particular advertisements and pronouncements issued by
RJR, upon which they claim Mr. Tompkins reasonably relied.
Fed.R.Civ.P. 15(a) provides that leave to amend a complaint
"shall be freely given when justice so requires." Yet leave may
be denied where permitting the amendment would be futile. See
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962); Advanced Magnetics, Inc. v. Bayfront Partners, Inc.,
106 F.3d 11, 18 (2d Cir. 1997).
If the proposed amended pleadings cannot survive RJR's motion
for summary judgment on the merits, it serves little purpose to
allow the amendments to be made. The Court's analysis (infra)
of the sufficiency of the evidence pertaining to Plaintiffs fraud
claim concludes that even with evidence of specific
advertisements, Plaintiffs cannot survive summary judgment.
As such, Plaintiffs' motion to amend is denied.*fn4
III. Plaintiffs' Motion to Strike Certain Affirmative Defenses
Plaintiffs move pursuant to Fed. R.Civ.P. 12(f) to strike a
myriad of affirmative defenses asserted by RJR in its answer.
This Court has stated that "[c]ourts generally disfavor Rule
12(f) motions and do not routinely grant them." State of New
York v. Almy Bros., Inc., 971 F. Supp. 69, 72 (N.D.N.Y. 1997)
(McCurn, J.). Where a plaintiff moves to strike affirmative
defenses, the defendant's pleadings are to be construed liberally
so as to give the defendant a full opportunity to support its
claims after discovery has been made. See id. A motion to
strike should be granted only where (1) it appears to a certainty
that the plaintiff will succeed regardless of what facts could be
proved in support of the defense; (2) the affirmative defense
sought to be struck does not present disputed and substantial
questions of law that could be resolved in such a way as to
support the defense; and (3) the plaintiff shows it will be
prejudiced by inclusion of the affirmative defense. See id.
RJR contends that Plaintiffs' motion should be dismissed as
untimely, since Fed.R.Civ.P. 12(f) provides that a motion to
strike should be brought "within 20 days after the service of the
pleading upon the party." A motion to strike was dismissed for
this reason in Harley-Davidson, Inc. v. Estate of O'Connell,
13 F. Supp.2d 271, 278 (N.D.N.Y. 1998).
On the other hand, courts within the Second Circuit have ruled
on the merits of a motion to strike brought after the expiration
of the 20-day window, based upon the language in Rule 12(f)
giving judges discretion to strike material from a pleading on
their own initiative. See, e.g., Wine Markets Int'l, Inc. v.
Bass, 177 F.R.D. 128, 132-33 (E.D.N.Y. 1998) ("In effect, the
Court's discretion renders the  day rule essentially
unimportant.") (internal quotation marks omitted).
Looking to the merits of the motion before this Court,
Plaintiffs have provided no reason as to why they would be
prejudiced if the affirmative defenses were not stricken. Nor can
the Court think of a reason after making the following
observations: Plaintiffs have already spent their resources on
discovery; this Court does not submit pleadings to the jury;
Plaintiffs were not precluded from challenging the defenses on
summary judgment; and should RJR try to raise a meritless defense
at trial, Plaintiffs may ask the Court to prevent the jury from
In sum, regardless whether Plaintiffs' motion is considered
timely, it is dismissed.
IX. RJR's Motion for Summary Judgment
RJR will be granted summary judgment if no genuine issue of
material fact exists and RJR is entitled to judgment as a matter
of law. See Fed.R.Civ.P. 56(c). All ambiguities and reasonable
inferences must be viewed in the light most favorable to
Plaintiffs. See Reeves v. Johnson Controls World Servs.,
140 F.3d 144, 149 (2d Cir. 1998). Should RJR meet its burden,
Plaintiffs must come forward with specific facts showing a
genuine issue exists for trial. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986).
A. Intentional Misrepresentation and Fraud
1. Whether Plaintiffs' claims for intentional
misrepresentation and fraud is preempted by the Federal
Cigarette Labeling and Advertising Act, as amended by the
Public Health Cigarette Smoking Act of 1969
RJR maintains that Plaintiffs' claims for intentional
misrepresentation and fraud is preempted with respect to events
that occurred after the effective date of the Federal Cigarette
Labeling and Advertising Act, as amended by the Public Health
Cigarette Smoking Act of 1969. This statute provides that "[n]o
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 Act." 15 U.S.C. § 1334(b).
The Supreme Court has held that this federal law preempts both
state common law and statutory causes of action. See Cipollone
v. Liggett Group, Inc., 505 U.S. 504, 521-23, 112 S.Ct. 2608,
120 L.Ed.2d 407 (1992).
With respect to fraudulent misrepresentation claims, the
Supreme Court distinguished among claims that a tobacco company
should have made further disclosures in its advertising and
promotional statements, claims that a tobacco company should have
made further disclosures through channels other than advertising
or promotion, and claims that a tobacco company should have
included truthful material in its advertising and promotional
statements. The first category of claims is preempted, because it
is little more than a requirement that additional warnings be
included in advertising and promotional materials. See id. at
527, 112 S.Ct. 2608. The same would be true of claims that
faulted a tobacco company for issuing ads that neutralize the
effect of federally-mandated warnings. See id. The second and
third categories of claims however, are not preempted. The Court
reasoned that a state-law duty to disclose certain facts by means
other than advertising and promotion would not conflict with the
federal statute. See id. at 528, 112 S.Ct. 2608. Likewise, an
allegation that a tobacco company has included false statements
in its advertising and promotional materials is based not on a
duty related to smoking and health, "but rather on a more general
obligation: the duty not to deceive." Id. at 528-29, 112 S.Ct.
Plaintiffs' complaint incorporates two kinds of fraud claims.
The first is that RJR actively concealed research results
demonstrating the health risks associated with smoking. Yet
Plaintiffs fail to identify in either their complaint, proposed
amended complaint, or opposition papers to summary judgment what
state-law duty existed that would have required RJR to reveal
such information through means other than advertising. Such
identification is necessary to save the claim from pre-emption.
See id. at 528, 112 S.Ct. 2608 ("Petitioner's claims that
respondents concealed material facts are therefore not preempted
insofar as those claims rely on a state-law duty to disclose
such facts through channels of communication other than
advertising or promotion.") (emphasis added). Otherwise, the
complaint reads as if RJR should have made its disclosures
through ads or promotional statements. As previously noted, the
Cipollone Court held such a cause of action to be preempted by
federal law. See id. at 527, 112 S.Ct. 2608. Consequently, to
the extent Plaintiffs' complaint faults RJR for concealing
information, it is preempted with respect to RJR's actions taken
after the enactment of the 1969 amendments.
Preemption however, does not apply to Plaintiffs' claim
alleging that RJR made false statements and misled Mr. Tompkins'
through its advertising and promotions. The Supreme Court made
clear that the Federal Cigarette Labeling and Advertising Act
"does not encompass the more general duty not to make fraudulent
statements." Id. at 529, 112 S.Ct. 2608. Other
courts have followed suit. See, e.g., Magnus v. Fortune Brands,
41 F. Supp.2d 217, 223 (E.D.N.Y. 1999) ("Since plaintiffs' [fraud
and deceit] claim relies on allegations that defendants actively
disseminated deceptive information, it is predicated on a duty
not to deceive . . ., and it, too, survives under Cipollone.").
2. Whether Plaintiffs have failed to show reasonable reliance
To prove intentional misrepresentation and fraud, Plaintiffs
must show: (1) representation of material fact; (2) falsity; (3)
scienter; (4) reasonable reliance; and (5) damages. See Small,
679 N.Y.S.2d at 604. Even with the proposed particularized
amended pleadings offered by Plaintiffs, which identify specific
ads and promotional materials upon which Mr. Tompkins is said to
have relied, RJR claims there is an absence of evidence to
establish the fourth element of reasonable reliance. It cites
deposition testimony to show that Mr. Tompkins never discussed
RJR advertising or promotions with his wife, children, sisters or
co-workers. See Dep. of Joann Tompkins (wife), at 194-95,
197-98; Dep. of Stephen Tompkins (son), at 64; Dep. of Shirley
Phelps (daughter), at 25, 58; Dep. of Linda Mattson (daughter),
at 52-53; Dep. of Richard Tompkins (son), at 44-46; Dep. of Mary
Jane Lundy (sister), at 57, 70; Dep. of Lenora Tompkins (sister),
at 19, 30-31; Dep. of William Harrower (co-worker), at 12; Dep.
of Kenneth Sutfin (co-worker), at 37. RJR argues that Plaintiffs
have no other evidence to suggest Mr. Tompkins either saw or
relied upon the advertisements identified by Plaintiffs.
With RJR having met its burden to show the absence of a genuine
issue of material fact, Plaintiffs must point to specific
evidence creating a genuine issue for a factfinder to decide.
See Urena v. Biro Mfg. Co., 114 F.3d 359, 362 (2d Cir. 1997).
Plaintiffs resort to the following circumstantial evidence.
First, they claim Mr. Tompkins would repeat statements that Camel
cigarettes had a better taste of flavor and were a "real"
cigarette. Yet even assuming such representations to be true,
Plaintiffs never identify any RJR advertisement or promotion
incorporating these sayings. Second, Plaintiffs highlight that
Mr. Tompkins read Look Magazine and the Ithaca Journal, in
which RJR advertised Camel cigarettes. Again however, Plaintiffs
fail to provide any link between Mr. Tompkins having read those
publications and his having read and relied upon the RJR ads
contained within. In fact, Plaintiffs' brief states only that Mr.
Tompkins "had occasion to see" and "had access" to RJR
The Appellate Division, First Department has made clear that
"individualized proof of reliance is essential to [a] cause of
action . . . for common-law fraud." Small, 252 A.D.2d at 8,
679 N.Y.S.2d 593. In Small, the smoker plaintiffs' fraud claim
against cigarette manufacturers was dismissed because the
complaint contained no facts to suggest that reliance had
occurred. Simply having "read news periodicals during the time
period the alleged misrepresentations were made . . . falls far
short of proving [the plaintiff] actually relied upon them."
Id. at 16, 679 N.Y.S.2d 593 (quoting Allgood v. R.J. Reynolds
Tobacco Co., 80 F.3d 168, 171 (5th Cir. 1996)).*fn5 The Fifth
Circuit in Allgood granted summary judgment to the defendants
on the plaintiffs' fraud claim because the evidence showed only
that the deceased smoker had read publications containing
as opposed to having either read or relied upon the ads. See 80
F.3d at 171. Plaintiffs' evidence in the case at hand shows
little more. In addition, RJR emphasizes that some of the ads
submitted by Plaintiffs were published when Mr. Tompkins was in
the Army or in prison, and no proof has been offered to show that
Mr. Tompkins read the Ithaca Journal or Look Magazine at
The Allgood court further noted that the plaintiffs' expert
witness testified that only an immediate and personal
life-threatening situation would have caused the smoker to stop
smoking, and the smoker's wife testified at her deposition that
no amount of warning could induce her husband to quit. See id.
at 171-72. Likewise, Mr. Tompkins' wife testified that cigarette
advertising did not influence her husband's decision to smoke.
See Dep. of Joann Tompkins, at 195-97. Mrs. Tompkins also
testified that she thought her husband would be encouraged to
quit "when he felt [cigarettes] were really, really a hazard to a
person's health," and that he did not personalize the risks of
smoking. Id. at 106-07.
At oral argument, Plaintiffs' counsel suggested that Allgood
did not provide the proper standard by which to determine whether
adequate proof of reliance had been presented. Counsel encouraged
the Court to look instead to City of New York v. Lead Indus.
Ass'n, Inc., 241 A.D.2d 387, 660 N.Y.S.2d 422 (1st Dep't 1997).
In that case, the Appellate Division, First Department affirmed
the lower court's ruling that "a showing of direct reliance is
not necessary where it is claimed that the defendant marketed a
product it actually knew to be unsafe without warning of the
dangers it knew to be inherent in the product." 241 A.D.2d at
387, 660 N.Y.S.2d 422.
Nevertheless, this standard is not controlling in the case
presently before the Court. Lead Industries involved lead paint
and abatement costs, whereas Plaintiffs' case involves cigarette
smoking. This distinction is important, because the First
Department issued the opinions in both Lead Industries and
Small. Had the appellate court intended to apply the same
standard in both kinds of cases, it could have done so. Equally
important is the fact that Small was decided after Lead
Industries This sequence of events means that Lead Industries
was available as precedent to the First Department when it
decided Small, but the court instead chose to employ an
individualized standard of direct reliance in fraud cases against
tobacco companies for their smoking advertisements. For these
reasons, Small governs this Court's analysis.
With Plaintiffs having failed to establish that Mr. Tompkins
relied on any RJR advertising or promotional statements in
deciding whether to smoke, summary judgment must be granted to
RJR on the intentional misrepresentation and fraud claims.*fn6
B. Strict Liability — Design Defect: Whether Camel cigarettes
were "not reasonably safe"
RJR moves for summary judgment on the basis that Plaintiffs
cannot produce sufficient evidence to meet their burden of
proving that Camel cigarettes are not reasonably safe. Under New
York law, RJR will be strictly liable for a design defect if:
"(1) the product is `defective' because it is not
reasonably safe as marketed; (2) the product was used
for a normal purpose; (3) the defect was a
substantial factor in causing the plaintiffs
injuries; (4) the plaintiff by the exercise of
reasonable care would not have both discovered the
defect and apprehended its danger; (5) the plaintiff
would not have otherwise avoided the injury by the
exercise of ordinary care."
Urena, 114 F.3d at 363. To establish a prima facie case,
Plaintiffs must show that "the manufacturer breached its duty to
market safe products when it marketed a
product designed so that it was not reasonably safe and that the
defective design was a substantial factor in causing plaintiff's
injury." Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107,
463 N.Y.S.2d 398, 450 N.E.2d 204 (1983).
In New York, the following standard is applied in deciding
whether a product is not reasonably safe: "whether it is a
product which, if the design defect were known at the time of
manufacture, a reasonable person would conclude that the utility
of the product did not outweigh the risk inherent in marketing a
product designed in that manner." Id. at 108, 463 N.Y.S.2d 398,
450 N.E.2d 204 (quoted in Denny v. Ford Motor Co., 87 N.Y.2d 248,
257, 639 N.Y.S.2d 250, 662 N.E.2d 730 (1995)). The burden of
proof rests with Plaintiffs. See Urena, 114 F.3d at 364.
Plaintiffs are "under an obligation to present evidence that the
product, as designed, was not reasonably safe because there was a
substantial likelihood of harm and it was feasible to design the
product in a safer manner." Voss, 59 N.Y.2d at 108, 463 N.Y.S.2d 398,
450 N.E.2d 204 (emphasis added). RJR may produce evidence
showing that utility outweighed risk. See id. Should Plaintiffs
fail to make out a prima facie case of design defect, the claim
need not be submitted to a jury. See Scarangella v. Thomas Built
Buses, Inc., 93 N.Y.2d 655, 659, 695 N.Y.S.2d 520,
717 N.E.2d 679 (N.Y. 1999).
Various factors are considered in the utility/risk balancing
test, such as: (1) the utility of the product to the public as a
whole; (2) the utility of the product to the individual user; (3)
the likelihood that the product will cause injury; (4) the
availability of a safer design; (5) the potential for designing
and manufacturing the product so that it is safer but remains
functional and reasonably priced; (6) the degree of awareness of
the product's potential danger that can be reasonably attributed
to the plaintiff; and (7) the manufacturer's ability to spread
the cost of any safety-related design changes. See Denny, 87
N Y2d at 257, 639 N.Y.S.2d 250, 662 N.E.2d 730; Voss, 59
N Y2d at 109, 463 N.Y.S.2d 398, 450 N.E.2d 204.
Plaintiffs in the instant case argue that RJR's Camel
cigarettes contain a "dangerous nicotine delivery system." Pls.'
Mem. in Opp'n to Mot. for Summ.J., at 17. They further claim they
can prove RJR adds ammonia and carcinogenic chemicals to
cigarette tobacco, thereby making their cigarettes a more
dangerous product for consumers. See id.*fn7 With respect to
the feasibility of a safer design, Plaintiffs rely upon the
expert witness report prepared by Dr. Cummings.*fn8 See App.
to Pls.' Mem. in Opp'n to Summ.J.,
Tab 2, Ex. B. Dr. Cummings describes several alternative
cigarette designs that were available to RJR, including the
Premier and Eclipse cigarette designs tested by RJR in the 1980s
and 1990s. See id. at ¶¶ 4.1-4.7, 6.12.
RJR counters Plaintiffs' expert with a statement prepared by
James Kirby Martin, Ph.D. See App. to Def.'s Mem., Ex. B, Item
3. Dr. Martin cites to evidence indicating that the general
public has been informed about the health risks of smoking since
the turn of the century. Moreover, RJR notes that Plaintiffs'
expert, Dr. Cummings, acknowledges in his report that smokers
generally recognize the health risks of smoking. See App. to
Pls.' Mem., Tab 2, Ex. B, at ¶ 6.14. One of Plaintiffs'
witnesses, David J. Davin, M.D., also testified that the public
has been aware of the health risks of smoking for decades. See
Dep. of David J. Davin, M.D., at 170-71. Finally, Plaintiffs
admit in their response to RJR's Statement of Undisputed Facts
that "the public has been advised about certain risks of smoking
for decades." Pls.' Resp. to Def.'s Rule 7.1(f) Statement of
Undisputed Facts, at ¶ 35; see also id. at ¶ 42.
In addition, Plaintiffs admit that Mrs. Tompkins informed her
husband of the danger of smoking throughout their marriage,
referred to cigarettes as "coffin nails" in the 1960s, referred
to cigarettes as "cancer sticks" in the 1970s, and discussed the
1964 Surgeon General's report on smoking and health with her
husband. See id. at ¶¶ 20, 23, 25. Furthermore, two doctors
told Mr. Tompkins to quit because of health problems due in part
to smoking. See id. at ¶¶ 33, 34.
With respect to safer designs, Plaintiffs provide only that
"[a] safer, feasible alternative cigarette design was available
to [RJR] since at least the 1950s." Id. at ¶ 12. Dr. Cummings'
report focuses on research available from the 1950s. See App.
to Pls.' Mem., Tab 2, Ex. B, at ¶¶ 4.1, 4.3-4.3. Yet Plaintiffs
seek to recover for injuries to Mr. Tompkins as far back as the
late 1930s. Nor do Plaintiffs ever discuss the cost of
manufacturing or marketing an alternative design, or whether an
alternative product would be profitable for any company.
Plaintiffs' admission of public awareness about the risks of
smoking, along with the warnings made directly to Mr. Tompkins,
undermines any conclusion that Mr. Tompkins was not reasonably
aware of the dangers of cigarettes. Equally important, Plaintiffs
have failed to meet their burden pertaining to evidence of a
feasible, alternative design. For these reasons, summary
judgment is granted to RJR on the strict liability design defect
C. Strict Liability — Failure to Warn*fn10
1. Whether Plaintiffs' claim for failure to warn is preempted
by the Federal Cigarette Labeling and Advertising Act
The Supreme Court, in determining the extent of the preemptive
effect of the Federal Cigarette Labeling and Advertising Act,
held that a failure to warn claim is preempted insofar as it
requires a showing that a manufacturer's advertisements or
promotions should have included additional or clearer warnings.
See Cipollone, 505 U.S. at 524, 112 S.Ct. 2608. Yet such a
claim would not be preempted to the extent that it related to a
manufacturer's actions that have no connection to advertising or
promotion. See id. at 524-25, 112 S.Ct. 2608.
Plaintiffs' complaint does not delineate the basis for its
failure to warn claim, which makes it difficult to determine
whether preemption applies. Yet Plaintiffs in their brief state
that their duty to warn claim prior to 1969 is not preempted.
See Pls.' Mem. in Opp'n to Mot. for Summ. J., at 25. This
assertion implicitly acknowledges that the federal statute
preempts their claim after 1969, such that the Court finds
2. Whether Plaintiffs can show that RJR had a duty to warn
prior to 1969
RJR believes it had no duty to warn because the risks of
smoking were "open and obvious" and known through common
knowledge or learning. Furthermore, RJR highlights evidence that
Mr. Tompkins was aware of smoking risks since the 1950s when his
wife began urging him to quit.
A manufacturer has a duty to warn "the appropriate audience of
all potential dangers of which it, through the exercise of
reasonable care, knows or should know." Ellis v. Cardiac
Pacemakers, Inc., No. 96-CV-0535E(F), 1998 WL 401682, at *5
(W.D.N.Y. Jul.17, 1998). Yet there is no duty to warn consumers
of "obvious risks and dangers," which is defined to mean "those
risks and dangers which could have been or should have been
appreciated by the user or that can be recognized as a matter of
common sense." Pigliavento v. Tyler Equip. Corp., 248 A.D.2d 840,
842, 669 N.Y.S.2d 747 (3d Dep't 1998); see also Liriano v.
Hobart Corp., 92 N.Y.2d 232, 241, 677 N.Y.S.2d 764,
700 N.E.2d 303 (1998) (holding that no duty to warn exists when hazards are
known through "general knowledge"); Butler v. Interlake Corp.,
244 A.D.2d 913, 914, 665 N.Y.S.2d 192 (4th Dep't 1997) (same,
although using phrase "common knowledge").
The Court could find no New York case law explicitly addressing
whether "common knowledge" involves a subjective or objective
standard. The New York Court of Appeals in Liriano makes
reference to the actual knowledge of an injured party, but never
expressly rules out the possibility that the general knowledge of
a community may suffice to show no duty to warn.
See 92 N.Y.2d at 241, 677 N.Y.S.2d 764, 700 N.E.2d 303. The use
of the phrase "should have known" in Pigliavento suggests a
plaintiff's actual knowledge is not necessarily determinative.
Likewise, the New York Court of Appeals in Smith v. Stark,
67 N.Y.2d 693, 694, 499 N.Y.S.2d 922, 490 N.E.2d 841 (1986), found
no duty to warn where the plaintiff "must have known" of the
danger presented due to his general knowledge, observations and
"plain common sense." Smith is cited in Liriano. See 92
N Y2d at 241, 677 N.Y.S.2d 764, 700 N.E.2d 303. Moreover, the
Southern District of New York has observed that "the inquiry into
the obviousness of the danger does not turn on the actual
knowledge of the user." Kerr v. Koemm, 557 F. Supp. 283, 287
(S.D.N.Y. 1983) (Leval, J.) (distinguishing exception for
"obvious danger" from exception for "knowledgeable user" and
explaining that the latter requires proof of subjective
knowledge). Consequently, the Court will consider evidence of
what was known generally by the public throughout the time Mr.
Tompkins smoked cigarettes, without limiting its analysis to what
Mr. Tompkins personally may or may not have known.*fn11
Two district courts, in applying state law akin to that of New
York, have refused to take judicial notice that the hazards of
smoking have been common knowledge for decades preceding the 1969
amendments to the Cigarette Labeling and Advertising Act. See
Hill v. R.J. Reynolds Tobacco Co., 44 F. Supp.2d 837, 844
(W.D.Ky. 1999); Burton v. R.J. Reynolds Tobacco Co.,
884 F. Supp. 1515, 1525-26 (D.Kan. 1995). The district court in Hill
[T]he judicial notice inquiry [in this case] would
focus on the state of popular consciousness
concerning cigarettes before 1969. The Court is
simply unwilling to take judicial notice of something
as intangible as public knowledge over three decades
in the past. The exercise seems inherently
speculative and an inappropriate topic for judicial
44 F. Supp.2d at 844. Likewise, in Burton, the district court
refused to find as a matter of law that the dangers of smoking
have been common knowledge since the 1950s. See 884 F. Supp. at
1526. The court, quoting a state court decision, noted that:
"[t]here is no basis for our judicially noticing what
the ordinary consumer's knowledge concerning the
addictive qualities of cigarettes may have been when
[plaintiff] began smoking in 1940. The state of
knowledge attributable to the community of
individuals consuming cigarettes has changed over
time and will continue to do so. It was not until
1988 that the Surgeon General published a report
informing of the addictive nature of cigarettes."
Id. (quoting Rogers v. R.J. Reynolds Tobacco Co.,
557 N.E.2d 1045, 1054 (Ind. App. 1990)) (alterations in original).