Bougopoulos v. Altria Grp., Inc.

954 F.Supp.2d 54

George C. BOUGOPOULOS

v.ALTRIA GROUP, INC. et al.

Civil No. 12–cv–338–JD.

United States District Court, D. New Hampshire.

June 18, 2013.

John James Washburn, John Washburn Attorney at Law, Nashua, NH, for George C. Bougopoulos.

Robert A. McCarter, III, Shook Hardy & Bacon LLP, Washington, DC, Scott D. Kaiser, Shook Hardy & Bacon PC, Kansas City, MO, Wilbur A. Glahn, III, McLane Graf Raulerson & Middleton, Manchester, NH, Christopher M. Morrison, Kristin D. Casavant, Jones Day, Boston, MA, David K. Pinsonneault, Winer & Bennett, Nashua, NH, Mark A. Belasic, Jones Day, Cleveland, OH, Mark R. Seiden, Jones Day, New York, NY, for Altria Group, Inc. et al.

ORDER

JOSEPH A. DiCLERICO, JR., District Judge.

George Bougopoulos sued Altria Group, Inc. (“Altria”), Philip Morris USA Inc. (“Philip Morris”), and R.J. Reynolds Tobacco Company, Inc. (“R.J. Reynolds”), alleging claims for products liability; negligence; negligent misrepresentation; fraudulent misrepresentation; violation of New Hampshire's Consumer Protection Act, RSA 358–A:2; and violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq., arising out of Bougopoulos's injuries from smoking cigarettes manufactured by the defendants. The defendants move to dismiss all claims other than the misrepresentation claims. Bougopoulos objects to the motion.

Background

Bougopoulos alleges that he began smoking cigarettes in 1960 when he was thirteen years old. At first, Bougopoulos smoked Lucky Strike Cigarettes, which were manufactured and marketed by R.J. Reynolds. A few years later, addicted to nicotine, Bougopoulos started smoking Marlboro cigarettes, which were marketed and manufactured by Philip Morris Companies Inc., the predecessor to Altria and Philip Morris. Bougopoulos alleges that the defendants focused their marketing for both brands of cigarettes on getting young people, such as him, to smoke.

Bougopoulos alleges that he was addicted to smoking before the appearance of the first warning label on cigarette boxes in 1966. He also alleges that he continued smoking for his entire life despite those warnings and the possible health risks associated with cigarettes because of “his nicotine addiction and the contrary publicity generated by Defendants and organizations which they created and supported.”

Bougopoulos alleges that the defendants made several misrepresentations throughout the 1950s, 1960s, and 1970s about the health risks related to smoking cigarettes and the addictive properties of nicotine. He further alleges that the defendants manipulated the nicotine in their cigarettes to make the cigarettes more addictive.

In March 2011, Bougopoulos was diagnosed with Chronic Obstructive Pulmonary Disease (“COPD”). He alleges that COPD “is caused by noxious particles or gas from tobacco smoking which triggers an abnormal inflammatory response in the lung.” Bougopoulos alleges that because of his COPD, he can no longer work or travel, and requires an oxygen tank to help him breathe.

Standard of Review

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must determine whether the facts alleged, when taken as true and in the light most favorable to the plaintiff, state a claim on which relief can be granted. Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir.2009). Under the notice pleading standard of Federal Rule of Civil Procedure 8(a)(2), a plaintiff need provide only a short and plain statement that provides enough facts “ ‘to raise a right to relief above the speculative level ....’ ” Ocasio–Hernandez v. Fortuno–Burset, 640 F.3d 1, 12 (1st Cir.2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The court takes the well-pled allegations as true, views all of the facts in the light most favorable to the non-moving party, and determines whether the complaint alleges facts to support a claim “that is plausible on its face.” Downing v. Globe Direct LLC, 682 F.3d 18, 22 (1st Cir.2012) (internal citation and quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Discussion

Bougopoulos brings the following claims: Count I—“Products Liability—Strict Liability”; Count II—“Products Liability—Misrepresentation by Seller of Chattels to Consumer”; Count III—“Products Liability—Supply of Chattels Unlikely to be Made Safe for Use”; Count IV—“Negligence”; Count V—“Negligent Misrepresentation”; Count VI—“Fraudulent Misrepresentation/ Deceit”; Count VII—“New Hampshire Consumer Protection Act RSA Chapter 358–A et seq.”; and Count VIII—“Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C. §§ 1962(a)(b)(c) and (d); 1964(a); 1964(c).” The defendants move to dismiss Counts I, II, III, IV, VII, and VIII.

A. Count I—Products Liability—Strict Liability

New Hampshire follows the Restatement (Second) of Torts, § 402A, for strict liability. Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 824, 891 A.2d 477 (2005). “Under the doctrine of strict liability, one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer.” Id. (internal quotation marks omitted).

“ ‘[T]he basis of any claim involving products liability [ ] is an allegation of a defect associated with the product, which makes the product unreasonably dangerous, and causes the injury for which recovery is sought.’ ” Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H., 822, 825–26, 713 A.2d 381 (1998) (quoting Gianitsis v. Am. Brands, Inc., 685 F.Supp. 853, 856 (D.N.H.1988)). In other words, to maintain a claim for strict products liability, a plaintiff must show that a defect in the product caused the product to be unreasonably dangerous and caused the plaintiff's injury. See Buckingham, 142 N.H. at 826, 713 A.2d 381 (“ ‘The rule stated in [§ 402A] applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer.’ ”) (quoting § 402A cmt. i); see also Gianitsis, 685 F.Supp. at 857 (“[A] claimant must establish that it is a product's defective condition which causes the product to be unreasonably dangerous.”).

A plaintiff cannot maintain a strict liability claim against cigarette manufacturersbased on allegations that all cigarettes are inherently defective. See Buckingham, 142 N.H. at 826, 713 A.2d 381;see also § 402A cmt. i (“Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous.”). Instead, a plaintiff must “allege that something is wrong with the” defendant's cigarettes. Buckingham, 142 N.H. at 826, 713 A.2d 381.

The defendants argue that Bougopoulos's strict products liability claim fails for several reasons. They argue that nicotine is found in every cigarette and is naturally addictive, and, therefore, manipulated nicotine designed to enhance addiction cannot be considered a product defect. They further argue that even if manipulated nicotine could be considered a product defect, Bougopoulos has not alleged that the manipulated nicotine itself made the cigarettes unreasonably dangerous or caused his injury. The defendants further contend that the claim is preempted by federal law.

1. Product defect

The defendants concede that Bougopoulos “has superficially pled an alleged defect” by alleging that the defendants' cigarettes “contained manipulated nicotine.” Defts. Mot. to Dismiss at 7. They also argue, however, that an allegation of manipulated nicotine cannot be the basis of a design defect in a strict products liability action. The defendants cite Pooshs v. Philip Morris USA, Inc., 904 F.Supp.2d 1009 (N.D.Cal.2012) and Johnson v. Brown & Williamson Tobacco Corp., 345 F.Supp.2d 16 (D.Mass.2004), in support of their argument.

In Pooshs, the plaintiff brought a defective design claim against certain cigarette manufacturers, alleging that the defendants' cigarettes were defectively designed because they contained manipulated nicotine. The court granted the defendants' motion for summary judgment as to the defective design claim, holding that “the plaintiff has not met her burden of showing, through admissible evidence, that it was the particular design of defendants' cigarettes that caused her lung cancer.” Pooshs, at 1025.

In Johnson, the plaintiff brought a defective design claim against a cigarette manufacturer alleging that the defendant “manipulated the nicotine levels of its cigarettes in a manner that would be sufficient to create and sustain an addiction.” Johnson, 345 F.Supp.2d at 19 (internal quotation marks omitted). The court granted the defendant's motion for summary judgment because the plaintiff's expert's “declarations [were] utterly devoid of particulars concerning the methods, levels or effects or any enhancements or manipulations” to the nicotine. Id. at 20. The court further held that the plaintiff “failed to demonstrate how manipulation of nicotine levels could be considered a design defect” because smokers would adjust their smoking to receive the desired dose.

Neither Pooshs nor Johnson supports the defendants' argument that manipulated nicotine cannot be considered a design defect for a strict products liability claim. The courts in Pooshs and Johnson granted the defendants' motions for summary judgment because the plaintiffs had failed to provide sufficient evidence to support their claims. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and a motion for summary judgment under Federal Rule of Civil Procedure 56, however, seek different remedies based on different standards. SeeFed.R.Civ.P. 12(b)(6); Fed.R.Civ.P. 56; see also Trans–Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.2008) (discussing...