Field v. Phillip Morris, U.S. Inc., Civil Action 1:21-CV-00218

DALE P. FIELD, JR., Plaintiff, v. PHILLIP MORRIS, USA, INC., Defendant.

Civil Action No. 1:21-CV-00218

United States District Court, S.D. West Virginia, Bluefield Division

August 10, 2021

PROPOSED FINDINGS AND RECOMMENDATION

OMAR J. ABOULHOSN, UNITED STATES MAGISTRATE JUDGE.

Pending before the Court are Defendant Philip Morris USA Inc.'s Motion to Dismiss Plaintiff's Amended Complaint and Philip Morris USA Inc.'s Memorandum in Support of its Motion to Dismiss Plaintiff's Amended Complaint (ECF Nos. 23 24) filed on June 25, 2021.^[1]By Administrative Order entered on April 12, 2021, this matter was referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 3) Having examined the Amended Complaint and pleadings of record, and having considered the pertinent legal authority, the undersigned has concluded that the Motion to Dismiss should be GRANTED for the reasons stated infra:

Plaintiff's Factual Allegations

Plaintiff filed a multi-count complaint against Defendant:^[2]

For his first claim or count, Plaintiff alleges Defendant was negligent by failing to provide adequate information concerning the additives in its products, which caused “an unnatural and increased addiction” to its products, including Marlboro cigarettes, which Plaintiff has used. (ECF No. 20 at 2) Plaintiff alleges that he suffered from physical, mental, and financial harm as a result of Defendant's negligence because his prolonged use of Defendant's products affected his breathing which prevented him from passing a breathing test in order to pursue opportunities in commercial SCUBA diving. (Id.) Plaintiff alleges that his physician indicated Plaintiff's breathing issues were directly attributed to his use of Defendant's products. (Id.) Plaintiff also alleges that Defendant's use of “hidden additives created an additional hardship financially in that the increasing prices on tobacco products rob the standard individual who is unable to break away from the increased addictiveness of these additives.” (Id.)

For the second count, Plaintiff alleges that Defendant's products are not reasonably safe and are defectively designed - that the additives, unknown to the consumer, causing an increased need or addiction for the products, and in turn spends more money on these products, which further contribute to bodily harm. (Id. at 3)

For the third count, Plaintiff further alleges that Defendant failed to warn consumers of the hidden additives used in its products “that would act against an individual's free will, and create an exhilarated addictiveness beyond that which is nature and normal, the consumer would have had the opportunity to choose an alternative course of action.” (Id. at 4)

For the fourth count, Plaintiff alleges that Defendant breached express warranty by failing to provide a warning and identify certain ingredients on the packaging of its products, harming Plaintiff. (Id.) For the fifth count, Plaintiff alleges Defendant breached implied warranty by implying only tobacco is the only addictive ingredient in its products by failing to include additives that increase the addictive properties of same, causing harm to Plaintiff. (Id at 4-5)

For the sixth count, Plaintiff alleges that Defendant knowingly misrepresented and concealed information concerning the harmful additives in its products. (Id. at 5)

Finally for the seventh count, Plaintiff alleges Defendant committed a “moral wrong” because Plaintiff understandably relied upon the limited information provided on Defendant's packaging, and being unaware of the harmful additives, he was harmed. (Id.) Plaintiff asserts that Defendant “deliberately made the product in a way to mislead the Plaintiff for the sole purpose of profit with total disregard to the health and safety of the public.” (Id.)

Plaintiff seeks $2 million and $50, 000 in punitive damages, plus interest, court costs, filing fees, attorney fees, and any additional fees this Court deems proper. (Id. at 5-6)

Procedural History

On April 12, 2021, Defendant filed its Notice of Removal and Request for Jury Trial (ECF No. 1) following receipt of Plaintiff's complaint in the Circuit Court of McDowell County, West Virginia. Subsequently, on April 16, 2021, Defendant filed its initial Motion to Dismiss and supporting Memorandum (ECF Nos. 5, 6). In accordance with the Roseboro notice^[3] issued by the undersigned (ECF No. 7), after requesting additional time to file a response, Plaintiff filed his Response in opposition to Defendant's Motion to Dismiss on May 17, 2021 (ECF No. 11).^[4]

Having construed Plaintiff's Response as a motion for leave to amend his Complaint, the undersigned entered an Order granting same and directed Plaintiff to file his amended complaint by June 1, 2021 (ECF No. 12). On May 19, 2021, Plaintiff filed a “Motion Requesting Court Recognize [sic] Mailbox Rule” (ECF No. 13).^[5] On June 1, 2021, Plaintiff filed a motion requesting additional time to file his amended complaint (ECF No. 15), which the undersigned granted, allowing Plaintiff until July 1, 2021 to file same (ECF No. 16).

On June 7, 2021, Plaintiff filed his “Motion to Remand Back to the State Circuit Court” (ECF No. 18). On June 11, 2021, Plaintiff filed his Amended Complaint and Demand for Jury Trial as well as a “Request for Waiver of Service” to Defendant (ECF Nos. 20, 21).^[6]

On June 21, 2021, Defendant filed its “Opposition to Plaintiff's Motion to Remand Back to State Court” (ECF No. 22).

On June 25, 2021, Defendant filed its Motion to Dismiss and supporting memorandum (ECF Nos. 23, 24); following the Court's entry of another Roseboro notice to respond to Defendant's Motion by July 12, 2021 (ECF No. 26), Plaintiff filed his “Objections to Order” on July 12, 2021, complaining that he did not receive Defendant's Motion and requested additional time in order to respond (ECF No. 27). Recognizing that Plaintiff had been moved to another institution pursuant to a “Notice of Change of Address and/or Contact Information for Pro Se Litigants” (ECF No. 23) that was docketed on the same day as Defendant's Motion and Memorandum, the Court ordered the Clerk to mail copies of Defendant's Motion and Memorandum to Plaintiff at his most recent address and ordered Plaintiff to file his response by July 30, 2021 (ECF No. 28).

On August 2, 2021, Plaintiff filed his “Response to the Defendant's Motion to Dismiss with Incorporated Memorandum in Support” (ECF No. 29).^[7] Finally, on August 9, 2021, Defendant filed its Reply (ECF No. 30), accordingly, this matter is ripe for decision.

Defendant's Argument in Support of Dismissal

Defendant points out that this action is the fourth such action Plaintiff has filed against Defendant or its parent company in the last two years, and that the prior cases, which are identical to the one at bar, were also dismissed.^[8] (ECF No. 24 at 1-2)

Defendant argues that each of Plaintiff's claims fail as a matter of law: the negligence claim fails because nowhere does he identify what “ingredients” or “additives” were used or establish any causal link between these and his alleged injury (Id. at 4-5); the product design claim fails as a matter of law as he fails to identify any particular defect or any deficiencies in the packaging warning labels (Id. at 5-6); the failure to warn claim fails as a matter of law as it is nothing more than a legal conclusion without any supporting factual details (Id. at 6-7); the fraud-based claims are not supported by any particular circumstances of the alleged fraud required by this Circuit's jurisprudence and Rule 9(b) of the Federal Rules of Civil Procedure (Id. at 7-8); the breach of express warranty claim fails because Plaintiff fails to establish any facts supporting the existence of an express warranty, let alone a breach of same (Id. at 8); and the breach of implied warranty claim fails, as Plaintiff alleged no facts relevant to his implied warranty claim, however, West Virginia's implied warranty statute does not provide for a cause of action where the product's only function is to be smoked and the plaintiff admits he smoked it (Id. at 8-9).

Defendant further argues that Plaintiff's complaint appears to allege that Defendant should be held liable for manufacturing and selling cigarettes and for complying with the federal Labeling Act, which would render his claims preempted by federal law. (Id. at 9) To the extent Plaintiff's claims are solely based on the fact that cigarettes contain nicotine and can be addictive, numerous courts have found such claims are preempted. (Id. at 10) Further, since July 1, 1969, the Labeling Act preempts tort claims premised on state law duties to warn or provide information relating to smoking and health, thus to the extent Plaintiff has alleged Defendant failed to warn of the harmful nature of smoking, this claim is preempted. (Id. at 10-12)

Defendant asks this Court to dismiss Plaintiff's Complaint. (Id. at 12)

Plaintiff's Response in Opposition

Regarding his negligence claim, Plaintiff concedes he does not identify the specific ingredients or additives, however, Defendant is aware of them, and Plaintiff described them with enough factual detail in support of his claim. (ECF No. 29 at 3) The U.S. Supreme Court ordered that the public be made aware of which additives were used to increase the addictiveness of Defendant's products. (Id.)

Plaintiff contends that he met the requirements to properly allege a failure to warn claim, which is “further supported by the Order of the Supreme Court to properly warn the public of the use of these additives. The warning would have never been made if there...