Opinion
Civil Action 4:22-cv-1244-TLW-TER
07-26-2023
HENRY LEE BRADLEY, Plaintiff, v. R.J. REYNOLDS TOBACCO COMPANY, INC., BROWN & WILLIAMSON TOBACCO CORPORATION, THE AMERICAN TOBACCO COMPANY, LORILLARD TOBACCO COMPANY, and PHILLIP MORRIS USA, INC., Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action arising from injuries he allegedly sustained as a result of his almost-thirty years of tobacco use. He alleges causes of action for (1) intentional fraud, (2) intentional fraudulent misrepresentation, (3) intentional fraud in the inducement, (4) civil conspiracy to commit fraud and concealment, (5) negligent failure to warn, (6) negligence/gross negligence, and (7) radio, television, and wire communication fraud. Presently before the court is Defendant R.J. Reynolds Tobacco Company, Inc.'s Motion to Dismiss (ECF No. 21). Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to Defendant's motion could result in the motion being granted and his claims dismissed. Plaintiff timely filed a Response (ECF No. 25). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02 (B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
Defendant R.J. Reynolds Tobacco Company brings this motion on behalf of itself, individually, and as successor-by-merger to Defendant Lorillard Tobacco Company and as successor-in-interest to the U.S. tobacco business of Defendant Brown & Williamson Tobacco Corporation. Further, as acknowledged in Plaintiff's complaint, Defendant The American Tobacco Company “merged” with Defendant Brown & Williamson Tobacco Corporation. Compl. p. 11. There is no evidence in the record that Defendant Phillip Morris USA, Inc. has been served in this action.
II. FACTUAL ALLEGATIONS
Plaintiff alleges that he started smoking at the age of fifteen in 1972 after seeing various actors and actresses doing so on TV. Compl. p. 8 (ECF No. 1). He alleges that he was unaware of the health risks of smoking until October 10, 2021, when he became aware of smoking's dangers when he read an article entitled “Big Tobacco to Rule Ads in Newspapers and on TV, Admitting Their Lies.” Compl. p. 6. Plaintiff alleges that Defendants knew their tobacco products were harmful and caused various health hazards but took affirmative steps to conceal these health hazards from the public. Compl. pp. 14-15. Plaintiff sets forth a list of alleged false advertisements and/or statements by Defendants regarding the safety of tobacco products, beginning in 1951 through 2004. Compl. pp. 16-24. He alleges that he quit smoking cigarettes “on/or about 2000.” Compl. p. 9. Plaintiff does not allege when he was first injured as a result of his smoking, though he does allege that he has “suffered and sustained damages for over more [sic] than 40 (forty) years.” Compl. p. 46. Plaintiff alleges he has suffered from “shortness of breath, phlegm increase, wheezing, chronic coughing, periodontal tooth loss, heart skipping, lung infection, poor blurry vision, difficult [sic] of breathing, chronic sinusitis, throat irritation, throat scratching, difficult [sic] of swallowing food, headaches” and “anxiety, fatigue, discomfort, fear of contracting cancer, disappointment, frustration, embarrassment, inconveien[ce], humiliation, loss of enjoyment of life, ... and taking life-time medication, loss weight.” Compl. pp. 36, 43, 45.
III. STANDARD OF REVIEW
Defendant moves to dismiss Plaintiff's causes of action pursuant to Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.”
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).
IV. DISCUSSION
Defendant Reynolds argues that dismissal of Plaintiff's claims is proper because (1) Plaintiff's negligence claims are preempted to the extent they are based on alleged failure to warn, (2) the fraud and negligence claims are time-barred because the exercise of reasonable diligence should have revealed the cause of his alleged injuries, and (3) Plaintiff fails to state a cognizable claim for fraud or wire fraud.
A. Preemption
The Public Health Cigarette Smoking Act of 1969 provides, “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 in conformity with the provisions of this chapter.” 15 U.S.C. § 1334. The United States Supreme Court has concluded that the statute preempts state law failure to warn claims arising out of the advertising or marketing of cigarettes. Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 524 (1992); but see Aldana v. RJ Reynolds Tobacco Co., No. C/A No. 2:06-3366 CWH, 2007 WL 3020497, at *4 (D.S.C. Oct. 12, 2007) (“The Act does not preempt claims that a cigarette manufacturer affirmatively engaged in deceit by concealing material facts that it had a duty to disclose through some means other than advertising or promotion. Nor does the Act preempt fraud, even if those fraudulent statements are made in advertisements.”) (internal citations omitted). Here, Plaintiff makes no allegation that the defendants' packaging after 1969 failed to comply with the Act. Consequently, Plaintiff's failure to warn claim is preempted by federal law and should be dismissed. See, e.g., Waterhouse v. R.J. Reynolds Tobacco Co., 162 Fed.Appx. 231, 233 n.* (4th Cir. 2006) (noting that the district court dismissed the plaintiff's failure to warn claim pursuant to Rule 12(b)(6) because it was preempted by the Act).
Plaintiff alleges that he began smoking cigarettes in 1972.
B. Statute of Limitations
Defendant argues that Plaintiff's state law claims are also barred by the statute of limitations. Statute of limitations defenses are ordinarily not considered in the context of a motion to dismiss. Edwards v. City of Goldsboro, 178 F.3d 231,243 (4th Cir. 1999); Miller v. Pac. Shore Funding, 224 F.Supp.2d 977, 985 (D. Md. 2002), aff'd, 92 Fed.Appx. 933 (4th Cir. 2004). However, “[w]hen it appears on the face of the complaint that the limitation period has run, a defendant may properly assert a limitations defense through a Rule 12(b)(6) motion to dismiss.” Miller, 224 F.Supp.2d at 985.
A motion to dismiss filed under Federal Rule of Procedure 12(b)(6) ...generally cannot reach the merits of an affirmative defense, such as the defense that the plaintiff's claim is time-barred. But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense “clearly appear[ ] on the face of the complaint.”Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.1993)). “To require otherwise would require a plaintiff to plead affirmatively in his complaint matters that might be responsive to affirmative defenses even before the affirmative defenses are raised.” Goodman, 494 F.3d at 466. However, in the present case, Plaintiff clearly anticipates a statute of limitations problem because he spends a good portion of his complaint (pp. 27-37) addressing the tolling doctrines of equitable estoppel and fraudulent concealment.
The statute of limitations for personal injury claims based on fraud or negligence in South Carolina is three years. S.C. Code Ann. § 15-3-530(5), (7). For fraud claims, the statute of limitations “does not begin to run until discovery of the fraud itself or of such facts as would have led to the knowledge thereof, if pursued with reasonable diligence.” Burgess v. Am. Cancer Soc., SC Div., Inc., 300 S.C. 182, 185, 386 S.E.2d 798, 799 (Ct. App. 1989) (citations omitted); S.C. Code Ann. § 15-3-530(7). Likewise, the limitations period for negligence claims begins to run after the plaintiff knows or should have known through the exercise of reasonable diligence that he had a cause of action. S.C. Code Ann. §§ 15-3-535 (codifying South Carolina's “discovery” rule).
The South Carolina Supreme Court has explained the “reasonable diligence” standard of the discovery rule as follows:
[T]he exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist. The statute of limitations begins to run from this point and not when advice of counsel is sought or a full-blown theory of recovery developed.Little v. Brown & Williamson Tobacco Corp., 243 F.Supp.2d 480, 486 (D.S.C. 2001) (quoting Wiggins v. Edwards, 314 S.C. 126, 128, 442 S.E.2d 169, 170 (1994)); see also Walbeck v. I'On Co., LLC, 426 S.C. 494, 519, 827 S.E.2d 348, 361 (Ct. App. 2019) (“The ‘exercise of reasonable diligence' means ‘the injured party must act with some promptness [when] the facts and circumstances of an injury place a reasonable person of common knowledge and experience on notice that a claim against another party might exist.'” (quoting Dean v. Ruscon Corp., 321 S.C. 360, 363-64, 468 S.E.2d 645, 647 (1996))); Burgess, 300 S.C. at 185, 386 S.E.2d at 799 (“In applying the discovery rule, inquiry is focused upon whether the complaining party acquired knowledge of any existing facts ‘sufficient to put said party on inquiry which, if developed, will disclose the alleged fraud.'” (quoting Walter J. Klein Co. v. Kneece, 239 S.C. 478, 483, 123 S.E.2d 870, 874 (1962))).
“‘This standard as to when the limitations period begins to run is objective rather than subjective.'” Stokes-Craven Holding Corp. v. Robinson, 416 S.C. 517, 526, 787 S.E.2d 485, 489 (2016) (quoting Burgess, 300 S.C. at 186, 386 S.E.2d at 800); see also Majstorich v. Gardner, 361 S.C. 513, 520, 604 S.E.2d 728, 732 (Ct. App. 2004) (“‘The date on which discovery should have been made is an objective, not subjective, question.'” (quoting Young v. S.C. Dep't of Corr., 333 S.C. 714, 719, 511 S.E.2d 413, 416 (Ct. App. 1999))).
“In other words, whether the particular plaintiff actually knew he had a claim is not the test. Rather, courts must decide whether the circumstances of the case would put a person of common knowledge and experience on notice that some right of his has
been invaded, or that some claim against another party might exist.”Majstorich, 361 S.C. at 520, 604 S.E.2d at 732 (quoting Young, 333 S.C. at 719, 511 S.E.2d at 416) (emphasis added). Thus, “‘the statutory period of limitations begins to run when a person could or should have known, through the exercise of reasonable diligence, that a cause of action might exist in his or her favor, rather than when a person obtains actual knowledge of either the potential claim or of the facts giving rise thereto.'” Stokes-Craven, 416 S.C. at 526, 787 S.E.2d at 489 (quoting Burgess, 300 S.C. at 186, 386 S.E.2d at 800). Accordingly, courts typically focus on the date of injury as a starting point to determine when a plaintiff could or should have known he had a cause of action to start the statute of limitations clock. See, e.g., Little, 243 F.Supp.2d at 486 (“The important date under the discovery rule is the date that a plaintiff discovers the injury, not the date of the discovery of the identity of another alleged wrongdoer. If, on the date of injury, a plaintiff knows or should know that she had some claim against someone else, the statute of limitations begins to run for all claims based on that injury.” (quoting Wiggins, 314 S.C. at 128, 442 S.E.2d at 170)); Dillon Cty. Sch. Dist. No. Two v. Lewis Sheet Metal Works, Inc., 286 S.C. 207, 215, 332 S.E.2d 555, 559 (Ct. App. 1985), overruled on other grounds by Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 462 S.E.2d 858 (1995) (“Under the discovery rule, the statute does not begin to run from the date the negligent act or the breach of contract occurred; rather, the statute runs from the date the injury resulting from the wrongful conduct either is discovered or may be discovered by the exercise of reasonable diligence.”). “‘Moreover, the fact that the injured party may not comprehend the full extent of the damage is immaterial.'” Allwin v. Russ Cooper Assocs., 426 S.C. 1, 13, 825 S.E.2d 707, 713 (Ct. App. 2019) (quoting Dean, 321 S.C. at 363-64, 468 S.E.2d at 647). Consequently, “the discovery rule does not ‘require absolute certainty [that] a cause of action exists before the statute of limitations begins to run.'” Walbeck, 426 S.C. at 520, 827 S.E.2d at 361 (quoting Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 126, 542 S.E.2d 736, 741 (Ct. App. 2001)).
In the present case, as stated above, Plaintiff does not specifically allege a date when he first began to suffer injuries as a result of Defendants actions. However, he alleges that he quit smoking cigarettes “on/or about 2000,” Compl. p. 9, and that he has “suffered and sustained damages for over more [sic] than 40 (forty) years.” Compl. p. 46. “[T]he facts and circumstances of [Plaintiff's] injury would [have] put a person of common knowledge and experience on notice” that his injuries may have been caused by his smoking such that a cause of action against Defendants might exist. Little, 243 F.Supp.2d at 486 (quoting Wiggins, 314 S.C. at 128, 442 S.E.2d at 170). As noted above, “the discovery rule does not ‘require absolute certainty [that] a cause of action exists before the statute of limitations begins to run.'” Walbeck, 426 S.C. at 520, 827 S.E.2d at 361 (quoting Bayle, 344 S.C. at 126, 542 S.E.2d at 741) (emphasis added).
Although Plaintiff alleges that he was not aware of the health dangers of smoking until October 10, 2021, that allegation is unveiling to the statute of limitations defense because “[a] party cannot escape the application of [the discovery] rule by claiming ignorance of existing facts and circumstances, because the law also provides that if such facts and circumstances could have been known to the party through the exercise of ordinary care and reasonable diligence, the same result follows.” Burgess, 300 S.C. at 185, 386 S.E.2d at 799 (citing Tucker v. Weathersbee, 98 S.C. 402, 408-09, 82 S.E. 638, 640 (1914)). The discovery rule is not based on when Plaintiff himself realized the existence of his claims, but when a person of common knowledge exercising reasonable diligence could have done so. Id.; Majstorich, 361 S.C. at 520, 604 S.E.2d at 732 (noting “whether the particular plaintiff actually knew he had a claim is not the test[;] [r]ather, courts must decide whether the circumstances of the case would put a person of common knowledge and experience on notice that some right of his has been invaded, or that some claim against another party might exist”). As this court has previously noted, at least by 1988 “all the risks associated with cigarette smoking were known to the ordinary consumer with ordinary knowledge common to the community.” Little, 243 F.Supp.2d at 494. Accordingly, given Plaintiff's alleged 40 years of suffering from cigarette-related injuries, the statute of limitations on his fraud and negligence claims has long expired.
Further, despite Plaintiff's arguments to the contrary, the doctrines of equitable estoppel and fraudulent concealment do not apply here. The doctrine of equitable estoppel provides that “[a] defendant may be estopped from claiming the statute of limitations as a defense if delay in bringing the action was induced by the defendant's conduct.” Am. Legion Post 15 v. Horry Cty., 381 S.C. 576, 584, 674 S.E.2d 181, 185 (Ct. App. 2009) (citing Wiggins v. Edwards, 314 S.C. 126, 130, 442 S.E.2d 169, 171 (1994)). “Such inducement may consist either ‘of an express representation that the claim will be settled without litigation or conduct that suggests a lawsuit is not necessary.'” Black v. Lexington Sch. Dist. No. 2, 327 S.C. 55, 61, 488 S.E.2d 327, 330 (1997) (quoting Wiggins v. Edwards, 314 S.C. 126, 130, 442 S.E.2d 169, 171 (1994)). Plaintiff makes no argument in his complaint or in response to the motion to dismiss that Defendants in any way induced Plaintiff to delay bringing an action against them. Fraudulent concealment applies when a a defendant engages in “[d]eliberate acts of deception ... calculated to conceal from a potential plaintiff that he has a cause of action....” Doe v. Bishop of Charleston, 407 S.C. 128, 140, 754 S.E.2d 494, 500-01 (2014). Although Plaintiff alleges numerous acts of concealment by Defendants over the years, all alleged acts occurred between 1951 and 2004. Compl. pp. 16-24. Plaintiff alleges no acts of fraud or concealment after 2004. Thus, even if the statute of limitations would be tolled by such acts, such tolling would have ended by 2004 and the present claims for fraud and negligence are still time- barred. For these reasons, Plaintiff's state law claims of negligence (to the extent not preempted as discussed above) and fraud are barred by the statute of limitations.
C. Failure to State a Claim
Defendants also argue that Plaintiff fails to state a claim for fraud and wire fraud. Plaintiff refers to a claim for “Radio, Television, and Wire Communication Fraud,” Compl. pp. 5, 39, 47, but provides few allegations regarding such a claim. Nevertheless, no private right of action exists for wire fraud. See Tribble v. Reedy, 888 F.2d 1387, *1 (4th Cir. 1989) (holding that § 1343 is a “bare criminal statute” and provides no basis for a private right of action); Uhre v. Emmett A. Larkin Co., 205 F.Supp.2d 475, 478 (D. Md. 2002). Accordingly, dismissal of this claim is appropriate.
Plaintiff cites to “Title 28 U.S.C.A. of section 1343, of Radio, Television, and Wire Communication Fraud.” Compl. p. 5. Title 18 U.S.C. § 1343 is the criminal statute for “fraud by wire, radio, or television.”
With respect to Plaintiff's claims for fraud, Federal Rule of Civil Procedure 9(b) requires plaintiffs to plead “with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). The elements a plaintiff must allege for fraud claims are (1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of its falsity or a reckless disregard for its truth or falsity; (5) intent that the plaintiff act upon the representation; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; and (9) the hearer's consequent and proximate injury. See McLaughlin v. Williams, 665 S.E.2d 667, 670 (S.C. Ct. App. 2008). A plaintiff pleading fraud bears a heavy burden. Banca Cremi, S.A. v. Alex. Brown & Sons, Inc., 132 F.3d 1017, 1036 (4th Cir. 1997).
Here, Plaintiff's claims based on fraud are conclusory and mostly just repeat the elements of those causes of action while incorporating his previous allegations in the Complaint. While he identifies specific advertisements/statements made by Defendants over the years, his remaining fraud allegations, such as his ignorance as to the falsity of the statements, his reliance on the statements, and his right to rely on the statements, are conclusory. After setting for the various allegedly false advertisements/statements made by Defendants regarding the safety of tobacco products, Plaintiff sets forth each of the elements required for fraud claims and refers back to the paragraphs alleging the fraudulent advertisements/statements. See Compl. pp. 39-43. For instance, he does not allege with particularity how he was aware of or relied upon certain statements made in the 1950s-1970s, prior to or within a few years of his birth in 1972. Further, he fails to allege with particularity his ignorance of the truth or justifiable reliance on the allegedly false advertisements/statements regarding the health risks associated with tobacco use in light of the fact that, as set forth above, every cigarette package since before Plaintiff's birth has included a warning as to the dangers of smoking. See Altria v. Good, 555 U.S. 70, 82-83 (2008) (noting that warnings from the surgeon general on cigarette packets about the harms of smoking bears on a party's right to bring a claim asserting fraudulent advertisements relating to cigarettes); White ex rel. White v. R. J. Reynolds Tobacco Co., 109 F.Supp.2d 424, 434-35 (D. Md. 2000) (noting that smoking was well-known as dangerous by 1978). Consequently, in addition to being barred by the statute of limitations, as discussed above, Plaintiff's claims based on fraud should be dismissed for failure to state a claim upon which relief can be granted. See, e.g., Nelson v. R.J. Reynolds Tobacco Co., Inc., No. 2:22-cv-1418-RMG-KFM, 2022 WL 16555681, at *10 (D.S.C. Sept. 13, 2022), report and recommendation adopted, No. 2:22-cv-1418, 2022 WL 16554672 (D.S.C. Oct. 31, 2022) (summarily dismissing fraud claims in a complaint very similar to the present complaint); Dye v. R.J. Reynolds Tobacco Co., Inc., No. 0:22-cv-2026-SAL-PJG, 2022 WL 19774516, at *3 (D.S.C. Dec. 22, 2022), report and recommendation adopted, No. 0:22-cv-2026-SAL, 2023 WL 2926491 (D.S.C. Apr. 13, 2023) (granting motion to dismiss fraud claims in a complaint very similar to the present complaint).
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendant Reynolds's Motion to Dismiss (ECF No. 21) be granted and that Defendants R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, and The American Tobacco Company be dismissed from this action. Further, as stated in footnote 1, there is no evidence in the record that Defendant Phillip Morris USA, Inc. has been served in this action and, thus, dismissal of Plaintiff's claims against it is proper pursuant to Fed.R.Civ.P. 4(m). In addition, the legal analysis set forth herein is applicable to Plaintiff's claims against Defendant Phillip Morris USA, Inc. as well and, thus, dismissal on that basis is also appropriate. Therefore, it is recommended that this case be dismissed in its entirety.
The parties are directed the important information on the following page.