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June 27, 2002


The opinion of the court was delivered by: Mary L. Cooper, District Judge


Plaintiff Jan Brown has filed suit against three tobacco companies for the alleged smoking-related death of her husband, Stuart Brown. Presently before the Court are the following motions for summary judgment of defendant tobacco companies: (1) Brown & Williamson Tobacco Corporation ("Brown & Williamson") separately moves for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56") on the ground that the record is devoid of proof that plaintiff's decedent smoked any cigarette manufactured or sold by Brown & Williamson; (2) Philip Morris Incorporated ("Philip Morris"), Lorillard Tobacco Company ("Lorillard"), and Brown & Williamson (collectively the "defendants") jointly move for summary judgment pursuant to Rule 56 on state law grounds and on federal preemption grounds. For the reasons stated in this Memorandum and Order, the Court will grant Brown & Williamson's motion for summary judgment and will grant defendants' motion for summary judgment on state law grounds.


Stuart Brown was diagnosed with cancer at the base of his tongue in 1998. (Defs.' Statement of Material Facts in Supp. of Their Mot. for Summ. J. ("Defs. Material Facts") ¶ 4; Pl.'s Response to Defs.' Statement of Undisputed Material Facts and Pl.'s Counter-Statement of Facts Made Pursuant to Local Civil Rule 56.1 ("Pl. Material Facts") ¶ 4.) Stuart Brown had been a smoker of cigarettes for many years. On June 10, 1999, Stuart Brown gave a videotaped statement at his attorney's office, and that videotape was later transcribed. (Certif. of Sherri L. Warfel, Esq., dated 12-28-02, Ex. 23: Portions of Tr. of Videotaped Statement of Stuart Brown taken on 6-10-99 ("Brown Tr.").)

Stuart Brown and Jan Brown, his wife, commenced this action by Complaint filed in New Jersey Superior Court on July 20, 1999. (Compl.) The matter was removed to this Court. Stuart Brown ("decedent") died on February 10, 2000. (Defs. Material Facts ¶ 4; Pl. Material Facts ¶ 4; see generally Am. Compl.) Plaintiff Jan Brown then filed an Amended Complaint on July 19, 2000, in which plaintiff asserted claims against three cigarette manufacturers, Brown & Williamson, Philip Morris, and Lorillard, for injuries decedent allegedly sustained, including wrongful death. (See generally Am. Compl.) In the First and Second Counts of the Amended Complaint, plaintiff asserts claims for common-law strict liability and negligence, and a claim under the New Jersey Products Liability Act.*fn1 (Am. Compl. First & Second Counts.) In the Second Count, plaintiff also alleges fraudulent concealment. (Id. Second Count.) In that Count, plaintiff specifically alleges:

The defendants did design, manufacture, fabricate, assemble, sell and distribute said cigarettes with knowledge that cigarettes, when used in the manner intended by the defendants, contain or produce substances which are addictive and did intend that users thereof, to include the plaintiff as a member of the general public to whom said cigarettes were offered for sale, should develop an addiction or dependence to or on cigarettes or the substances contained therein and produced thereby, such that users thereof would continue to use the said products. This the defendants did with knowledge or with reason to know that cigarettes are carcinogenic in appropriate individuals. Accordingly, the said action or omission was done in wilful disregard to the health consequences to users of the said product, to include the plaintiff.

(Id. Second Count ¶ 2.) Plaintiff alleges intentional and fraudulent misrepresentation in the Fourth Count: "The defendants, individually and jointly, did intentionally and fraudulently misrepresent the quality and characteristics of the products with the intent of inducing members of the public, to include the plaintiff, to purchase the products, with knowledge that said products did not have the qualities and characteristics set forth by the defendants." (Id. Fourth Count ¶ 2.)*fn2 Claiming conspiracy in the Fifth Count, plaintiff alleges: "The defendants knew of should have known of the deleterious health effects of the said products. Notwithstanding the foregoing the defendants did conspire amongst themselves or with others, to hide, misrepresent, and/or distort facts known to them, and did, nevertheless, continue to induce members of the general public, to include the plaintiff, to purchase and use said products." (Id. Fifth Count ¶ 2.) The remaining Counts, Sixth and Seventh, are claims for damages rather than separate causes of action.

Discovery is complete, and the Court heard oral argument on defendants' summary judgment motions on February 4, 2002.


I. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met that initial burden, the non-moving party must present evidence that establishes that a genuine issue of material fact exists, making it necessary to resolve the difference at trial. Id. at 324; Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). A non-moving party, rather than rely on mere allegations, must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The role of the judge at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48. Material facts are only those facts that might affect the outcome of the action under governing law. Id. at 248; Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir. 1991). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

II. Motion of Brown & Williamson for Summary Judgment

Brown & Williamson moves for summary judgment on the ground that plaintiff cannot prove that Brown & Williamson caused the alleged injuries because there is no competent, admissible evidence in the record that decedent smoked any cigarette sold or made by Brown & Williamson. (Mem. of Def. Brown & Williamson Tobacco Corp. in Supp. of Its Mot. for Summ. J. ("BW Br.") at 8-14.) In plain terms, Brown & Williamson argues that plaintiff cannot claim harm from a product that the admissible evidence shows [decedent] did not use." (Id. at 8.) In her Amended Complaint, plaintiff alleges that decedent smoked Parliament, Marlboro, Marlboro Light, Newport, and Kool cigarettes. (Am. Compl.) The parties agree that of those five cigarette brands, only Kool is made by Brown & Williamson. (Brown & Williamson's Local Civil Rule 56.1 Statement ¶ 3; Pl.'s Resp. to Def. Brown & Williamson Tobacco Corp.'s Statement of Facts and Pl.'s Counter-Statement of Facts Made Pursuant to Local Civil R. 56.1 ¶ 3.) At issue between the parties is whether competent, admissible evidence exists in the record to show that decedent smoked the Kool brand of cigarettes.

In opposition to summary judgment, plaintiff points to deposition testimony of the following persons: (1) Paul Walker, a former co-worker of decedent; (2) Steven Mack, a friend of decedent; (3) Lois Maleman, mother of decedent; and (4) Robin Roseland, sister of decedent (Pl.'s Br. in Opp'n to Def. Brown & Williamson Tobacco Corp.'s Mot. for Summ. J. ("Pl. Br. in Opp'n to BW") at 2, 4-6.) Plaintiff also suggests that the videotaped statement that decedent gave at his attorney's office on June 10, 1999, should be considered as evidence that decedent smoked Kool cigarettes.*fn3 (Id. at 1, 5, 10-11.) Plaintiff argues that the deposition testimony together with decedent's videotaped statement provide sufficient evidence of a genuine issue regarding whether decedent smoked Brown & Williamson's product, Kool cigarettes. We shall consider first the admissibility of that videotaped statement.

A. Admissibility of Videotaped Statement of Stuart Brown

Plaintiff maintains that decedent's videotaped statement would be admissible at trial under the Federal Rules of Evidence and should be considered in opposition to Brown & Williamson's summary judgment motion. (Id. at 11.) In reply, Brown & Williamson contends that decedent's statement is inadmissible hearsay that should not be used to oppose summary judgment. (Reply Mem. of Def. Brown & Williamson Tobacco Corp. in Further Supp. of Its Mot. for Summ. J. ("BW Reply Br.") at 5-11.) Apparently acknowledging that the videotaped statement constitutes hearsay, plaintiff argues that it would be admissible under Federal Rule of Evidence 807 ("Rule 807").*fn4 (Pl. Br. in Opp'n to BW at 11; Pl.'s Sur-Reply Br. to Def. Reply Br. ("Pl. Sur-Reply to BW") at 2-5.) The Court considers next whether the videotaped statement comes within the scope of Rule 807

Rule 807, the "residual" or "catch-all" exception the hearsay rule, provides:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Fed. R. Evid. 807. Under the language of Rule 807, therefore, the purported evidence must meet five requirements: trustworthiness, materiality, probative importance, interests of justice, and notice. See Coyle v. Kristian Palusalu Mar. Co., 83 F. Supp.2d 535, 545 (E.D. Pa. 2000), aff'd, 254 F.3d 1077 (3d Cir. 2001). In viewing those requirements, a court must be cognizant that Congress intended that Rule 807 "be used very rarely, and only in exceptional circumstances." Id.; see also United States v. Bailey, 581 F.2d 341, 347 (3d Cir. 1978) (stating that residual hearsay exception is "to be used only rarely, and in exceptional circumstances" and is meant to "apply only when certain exceptional guarantees of trustworthiness exist and when high degrees of probativeness and necessity are present"). As a district court has stated, "[a] catch-all rule such as Rule 807 must be sparingly invoked, lest its potential breadth swallow the carefully crafted narrowness of the enumerated exceptions." Russo v. Abington Mem. Hosp. Healthcare Plan, No. Civ. A. 94-195, 1998 WL 967568, at *3 (E.D. Pa. Nov. 18, 1998). With regard to that residual hearsay exception, the Third Circuit has "required some degree of rigor attendant to its invocation." Trs. of Univ. of Pa. v. Lexington Ins. Co., 815 F.2d 890, 906 (3d Cir. 1987).

The most important requirement of Rule 807 is that the hearsay evidence have "circumstantial guarantees of trustworthiness," and courts consider the following factors in evaluating the trustworthiness of hearsay evidence: whether the declarant was under oath; the voluntariness of the statement; whether the statement was based on personal knowledge; whether the statement contradicted any previous statement; whether the statement was preserved on videotape to provide the jury an opportunity to evaluate the declarant's demeanor; the declarant's availability for cross-examination; the statement's proximity in time to the events described; whether the statement is corroborated; the declarant's motivation to fabricate; whether the statement was prepared in anticipation of litigation; the statement's spontaneity; and whether the declarant's memory or perception was faulty. Sternhagan v. Dow Co., 108 F. Supp.2d 1113, 1119 (D. Mont. 1999).

The present case bears resemblance to the circumstances found in Sternhagen v. Dow Co., 108 F. Supp.2d 1113 (D. Mont. 1999), in which the federal court was called on to decide the admissibility under the residual hearsay exception of an ex parte videotaped statement of a decedent. In Sternhagan, to which the parties in this case make reference, the decedent sued the manufacturers of an herbicide to which he allegedly had been exposed as a teenager. Id. at 1114-15. Shortly before he filed his complaint and without notice to the defendants, the decedent gave a sworn, videotaped statement upon questioning by his attorney. Id. at 1115. In that statement, he purportedly identified herbicides that the defendants manufactured. Id. Four months after commencing the action and before his deposition could be taken, the decedent died. Id. at 1115-16. Certain defendants moved for summary judgment on the basis of inadequate product identification. Id. at 1116. In opposition, the plaintiff proffered the decedent's videotaped statement. Id. The court deemed the statement inadmissible under Rule 807. Id. at 1120-21.

In this case, as in Sternhagen, decedent made the statement voluntarily and based its contents on his personal knowledge. Id. at 1119. Also, it appears that nothing in the statement contradicted any previous statement that decedent made, and the statement was preserved on videotape. See id.

Although consideration of those factors weighs in favor of application of the residual exception to the hearsay rule, we determine that other factors so significantly diminish the statement's trustworthiness that the statement cannot be admitted into evidence under that exception. Decedent, unlike the decedent in Sternhagan, did not make the statement under oath and penalty of perjury. See id. at 1120. That lack of oath in this case makes decedent's videotaped statement an even weaker candidate for admission than the videotaped statement considered in Sternhagan. As in Sternhagan, defendants here did not have the opportunity to cross-examine decedent, and the statement was not spontaneous. Id. As in Sternhagan, the statement here was made many years after the events giving rise to plaintiff's claims, and decedent had an interest in presenting facts related to his statement in the light most favorable to his claims. See id. Additionally, although decedent's statement was videotaped in the month prior to the filing of the Complaint, it appears that the statement was prepared in anticipation of litigation, which further weighs against its trustworthiness. See id.

In sum, the Court's balancing of the various indicia of trustworthiness leads to the conclusion that decedent's videotaped statement lacks circumstantial guarantees of trustworthiness equivalent to those of the other exceptions to the hearsay rule.*fn5 The residual exception must be "sparingly invoked," Russo, 1998 WL 967568, at *3, and only in exceptional circumstances," Bailey, 581 F.2d at 347, which are not present here. Therefore, ...

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