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D'Alessandro v. Bugler Tobacco Co.

March 7, 2007

MICHAEL R. D'ALESSANDRO, PLAINTIFF,
v.
BUGLER TOBACCO CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

HONORABLE JEROME B. SIMANDLE

OPINION

I. INTRODUCTION

Currently pending before the Court are a motion to dismiss by Defendant Bugler Tobacco [Docket Item 54] and a motion to dismiss and/or for summary judgment by Defendant Kathryn MacFarland [Docket Item 53], who is the Administrator of South Woods State Prison within the New Jersey Department of Corrections.*fn1 For the reasons stated in this Opinion, the Court shall grant these motions and dismiss these defendants from this action.

II. BACKGROUND*fn2

Plaintiff Michael D'Alessandro ("Plaintiff") is an inmate who has been incarcerated at South Woods State Prison ("South Woods") in Bridgeton, New Jersey since December 11, 2000. His complaints relate to his exposure to environmental tobacco smoke at South Woods, as described below.*fn3

Plaintiff filed this action on October 18, 2005. Defendant Bugler's loose tobacco is sold at the prison and Plaintiff alleges, among other things, that Defendants Bugler Tobacco Company ("Bugler" or "Bugler Tobacco") and South Woods' Administrator, Kathryn MacFarland, are liable for the harms Plaintiff suffered from exposure to second-hand smoke*fn4 he unwillingly inhales at the prison.

III. DEFENDANT BUGLER'S MOTION TO DISMISS

A. Rule 12(b)(6) Standard

Defendant Bugler moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim on which relief may be granted. For purposes of this dismissal motion, pursuant to Rule 12(b)(6), the Court deems the facts alleged in the Complaint as true and determines whether there could be any legal basis for relief. The Court shall view all allegations in the Complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994), and shall deny the motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Scheuer, 416 U.S. at 236. The Court must accept any and all reasonable inferences derived from the facts stated in the Complaint, Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991) and decide not whether Plaintiff will ultimately prevail, but, rather whether he can prove any set of facts in support of his claims that would entitle him to relief, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

B. Plaintiff's Allegations Against Bugler

Plaintiff alleges that since December 11, 2000 he has been confined in cells at South Woods with smokers who are addicted to Bugler Tobacco's products.*fn5 Plaintiff claims that these products, which are sold at the prison's commissary, contain no warnings of the dangers that second-hand smoke causes. Inhalation of this smoke, he claims, has aggravated his existing cardiac condition, caused him shortness of breath and other breathing problems, and threatens his future health. (Compl. at 4.) Plaintiff is a non-smoker and since December 2000 he has requested that prison officials house him with only fellow non-smokers. (Compl. at ¶ 12.)

In November 2004 Plaintiff became concerned about his breathing problems and requested "lung x-rays." (Compl. at ¶ 14.) In December 2004, prison medical staff advised Plaintiff that his x-rays indicated he suffers from Chronic Obstructive Pulmonary Disease ("COPD"). (Compl. at ¶ 15.)

In March 2005 Plaintiff was diagnosed with "obstructive ventilatory (lung) defect and prescribed two different Oral Inhalers of broncodilator medications to be taken several times daily." (Compl. at 2); (Compl. at ¶ 16). He continued to be treated for this condition with inhalers until September 2005 when he was having increased pain and attacks and requested another x-ray and a medical order prohibiting confinement with smokers. (Compl. at ¶ 22.) Prison officials denied these requests. (Id.)

Plaintiff claims that Bugler's failure to label its smoking tobacco and rolling papers with warnings about the risks associated with ETS caused him permanent injury to his lungs, aggravation of his existing cardiac condition, and future unnecessary physical injury and mental anguish. (Compl. at ¶ 30.) Plaintiff seeks compensatory and punitive damages as well as attorney's fees and costs and any additional relief the Court may deem appropriate.

Although Plaintiff explicitly relies on 42 U.S.C. § 1983 as the basis for his claims, the Court shall liberally construe the Complaint as alleging, additionally, a New Jersey products liability claim against Bugler for failure to warn.*fn6 See Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999) ("Because Holley is pursuing her action pro se, we have an obligation to read her pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). We apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name. See Small v. Lehman, 98 F.3d 762, 766 (3d Cir. 1996); Lewis v. Att'y Gen'l of United States, 878 F.2d 714, 722 n.20 (3d Cir. 1989)."). See also (Bugler Br. at 12) ("There is no question that Plaintiff predicates his theory of liability upon [Bugler's] alleged duty to warn consumers of its tobacco products concerning the alleged dangers of environmental tobacco smoke."); N.J. Stat. Ann. § 2A:58C-2 ("A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it:. . . b. failed to contain adequate warnings or instructions. . . ").

C. Whether Complaint States a Claim Against Bugler*fn7

Bugler argues that Plaintiff's failure to warn claim must fail because (1) the Federal Cigarette Labeling and Advertising Act ("FCLAA"), 15 U.S.C. §§ 1331-41, preempts such state claims; (2) New Jersey's two-year statute of limitations bars Plaintiff's action; and (3) Plaintiff has not alleged any act or omission by Bugler that was the proximate cause of his injuries. Although the Court finds that there is no preemption, dismissal is appropriate because the claims against Bugler are time-barred.

1. Whether the FCLAA Preempts Failure to Warn Claims Against Manufacturers of Loose Tobacco

Bugler's tobacco products at issue in this case are loose tobacco and tobacco rolling papers. While the FCLAA mandates warning labels on cigarettes*fn8 , there is no federal mandate for labeling loose tobacco and rolling papers. Nevertheless, Defendant Bugler argues that the FCLAA explicitly preempts any state law claims against it for its failure to label those products, even when the plaintiff was allegedly injured from second-hand smoke. (See, e.g., Bugler. Reply Br. at 3-6). This argument defies not only the plain language of the statute, but also simple logic.

Bugler relies heavily on the Supreme Court's plurality opinion interpreting the FCLAA, Cipollone v. Liggett Group, 505 U.S. 504 (1992). In that case, Plaintiffs alleged several New Jersey tort claims related to their smoking of cigarettes, including a two-pronged failure to warn claim: "that the product was 'defective as a result of [respondents'] failure to provide adequate warnings of the health consequences of cigarette smoking' (Count 3, App. 85) and that respondents 'were negligent in the manner [that] they tested, researched, sold, promoted and advertised' their cigarettes (Count 4, App. 86)." Id. at 509. That Court held that claims of failure to warn by smokers of cigarettes are within the FCLAA's express preemption provision. Id. at 524-25 ("[I]nsofar as claims under either failure-to-warn theory require a showing that respondents' post-1969 advertising or promotions should have included additional, or more clearly stated, warnings, those claims are pre-empted. The Act does not, however, pre-empt petitioner's claims that rely solely on respondents' testing or research practices or other actions unrelated to advertising or promotion."). See also Brown v. Philip Morris Inc., 250 F.3d 789, 796 (3d Cir. 2001) (discussing Cipollone).

The question here is whether Plaintiff's claims of injury from inhaling second-hand smoke not from cigarettes but from loose tobacco products, which need not be labeled under the Act, are also preempted. Thus, in two key respects this case differs from Cipollone: (1) the plaintiff is not a smoker and (2) because the product at issue is loose tobacco and not cigarettes, the product's label is not regulated by the FCLAA. Nevertheless, Bugler argues that Cipollone strengthens its claim that Congress intended to outlaw all tort actions against tobacco manufacturers. The Court disagrees.

In analyzing whether the FCLAA expressly preempted Plaintiff's claimed harms from smoking cigarettes, the Supreme Court explained the process this Court must initially undertake when deciding whether the FCLAA preempts other actions. The Supreme Court indicated that express preemption of one type of claim weighs against preemption of unmentioned claims:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional intent with respect to state authority," Malone v. White Motor Corp., 435 U.S. at 505, "there is no need to infer congressional intent to pre-empt state laws from the substantive provisions" of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 (1987) (opinion of Marshall, J.). Such reasoning is a variant of the familiar principle of expressio unius est exclusio alterius: Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted. In this case, the other provisions of the [FCLAA] offer no cause to look beyond [the preemption provision] of [the] Act. Therefore, we need only identify the domain expressly pre-empted by each of those sections.

Cipollone, 505 U.S. at 517. But see Freightliner Corp. v. Myrick, 514 U.S. 280, 288-89 (1995) ("The fact that an express definition of the pre-emptive reach of a statute 'implies'. . . that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption. . . . At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule."). Further, "[c]onsideration of issues arising under the Supremacy Clause 'starts with the assumption that the historic police powers of the States [are] not to be superseded by . . . ...


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