84 F. Supp.2d 263 (2000) | Cited 0 times | D. Rhode Island | January 12, 2000


In January 1998, plaintiff Leo Guilbeault filed a complaint againstdefendant R.J. Reynolds Tobacco Company. Thereafter, defendant moved todismiss the complaint on the ground that it violated Federal Rules ofCivil Procedure 8(a)(2), requiring that the complaint set forth "a shortand plain statement of the claim[,]" and 8(e)(1), requiring the pleadingto be "simple, concise, and direct." Defendant's motion was granted andplaintiff was given leave to file an amended complaint. Plaintiff thenfiled the First Amended Complaint which is now under scrutiny in thisCourt. Defendant has moved to dismiss the Complaint in its entirety forfailure to state a claim upon which relief can be granted pursuant toFederal Rule of Civil Procedure 12(b)(6). Plaintiff has opposed themotion.

This Court initially referred the matter to U.S. Magistrate JudgeRobert W. Lovegreen pursuant to 28 U.S.C. § 636(b)(1)(B)(1994). JudgeLovegreen issued a Report and Recommendation, concluding that defendant'smotion should be granted in part and denied in part. After a de novoreview, this Court concludes that defendant's motion to dismiss should begranted as to all claims. However, plaintiff will be given theopportunity to file a second amended complaint consistent with thisopinion.

I. Background

Plaintiff, a resident of Rhode Island, began buying and smoking Camelbrand cigarettes in 1951. In 1997, he was diagnosed with lung cancer. Hemaintains that his lung cancer was caused by his smoking. In January1998, plaintiff filed a complaint against defendant, the company thatdesigns, manufactures, sells and distributes Camel brand cigarettes. TheComplaint was thirty-two pages long and contained references to more thanfifty documents. Defendant moved to dismiss the Complaint claiming thatit violated the dictates of Rule 8, which requires concise pleading. Themotion to dismiss was granted and plaintiff was given time to amend theComplaint. Thereafter, plaintiff filed a First Amended Complaint, whichis the subject of the present motion.

The First Amended Complaint is twenty-one pages long and does notcontain references to many of the previously mentioned documents.However, as Judge Lovegreen noted, it still appears to contain anenormous amount of material that is extraneous to plaintiffs claims. Thismay be because, as plaintiffs counsel admitted at oral argument, it was"modeled after" a similar complaint filed in Florida. While this Courtappreciates the need for efficiency in drafting complaints, it cautionsattorneys for suit filers that a complaint should be tailored to thegrievances and facts pertaining to the individual filing the complaint.In any event, defendant has not brought another Rule 8 motion to dismissand this Court will go forward with an analysis of the First AmendedComplaint.

The First Amended Complaint (after one wades through excess verbiage)alleges three theories of recovery: 1) strict product liability, 2)negligence and 3) conspiracy. The strict liability claim is based on thealleged defective design of defendant's cigarettes and on defendant'sfailure to warn of the dangers of smoking. The negligence claim is alsobased on defective design and failure to warn with the additional claimthat defendant's cigarettes were negligently manufactured. The conspiracyclaim rests mainly on allegations of fraud.

Defendant has moved to dismiss the whole First Amended Complaint forfailure to state any claim upon which relief can be granted.Specifically, defendant contends that plaintiff's design defect andfailure to warn claims fail because the dangers of smoking have been"common knowledge" for some period of time, thus rendering cigarettes notunreasonably dangerous as a matter of law. In the alternative, defendantargues that plaintiff's design defect claims fail as a matter of lawbecause plaintiff has not alleged a safer feasible alternative design andthat plaintiffs failure to warn claims fail because they are preempted byfederal law. In addition, defendant argues that plaintiffs negligentmanufacturing claim fails because plaintiff has failed to allege anecessary element of that claim, namely, a deviation from defendant'sstandard cigarette design. Finally, defendant argues that plaintiff'sconspiracy claim fails because the underlying intentional tort of fraudwas not pleaded with particularity as required by Federal Rule of CivilProcedure 9(b) and because plaintiff has not alleged justifiable relianceon specific misrepresentations.

This matter was referred to Magistrate Judge Lovegreen and he made thefollowing recommendations: 1) defendant's motion to dismiss the designdefect and failure to warn claims based on the "common knowledge"doctrine should be denied, 2) defendant's motion to dismiss the designdefect claims on the ground that plaintiff has failed to allege a saferfeasible alternative design should be denied and, further, thatdefendant's attorneys should be sanctioned under Federal Rule of CivilProcedure 11 for misrepresenting Rhode Island law on this issue, 3)plaintiff's failure to warn claims are preempted by federal law insofar asthey are based on conduct subsequent to 1969, but they should not bedismissed because the claims are based on pre-1969 conduct, 4)defendant's motion to dismiss the negligent manufacturing claim should begranted and 5) defendant's motion to dismiss the conspiracy claim basedon a violation of Rule 9(b) should be granted, but dismissal should bewithout prejudice to allow plaintiff to replead that claim withparticularity.

Defendant has objected to the Report and Recommendation. See28 U.S.C. § 636(b)(1)(C)(1994). Plaintiff has not.

After a de novo review, this Court grants defendant's motion to dismissthe strict liability and negligence claims based on the "commonknowledge" doctrine and grants the motion to dismiss the conspiracy/fraudclaim based on plaintiffs failure to comply with Rule 9(b). This Courtconcludes, however, that plaintiff mayamend the complaint to attempt to state a claim on which relief could begranted consistent with the reasoning below. Finally, this Court declinesto adopt the Magistrate Judge's recommendation to sanction defendant'slawyers for their arguments regarding the requirement of pleading a saferfeasible alternative design.

II. Applicable Law

A. Standard of Review

In ruling on a motion to dismiss, the Court construes the complaint inthe light most favorable to plaintiff, taking all well-pleadedallegations as true and giving plaintiff the benefit of all reasonableinferences. See Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998).Dismissal under Rule 12(b)(6) is appropriate only if "it appears beyonddoubt that the plaintiff can prove no set of facts in support of hisclaim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,45-46, 78 S.Ct. 99, 2 L.Ed.2d 80(1957). However, "minimal requirementsare not tantamount to nonexistent requirements." Gooley v. Mobil OilCorp., 851 F.2d 513, 514 (1st Cir. 1988). The standard "does notmean . . . that a court must (or should) accept every allegation made bythe complainant, no matter how conclusory or generalized. . . .'[E]mpirically unverifiable' conclusions, not `logically compelled, or atleast supported, by the stated facts,' deserve no deference." UnitedStates v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992) (citationsomitted).

Recommendations made by magistrate judges on dispositive pretrialmotions, such as a 12(b)(6) motion, are reviewed de novo by the districtcourt. See Fed.R.Civ.P. 72(b).

In making a de novo determination, the district court "may accept,reject, or modify the recommended decision, receive further evidence, orrecommit the matter to the magistrate judge with instructions."Fed.R.Civ.P. 72(b); see also 28 U.S.C. § 636(b)(1)(C)(1994). Inreviewing a magistrate judge's recommendations, the district court mustactually review and weigh the evidence presented to the magistratejudge, and not merely rely on the magistrate judge's report andrecommendation. See United States v. Raddatz, 447 U.S. 667, 675, 100S.Ct. 2406, 65 L.Ed.2d 424 (1980); Gioiosa v. United States, 684 F.2d 176,178 (1st Cir. 1982).

B. Strict Product Liability

Rhode Island has adopted the law of strict product liability set forthin the Restatement (Second) of Torts § 402A (1965). See Ritter v.Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255, 261-63 (1971).Section 402A provides:

Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) 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, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Restatement (Second) of Torts § 402A (1965). For a plaintiff toprevail in such a case, he or she must prove:

(1) that there was a defect in the design or construction of the product in question; (2) that the defect existed at the time the product left the hands of the defendant; (3) that the defect rendered the product unreasonably dangerous . . .; (4) that the product was being used in a way in which it was intended at the time of the accident; and (5) that the defect was the proximate cause of the accident and plaintiffs injuries.

Crawford v. Cooper/T. Smith Stevedoring Co., Inc., 14 F. Supp.2d 202, 211(D.R.I. 1998). See also Parrillo v. Giroux Co., Inc., 426 A.2d 1313, 1316(R.I. 1981).

Rhode Island employs the "consumer-expectation" test to determine if aproduct is defective, Castrignano v. E.R. Squibb & Sons, Inc., 546 A.2d 775,779 (R.I. 1988), which requires that it be "`in a condition notcontemplated by the ultimate consumer[.]'" Ritter, 283 A.2d at 262(quoting Restatement (Second) of Torts § 402A cmt. g (1965)). Aproduct is "unreasonably dangerous" if there is "a strong likelihood ofinjury to a user who was unaware of the danger in utilizing the productin a normal manner[.]" Crawford, 14 F. Supp.2d at 211. See also Ritter,283 A.2d at 263.

A product may be unreasonably dangerous due to one or more of threedefects: design, marketing (failure to warn) or manufacturing.Castrignano, 546 A.2d at 779. A section 402A claim based on a failure towarn defect, however, is more properly analyzed under a negligence regimeas discussed below, because the duty to warn exists only with regard to"dangers that are reasonably foreseeable and knowable at the time ofmarketing." Id. at 782 (citing Thomas v. Amway Corp., 488 A.2d 716, 722(R.I. 1985)). See also Restatement (Second) of Torts § 402A cmt. j(1965); DiPalma v. Westinghouse Elec. Corp., 938 F.2d 1463, 1466 (1stCir. 1991) ("It is clear under Rhode Island law that the duty to warn,the violation of which is actionable by means of the so-called strictliability cause of action, is measured . . . by the same standard as theduty to warn that is enforceable in a negligence cause of action.").

C. Negligence

The elements of a section 402A claim and a negligence claim based on aproduct defect overlap significantly, with the negligence claim having theadditional requirement that the defendant "knew or had reason toknow . . . that [the product] was defective in any manner." Ritter,283 A.2d at 259. In a negligent failure to warn claim, as discussedabove, this requires that the defendant knew or had "`reason to know thatthe product poses a danger to consumers.'" DiPalma, 938 F.2d at 1466(quoting Scittarelli v. Providence Gas Co., 415 A.2d 1040,1043 (R.I. 1980)).

D. Conspiracy

A civil conspiracy claim requires the specific intent to do somethingillegal or tortious. See, e.g., Fleet Nat'l Bank v. Anchor MediaTelevision, Inc., 831 F. Supp. 16, 45 (D.R.I. 1993), aff'd, 45. F.3d 546(1st Cir. 1995); Stubbs v. Taft, 88 R.I. 462, 149 A.2d 706,708-709(1959). Civil conspiracy is not an independent basis ofliability, but merely a means of establishing joint liability fortortious conduct. Thus, a civil conspiracy claim requires a validunderlying intentional tort theory. See, e.g., ERI Max Entertainment,Inc. v. Streisand, 690 A.2d 1351, 1354 (R.I. 1997).

Plaintiff's claim sounds in fraud. See First Amended Complaint ¶4.1 (Defendant "participated in a civil conspiracy to commit fraud bycommission and by omission"). To establish fraud in Rhode Island, aplaintiff must show: (1) a false or misleading statement of material factthat was (2) known by the defendant to be false and (3) made to deceive,(4) upon which the plaintiff relied to his detriment. See National CreditUnion Admin. Bd. v. Regine, 795 F. Supp. 59, 70 (D.R.I. 1992) (citingB.S. Int'l Ltd. v. Licht, 696 F. Supp. 813, 827 (D.R.I. 1988)); McGovernv. Crossley, 477 A.2d 101, 103 (R.I. 1984); Halpert v. Rosenthal,107 R.I. 406, 267 A.2d 730, 733 (1970).

Fraud can be grounded on either affirmative acts or concealment. SeeHolmes v. Bateson, 434 F. Supp. 1365, 1387(D.R.I. 1977), aff'd in part, rev'd on other grounds, 583 F.2d 542 (1stCir. 1978). However, a claim based on concealment will not lie absent aduty to speak. See Home Loan and Inv. Assoc. v. Paterra, 105 R.I. 763,255 A.2d 165, 168 (R.I. 1969). Such a duty can arise if a statement ismade without knowledge of its falsity and the falsity subsequentlybecomes known to the speaker. See McGinn v. McGinn, 50 R.I. 236,146 A. 636, 638(1929).

Fraud is a state law cause of action and state law governs the burdenof proving fraud at trial. However, the procedure for pleading fraud infederal court in a diversity suit is governed by the requirements of Rule9(b). See Hayduk v. Lanna, 775 F.2d 441, 443 (1st Cir. 1985). Rule 9(b)states: "In all averments of fraud or mistake, the circumstancesconstituting fraud or mistake shall be stated with particularity.Malice, intent, knowledge, and other condition of mind of a person may beaverred generally." Fed.R.Civ.P. 9(b). The First Circuit has interpretedRule 9(b) as requiring a plaintiff to identify "the time, place, andcontent of the alleged false or fraudulent representations." Powers v.Boston Cooper Corp., 926 F.2d 109, 111 (1st Cir. 1991). When a plaintiffclaims that product advertisement and promotion led to his injury, hemust "identify specific advertising he ha[s] seen and how it ha[s]affected him." Smith v. Anheuser-Busch, Inc., 599 A.2d 320, 320 (R.I.1991) (per curiam).

III. Discussion

This matter is properly before the Court via diversity jurisdiction.See 28 U.S.C. § 1332(1994). There is no dispute that Rhode Island lawapplies. Each of defendant's objections to the Report and Recommendationwill be considered in turn.

A. Strict Liability and Negligence Claims

Applicability of the "Common Knowledge" Doctrine

As noted above, a product is "unreasonably dangerous" if there is "astrong likelihood of injury to a user who was unaware of the danger inutilizing the product in a normal manner[.]" Crawford, 14 F. Supp.2d at211. See also Ritter, 283 A.2d at 263. Consequently, "`[t]he emphasisupon the likelihood of injury takes into account the consumer's or user'sknowledge of danger.'" Ritter, 283 A.2d at 263 (quoting Drummond v.General Motors Corp., No. 771098 (Cal.Super.Ct. July 29, 1966)). Itfollows that a product cannot be considered "unreasonably dangerous" ifits risks are "well known to any reasonable consumer[.]" Jackson v.Corning Glass Works, 538 A.2d 666, 669 (R.I. 1988) (no strict liabilityfor injury caused by toppling of glassware stack when it was commonknowledge that stack will fall with lateral force and glass will break).Invocation of this principle has resulted in the development of adoctrine used to defeat product liability based on the "common knowledge"of the product's risks by the reasonable consumer. Id. (citing MetalWindow Products Co. v. Magnusen, 485 S.W.2d 355 (Tex.Civ.App. 1972)). Seealso American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 424 (Tex. 1997)(characterizing issue in product liability action based on cigarettes aswhether or not the "common knowledge defense" applied). Because theelements of the claims are similar as discussed above, the "commonknowledge" doctrine will bar both strict liability and negligence actionsbased on product defects.

The comments to Section 402A of the Restatement (Second) of Tortsincorporate this principle. Comment i, which describes the term"unreasonably dangerous," states: "The article sold must be dangerous toan extent beyond that which would be contemplated by the ordinaryconsumer who purchases it, with the ordinary knowledge common to thecommunity as to its characteristics." Restatement (Second) of Torts§ 402A cmt. i (1965). Comment j, which addresses failure to warnclaims, states: "[A] seller is notrequired to warn with respect to products, or ingredients in them, whichare only dangerous, or potentially so, when consumed in excessivequantity, or over a long period of time, when the danger, or potentialityof danger, is generally known and recognized." Restatement (Second) ofTorts § 402A cmt. j (1965). See also Amway, 488 A.2d at 722 (adoptingcomment j in Rhode Island).

Plaintiff's pleading essentially alleges that defendant's cigaretteswere unreasonably dangerous and caused plaintiff's injury because they"cause, or contribute to in substantial fashion," a variety of humanillnesses and injuries, including lung cancer. See First AmendedComplaint ¶ 1.5. Plaintiff asserts that this allegedly unreasonabledangerousness is caused by all three types of defects: design,manufacturing and marketing (failure to warn). Defendant argues that thehealth risks of smoking and particularly the risk of cancer were, duringthe time periods relevant to this lawsuit, "common knowledge" such thatcigarettes cannot be found "unreasonably dangerous" as a matter of law.As this is a motion to dismiss and not a motion for summary judgment,defendant essentially asks this Court to take judicial notice of thisfact.

A federal court may take judicial notice of a fact when it is "notsubject to reasonable dispute in that it is either (1) generally knownwithin the territorial jurisdiction of the trial court or (2) capable ofaccurate and ready determination by resort to sources whose accuracycannot reasonably be questioned." Fed.R.Evid. 201.

Whether the common knowledge doctrine defeats plaintiff's strictliability and negligence claims as a matter of law is an issue of firstimpression in Rhode Island. Other courts considering the issue havereached varied conclusions regarding when, if at all, assorted risks,particularly general disease-related risks and risks of addiction,associated with smoking became common knowledge. The Northern District ofOhio, applying Ohio law, has been particularly active in dismissingsmokers' claims under Rule 12(b)(6) based on the common knowledge ofhealth risks associated with smoking since at least 1966 and as far backas 1940. See Hollar v. Philip Morris Inc., 43 F. Supp.2d 794, 807(N.D.Ohio 1998) (dismissing two plaintiffs' product liability claims, whobegan smoking in 1968 and 1971 respectively, because "[t]he case law iswell settled that the health hazards of smoking were within the ordinarycitizen's `common knowledge'" at that time); Jones v. American TobaccoCo., 17 F. Supp.2d 706, 718 (N.D.Ohio 1998) (concluding that the healthrisks of cigarettes became common knowledge in 1966 and dismissing under12(b)(6) claims of a plaintiff who began smoking in 1968, as well asthose of a plaintiff who smoked from 1954-1990 because cigarettes couldnot be considered unreasonably dangerous for the majority of the timethat plaintiff smoked); Paugh v. R.J. Reynolds Tobacco Co.,834 F. Supp. 228, 230-231 (N.D.Ohio 1993) (dismissing claims of plaintiffwho smoked from 1940-1990 because "[t]he dangers posed by tobacco smokinghave long been within the ordinary knowledge common to the community").

Courts in other jurisdictions, however, have refused to dismiss basedon the common knowledge rule. See Hill v. R.J. Reynolds Tobacco Co.,44 F. Supp.2d 837, 844-845 (W.D.Ky. 1999) (applying Kentucky law)(refusing to take judicial notice of the common knowledge of the healthrisks of smoking before 1969, the relevant time period for plaintiff'sfailure to warn claims, and thus denying motion to dismiss); Thomas v.R.J. Reynolds Tobacco Co., 11 F. Supp.2d 850, 852-853 (S.D.Miss. 1998)(applying Mississippi law) (admitting in a footnote that the MississippiSupreme Court "would find that the dangers of smoking have long beenknown to the community[,]" but refusing to dismiss design defect claimbecause plaintiff was alleging that nicotine levels had been manipulatedin defendant's cigarettes, thus removingtheir risks from the community's common knowledge).

Indeed, there has been disagreement even at the summary judgment stageof the proceedings. See, e.g., Grinnell, 951 S.W.2d at 424 (applyingTexas law) (granting summary judgment to defendant on claims based onfailure to warn of health risks of smoking since 1952 because the generalill-effects of smoking were common knowledge at that time, but refusingto grant summary judgment on claims based on failure to warn of addictivenature of cigarettes because there was an issue of fact as to when theaddictive qualities of cigarettes became common knowledge).1 See alsoAllgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th Cir. 1996),cert. denied, 519 U.S. 930, 117 S.Ct. 300, 136 L.Ed.2d 218(1996)(applying Texas law) (affirming grant of summary judgment to defendant on"lifetime smoker's" failure to warn claim for failure to comply withstatute of limitations, but noting in dicta that claim couldalternatively be dismissed under "common knowledge" theory, as "thedangers of cigarette smoking have long been known to the community")(citing Roysdon and Paugh); Roysdon v. R.J. Reynolds Tobacco Co.,849 F.2d 230, 236 (6th Cir. 1988) (applying Tennessee law) (applyingcommon knowledge doctrine to affirm grant of summary judgment todefendant on plaintiff's product liability claims spanning 1974-1984,citing with approval the district court's observation that "`tobacco hasbeen used for over 400 years. . . . Knowledge that cigarette smoking isharmful to health is widespread and can be considered part of the commonknowledge of the community'"); Insolia v. Philip Morris Inc., et al,53 F. Supp.2d 1032, 1040 (W.D.Wis. 1999) (applying Wisconsin law)(granting summary judgment to defendants on plaintiffs', who begansmoking in 1935, 1952 and 1953, design defect claims based on bothgeneral health risks associated with smoking and addictive risks,apparently assuming that general health risks were common knowledge andexplicitly holding that plaintiffs had not produced admissible evidenceto create a genuine issue of fact as to whether addictive risks ofsmoking were common knowledge). But see Burton v. R.J. Reynolds TobaccoCo., 884 F. Supp. 1515, 1526 (D.Kan. 1995) (applying Kansas law)(refusing to grant summary judgment to defendants on plaintiff's failureto warn claims dating back to 1954 because a factual issue existed as towhether consumers had knowledge of all the dangers of smoking, inparticular addictive dangers, at that time); Rogers v. R.J. ReynoldsTobacco Co., 557 N.E.2d 1045, 1054-1055 (Ind.Ct.App. 1990) (citingRoysdon approvingly for the proposition that the health risks of smokinghave been known for some time but refusing to grant summary judgment onproduct liability claims dating back to 1953 because an issue of factexisted as to whether there is a state of common knowledge regarding theaddictive qualities of cigarettes).

To summarize, most of the courts considering the common knowledge ofthe general disease-related health risks of smoking have placed commonknowledge at least at 1966 and some before. Most courts that have refusedto apply thedoctrine to those time periods have distinguished between commonknowledge of the general health risks of smoking, which they acknowledgeaccrued earlier, and common knowledge of cigarettes' addictive nature,which some suggest may still be disputed. See Thomas, 11 F. Supp.2d at852-853; Burton, 884 F. Supp. at 1526; Grinnell, 951 S.W.2d at 424;Rogers, 557 N.E.2d at 1055. Cf. Hill, 44 F. Supp.2d at 844. Thus, claimslike the one in this case alleging that cigarettes are unreasonablydangerous because they cause various diseases including lung cancer havebeen disposed of as a matter of law more often than claims allegingunreasonable dangerousness due to their addictive nature.

Of course, none of those cases is binding on this Court. It is with thebackground of this burgeoning area of the law, however, that this Courtconsiders the issue.

Defendant first argues that comment to Section 402A precludes on itsface plaintiff's strict liability and negligence claims because itestablishes that cigarettes are not "unreasonably dangerous."Specifically, defendant relies on the following passage:

Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous. 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. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

Restatement (Second) of Torts § 402A cmt. i (1965). This Courtrejects defendant's argument for two reasons.

First, although the Rhode Island Supreme Court has adopted several ofthe comments to the Restatement, see Castrignano, 546 A.2d at 780(comment k); Amway, 488 A.2d at 722 (comment j); Brimbau v. AusdaleEquip. Rental Corp., 440 A.2d 1292, 1297 (R.I. 1982) (comment f); Romanov. Westinghouse Elec. Co., 114 R.I. 451, 336 A.2d 555, 558(1975) (commentm); Ritter, 283 A.2d at 262-263 (comment g), it has not explicitlyadopted, nor even discussed, comment i. This Court acknowledges,however, that adoption of comment i is not unlikely given Rhode Island'swillingness to adopt other comments. See Ritter, 283 A.2d at 262 ("Wedirect attention to the fact that § 402A is accompanied in theRestatement . . . by a comprehensive commentary as to its meaning andapplication."). But see Castrignano, 546 A.2d at 782 (adopting comment konly as an affirmative defense).

Nevertheless, even if this Court were to predict that the Rhode IslandSupreme Court would adopt comment i, plaintiff's claim would notnecessarily be barred. Several courts considering this issue have heldthat, because cigarettes are manufactured products and not raw tobacco,comment i "does not, as a matter of law, remove all claims of defectivetobacco products from the operation of Section 402A." Burton, 884 F.Supp. at 1522. See also Witherspoon v. Philip Morris Inc.,964 F. Supp. 455, 466 (D.D.C. 1997) (citing Burton); Rogers, 557 N.E.2dat 1053 n. 8. For example, at least one court has recognized that designdefect claims that allege the deliberate addition of harmful substancesbeyond those naturally occurring in tobacco disqualify cigarettes as"good tobacco" and thus would allow a finding that they are defective andunreasonably dangerous. Thomas, 11 F. Supp.2d at 852-853.

Furthermore, this Court is aware of no case that has dismissed acigarette product liability claim' solely on the basis of the languagecontained in comment i. The cases cited above that have dismissed suchclaims have first conducted an analysis ofthe specific risks claimed by plaintiff to have caused his or her injuryand whether those risks were "common knowledge" during the relevant timeperiod. See, e.g., Sanchez, 187 F.3d at 490-491; Hollar, 43 F. Supp.2d at806-807; Jones, 17 F. Supp.2d at 716-718; Paugh, 834 F. Supp. at230-231. This Court will do the same instead of blindly applying commenti to bar plaintiff's claims as defendant suggests.

Defendant next argues that this Court has "approved" the line of casesthat have applied the common knowledge doctrine to bar smokers' claimsoriginating as far back as the 1940's and 1950's. Indeed, in Arnold v.R.J. Reynolds Tobacco Co., 956 F. Supp. 110, 115 n. 8 (D.R.I. 1997), thiswriter cited Allgood, 80 F.3d at 172, for the proposition that the"`dangers of cigarette smoking have long been known to the community.'"In that case, this Court determined that a "discovery" rule wasappropriate when applying the statute of limitations in a cigaretteproduct liability case and the reference to Allgood was made not in theholding of the Court, but in an attempt to explain at what point a smokershould normally draw the connection between an injury and the plaintiff'suse or exposure to cigarette smoke. See id. Thus, although suggestive,this statement alone clearly cannot be relied upon in this case wheresuch a conclusion will have the effect of terminating plaintiffslawsuit.

However, after thoroughly reviewing the facts regarding the evolutionof the public's knowledge of smoking-related dangers, this Court issatisfied that it can take judicial notice of the community's commonknowledge of the general disease-related health risks associated withsmoking, including the risk of contracting cancer, as of 1964.

In 1962, President Kennedy approved the formation of an advisorycommittee to investigate the health issues concerning smoking. SeeSmoking and Health, Report of the Advisory Committee to the SurgeonGeneral of the Public Health Service at 7-8 (U.S. Dep't of Health, Educ.& Welfare 1964) ("1964 Advisory Committee Report"). In January 1964, theAdvisory Committee issued a 387-page report, which concluded, among otherthings, that smoking is "causally related to lung cancer in men[.]" 31.

The federal government reacted immediately to the Report. The FederalTrade Commission promulgated regulations that would have required awarning to be placed on cigarette packages and in advertisements that"smoking is dangerous to health and may cause death from cancer and otherdiseases." 29 Fed.Reg. 8324, 8325(1964). In addition, a number of statesproposed laws to govern the sale, advertising and labeling of cigarettes.See 111 Cong. Rec. 13,901(1964) (statement of Sen. Moss).

Before these efforts took effect, however, Congress passed the FederalCigarette Labeling and Advertising Act, Pub.L. No. 89-92, 79 Stat. 282,codified as amended, 15 U.S.C. § 1331-1341(1994) ("Labeling Act"),which required all cigarette packages to contain the warning: "Caution:Cigarette Smoking May Be Hazardous to Your Health." The main purpose ofthe Labeling Act was to adequately inform the public about the dangers ofcigarette smoking and to protect the national economy from the impositionof diverse and confusing warning requirements regarding cigarettes. Seeid. In 1969, Congress enacted the Public Health Cigarette Smoking Act of1969, Pub.L. No. 91-222, 84 Stat. 87, codified as amended,15 U.S.C. § 1331-1341(1994) ("1969 Act"), which amended the LabelingAct to require the now familiar warning: "The Surgeon General HasDetermined That Cigarette Smoking is Dangerous to Your Health."

The American Law Institute also reacted to the 1964 Advisory CommitteeReport by adopting Section 402A of the Second Restatement of Torts,including comment i which acknowledges the "harmful" effects of smoking,on May 22,1964, five months after the Report's release. See Restatement (Second) ofTorts § 402A(1965). Although, as discussed above, the comment is notdispositive on the issue of common knowledge, the timing of its adoptionis certainly relevant to the question of when a consensus formedregarding the risks of smoking.

Publicity surrounding the 1964 Advisory Committee Report and reactionsto it was "ubiquitous." Paul G. Crist and John M. Majoras, The "New" Wavein Smoking and Health Litigation-Is Anything Really So New?, 54 Tenn.L.Rev. 551, 557 (1987) ("Crist and Majoras"). As such, the Report hasbeen referred to as "the foundation of the modern anti-smoking movement."Matthew Baldini, The Cigarette Battle: Anti-Smoking Proponents Go For TheKnockout, 26 Seton Hall L.Rev. 348, 349(1995). See also 111 Cong. Rec.13,900 (1964) (statement of Sen. Moss) ("The extensive news coverage [ofthe 1964 Advisory Committee Report] made it virtually impossible for anyof us to ignore the findings, and the stature of the highly competent andunbiased committee was such that there could no longer be any reasonabledispute concerning the evidence linking cigarette smoking to lung cancerand other major illnesses."). The profound societal impact of theAdvisory Committee's Report is evidenced by the fact that nearly one infour adult men gave up smoking in 1964. See H.R.Rep. No. 449, 89thCong., 1st Sess. 3(1965), reprinted in 1965 U.S.C.C.A.N. 2350, 2352. Seealso Paul Raeburn, 26% of Americans Still Smoke 30 Years After SurgeonGeneral's Report, Chi. Trib., Jan. 10, 1994, available in 1994 WL 6511369(recognizing that the 1964 Surgeon General's report generated heightenedpublic concern and awareness and caused a 20% decrease in cigaretteconsumption).

This Court is satisfied that, after the extensive publicity surroundingthe 1964 Advisory Committee Report's unequivocal conclusion that smokingcauses cancer, all reasonable consumers should be charged with thisknowledge. The Court notes that there is extensive evidence that thehealth dangers of smoking were well known even before 1964, seegenerally Crist and Majoras, and thus a more expansive application of thecommon knowledge doctrine may well be available on a motion for summaryjudgment. However, because of the severity of the result on a motion todismiss, this Court will limit judicial notice of the common knowledgedoctrine at this stage of the proceedings to 1964.

Having found 1964 to be the pivotal date, the question now is how toapply it to this case. Plaintiff began smoking in 1951; therefore,plaintiff is not precluded as a matter of law from asserting productliability for the period from 1951-1964, at least on the basis of thecommon knowledge doctrine. However, in addition to successfully pleadingthat cigarettes are unreasonably dangerous, plaintiff must also allegethat the defect in the product proximately caused his injury. SeeCrawford, 14 F. Supp.2d at 211. In his complaint, plaintiff makes ageneral allegation of causation, stating: "As a direct and proximateresult of plaintiff's use of the defendant's cigarette products,plaintiff suffered bodily injury, to wit: lung cancer." First AmendedComplaint ¶ 1.15. This general allegation was asserted presumablyunder the assumption that plaintiff's 46 years of smoking would beconsidered relevant to causation. Because of the Court's ruling today, 33of those years are no longer relevant and plaintiff is obliged to allegethat his 13 years of smoking from 1951-1964 caused his 1997 cancer. Asnoted above, this Court need not accept conclusions "not `logicallycompelled[.]'" AVX Corp., 962 F.2d at 115 (citation omitted).Consequently, this Court concludes that causation is not properly pleadedas it now stands and grants the motion to dismiss. See Jones, 17 F.Supp.2d at 718 (although not specifically addressing the causationissue, dismissing under Rule 12(b)(6) claims of plaintiff who smokedfrom1954-1990 where court found "common knowledge" of health risks as of1966). However, this Court will give plaintiff the opportunity to amendhis complaint to make such an assertion if he can find a medical expertto support his position or he is willing to risk sanctions under FederalRule of Civil Procedure 11 at a later time.2

Although this holding disposes, for now, of plaintiff's strictliability and negligence claims, this Court will address defendant'salternative grounds for dismissal of these claims so that it will notface these issues again should plaintiff draft a second amendedcomplaint.


Defendant argues in the alternative that plaintiffs' failure to warnclaims are preempted by the 1969 Act, 15 U.S.C. § 1331-1340. Thisissue was squarely addressed by the Supreme Court in Cipollone v. LiggettGroup, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407(1992). InCipollone, the Court held that the 1969 Act expressly preempts all commonlaw claims that cigarette "advertising or promotions should have includedadditional, or more clearly stated, warnings[.]" Id. at 524, 112 S.Ct.2608 (plurality opinion); id. at 548-549, 112 S.Ct. 2608 (Scalia, J.,concurring in the judgment in part and dissenting in part).3 TheCourt then applied this proposition to conclude that plaintiff's strictliability and negligent failure to warn claims were preempted by the 1969Act. See id. at 524, 112 S.Ct. 2608. Since the 1969 Act took effect onJuly 1, 1969, see 15 U.S.C. § 1334(1994) (note on effective dates),the preemptive effect only extends to claims based on conduct subsequentto that date.

Magistrate Judge Lovegreen correctly concluded that plaintiff's failureto warn claims were preempted by the 1969 Act insofar as they were basedon post-1969 conduct, but did not recommend their dismissal becauseplaintiff asserted in his memo and at oral argument that the claims werebased solely on pre-1969 conduct. See April 30, 1999 Report andRecommendation at 29-30 ("R & R"). Defendant argues that a finding ofpreemption mandates dismissal of the claims because, insofar as thefailure to warn claims are based on pre-1969 conduct, plaintiff has notsufficiently alleged causation.

This Court agrees with defendant. To prevail on the non-preemptedfailure to warn claim, plaintiff would have to establish causation on twolevels: 1) that a pre-1969 warning would have induced him to stop smokingand 2) that his pre-1969 smoking was the proximate cause of his 1997cancer. See Salk v. Alpine Ski Shop, Inc., 115 R.I. 309, 342 A.2d 622,626(1975). This Court has already concluded that plaintiff has notsufficiently alleged that his 1951-1964 smoking caused his 1997 cancer.Because an additional 5 years is only a fraction of plaintiff's smokingyears, plaintiff has similarly not sufficiently pled the second level ofcausation. In addition, plaintiff has not specifically alleged the firstlevel of causation beyond his general causation allegation quoted above.Consequently, this Court concludes that this isan alternate ground for granting the motion to dismiss the failure towarn claims.

Safer Feasible Alternative Design

Defendant argues that plaintiff's Complaint fails to state a claim ofdesign defect, either in strict liability or negligence, becauseplaintiff has not alleged that a safer feasible alternative design existsfor defendant's cigarettes. To succeed on this theory, defendant mustestablish 1) that Rhode Island law requires a plaintiff to prove a saferfeasible alternative design in order to prevail on a design defect claimand 2) that therefore, plaintiff must allege the existence of a specificsafer feasible alternative design at the pleading stage to withstand a12(b)(6) motion. Because there is no compelling support for either ofthese propositions, this Court rejects this contention.

As noted above, a plaintiff in Rhode Island making a design defectclaim must establish, in relevant part, that a defect in the productrendered the product unreasonably dangerous. See Crawford, 14 F. Supp.2dat 211. Defendant argues that Rhode Island law requires proof of a saferalternative design before a factfinder can determine that a defectexists. Although practically, a plaintiff may well have to prove that asafer feasible alternative design exists to convince a factfinder thatthe product is "defective" in a way that would render it unreasonablydangerous,4 there is no indication that this type of proof isrequired as a matter of law in Rhode Island.

The primary case that defendant relies upon for this proposition,Jackson, 538 A.2d at 669, simply does not establish this requirement. Inthat case, the plaintiff was injured when a pyramid of stacked bowls withglass lids manufactured by the defendant toppled over, causing the glassto break and a shard of glass to strike his eye. Id. at 667. The RhodeIsland Supreme Court, in reviewing the evidence on defendant's appealfrom the denial of a directed verdict, noted that

[t]here is no evidence concerning any alternative design that would have made this pyramid safe in the circumstances in which it had been created. . . . Most compelling, however, is the undisputed and well-known fact that cookware and glass lids will break if they fall upon a hard surface like a slate floor. It is also well known to any reasonable consumer or owner that a pyramid of dishes or cookware . . . may be susceptible of toppling if a lateral force is directed against it.

Id. at 669. Further, the Court noted that there was "no evidence thatwould support the proposition that a manufacturer of cookware and . . .glass lids could have anticipated [that the glass would be stacked in apyramid] and guarded against it in any manner that would have been eitherfeasible or practicable." Id. The Court reversed the denial of a directedverdict because it concluded that, based on this evidence, the cookwarecould not be considered unreasonably dangerous as a matter of law. Id. Itis clear that the Court based its decision on the average consumer'scommon knowledge of the risks associated with stacking glassware. Thelack of evidence of a safer feasible alternative design was only oneconsideration and may indeed have only been a consideration insofar asthe use of the product was unforeseeable. Thus, Jackson does notestablish that proof of a safer feasible alternative design is aprerequisite to a factual finding that a product is defectively designedand unreasonably dangerous.

Furthermore, at least one federal case applying Rhode Island lawsuggests that there is no such requirement. See Austin v. Lincoln Equip.Assoc., Inc., 888 F.2d 934 (1st Cir. 1989). In Austin, the plaintiff wasa roofer who was injured when a power roof sweeper manufactured by thedefendant bucked backward when it wasstarted, causing the plaintiff to fall off the roof. Id. at 935. TheFirst Circuit noted that the plaintiff's expert had testified "that theuse of a spring pin in the interlock mechanism between the brush andwheel clutches was a poor design. The purpose of the? interlock mechanismwas to ensure that the two clutches engaged simultaneously, therebypreventing the machine from moving backward[.]" Id. at 936. The Court thenconcluded that "[s]ince a sudden backward motion by the sweeper couldupset a roofer's balance whether he was near the edge of a roof or not,the design and subsequent failure of the clutch interlock mechanism couldreasonably be found to be a defect under Section 402A of theRestatement." Id. Thus, the Court affirmed the district court's denial ofdefendant's motions for judgment notwithstanding the verdict and a newtrial. Id. at 939. Importantly, there is no discussion of any evidencesuggesting the existence of a safer feasible alternative design for theroof sweeper. The Court's conclusion that a jury could have found thesweeper to be defective based on the evidence discussed directlycontradicts defendant's contention.

The majority of states addressing the issue agree that no suchrequirement exists. See Potter v. Chicago Pneumatic Tool Co.,241 Conn. 199, 694 A.2d 1319, 1331 n. 11 (1997) (collecting cases).

The view that a safer feasible alternative design must be proved as amatter of law to prevail on a design defect claim is set forth in theRestatement (Third) of Torts § 2(b), which states that a product isdefective in design when

the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

Restatement (Third) of Torts: Products Liability § 2(b)(1998).Defendant urges that Rhode Island has already adopted this section orwill adopt it in the future. This Court rejects both arguments.

Specifically, defendant argues that Buonanno v. Colmar Belting Co.,Inc., 733 A.2d 712 (R.I. 1999), a recent Rhode Island Supreme Courtcase, "makes clear" that Rhode Island follows section 2(b) of the ThirdRestatement with respect to design defect claims. Because this is acomplicated factual case, further complicated by the Court's threeseparate opinions, an in-depth analysis is necessary to explain whydefendant's argument fails.

In Buonanno, the plaintiff was injured when his arm was crushed in thenip point of a conveyor-belt system. See id. at 713. The nip point iscreated where the conveyor belt moves over the stationary portion of theconveyor-belt system, or the "wing pulley." Id. at 713 n. 1. The conveyorbelt in question, of which the wing pulley was a component part, had beenconstructed by the plaintiff's employer. Id. at 714. Plaintiff brought aproduct liability suit on theories of strict liability and negligenceagainst the manufacturer and the distributor of the wing pulley. See 713-714. Both defendants made a motion for summary judgment on theground that, as manufacturer and seller respectively of a componentpart, they could not be held liable for injuries caused by the finalintegrated product. See id. at 714. The trial court granted summaryjudgment for both defendants on this ground. See id. at 715. The trialcourt did not consider the implications of the Restatement (Third) ofTorts in determining component part supplier liability. See id.

On appeal, the Rhode Island Supreme Court unanimously "adopted" § 5of the Restatement (Third) of Torts. See id. at 716 (Goldberg, J.); 718 (Weisberger, C.J.); id. at 720 (Flanders, J.). That section statesthat a seller or distributor of component parts

is subject to liability for harm to persons or property caused by a product into which the component is integrated if: (a) the component is defective in itself, as defined in this Chapter, and the defect causes the harm; or (b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and (2) the integration of the component causes the product to be defective, as defined in this Chapter; and (3) the defect in the product causes the harm.

Restatement (Third) of Torts: Products Liability § 5(1998). Applyingthis rule to the facts, the Court unanimously vacated the grant ofsummary judgment to the distributor because it found a genuine issue ofmaterial fact as to whether the distributor "substantially participatedin the integration" of the wing pulley so as to give rise to liabilityunder the Restatement § 5(b). See Buonanno, 733 A.2d at 717(Goldberg, J.); id. at 718 (Weisberger, C.J.); id. at 720 (Flanders,J.). A majority of the Court then affirmed the grant of summary judgmentto the manufacturer because (1) there was no evidence to suggest that themanufacturer had participated in the integration of the conveyor belt,defeating liability under § 5(b) and (2) there was no genuine disputethat the product was not "defective in itself," defeating liability under§ 5(a). See id. at 719 (Weisberger, C.J.).

The significance to this case of Buonanno comes with the latterconclusion of the majority regarding the manufacturer. Justice Goldbergargued in her lone opinion, which set forth the majority opinionregarding the distributor but the minority regarding the manufacturer,that § 2(b) of the Restatement (Third) of Torts controlled whetherthe part was "defective in itself" under § 5(a). See id. at 717.Acknowledging that the issue had not been litigated by the parties oraddressed by the trial judge, she nonetheless concluded that a genuineissue of material fact existed as to whether there was a reasonablealternative design for the wing pulley and, thus, stated that she wouldhave vacated the grant of summary judgment to the manufacturer. See 718. The majority rejected this view, finding that there was nogenuine issue of material fact, as any inference that a reasonablealternative design existed that would have reduced or avoided theforeseeable harm to the plaintiff was purely speculative given theevidence in the record. See id. (Weisberger, C.J.). No other evidencethat the component part was "defective in itself" was discussed. Themajority did not specifically address § 2(b) of the ThirdRestatement, but did appear to adopt Justice Goldberg's contention that,if there was evidence of a reasonable alternative design that would havereduced the foreseeable harm to the plaintiff, the component part couldhave been found "defective in itself." See id. at 718-719.

As should be evident from this detailed description of the case, theRhode Island Supreme Court did not "adopt" Section 2(b) of the ThirdRestatement, nor did it truly give an indication that it would do so whenfaced with the difficult question of whether it is prudent to adopt apolicy foreclosing liability solely due to the absence of evidencesuggesting a reasonable alternative design for a non-component product.The intense debate surrounding § 2(b), see Potter, 694 A.2d at 1331(collecting sources), was not even touched on by any member of the Courtin Buonanno. The Court itself stated that "this case stands for theproposition that the primary duty is owed by the designer of the assembledmachine and not the supplier of the component parts in the absence ofsubstantial participation in the integration of the component into thedesign of the product." Buonanno, 733 A.2d at 719. Thus, this Court willnot rely on Buonanno to predict that the Rhode Island Court will adoptsection 2(b) of the Third Restatement.5

Even if Rhode Island adopted such a requirement, there is no supportthat a safer feasible alternative design must be pled specifically beyondidentifying a problem with the product. No Rhode Island cases applyingSection 402A, including Jackson, address pleading requirements. Twocourts in jurisdictions that require proof of a safer feasiblealternative design have concluded that, at the pleading stage, it isenough to allege that something is "wrong" with the product because alogical alternative design would be to fix it. See Kotler v. AmericanTobacco Co., 926 F.2d 1217, 1224 (1st Cir. 1990) (applying Mass. law),vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3019, 120 L.Ed.2d 891(1992) (concluding that plaintiff must put forth evidence of a saferfeasible alternative design to survive summary judgment, but notingwithout comment the district court's conclusion that plaintiff had stateda design defect claim by alleging that defendant's tobacco was "bad");Thomas, 11 F. Supp.2d at 853 (noting that Mississippi law requires proofof a safer feasible alternative design, but concluding that "since theplaintiff is alleging that the defendants added harmful ingredients to thetobacco, it is possible that the plaintiff can prove a feasible designalternative would be to avoid adding such ingredients."). As discussedbelow, plaintiff does make such allegations.

Defendant cites no cases in which a motion to dismiss was granted basedon a failure to allege a safer feasible alternative design. Instead,defendant's argument seems to change course midstream. The only casesdefendant cites that dismiss design defect claims on the pleadings,Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822, 713 A.2d 381(1998)and Gianitsis v. American Brands, Inc., 685 F. Supp. 853 (D.N.H. 1988)(applying N.H. law), are totally inapposite to this case. In both cases,the plaintiff was attempting to recover under the "risk/utility" theory,which provides that a product is defective if the risks associated withthe product's use outweigh the social value or utility of the product.See Buckingham, 713 A.2d at 383; Gianitsis, 685 F. Supp. at 857. Thus,the risk/utility theory, unlike the consumer expectation theory, does notrequire a plaintiff to allege or prove that the product is defectivebeyond the inherent characteristics that allegedly make it unreasonablydangerous. Both Courts concluded that New Hampshire did not follow therisk/utility theory and, thus, dismissed the claims because theplaintiffs had not alleged a defect in the product beyond the inherentrisks. See Buckingham, 713 A.2d at 384; Gianitsis, 685 F. Supp. at 859.

Defendant expends an enormous amount of space in its objection to theReport and Recommendation essentially arguing that Rhode Island does notfollow the risk/utility test, or what it terms "categorical liability,"and that therefore plaintiff's claims should be dismissed. Whiledefendant is correct about the rule of law, see Castrignano, 546 A.2d at779 (Rhode Island follows the consumer-expectation test),6 it isincorrect about its application to this case. Although plaintiff doesmake some allegations that are untenable under the consumer-expectationtest, see First Amended Complaint ¶ 3.1.3 ("the risk of danger fromthe design of defendant's cigarette products outweighed the benefitsobtained with the use of the products"), plaintiff also makes severalallegations that there is something "wrong" with defendant's cigarettes.See id. at ¶ ("Insufficient reduction in tar and othercarcinogens bydilution and filtration"); ¶ ("Excessive in nicotinedelivery").

For the above reasons, plaintiffs pleading, to the extent it alleges adefect in defendant's cigarettes, would state a design defect claim wereit not for the applicability of the common knowledge doctrine.

Furthermore, the adoption of the Third Restatement in Rhode Islandwould not alter the analysis. The Restatement expressly states that it"takes no position regarding the requirements of local law concerning theadequacy of pleadings or pretrial demonstrations of genuine issues offact. It does, however, assume that the plaintiff will have theopportunity to conduct reasonable discovery so as to ascertain whether analternative design is practical." Restatement (Third) of Torts: ProductsLiability § 2 cmt. f (1998). Therefore, using the same reasoning, anallegation that there is something wrong with the product would state adesign defect claim under the Third Restatement because a plaintiff couldeventually prove that a safer feasible alternative design would fix theproblem.

This Court notes that its conclusions in this section to this pointessentially adopt Magistrate Judge Lovegreen's recommendation on theissue of a safer feasible alternative design requirement. Contrary todefendant's assertions, this Court does not read Judge Lovegreen's Reportas endorsing "categorical liability."

However, this Court declines to adopt Judge Lovegreen's recommendationthat defendant be sanctioned for its arguments on this issue. FederalRule of Civil Procedure 11 provides that "the claims, defenses, and otherlegal contentions" contained in a party's pleadings must be "warranted byexisting law or by a nonfrivolous argument for the extension,modification, or reversal of existing law or the establishment of newlaw[.]" Fed.R.Civ.P. 11(b)(2). Judge Lovegreen based his recommendationspecifically on defendant's assertion that Jackson establishes that aplaintiff must plead and prove a safer feasible alternative design inorder to prevail on a design defect claim in Rhode Island. Although thisCourt agrees that Jackson does not establish this proposition, itdeclines to sanction defendant for this "aggressive" use of precedent.See Protective Life Ins. Co. v. Dignity Viatical Settlement Partners,171 F.3d 52, 57 (1st Cir. 1999) (reversing imposition of Rule 11sanctions as abuse of discretion where district court based sanctions onaggressive use of precedent, even where Court agreed that party had"attempted to squeeze too much from [the] cases"). Defendant did not relysolely on Jackson for its argument regarding the need to plead and provea safer feasible alternative design and this Court concludes that, giventhe current controversy over the theory and the Rhode Island SupremeCourt's recent cursory treatment of Section 2(b) of the Restatement(Third) of Torts in Buonanno, the overall argument was not so frivolousas to warrant Rule 11 sanctions. See Clancy v. Mobil Oil Corp.,906 F. Supp. 42, 50 (D.Mass. 1995) (refusing to impose Rule 11 sanctionswhere party's argument was "not entirely unfounded").

Negligent Manufacturing Claim

Defendant argues that plaintiff's negligent manufacturing claim failsto state a claim on which relief can be granted because plaintiff failsto allege a deviation from defendant's manufacturing process. This Courtagrees.

First, it is unclear to this Court why plaintiff would include anegligent manufacturing claim in this Complaint since strict liabilitywill lie due to a manufacturing defect without, as noted above, theadditional requirement that defendant knew or should have known of thedefect. Nevertheless, the claim would fail regardless of the theoryasserted because, in addition to the application of the common knowledgedoctrine rendering the product not "unreasonably dangerous" as a resultof a defect, plaintiff has failed to properlyallege a manufacturing defect. To establish a manufacturing defect, "aplaintiff must show a product defect caused by a mistake or accident inthe manufacturing process." Swajian v. General Motors Corp., 916 F.2d 31,35 (1st Cir. 1990) (applying Rhode Island law). Accord Perez-Trijillo v.Volvo Car Corp., 137 F.3d 50, 53 (1st Cir. 1998) (applying Puerto Ricolaw) (same requirement); Duford v. Sears, Roebuck & Co., 833 F.2d 407,410 (1st Cir. 1987) (applying New Hampshire law) (same). Plaintiff hasmade no such allegation and has stated no facts from which such anallegation could even be inferred. Instead, plaintiff attempts to arguethat a manufacturing defect can be established by a showing thatdefendant's product differs from the "marketplace standard." Pl.'sObjection to Defendant's Motion to Dismiss at 4. There is absolutely nosupport for this proposition. Furthermore, such a theory would render amanufacturing defect claim indistinguishable from a design defect claim.

Therefore, plaintiff's negligent manufacturing claim would have beendismissed on this ground alone.

B. Conspiracy Claim

There has been no objection filed by plaintiff to the MagistrateJudge's recommendation that plaintiff's conspiracy claim grounded infraud be dismissed for failure to comply with the requirements of Rule9(b) as they are set out above. The Magistrate Judge concluded thatplaintiff's "complaint alleges actual misrepresentations, reliance, andthe justifiability of such reliance in such broad terms that it does notgo any further than restating the elements of the claim and, therefore,does not serve its purpose of giving [defendant] the notice it isentitled to in order to answer a claim of fraud." R & R at 8. Since thisCourt, upon review, thoroughly agrees with the Magistrate Judge'sreasoning and conclusion, it will not belabor the point by conducting itsown analysis.

The objection filed is by defendant to the Magistrate Judge'srecommendation that plaintiff be allowed time to amend his complaint toattempt to comply with Rule 9(b). Defendant argues that, since this isplaintiff's second attempt at drafting a viable complaint and sinceplaintiff's counsel "admitted" that the complaint could not be improved,see Deft's Objection to R & R at 42, dismissal of the conspiracy claimshould be with prejudice. However, the dismissal of plaintiff's originalcomplaint was for a violation of Rule 8 and, thus, plaintiff was not onnotice that the complaint failed to satisfy the particularityrequirements of Rule 9(b). Cf. Hayduk, 775 F.2d at 445 (dismissal withprejudice of fraud counts after plaintiffs had two opportunities to amendtheir complaint was well within the discretion of the district courtparticularly where the plaintiffs were notified before amending a secondtime that the allegations of fraud in their first amended complaintfailed to meet the particularity requirements of Rule 9(b)).Furthermore, although plaintiff's counsel did indicate at the hearingbefore the Magistrate Judge that "[w]e've done our best," March 3, 1999Arg. Tr. at 44, he represented at the hearing before this Court that"we'll try. We'll do it again." July 26, 1999 Arg. Tr. at 30. Sincefederal courts should be liberal in allowing amendments, see Foman v.Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222(1962);Fed.R.Civ.P. 15(a), this Court will adopt the Magistrate Judge'srecommendation and will grant plaintiff a chance to amend the complaintconsistent with this opinion.

The Court notes, however, that Rule 9(b) will not be plaintiff's onlyobstacle in attempting to replead. Even if plaintiff properly avers afraud claim with particularity, that claim will fail as a matter of lawto the extent plaintiff relies upon misrepresentations made after 1964regarding the general health risks of smoking, including the risk ofcontracting cancer. In Rhode Island, reliance on allegedmisrepresentations must be justifiable toestablish a viable fraud claim. See Kelly v. Tillotson-Pearson) Inc.,840 F. Supp. 935, 940 (D.R.I. 1994); Travers v. Spidell, 682 A.2d 471,473 (R.I. 1996) (per curiam). In view of this ruling regarding thepublic's common knowledge of the general health risks of smoking since1964, plaintiff cannot as a matter of law plead justifiable reliance onrepresentations made by defendant after that date which conflict withsuch knowledge. See, e.g., Smith, 599 A.2d at 321 ("no reasonable personcould have relied on any alleged representation in media advertising thatdriving while intoxicated is safe or acceptable"); Gawloski v. MillerBrewing Co., 96 Ohio App.3d 160, 644 N.E.2d 731, 736(1994) ("areasonable consumer could not, as a matter of law, ignore basic commonknowledge about the dangers of alcohol and justifiably rely upon beeradvertisements and their idyllic images to conclude that the prolongedand excessive use of alcohol is safe and acceptable").7

IV. Conclusion

For the preceding reasons, defendant's motion to dismiss is granted asto all claims. However, plaintiff is granted leave to file a secondamended complaint which is consistent with this opinion, within thirty(30) days from the date hereof.

It is so ordered.

1. The Courts holding regarding the addictive nature of cigarettes,however, has been superseded by statute as stated by the Fifth Circuit inSanchez v. Liggett & Myers, Inc., 187 F.3d 486, 490 (5th Cir. 1999). In1993, after the lawsuit in Grinnell was filed, the Texas legislaturecodified comment i to Section 402A of the Restatement (Second) of Tortsto preclude product liability actions based on cigarettes. See id. at489. The Sanchez Court held that the statute superseded the GrinnellCourt's holding regarding the addictive nature of cigarettes because theplain language of the statute and its legislative history established thatthe Texas legislature did not intend to distinguish between generalhealth dangers and addictive dangers of smoking when assessing "commonknowledge." See id. at 490. The Court then relied on the Grinnell Court'sdetermination that the dangers of smoking have been known since at least1952 to dismiss under the statute the product liability claim of aplaintiff who had smoked since 1957. See id. at 490-491.

2. To the extent plaintiff is basing his claim on the addictive natureof cigarettes, as counsel seemed to assert at oral argument, he facessimilar causation problems. Although the complaint alleges defects of"excessive in nicotine delivery," First Amended Complaint ¶, and that defendant's cigarettes are "highly likely to induce inforeseeable users a state of addiction," id. at ¶ 1.8, nowhere doeshe allege that he was addicted to defendant's cigarettes. In fact,plaintiff alleges in his conspiracy claim that he "would have quitsmoking" but for the representations of defendant, id. at ¶ 4.9,indicating no such addiction. In the face of such a claim, the "commonknowledge" analysis might be different, as it has been in several othercases discussed in more depth above. However, this Court does not reachand decide this issue today.

3. Because Justice Scalia's opinion, in which Justice Thomas joined,argued for even broader preemption than did the four-Justice plurality,the plurality's preemption analysis constitutes the holding of theCourt. See King v. E.I. Dupont De Nemours and Co., 996 F.2d 1346, 1349(1st Cir. 1993).

4. This is particularly true when the claim is based in negligence,since the focus will be on how the defendant could have acted morereasonably.

5. There is another consideration relevant to this analysis whichdefendant has failed to raise. If this Court were to conclude that RhodeIsland follows Section 2 of the Third Restatement, today's holdingregarding the common knowledge doctrine would be moot, as that sectionexpressly rejects the use of the doctrine to preclude a product liabilityaction as a matter of law. See Restatement (Third) of Torts: ProductsLiability § 2 cmt. g (1998).

6. The Castrignano Court, however, created an exception to that ruleby adopting comment k to Section 402A, which employs a risk/utilityanalysis for "unavoidably unsafe products" such as prescription drugs, asan affirmative defense. Castrignano, 546 A.2d at 782. That exception isnot relevant to the case at bar.

7. In Jones, 17 F. Supp.2d at 720-721, the Court applied the commonknowledge doctrine to bar strict liability and negligence claims based oncigarettes, but allowed a common law fraud claim to go forward. Indiscussing the justifiability of reliance on alleged misrepresentations,the Court distinguished Gawloski by noting that plaintiff's claim wasbased on misrepresentations regarding defendant's manipulation ofnicotine levels in the cigarettes rather than just misrepresentationsregarding the well-known dangers of the product alone. Id. at 721. Sincethere is no such allegation in this case and plaintiff's fraud claimappears to be based only on alleged misrepresentations regarding thegeneral health risks of smoking, Gawloski's reasoning can be borrowedhere to preclude an allegation of justifiable reliance.

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