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July 19, 2000


The opinion of the court was delivered by: Stanley S. Harris, Judge.


Before the Court are defendants' motion for summary judgment, plaintiffs' opposition, defendants' reply thereto, and various supplemental memoranda submitted by defendants. Upon consideration of the parties' submissions and the entire record in this case, the Court grants defendants' motion. Although findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56, see Fed.R.Civ.P. 52 (a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C. Cir. 1998), the Court nonetheless sets forth its reasoning.


The motivation for this case arises out of injuries suffered by plaintiff Betty Smith, allegedly caused by her smoking cigarettes that were manufactured by defendants Brown & Williamson Tobacco Corp., R.J. Reynolds Tobacco Co., and Philip Morris, Inc. See Compl. ¶ 8. Mrs. Smith alleges that she became addicted to cigarettes shortly after she began smoking in 1945 and that, as a result, she was unable to quit smoking until 1991. See id. ¶¶ 8-9. In the late 1980s, Mrs. Smith was diagnosed with emphysema, and in 1992 she was diagnosed with throat cancer. See id. ¶ 10. She and her husband, plaintiff John Smith, filed a six-count complaint in the Superior Court of the District of Columbia on October 10, 1997, alleging product liability, fraud, deceptive trade practices, and loss of consortium claims.*fn1 See id ¶¶ 15-54. After removing the case to this Court, defendants filed a motion to dismiss. On May 19, 1998, the Court granted defendants' motion to dismiss with respect to Counts I-III of plaintiffs' complaint on the ground that these claims were barred by the applicable statute of limitations, but denied defendants' motion with respect to Counts IV-VI. Smith v. Brown & Williamson Tobacco Corp, 3 F. Supp.2d 1473 (D.D.C. 1998). Count IV alleges that defendants committed fraud by withholding information that cigarettes were addictive, and cause cancer and emphysema, see Compl. ¶¶ 36-42; Count V alleges that defendants' withholding of information constitutes a deceptive trade practice in violation of D.C. Code § 28-3904 see id. ¶¶ 43-51; and Count VI alleges a derivative claim for loss of consortium by Mr. Smith as a result of the injuries suffered by Mrs. Smith, see id. ¶¶ 52-54. Defendants now move for summary judgment on Counts IV-VI.


Summary judgment may be granted only if the pleadings and evidence "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). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Mere allegations in the pleadings, however, are not sufficient to defeat a summary judgment motion; if the moving party shows that there is an absence of evidence to support the nonmoving party's case, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).


Defendants assert three alternative grounds in support of their motion for summary judgment. First, defendants argue that Mrs. Smith's fraud and deceptive trade practices claims are barred by the three-year statute of limitations applicable in the District of Columbia ("D.C.").*fn2 Second, defendants contend that these claims are deficient as a matter of law because Mrs. Smith cannot establish that she reasonably relied on defendants to disclose evidence of the addictiveness and health hazards of cigarettes, or that defendants had a duty to disclose such information. Last, defendants contend that Mrs. Smith's claims are preempted by federal law. Although the Court disagrees with defendants' threshold argument that plaintiffs' claims are barred by the statute of limitations, it concludes that defendants are entitled to summary judgment because Mrs. Smith has not shown that she relied on defendants to disclose information about cigarettes, or that defendants' alleged conduct caused her injuries.

A. Statute of Limitations

Mrs. Smith's fraud and deceptive trade practices claims are governed by a three-year statute of limitations. See D.C. Code § 12-301(8). What constitutes the accrual of a cause of action is a question of law; when the cause of action actually accrued in a particular case is a question of fact. See Cevenini v. Archbishop of Washington, 707 A.2d 768, 770-71 (D.C. 1998); Diamond v. Davis, 680 A.2d 364, 370 (D.C. 1996). For purposes of the statute of limitations, a cause of action accrues when the plaintiff has either actual or inquiry notice of her cause of action. See Diamond, 680 A.2d at 372. "`[A]ctual notice' is that notice which a plaintiff actually possesses; "inquiry notice' is that notice which a plaintiff would have possessed after due investigation." Id. A plaintiff is charged with inquiry notice of a claim when she knew of (1) an injury, (2) its cause in fact, and (3) some evidence of wrongdoing by defendants. See Cevenini, 707 A.2d at 771; Diamond, 680 A.2d at 379. It is undisputed that by 1992 Mrs. Smith knew of her injury — throat cancer — and its cause in fact — cigarette smoking. See Defs.' Mot. at 5; Pls.' Opp'n at 4-7; see also Smith, 3 F. Supp.2d at 1475. The parties disagree only as to the third requirement of inquiry notice — when Mrs. Smith had sufficient evidence of some wrongdoing on the part of defendants to start the running of the statute of limitations on a fraud claim.*fn3 Defendants argue that the appropriate date is 1992 because, by that time, (1) she knew or should have known of the addictive and hazardous qualities of cigarettes, given the warnings on cigarette packages and the publicly available information about cigarettes, (2) she was aware of her own addiction to smoking, and (3) she was aware of defendants' nondisclosure of information on the addictive and harmful qualities of smoking cigarettes. Plaintiffs, by contrast, argue that Mrs. Smith did not have sufficient evidence of wrongdoing until 1997, when internal tobacco company documents were released evidencing defendants' alleged efforts to mislead the public about the harmful effects of smoking cigarettes.

Defendants are not entitled to summary judgment on the ground of statute of limitations because Mrs. Smith's awareness of defendants' nondisclosure of information, coupled with her purported knowledge of her own addiction and of the generally addictive and harmful qualities of cigarettes, was not sufficient evidence of wrongdoing to satisfy the third requirement for inquiry notice of her fraud claim. The nature of a cause of action determines the quantum of knowledge necessary to start the running of the statute of limitations. See Hobson v. Wilson, 737 F.2d 1, 35 (D.C. Cir. 1984); Richards v. Mileski, 662 F.2d 65, 68-69 (D.C. Cir. 1981). In order to prevail on a claim of fraud in D.C., a plaintiff must establish (1) a false representation, (2) in reference to a material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action taken by plaintiffs in reliance upon the representation. Higgs v. Higgs, 472 A.2d 875, 876 (D.C. 1984); Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. 1977). The first element may be satisfied by nondisclosure or silence. Bennett, 377 A.2d at 59. Mrs. Smith's fraud claim alleges that defendants have known since the 1950s that cigarettes are addictive, and cause cancer and emphysema, and that they withheld and concealed this knowledge with the intent to deceive the public.*fn4 See Compl. ¶¶ 36-42. The Court does not find that Mrs. Smith's purported awareness of her addiction to cigarettes, the health hazards of smoking cigarettes, and defendants' silence with respect to those hazards was sufficient evidence of wrongdoing to charge her with inquiry notice of a fraud claim because it provided Mrs. Smith with no indication that defendants were deliberately concealing information in order to deceive the public.*fn5 This evidence was likely sufficient to charge her with inquiry notice of a negligence claim, as it suggested that defendants should have investigated, and alerted the public to, the hazards of smoking cigarettes. See. e.g., East Penn. Mfn. Co. v. Pineda, 578 A.2d 1113, 1118 (D.C. 1990) (negligent failure to warn claim requires that supplier have "reason to know that [a] product is dangerous and fail[] to exercise reasonable care to so inform the user"). It was not, however, sufficient to charge her with inquiry notice of a fraud claim because it only gave rise to an inference that defendants had known about the harmful qualities of cigarettes, and revealed nothing as to defendants' alleged intent to deceive the public. See Richards, 662 F.2d at 69-72 (finding that statute of limitations began to run later for claim of intentional wrongdoing than for claim of wrongful discharge where defendants had concealed their wrongdoing); Richardson v. U.S. News & World Report. Inc., 639 F. Supp. 595, 600 (D.D.C. 1986) (finding that, for statute of limitations purposes, "the facts underlying plaintiffs' claims for intentional and fraudulent conduct are distinct from those supporting their claims premised upon lesser degrees of fault").*fn6

Furthermore, while defendants argue that Mrs. Smith "had enough information to know she had a possible fraud cause of action, "Defs.' Mot. at 7, they have not shown how, through the exercise of due diligence, Mrs. Smith could have investigated the facts of defendants' alleged fraud. See Hawkins v. Greenfield, 797 F. Supp. 30, 33 (D.D.C. 1992) ("Defendants bear the burden of showing that plaintiff has not met the due diligence standard."). Defendants' omission is significant because, although the D.C. Court of Appeals recently stated that a plaintiff has a duty to investigate all matters affecting a possible cause of action "with reasonable diligence under all of the circumstances," it also acknowledged that, in some cases, "the relevant facts may be such that it may be reasonable to conduct no investigation at all." Diamond, 680 A.2d at 372, 381. In the absence of any indication as to how Mrs. Smith reasonably could have investigated the facts underlying her fraud claim in 1992, or greater evidence of defendants' alleged wrongdoing, the Court cannot state, as a matter of law, that Mrs. Smith was on inquiry notice of her fraud claim in 1992. Summary judgment on the ground that plaintiffs' claims are time-barred is therefore inappropriate.

B. Reliance and Causation

The Court does, however, conclude that summary judgment is warranted on Mrs. Smith's fraud claim because she has not shown that she relied on defendants' alleged nondisclosure, and on her deceptive trade practices claim because she has not ...

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