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Bernard S. Levi, et al v. Brown & Williamson Tobacco Corp.

March 29, 2012

BERNARD S. LEVI, ET AL., PLAINTIFFS,
v.
BROWN & WILLIAMSON TOBACCO CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the defendants' joint motion to dismiss. For the reasons discussed below, the motion will be granted.

I. BACKGROUND

Plaintiff and his sisters "witnessed [their] mother Mrs. Julia Ellen Waring smoke cigarettes on a daily basis[,] roughly two packs a day for over 40 years." Compl. at 2; see id. at 3. Mrs. Waring "smoked a variety of cigarette[e]s" which plaintiff purchased for her at neighborhood stores between January 1973 and January 1992. Id. at 3. Mrs. Waring "became addicted to cigarettes and was unable to quit smoking," id., and ultimately died on December 2, 1999, id. at 2, "of metastasis lung cancer," id. at 3.

According to plaintiff, "the tobacco companies manipulated the amount of nicotine in cigarettes with the intent of creating addiction among consumers," including his mother. Id. Mrs. Waring allegedly was unaware of this manipulation of the nicotine levels in cigarettes, and "[h]ad [she] known . . . she would have stopped smoking." Id. By "willfully misrepresent[ing] the true nature of the health risks associated with cigarette use," defendants allegedly "contributed to [Mrs. Waring's] death." Id. at 4. Further, defendants "intentionally withheld" knowledge of the effects of cigarette smoking "with the intent to deceive the public which lead to the death of [plaintiff's] mother," who knew nothing "of the unjust, fraudulent, deceptive and concealment practice of the tobacco companies." Id.

Plaintiff purports to bring "[t]his action . . . on behalf of the (Son) Bernard Levi the Personal Representative of the . . . deceased[,] Mrs. Julia Ellen Waring, id. at 2, and raises the following claims:

Product Liability, Fraud, Deceptive Trade Practice,

WRONGFUL DEATH: SURVIVAL STATUTE: LOSS OF CONSORTIUM CLAIMS BREACH OF WARRANTY: CONSPIRACY AND DEPRIVATION OF PLAINTIFF'S

CONSTITUTIONAL RIGHTS AND NEGLIGENCE

Id. at 1 (caption) (emphasis in original).*fn1 Plaintiff demands judgment in his favor and an award of $79.5 million dollars. Id. at 5.

Defendants R.J. Reynolds Tobacco Company*fn2 and Philip Morris USA Inc. have filed a joint motion to dismiss the complaint on the grounds that it "fail[s] to plead facts that support a cognizable claim under the law of the District of Columbia," that federal law preempts his failure to warn claim, and that it fails to adequately allege a claim of fraud. Mem. of P. & A. in Supp. of Defs.' Joint Mot. to Dismiss Pl.'s Claims ("Defs.' Mem.") at 3-4.

II. DISCUSSION

A. Dismissal Under Rule 12(b)(6)

Defendants move to dismiss the complaint on the ground that the complaint "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A motion under Rule 12(b)(6) tests the sufficiency of the complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "[T]he complaint is construed liberally in the plaintiff['s] favor, and [the Court] grant[s the] plaintiff[] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). ...


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