954 F. Supp. 2d 54
D.N.H.2013Background
- Bougopoulos sued Altria, Philip Morris, and R.J. Reynolds for multiple claims arising from cigarette smoking injuries.
- Plaintiff began smoking in 1960, initially Lucky Strike then Marlboro, with brands marketed by the defendants.
- Plaintiff alleges defendants targeted youth and manipulated nicotine to increase addiction.
- Plaintiff was diagnosed with COPD in 2011 and alleges lifelong smoking caused impairment.
- Defendants moved to dismiss all but misrepresentation claims; Bougopoulos objected.
- Court analyzes whether strict liability, misrepresentation, negligence, CPA, and RICO claims survive a 12(b)(6) dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether manipulated nicotine can support a strict liability design defect | Bougopoulos alleges defect via nicotine manipulation | Defendants say nicotine manipulation is not a defect | Not preempted; claim survives 12(b)(6) as to manipulation theory |
| Whether Count II (misrepresentation by seller) survives or is duplicative | Count II alleges 402B misrepresentation by seller | Count II duplicates negligent and fraudulent claims | Dismissed as redundant; Count II dismissed |
| Whether Counts III and IV (negligence) state valid claims | Negligence based on manipulation of nicotine | ||
| and defect in design | Inherently dangerous product not actionable negligence | Count III survives to the extent based on nicotine manipulation; Count IV dismissed as duplicative | |
| Whether Count VII (NH CPA) is time-barred | CPA claim timely under knowledge rule; not exempted | CPA claim time-barred due to exemptions | Denied; CPA claim not dismissed on exemption grounds |
| Whether Count VIII (RICO) is cognizable | RICO damages for COPD/injury from smoking | RICO requires injury to business or property, not personal injury | Dismissed; personal injury losses not cognizable under RICO |
Key Cases Cited
- Buckingham v. R.J. Reynolds Tobacco Co., 142 N.H. 822, 713 A.2d 381 (1998) (N.H. 1998) (strict liability defect requirement for cigarettes)
- Gianitsis v. Am. Brands, Inc., 685 F.Supp. 853 (D.N.H. 1988) (D.N.H. 1988) (design defect proof requirements in NH context)
- Kyte v. Philip Morris Inc., 408 Mass. 162, 556 N.E.2d 1025 (Mass. 1990) (Mass. 1990) (dealing with deviation-from-norm concepts for cigarettes)
- Johnson v. Brown & Williamson Tobacco Corp., 122 F.Supp.2d 194 (D. Mass. 2000) (D. Mass. 2000) (pleading and causation standards for cigarette design/manipulation claims)
- Szulik v. State Street Bank and Trust Co., 935 F.Supp.2d 240 (D. Mass. 2013) (D. Mass. 2013) (causation and proper handling of issues on motion to dismiss)
- Conley v. R.J. Reynolds Tobacco Corp., 286 F.Supp.2d 1097 (N.D. Cal. 2002) (N.D. Cal. 2002) (preemption considerations with tobacco products)