ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS AND DISMISSING CLAIMS
Plaintiffs bring this action seeking to recover on their own behalf and on behalf
/. BACKGROUND
Plaintiffs allege that Mr. Herbert Hawkins, Sr. began smoking cigarettes in 1942, at age twelve, Ms. Audrey Jordan in 1960, at age thirteen. Both allegedly became instantly addicted to nicotine in tobacco, and because of their addiction, continued to smoke until suffering either severe injuries or death. Their addiction to cigarettes allegedly caused them to smoke cigаrettes every day and stifled their numerous attempts to- quit. Mr. Hawkins, Sr. suffered a stroke in the year 2000 at the age of seventy. Ms. Jordan died of cancer in 1999 at the age of fifty-one. Until 1964, when cigarette packages and advertisements began containing warning labels, both Mr. Hawkins Sr. and Ms. Jordan were allegedly led to believe that smoking cigarettes was neither harmful nor addictive.
Plaintiffs in this case include: Herbert Hawkins, Sr.; Tonya Brown, the daughter of Ms. Jordan; Hazel Johnson; Herbert Hawkins Jr., the independent executor of the Estate of Audrey Johnson and thе Guardian of the Person and Estate of Herbert Hawkins, Sr.; and Ella M. Hawkins, the wife of Herbert Hawkins, Jr. All Plaintiffs, with the exception of Mr. Hawkins, Sr., reside in Bay City, Texas. Plaintiffs filed suit on February 7, 2001 alleging causes of action against Defendants for: 1) fraud and deceit; 2) negligent misrepresentation; 3) misrepresentation to consumers; 4) breach of implied warranty; and 5) breach of express warranty. Defendants in this case are: Philip Morris Inc. (“Philip Morris”); Liggett & Myers, Inc. (“Lig-gett”);, Liggett Group, Inc. (“Liggett Group”); Brook Group, Ltd. (“Brook Group”); R.J. Reynolds Tobacco Co. (“RJR”); Brown & Williamson Tobacco Corp. (“Brown & Williamson”); Thе American Tobacco Company, Inc. (“American Tobacco”); B.A.T. Industries P.C.L. (“B.A.T.”); Lorillard Tobacco Company (“Lorillard”); The Council for Tobacco Research — U.S.A., Inс. (“CTR”); and The Tobacco Institute, Inc. (“Tobacco Institute”).
Since the filing of Plaintiffs’ Complaint, much has changed. On May 8, 2001, the Court dismissed B.A.T. from the case for lack of jurisdiction. Then on May 24, 2001, Dеfendants RJR, Philip Morris, Lor-illard, and Brown & Williamson moved for judgment on the pleadings on all of Plaintiffs’ causes of action. Defendants Liggett Group, Liggett, and Brooke Group joined in the Motion for judgment on the pleadings. Plaintiffs subsequently submitted a statement of non-opposition to Defendants’ Motion, except as to the breach of warranty claims. Plaintiffs alsо sought leave to amend their Complaint to eliminate all but the warranty claims. On July 5, 2001, the Court held a scheduling conference in which it gave Plaintiffs permission to amend their Complaint and to respond to outstanding pleadings by July 31, 2001. On July 19, 2001, Plaintiffs filed their First Amended Complaint for Breach of Express and Implied Warranty. Defendants were given until August 31, 2001 to answer or otherwise respond to the Amended Complaint. They filed a Supplemental Memorandum in support of their Motion for Judgment on the Pleadings on August 13, 2001. Plaintiffs filed a Response on August 22, 2001.
Thus, the only claims Plaintiffs currently have before the Court are those for breach of express and implied warranty. The Court will now consider Defendants’ Mo
II. LEGAL STANDARD
When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded allegations in the complaint, and views them in a light most favorable to the plaintiff.
See Malina v. Gonzales,
III. ANALYSIS
A. Implied Warranty
Plaintiffs bring their claims under Texas law, and Defendants do not contest the application of Texas law. Under Tex. Civ. Prac. & Rem.Code §§ 82.001(2), 82.004 (Vernon 1997) Plaintiffs’ claims for breach of implied warranty are clearly barred.
See Sanchez v. Liggett & Myers, Inc.,
B. Express Warranty
Under Texas law, to state a claim for breach оf express warranty, Plaintiffs must allege: (1) an express affirmation of fact or promise by the seller relating to the goods; (2) that such affirmation of fact or promise by the sellеr became a part of the basis of the bargain; (3) that Plaintiffs relied upon said affirmation of fact or promise; (4) that the goods failed to comply with the affirmation of fact or promise; (5) Plaintiffs were injured by such failure of the product to comply with the express warranty; .and (6) that such failure was the proximate cause of Plaintiffs’ injury. Tex.Bus. & Com.Code § 2.313(a)(1) (Vernon 1994);
Morris v. Adolph Coors Co.,
Plaintiffs’ Amendеd Complaint contains the following allegation supporting Plaintiffs’ claim for the existence of an express warranty: “Defendants’ advertisements and promotional statеments contained specific overt and covert claims amounting to a warranty that their products were of good quality except that the cigarettes could cause lung cancer and heart disease.” Plaintiffs attach to their Amended Complaint various photocopies of cigarette advertisements. Plaintiffs’ theory of the case is further elucidated in their Response to Defendants’ Motion to Dismiss. Plaintiffs argue that each advertisement contained an affirmation of fact and promises made by Defendant regarding the tar and nicotine contents of each their product. Plaintiffs claim that these representations were relied upon by Mr. Hawkins, Sr. and Ms. Jordan, and that the actual tar and nicotine content of the cigarettes were in fact twice the amount stated by Defendants.
A closer inspection of Plaintiffs’ argument, however, reveals that they have failed to state a claim. In support of their
As a final note, the Court makes the following observations. The stories of Mr. Hawkins, Sr. and Ms. Jordan are indeed tragic. Moreover, the lawyer rеpresenting the Plaintiffs is Mr. Hawkins, Sr.’s own son, making the case even more poignant. This lawsuit seems, in many ways, a true labor of love. This reveals itself in the laudable zeal and vigor with which Mr. Hawkins, Jr. has prosecuted Plaintiffs’ claims to date. He is deeply commended for his efforts. The Court, however, would be doing Plaintiffs a disservice by allowing this lawsuit to proceed. The law in this аrea, at least in Texas, is well-settled. The Court would only compound Plaintiffs’ misery by allowing them spend the enormous time, money, and inconvenience required to pursue these claims, only to have them rejected, as they certainly would be, at the summary judgment stage, or at trial, or certainly on appeal. While the airing of public disputes often hаs intrinsic value regardless of the outcome, in the realm of claims by smokers, the value is de minims. The law recognizes that along with the freedoms and rights enjoyed by citizens of the United Stаtes comes personal respo.nsibility. For well over twenty years, the American public has been so saturated with information regarding the risks associated with smoking that even the most disinterested, uniformed citizen is aware that cigarette smoking is harmful to ones’ health.
See American Tobacco Co., Inc. v. Grinnell,
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion for Judgment on the Pleadings is GRANTED. Accordingly, Plaintiffs’ claims for breach оf express and implied warranty against the moving parties are DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM. In addition, for the same reasons, the Court sua sponte DISMISSES WITH PREJUDICE Plaintiffs’ warranty claims against the non-moving parties as well. Each party is to bear its own costs incurred herein to date.
IT IS SO ORDERED.