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N THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

ESTATE OF EDWARD D. WHITE, by SUZANNE WHITE, Administratrix; and SUZANNE WHITE, in her own right Plaintiffs, v. R.J. REYNOLDS TOBACCO COMPANY and BROWN & WILLIAMSON TOBACCO CORPORATION,

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Civil No. S-97-4301

Defendants.

MEMORANDUM OPINION Now before the Court is defendants= joint motion for summary judgment on plaintiffs= wrongful death and survivorship claims that defendants, cigarette manufacturers, caused the death of Edward White, a smoker who developed lung and brain cancers. Also before the Court is defendants= motion to strike the affidavit of plaintiffs' expert, Allan Feingold, M.D. The motion for summary judgment has been fully briefed, and no oral hearing is deemed necessary. Local Rule 105.6 (D. Md.). For the reasons that follow, defendants= motion for summary judgment will be granted.1 I. SUMMARY JUDGMENT STANDARDS Summary judgment shall be entered if Athere is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.@ Fed. R. Civ. P. 56(c). The non-moving party

B&W=s AMotion to Determine Sufficiency of Plaintiffs= Answers to Requests for Admission, @ filed April 11, 2000, is MOOT, in light of the Court=s ruling herein.
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is entitled to the benefit of all reasonable inferences from the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970). But the court should consider only reasonable inferences from the evidence. As the Fourth Circuit has stated, A[I]t is the province of the jury to resolve conflicting inferences from circumstantial evidence. Permissible inferences must still be within the range of reasonable probability, however, and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture.@ Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir.), cert. denied, 358 U.S. 908 (1958). II. DISCUSSION Plaintiffs' decedent, Edward D. White, began to smoke in 1952, at age sixteen, and smoked for over thirty years. He smoked "Kools" (made by B&W) since the early 1960s, and then, in 1978, he switched to "Winstons" (made by RJR). Mr. White began to smoke while he lived in Pennsylvania, where he attended public schools. He moved to Maryland as a young adult, where he lived most of his smoking life. In 1984, he quit smoking (by some accounts). In 1995, in Pennsylvania, he was diagnosed with cancer, and he died on December 18, 1996. On November 19, 1997, plaintiffs filed a complaint in the Circuit Court for Baltimore City, which was removed to this Court on December 12, 1997. Plaintiffs= seventeen-count, forty-page, complaint contains three general theories of recovery: (1) civil conspiracy; (2) negligence; and (3) strict products liability.2 The negligence and strict liability theories
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In addition, plaintiffs filed a seven-page Amended Complaint with more factual averments and another count (eighteen), conspiracy to commit constructive fraud. On July 14, 1998, plaintiffs dropped count eighteen.

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are based on defective design and failure to warn claims. The complaint also contains loss of consortium claims and a request for punitive damages. A. Conflict of Law Plaintiffs= view is that Pennsylvania law applies, because that is where Mr. White's cancer was diagnosed, and defendants= view is that Maryland law applies, because that is where Mr. White's cancer began. Maryland's choice of law rules control. Klaxon Co. v. Stentor Elec. Mfg., 313 U.S. 487 (1941). Maryland adheres to the lex loci delecti principle in tort cases, which states that the locus of a tort is where the last act required to complete it occurred. Wells v. Liddy, 186 F.3d 505, 521 (4th Cir. 1999). Here, the last act was Mr. White=s diagnosis of cancer, which occurred in Pennsylvania. Nevertheless, the Court=s view is that Maryland law applies for the reasons stated in Farwell v. Un, 902 F.2d 282 (4th Cir. 1990), a diversity wrongful death/survivorship action. In that case, the wife of a suicide victim sued two doctors in a Maryland district court. The alleged wrongful conduct occurred in Maryland (not putting victim into protective custody), and the last act to complete the alleged tort (the suicide) occurred in Pennsylvania. The district court applied a "common sense" exception to the lex loci rule and applied Maryland law, and the Fourth Circuit upheld the application of Maryland law. Id. at 286. According to the Fourth Circuit, Maryland =s wrongful death statute (which a federal court sitting in Maryland looks to for choice of law determinations) "specifically identified the locus of the `wrongful act' . . . as the critical choice of law determinant in wrongful death actions with multi-state connections." Id. at 287. Thus, there is a Aplace-of-wrong=s-standard-of-care@ exception to the classiclex loci rule, thereby displacing in this context theAlast-act-to-complete-the-tort@ aspect of that rule. Id. Guided by Farwell

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in this case, this Court concludes that Maryland law applies because most of the wrongful acts charged to defendants occurred in Maryland, where Mr. White lived most of his smoking life. B. Dr. Feingold's Affidavit Dr. Allan Feingold is a medical doctor with specialties in internal medicine and pulmonary medicine. Although the Court will deny defendants' motion to strike Dr. Feingold's affidavit, most of Dr. Feingold's lengthy (ninety pages) affidavit is irrelevant and thus inadmissible under Federal Rules of Evidence 701-703, and for that reason insufficient to stave off summary judgment. See Fed. R. Civ. P. 56(e). It is plain that the affidavit is a boilerplate affidavit, prepared with the purpose of submitting it in any cigarette case that may arise, by simply changing the case name at the bottom of each page, with the hope that it will create a dispute of material fact on some issue. One example of the irrelevant content of Dr. Feingold's affidavit is the discussion, complete with graphs, of "vegetable consumption and cigarette smoking"3 -- not an issue before this Court. The narrow issues that Dr. Feingold discusses that are relevant are insufficient to create a triable issue under Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), as discussed post. C. Civil Conspiracy Plaintiffs allege (for about fourteen pages) that defendants conspired with, among others, Philip Morris Inc., Liggettt & Myers Tobacco Co., the Tobacco Institute Research Counsel, and the Tobacco Institute, for the general purpose of keeping the public misinformed about the dangers of smoking. It is well
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Dr. Feingold has analyzed raw data from an American Cancer Society study. He states, "the never smokers who ate few vegetables and the never smokers who ate a large number of vegetables every week were compared to the current smokers who ate little in the way of leafy green vegetables and the current smokers who ate a lot of vegetables." He concludes that "smoking is of much greater importance in the development of lung cancer than is green vegetable consumption." Aff. at 14. The effect of eating vegetables on contracting cancer may be of interest to some people, but that does not make it relevant to any issue in this case. 4

established that a conspiracy, or agreement to do a wrongful act, is not itself a tort; rather, some act must be committed by one of the parties in furtherance of that agreement, which is itself a tort, and which injured plaintiffs. See Alexander & Alexander, Inc. v. B. Dixon Evander & Assoc., 336 Md. 635, 645 n.8 , 650 A.2d 260 (1994) ("`conspiracy' is not a separate tort capable of independently sustaining an award of damages in the absence of other tortious injury to the plaintiff"); Robinson v. Parks, 76 Md. 118, 135, 24 A. 411 (1892) ("[A] conspiracy cannot be made the subject of a civil action, unless something is done which, without the conspiracy, would give a right of action."). Thus, plaintiffs must show that defendants committed some underlying tort. The Court rules that plaintiffs may base their conspiracy claim on the underlying tort of fraudulent misrepresentation only.4 A fraudulent misrepresentation claim may include concealment of a material fact with the inend to defraud, provided the plaintiff suffers damage as a result, and if "there exists a separate duty of disclosure to plaintiff by defendant." Finch v. Hughes Aircraft Co., 57 Md. App. 190, 232, 469 A.2d 867 (1984), cert. denied, 300 Md. 88 (1984), cert. denied, 469 U.S. 1215 (1985). Among the several elements that plaintiffs must prove to succeed on a fraudulent misrepresentation claim is that the plaintiff (here, plaintiffs' decedent) reasonably relied on the misrepresentations. See Alleco Inc. v. Harry & Jeanette Weinberg Foundation, Inc., 340 Md. 176, 195 (1995), 665 A.2d 1038

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The Court bases this ruling on the allegations contained in plaintiffs' complaint as well as plaintiffs' statement that their civil conspiracy claim is based on "misrepresentation/concealment of the health risks of smoking." Opp'n at 11-12. To the extent that plaintiffs do not rely on the underlying tort of fraudulent misrepresentation/concealment, see Opp'n at 9 ("Plaintiffs' Claim is Not Premised Upon Underlying Fraudulent Misrepresentation"), it is unbeknownst to this Court (or obviously the defendants) what underlying tort they do rely on, and, for that reason, the civil conspiracy claim fails under Federal Rule of Civil Procedure 8, for failure to include a short and plain statement of the claim showing that the pleader is entitled to relief. 5

(1995) (listing elements of fraud). See also Philip Morris Inc. v. The Honorable Edward J. Angeletti, 358 Md. 689, ___ n.29, 752 A.2d 200 (2000) (decertifying statewide tobacco class action case and noting that fraudulent misrepresentation/omission claims against cigarette manufacturer "require not only proof of reliance but proof of reliance of such on an individual basis."); see also id. at ___ n.25 ("[c]entral not only to the reliance element in a civil claim of fraud in [Maryland] but to the very tort itself is that there have been some sort of misrepresentation by the defendant to the plaintiff, i.e. some communication or material omission which the plaintiff relied upon and which caused him or her injury"). Plaintiffs make the bald assertion that AMr. White=s conduct demonstrates a substantial reliance on the circumstances of Defendants= advertising and promotion. . . . @ Opp=n at 10. The evidence does not support plaintiffs; to the contrary, there is no evidence that White ever saw or heard anything that B&W or RJR said; thus, it follows that plaintiffs cannot prove that White relied (reasonably or otherwise)5 on any statements or advertisements made by defendants. White=s family members testified that they did not know whether White ever received literature from defendants, ever talked to defendants= employees, ever heard from a cigarette manufacturer that cigarettes were not addictive, ever heard of the "Frank Statement to Cigarette Smokers,"6 or ever heard from cigarette manufacturers that cigarettes were unrelated to

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Even if plaintiffs had evidence that Mr. White relied on any misrepresentations, they could not show such reliance was reasonable, in light of the overwhelming evidence of the widespread knowledge that cigarettes were dangerous even as early as 1950. See discussion, infra.
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The "Frank Statement" was issued in 1954 by numerous sponsors, including cigarette manufacturers B&W and RJR, after medical reports linked smoking and lung cancer. The statement begins, "Recent reports on experiments with mice have been given wide publicity as a theory that cigarette smoking is in some way linked with lung cancer in human beings." The statement describes the experiments as inconclusive, but that the "serious medical research" performed by "doctors of professional standing" should not be disregarded or lightly dismissed. The cigarette manufacturers stated that they "accept an interest in 6

cancer. Indeed, Mr. White's wife testified that she has no idea why Mr. White started to smoke or why he smoked a particular brand; he "just smoked what he wanted to smoke." The one shred of evidence that plaintiffs offer on the issue of reliance falls far short of what is necessary to avert summary judgment. Russell White, Mr. White's son, testified that his father "started smoking Winston because we would always see the Winston Cup Races, so he started smoking Winston." Dep. at 23. At these races, Russell White (but not his father) accepted free cigarettes in exchange for completing a questionnaire about his smoking habits. Russell White also testified (in conflict with his other testimony) that his father already smoked Winstons at the time of the races, and that his father chose Winstons so that he and his son could share a brand that was tolerable to both of them (in taste), in case they had to borrow a cigarette from each other. He also testified that he does not remember seeing any cigarette advertisements at the races. Viewing this evidence with all reasonable inferences in favor of plaintiffs, the Court concludes that it does not show that RJR made any representations of material fact relevant in any fashion to product safety about Winstons -- nothing at all was said about the safety of cigarettes in general, or Winstons in particular, except, perhaps, some sort of suggestion that they tasted good or were worthy of purchase because they sponsored races. Thus, it cannot serve as evidence to show that Mr. White relied on any misrepresentations in continuing to smoke, or in choosing Winstons as his brand.

people's health as a basic responsibility," that "[w]e believe the products we make are not injurious to health" and that they would cooperate with the public health community. The statement continues, "For more than 300 years tobacco has given solace, relaxation and enjoyment to mankind. At one time or another during those years critics have held it responsible for practically every disease of the human body. One by one those charges have been abandoned for lack of evidence." 7

In short, there is no evidence that defendants said or did anything (or failed to say or do something) that influenced Mr. White's smoking behavior in any relevant way. Therefore, as a matter of law, plaintiffs cannot prove an essential element of their underlying fraudulent misrepresentation claim -- reliance -- and summary judgment is appropriate on the civil conspiracy claim, unless, for some reason, plaintiffs in this case are excused from the ordinary requirement to prove reliance. Plaintiffs advance two theories to support their contention that they need not prove reliance in this case, neither of which has merit. a. Misrepresentations Were Made to Third Parties. Plaintiffs assert that because they do not base their civil conspiracy claim on allegations that defendants made fraudulent misrepresentations to Mr. White or plaintiffs, but, rather, to third persons such as government officials, physicians, and teachers, they need not prove reliance.7 See Opp'n at 10 ("Glaringly absent from plaintiffs' allegations is any contention that the defendants made a fraudulent misrepresentation to the plaintiff."). Plaintiffs' argument fails because, under Maryland law, there is no fraudulent misrepresentation cause of action for statements made to third parties. See Parlette v. Parlette, 88 Md. App. 628, 635, 596 A.2d 665 (1991). Even if there were such a cause of action, it would fail because plaintiffs do not have evidence (or even allegations) of reliance by those third persons allegedly deceived. Even in cases that have held that a defendant may be liable for an injury to a consumer for misrepresentations to someone else (e.g., a person buys a product that is then used by her guest or child, who is injured by product), the
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It is understandable why defendants assumed plaintiffs' claim was that Mr. White relied on the alleged misrepresentations, since that is what the complaint avers. Compl.

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