Vertison v. American Snuff Company, LLC et al
Filing
76
MEMORANDUM OPINION re 75 Order on Motion for Summary Judgment,, Order on Motion for Miscellaneous Relief. Signed by Glen H. Davidson on 4/26/13. (tab)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
ROSIE VERTISON
PLAINTIFF
v.
CIVIL ACTION NO. 4:11-CV-118-GHD-JMV
AMERICAN SNUFF COMPANY, LLC and
SMOKELESS TOBACCO COUNCIL, INC.
DEFENDANTS
MEMORANDUM OPINION GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Presently before the Court are Defendants' first motion for summary judgment on the
merits of Plaintiffs claim [54] and Defendants' second motion for summary judgment on
Plaintiffs proof of causation [68]. Upon due consideration, the Court finds that the first motion
for summary judgment [54] is well taken and should be granted and that the second motion for
summary judgment [68] should be denied as moot.
A. Factual and Procedural Background
Plaintiff Rosie Vertison ("Plaintiff") brings a negligent misrepresentation claim l against
Defendants American Snuff Company, LLC ("American Snuff') and Smokeless Tobacco
Council, Inc. ("Smokeless Tobacco Council") (collectively, "Defendants,,).2 American Snuff
manufactures, markets, and sells Bloodhound, Cannonball, and Taylor's Pride smokeless
tobacco, which contain nicotine, an addictive substance. The Smokeless Tobacco Council is an
inactive, nonprofit trade association that was formed in 1969 by domestic smokeless tobacco
I Although the complaint appears to allege some facts in support of other state-law claims for deceptive
advertising, fraudulent misrepresentation, and concealment under Mississippi law, Plaintiff now states that she is
pursuing only a negligent misrepresentation claim against Defendants. See Pl.'s Resp. to Def. 's MSJ [56] at 1.
2 Although Plaintiff brought the suit against an additional Defendant, Swedish Match North America, Inc.,
that Defendant has since been dismissed from the case on stipulation of the parties.
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manufacturers to monitor and respond to legislative and regulatory developments affecting
smokeless tobacco at the federal, state, and local levels. Although Smokeless Tobacco Council
has made public statements about smokeless tobacco at various times, it has never manufactured
or sold smokeless tobacco.
Plaintiff alleges the following facts: Plaintiff is a 73-year-old female who used smokeless
plug leaf tobacco for approximately 45 years, believing that such products were beneficial for
her health, based on the marketing of the products as harmless and beneficial to the health of the
user. In 2010, Plaintiff was diagnosed with oral cancer and has since undergone significant
surgery and medical treatment. Plaintiff has now ceased her use of smokeless tobacco. Plaintiff
would have refrained from smokeless tobacco use sooner had she known about the hazards of
using smokeless tobacco. Despite knowledge that the products were addictive, harmful, and
caused and contributed to oral cancer, Defendants engaged in false and misleading marketing of
the products and intentionally withheld research findings concerning the dangers of product use
in order to confuse potential consumers and encourage the use and purchase of smokeless
tobacco.
Defendants have answered the complaint, the parties have engaged in discovery, and
Defendants have now filed two motions for summary judgment. Because the Court finds that
Plaintiff's negligent misrepresentation claim fails as a matter of law, and thus that Defendants'
first motion for summary judgment [54] should be granted, the Court need not address
Defendants' second motion for summary judgment concerning proof of causation [68].
B. Summary Judgment Standard
Summary judgment "should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any material fact
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and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). See FED. R. CIV. P. 56(a); Weaver v.
CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). The rule "mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to make a
sufficient showing to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.
Ct. 2548.
The party moving for summary judgment bears the initial responsibility of informing the
court of the basis for its motion and identifYing those portions of the record it believes
demonstrate the absence of a genuine dispute of material fact. Id. at 323, 106 S. Ct. 2548.
Under Rule 56(a), the burden then shifts to the non-movant to "go beyond the pleadings and by
. . . affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,'
designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324, 106 S. Ct.
2548; Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001); Willis v. Roche
Biomedical Labs., Inc., 61 F.3d 313, 315 (5th Cir. 1995).
Where, as here, the parties dispute the facts, the Court must view the facts and draw
reasonable inferences in the light most favorable to the plaintiff. Scott v. Harris, 550 U.S. 372,
378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (internal citations omitted). "However, a
nonmovant may not overcome the summary judgment standard with conclusional allegations,
unsupported assertions, or presentation of only a scintilla of evidence." McClure v. Boles, 490 F.
App'x 666, 667 (5th Cir. 2012) (per curiam) (citing Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cir. 2007ยป.
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C. Analysis and Discussion
To establish a claim for negligent misrepresentation under Mississippi law, a plaintiff
must prove the following five elements:
(1) a misrepresentation or omISSion of a fact; (2) that the
[mis]representation or omission is material or significant; (3) that
the person/entity charged with the negligence failed to exercise
that degree of diligence and expertise the public is entitled to
expect of such persons/entities; (4) that the plaintiff reasonably
relied upon the misrepresentation or omission; and (5) that the
plaintiff suffered damages as a direct and proximate result of such
reasonable reliance.
Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455, 461 (Miss. 2007) (en banc). In the case
sub judice, Plaintiff maintains that her negligent misrepresentation claim is viable because she
can show that (1) Defendants "omitted to inform her that the smokeless tobacco products sold to
[Plaintiff) by [American Snuff] contained nitrosamines"; (2) this alleged omission was
significant because "nitrosamines are carcinogens that lead to the development of oral cancer";
(3) Defendants failed to exercise the degree of diligence and expertise the public is entitled to
expect of such entities; (4) Plaintiff relied on Defendants' alleged omissions; and (5) Plaintiff
"suffered grievous damages as a result of her reliance." PL's Resp. Opp'n to Defs.' MSJ [56] at
2?
The Court finds that Plaintiff s claim fails as a matter of law because Plaintiff presents no
evidence that she took any action in reliance on any misrepresentation or omission of
Defendants. Plaintiff testified in her deposition that she chose to use her mother's smokeless
tobacco when she was a child because her mother gave it to her, "[i]t looked good," and she
"wanted some." Pl.'s Dep. [54-3] at 6-7. Plaintiff testified that she continued using smokeless
3 The Court does not address the parties' arguments with respect to the interplay between Plaintiffs
negligent misrepresentation claim and the Mississippi Products Liability Act, because the Court finds that the claim
fails as a matter of law on other grounds.
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tobacco over the ensuing years because she enjoyed it; she did not base her purchase decision on
any advertising or marketing of smokeless tobacco, and in fact, could not recall ever seeing,
reading, or hearing any advertisement for smokeless tobacco, aside from some free coupons she
received in the mail from companies she could not remember. See id at 14, 20. She further
testified that she never saw the warning label added to smokeless tobacco products in 1987
which stated in part that the product might cause cancer in the mouth, either because "the stores
or somebody took it off' or because she did not notice the warning labels. Id at 17. Plaintiff
fails to show that she relied on any alleged misrepresentation and further fails to show that
reliance on any such misrepresentation proximately caused her injuries. Therefore, her claim for
negligent misrepresentation fails as a matter of law and summary judgment is appropriate.
D. Conclusion
Thus, the Court finds that Defendant's motion for summary judgment [54] should be
GRANTED, and Defendants' second motion for summary judgment [68] should be DENIED as
moot.
A separate order in accordance with this opinion shall issue this day.
:;:z:
THIS, th~6day of April, 2013.
SENIOR JUDGE
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