United States District Court, S.D. Georgia, Dublin Division
DUDLEY H. BOWEN, District Judge.
Presently, Defendants have filed a motion to dismiss Plaintiff David Dwayne Cassady's complaint alleging injuries caused by inhaling secondhand cigarette smoke while imprisoned. Plaintiff has responded, and the motion is ripe for consideration.
I. PLAINTIFF'S COMPLAINT
Plaintiff has been an inmate in the Georgia Department of Corrections approximately 21 years. (Compl. ¶ 23.) On average, Plaintiff has lived with 20 to 25 smokers who smoked indoors and in his shared living space. (Id. ¶ 38 ("alleging that the smoking created "an atmosphere equivalent or greater than living in a casino, gaming hall, bar or restaurant packed with smokers to full capacity").) In early 2007, Plaintiff noticed his breathing had become laborious, especially in the immediate vicinity of tobacco smoke. (Id. ¶ 39.) On July 16, 2008, a physician assistant noted abnormal lung sounds in Plaintiff's chest. After an x-ray was taken, Plaintiff was diagnosed with bronchitis and given antibiotics. (Id. ¶¶ 40-41.) When his condition did not improve, another physician assistant diagnosed Plaintiff with Reactive Airway Dysfunctional Syndrome ("RADS") and prescribed an albuterol inhaler. (Id. ¶¶ 42-43.) At this time, the physician assistant informed Plaintiff that long term exposure to high levels of secondhand smoke caused his respiratory condition. He also informed Plaintiff that continued exposure could cause further problems such as respiratory tract infections, chronic obstructive pulmonary disease ("COPD"), and lung cancer. (Id. ¶ 44.) Plaintiff alleges that he continued to suffer breathing attacks triggered by exposure to secondhand smoke. (Id. ¶ 46.) In 2009, Plaintiff was diagnosed with COPD and severe asthma. (Id. ¶¶ 33 & 49.) In April 2009, a pulmonologist concluded that the cause of Plaintiff's COPD and asthma was the prolonged and repeated exposure to secondhand smoke. (Id. ¶ 52.) Plaintiff's complaint continues to chronicle the various treatments and diagnoses of lung ailments from that point, culminating in a diagnosis of fibrosis on June 17, 2013. (Id. ¶¶ 53-70.) Of note, Plaintiff sent a letter to Defendants, dated May 12, 2013, explaining that he was diagnosed with COPD and asthma in 2009 and has been told by "clinicians" from 2008 to present that secondhand smoke not only exacerbated his serious physical conditions but "was the cause of it." (Id. ¶¶ 28 & 33.)
On December 16, 2013, Plaintiff filed suit asserting state law claims sounding in negligence and strict liability against three tobacco companies, R.J. Reynolds Tobacco Co., Phillip Morris Inc., and American Tobacco Co. Plaintiff alleges that Defendants "have a[n] owed duty and corporate obligation... to protect non-consumers from impending health dangers or injury directly or indirectly caused by their tobacco products." (Id. at 3.) More particularly, Plaintiff alleges in Paragraph 18 that since 1954, Defendants have "engaged in dishonest and gross negligent activities in violation of Georgia's tort laws" by
1. failing to inform the public regarding the risks of secondhand smoke to non-smokers ("failure to warn" claim);
2. conducting advertising and promotional campaigns that were misleading and omitted material facts ("fraud claim");
3. making implied representations that tobacco products are safe and free of harmful effects, contrary to facts known by Defendants ("fraud claim");
4. conspiring to conceal the scientific evidence of the risks of involuntary exposure to secondhand smoke ("conspiracy to commit fraud claim"); and
5. knowingly manufacturing and selling products that cause serious and fatal health implications on non-smokers ("product liability" claim).
(Id. ¶ 18.) Because of these acts or omissions, Plaintiff has suffered "permanent disabilities including severe asthma, chronic obstructive pulmonary disease and fibrosis." (Id. ¶ 88.)
Because Plaintiff is proceeding in forma pauperis, his complaint has been screened pursuant to 28 U.S.C. § 1915(e) (2) (B). This screening process disallows a claim from going forward if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. The United States Magistrate Judge screened Plaintiff's complaint on July 18, 2014, and issued two orders. First, a Report and Recommendation recommended the dismissal of Plaintiff's fraud and conspiracy to commit fraud claims because of his failure to plead fraud with particularity. (Doc. No. 10.) This Court adopted the Report and Recommendation without objection and dismissed those claims on August 13, 2014. (Doc. No. 14.) Second, an Order directing service of the complaint was entered upon a finding that Plaintiff had " arguably stated viable tort claims in negligence for failure to warn and design and manufacture of a defective product, and in strict liability for design defect under O.C.G.A. § 51-1-11." (Doc. No. 9, at 4 (emphasis in original).) The Magistrate Judge expressly reserved ruling on whether Plaintiff's failure to warn claim is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331 et seq. (Id.)
Defendants R.J. Reynolds Tobacco Co. and Phillip Morris Inc. executed waivers of service of summons on August 4 and 13, 2014, respectively. (Doc. Nos. 13 & 16.) However, Plaintiff has been unable to provide a proper address for Defendant American Tobacco Company, and the United States Marshals Service has been unable to serve the waiver of service of summons upon this Defendant. (See Doc. No. 23.) In the ...