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Index of Pleadings Case Name: Lloyd Glass V. Philip Morris, Et Al. (Li, Ltc) Court: District Court, Clark County, Nevada Case Number: A405885

Date: 26 Jan 2000 (est.)
Length: 350 pages
98739730-98740079
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98739729/98740080/Litigation Glass V. Philip Morris, Et Al. Court Papers Volume I
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10 Apr 2002
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Glass, L.
Durham, T.P.
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Nv District Court Clark County
PM, Philip Morris
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n INDEX OF PLEADINGS CASE NAME: T-L•O LA S v. PHILIP MO RIS, et a1. Court: (LI, LTC) District Court, Clark County, Nevada Case Number: A405885 yOLUME I TAB PAR1`Y PLEADING FILED/8ERVED 1. LTC Summons; Complaint 07/ 15/99 (F) 07 19 99 S 2. Defendants Notice of Removal 08 06 99 3. Court Order Concernin Removal 08 11 99 4. LTC Summons, Com laint Service 10-4-99 5. Plaintiff Motion for leave of court to take p1's de o. 10u~s/991~ li 9~and 6. GLASS DEPO TESTIMONIES OF GLASS NOVEMBER 1-3 AND NOVEMBER 8 UNDATED 7. PLAINTIFF NOTICE OF VOLUNTARY DISMISSAL 1-26-00 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. -1-
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RECEIVED FEB t a 2000 T. P. DURHAM
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SUMMARY OF THE DEPOSITION TESTIMONIES OF LLOYD I. GLASS, NOVEMBER 1-3, and NOVEMBER 8,1999 Glass v. Philip Morris, et al. Deposition 1 and 2: Examination by W. Bruce Wold, Counsel for Defendant, Brown & Williamson Deposition 3: Examination by W. Bruce Wold, Counsel for the Defendant, Brown & Williamson, John Sherk, Counsel for the Defendants Philip Morris, Inc. and Lorillard Tobacco Company, Thomas Scarvie, Counsel for the Defendant R.J. Reynolds, Joseph Ganley, Counsel for the Defendant BATCo, and Robert Molina, Counsel for the Defendant Rebel Oil. Deposition 4: Examination by Steven Karen, Counsel for the Plaintiff, and Dennis Kennedy, Counsel for the Defendants, R.J. Reynolds Tobacco Company and Brown & Williamson. Pa s Testimonv WITNESS IDENTIFICATION D 1 5 The deponent identifies himself as Lloyd Ira Glass (hereinafter known as "LIG") He D4 12 currently lives at 8501 Copper Mine Avenue, Las Vegas, NV. D 1 11 LIG was born Apri119,1951, in Brooklyn, New York. he was raised in Queens, New D4 12-13 York. PREPARATION FOR THIS DEPOSITION Dl 5-6 LIG is familiar with the nature of the deposition, having given them before in conjunction with his work as a police officer. He has also testified in court as a police officer. Dl 9 Although he takes morphine for pain, LIG states that it will not effect his ability to understand or answer questions. D 1 10-11 In the last 30 days the only thing that LIG has looked at to prepare for this deposition D3 41 is his interrogatory responses. He has not been shown any records from the defendants, any advertisements, or any documents of any kind that would have a bearing on this case. He has not read the complaint in this action. 0281676.01
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,r• 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLEASE TAKE NOTICE that the above-entitled action is hereby dismissed pursuant to Rule 41(axl) of the Federal Rules of Civil Procedure. Said dismissal is filed without prejudice as to the following Defendants: PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD, INC, as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; BATUS HOLDINGS, INC.; B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED, JOHN DOES 1-300. ~ DATED this L^ day of January, 2000. t_1 STEVEN J. KAIWN, ESQ. NEVADA BAR NO. 004651 400 N. Stephanie Street, Suite 205 Henderson, NV 89014 and W. RANDALL MAINOR, ESQ. NEVADA BAR NO. 001318 530 S. Sixth Street Las Vegas, NV 89101 Attorneys for Plaintiff 27
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D2 5- LIG has not reviewed anything further in this case for today's deposition, does not have anything that he wants to correct from yesterday, and does not have anything that he wants to add. D3 5 On the third day of his deposition, LIG asks to go on the record to add some information about advertising (see this section for further details). STRESS/PSYCHIATRIC ISSUES D2 106 LIG relates that he has always been a "homebody", that during both of his marriages, 109 his wives "have been my closest friends". He goes on to say that he "didn't socialize outside of my marriage. I didn't hang out with the guys. I'd come home from work and just stay home pretty much". He later states that "I really am a homebody. I just don't trust anybody but my family". D2 103-104 LIG states that he has known "all my life that stress is something you have to be careful of'. He says that this is something he learned by talking to people, and that stress is something that you have to manage. He goes on to state that "everybody" needs to be aware of stress. He does not believe that he is more susceptible to stressful situations than anybody else. D2 105-106 LIG states that his first marriage to Pat was a "rough marriage". He goes on to relate D3 57-58 that this relationship was stressful to him because "I really loved my wife, my ex- wife. I love her as a person, as a friend. But like Dr. Nicoletti said, she's 12 years older my senior and said I married my mother. So it was more like a mother-son relationship than a husband-wife. So it was stressful as far as that goes because I wanted to leave, but I didn't want to hurt her". LIG states that they did not fight, and in fact, they are still in contact and are good friends. This period of marital stress occurred around 1986-87. D2 95 LIG describes his job as apolice officer as being "absolutely" stressful. He describes the stresses as being "ups and downs. It's the only profession I know where somebody has a gun and everybody's racing to get to him first- most people, smart people are going to run the other way...I saw my share of destruction". He goes on to say that this stress affected his smoking habits by making him "smoke like a fiend...stress would get to me [cigarettes] would calm me down". D2 95-96 LIG goes on to state that in his work as a police officer, stressful situations would D3 85-86 occur "daily". LIG recalls several stressful situations that he ran into; "I've arrested several murderers with guns in their hands and things like that. But it was just- firemen come to a situation; they are the good guys. They are going to help you and make you feel better. Police come; nobody wants them there. Bad guys". LIG felt that his life was being threatened "weekly", and he dealt with stabbing and shootings ..daily„ 0281676.01 - 2 -
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1 CERTIFICATE OF MAILING 2 I hereby certify that on the '__ day of January, 2000, I deposited a true and correct copy of 3 the above and foregoing PLAINTIFF'S NOTICE OF VOLUNTARY DISMISSAL in the United 4 States mail, postage fully prepaid at Las Vegas, Nevada, addressed to the following: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Bruce Wold, Esq. Sedgwick Detert Moran & Arnold One Embarcadero Center, 16th Floor San Francisco, CA 94111-3628 Attorneys for Brown & Williamson Tobacco Corporation (individually and as successor by merger to-The American Tobacco Company and BATUS HOLDINGS, Inc. Steve Morris, Esq. Schreck Morris 1200 Bank of America Plaza 300 S. Fourth Street Las Vegas, NV 89101 Attorneys for Philip Morris Incorporated John K. Gallagher, Esq. Guild Russell Gallagher & Fuller, Ltd. 100 West Liberty Street, #800 Reno, NV 89501 Attorneys for Liggett & Myers, Inc. H. Joseph Escher, III Howard Rice Nemerovski Canady Falk & Rabkin Mark A. Hutchinson, Esq. Hutchinson & Steffen 8831 W. Sahara Avenue Las Vegas, NV 89117 Attorneys for British American Tobacco Company (Investments), Limited Gary Long, Esq. John K. Sherk, III, Esq. Shook, Hardy & Bacon, L.L.P. One Kansas City Place Kansas City, MO 64105 Attorneys for Philip Morris Incorporated and Lorillard, Inc. Leland E. Backus, Esq. Leland Eugene Backus & Associates, Ltd. 2810 W. Charleston Blvd. #H-74 Las Vegas, NV 89102 Attorneys for B.A.T. Industries, P.L.C. Phillip W. Bartlett, Esq. Burton Bartlett & Glogovac 50 W. Liberty Street, Suite 650 ~ Three Embarcadero Center, Seventh Floor San Francisco, CA 941114065 Attorneys for RJ. Reynolds Tobacco Co. Reno, NV 89501 Attorneys for Lorillard, Inc. v v.~ ~ James Silvestri, Esq. Pyatt & Silvestri, Chtd. 201 Las Vegas Blvd. South #300 Las Vegas NV 89101 ~j Dennis L. Kennedy, Esq. w Lionel Sawyer & Collins CT? 700 Bank of America Plaza 300 South Fourth Street , Attorneys for Rebel Oil Las Vegas, NV 89101 An entployee a, /YYl /Zt-A ~ i 27
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D 1 68 Other than his first wife, no other family members ever talked with LIG about the dangers of smoking "till it was too late". Dl 58 LIG states that he was familiar with the term "nicotine fit" in the late 1970's-early 1980's, and believed that he himselfwent through nicotine withdrawal during his first quit attempt in this same time period. D2 43-44 LIG became a regular newspaper subscriber when he moved to Colorado in 1981, D3 84 At that time, he subscribed to the Rocky Mountain News. He currently subscribes to the Las Vegas Review-Journal, which he has taken "off and on for years". He only recalls seeing articles on smoking and health in the last six months. He remembers these articles as saying "It's dangerous. It's killing people". D3 52-53 LIG is familiar with C. Everett Koop, and describes him as the "Attorney General of Smoking". He recalls seeing him on television in the mid-1980's and recalls hearing about the 1988 Surgeon General's Report, which he remembers was about the hazards of smoking, but does not know what was contained in the report. Dl 43-45 Later, LIG switched to Marlboro Light because "I had heard that there was less tar and nicotine and they were a milder cigarette. I felt they would cut the risk down a little bit". Dl 67-68 When LIG was made a detective on the Glendale police force in 1990, the whole D3 81-82 bureau at that time was non-smoking. He told them "I wouldn't quit", and was willing to give up his promotion to smoke. He states that he wound up going outside "every 10 minutes and having a cigarette". He goes on to state that other than the department suggesting he shouldn't smoke, there was no other information he received from the police department about the dangers of smoking. He does not recall if the Fraternal Order of Police newsletter carried any articles about smoking or health. D l 65 LIG agrees that he wanted to quit smoking in 1993-1994 because he was fatigued and didn't have any endurance because of smoking. In addition, he had been aware since 1980 of the health hazards such as lung cancer and heart disease. He wanted to quit smoking to prevent either one of these things from happening to him. DI 66 Although LIG had been aware that smoking could cause lung cancer andheart disease, he stated that he believed it "happens to other people, not me". Dl 67 Dr. Rosenberg is the only physician to suggest to LIG that he quit smoking. D 1 72-73 LIG has never seen any documents from any tobacco company. He has never heard of the "Frank Statement", and is not aware of any public comments made by any tobacco company, including any speeches by tobacco company representatives. He has never read any papers prepared by any tobacco company. In addition, LIG has 0281676.01 - 9 -
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never known the public position of any particular tobacco company on smoking and health. Dl 73-74 At first, LIG states that he had heard of the tobacco company executives testifying before Congress, but only heard about it recently, not at the time it actually occurred. He recalls hearing that they "admitted the dangers of cigarette smoking, and that they knew it all along". He then goes on to state that the program he saw most recently on this issue was the lawsuit with Janet Reno, and then states that he has not seen "anything with the representatives". LIG goes on to state that "news is what I've heard". Dl 74-75 LIG has never heard of the Tobacco Institute, the Tobacco Industry Research Committee, CTR, the Center for Tobacco Research, TIRC, or the Scientific Advisory Board. D3 89-91 LIG has never heard of the British American Tobacco Company or its acronym, BATCo. He has never heard of, orreceived any information or promotional materials from BATCo, British American Tobacco Investments, LTD or the British American Tobacco Company, LTD. He has never seen any advertisements from BATCo, nor did he base his decision to smoke or continue to smoke on anything from any of the British American Tobacco Companies. D2 48 LIG is not familiar with Cathedral High School, has never seen the Alfred Hitchcock movie "Saboteur", the movie "Cold Turkey", or a program on CBS with Mike Wallace about smoking. D3 83-84 LIG's wife subscribes to Prevention magazine, but he has never looked at it, nor has she shown him any articles from it. He does not know how long she has subscribed to Prevention. D3 82-83 LIG is on the mailing list for the Heart Association, but does not recall receiving any information from them regarding smoking and heart attacks. D3 37-38 LIG does not know anyone who has died of lung cancer, had heart disease, or has claimed that they have been injured by smoking. He cannot think of anybody who claimed they got a disease because of smoking. He has known a number of people over the years that have smoked and quit, including his parents, his ex-wife, his current wife, and himself. D3 47 In addition, LIG has recently heard that the tobacco companies have put in "additives to make it more addictive...Al Pacino's movie's coming out tomorrow about it". He goes on to state "the tobacco companies I truly believe knew the risks that they were doing to the American public and didn't care. Somebody is getting very rich off of people's deaths". 028167e.01 - 10 -
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together. The only one of these friends that LIG remembers by name is Johnny Greene, who LIG believes is now dead. LIG recalls that all of his friends, including himself, started smoking at the same time. LIG only remembers Johnny Greene because it was his apartment building that they all used to smoke in. Dl 25 LIG would also smoke in the bathroom of his parents house. He would blow smoke 51-52 out the window, but eventually got caught. He hid his smoking around his parents 53 because "they wouldn't approve of it", but doesn't really know why he felt this way, D4 80 he just "remembers it was something I felt I had to sneak". Later in his deposition, LIG recalls that he didn't know if he hid his smoking from his parents because they wouldn't approve, but that he "felt that it was something I shouldn't share with them at that point". He states that when his parents found out that he was smoking, they told him that when he was 16 he could smoke. LIG does not know "what the magic number with 16 was, but that's what they said". He did not hide his smoking from anyone except his parents. D4 30-31 When LIG first began smoking at age 15 '/:, his parents found out, and were angry, 80 telling him "Don't smoke. We don't want to see it". [Contra: Later in his deposition, LIG states that his parents "never told me not to smoke". ] They told LIG that he could smoke in the house if he would not smoke until he was 16, but LIG went ahead and smoked anyway, outside the home until he turned 16, at which time he did begin smoking in the house. At this age, LIG was able to get cigarettes from his parents if he wanted to. Dl 36 Later in his deposition, LIG states that his father smoked Parliament, and "That's what made me start. I used to steal his cigarettes". It is unclear from the surrounding statements if LIG is referring to this is what made him start smoking cigarettes, or this is what made him start smoking Parliament. D 1 27 LIG states that he and his friends began smoking because "Everybody was doin' it". D4 29-30 LIG recalls that all of his friends smoked and that they all started smoking about the 32 same time. They would play football and stop and have a cigarette, or hang out on the corner and have a cigarette. In addition, LIG began to smoke because "it was cool". D 1 27-28 LIG recalls that the first time he smoked that he became "deathly ill", and "coughed, D4 26-27 felt really bad". He does not recall throwing up, but does remember feeling very miserable, a feeling which lasted that one day. Later in his deposition, LIG recalls that smoking made him sick, he "coughed, got yellow, didn't feel good". D 129 Although it made him feel ill, LIG tried smoking again a "week, days" later. He does D4 27 not recall exactly what the circumstances were surrounding his next smoking attempt. The only thing he recalls about the incident was that he didn't get ill. [Contra: He later states that he remembers "wakin' up the next morning (after he smoked his first cigarette), and wanting one again and started it all over again". 0281676.01 - 21 -
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D3 10 LIG recalls "the disclaimers" that appeared in cigarette advertising concerning the possible hazards to health. He states that these disclaimers were not in cigarette advertising "in the beginning" but does recalls them "towards the end, right before they pulled them [off of television]". D3 10-11 LIG remembers when he heard that cigarette advertising was going to be taken off of the air. He recalls hearing that this was occurring because of the hazards of smoking. He does not ever recall seeing any advertisements that discussed any health benefits of smoking. D3 39-40 LIG recalls a promotion that was run for Marlboro cigarettes "Buy three packs and 93-94 get three free". He also recalls promotions that were run by "several" companies, D4 48 where you were given "five cigarettes in a pack to try our brand", but these were not given away in any large amounts. LIG does not recall ever switching brands because ofone ofthese promotions. Later, LIG states that these promotions occurred in 1992- 93 and that he got both of these promotional items at Rebel Oil. He does not know if these promotions were offered in other places. D4 48-49 LIG recalls Rebel Oil having advertisements all over their store for cigarettes, advertising "buy one pack get one free", or any special offer that was being given. He also recalls seeing a lit Marlboro sign in the store. There were advertisements for cigarettes both inside and outside the store, but LIG does not recall if they advertised that they (Rebel Oil) were the cheapest in town. SMOKING HISTORY/HABITS DI 24 LIG states that he had his first cigarette when he was 15 years old, in 1966. At the D2 6 time of his first cigarette, he was living at home with his parents and his sister Linda in "Queens, New York, Bayside, New York". LIG states that he was actually 15 %2 years old when he began smoking. He does not recall what time of year he began smoking, but he remembers it "being nice out...in New York I'd say probably spring or fall". [Note: Since LIG was bom in April, this would make the time he started smoking Fall of 1966.] D2 6-7 LIG goes on to state that there was some confusion between he and his attorney about what age LIG was when he began to smoke. LIG states that he began to smoke at age 15 %2, but was actually allowed to smoke in the house by his parents when he turned 16. He believes this is why 1967 is stated as the year that he began smoking in his complaint, when actually it was 1966. Dl 25-26 LIG had his first cigarette with his friends in the basement of an apartment building D2 7 where he and his friends would buy cigarettes from a vending machine. He recalls D4 27-28 that "half the time [the cigarettes] were stale". He occasionally would take cigarettes 31 from his father, who had just begun to quit smoking, but had "cartons of cigarettes all over the house". There was a group of about eight people, that "hung out" 0281676.01 -20-
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showed the cancer shrinking, but the second one he had recently showed that the cancer was not shrinking, but had not grown any larger. LIG relates that there was "a little promise" that he was fighting the cancer "to some degree". The cancer that his doctors are referring to here is the cancer in "the liver. It's traveled from my lungs". D3 64-65 LIG has recently had a problem with night sweats, but never had them before 1995. He has also recently had problems with anemia and his urinary tract, beginning in April, 1999. D1 9 LIG states that he suffers from "post-traumatic stress syndrome", is depressed constantly, doesn't leave his bedroom, and doesn't work. D3 68-69 LIG is currently able to get up and dress himself in the morning, but needs help in bathing himself. He is able to use the bathroom by using a special toilet seat. He is able to fix food and feed himself. He is able to drive, and considers himself to be "pretty much self-sufficient". He currently stays in the house. D4 70 LIG states that he doesn't have a life now, that he "doesn't work. I'm totally non- productive. I have no muscle tone in my body anymore...I've lost everything. Lost my life". Currently, his life consists of going from "my bed to the bathroom and back to my bed. And then pretty much every day I have to go to the oncologist or the hospital for something". CAUSATION D2 60 LIG states that Dr. Manno told him that his cancer was "strictly caused by D4 64-65 cigarette smoking; nothing else. He was the one that brought it up to me- I had no clue". He goes on to state that Dr. Manno then told him that "cigarette smoking caused your cancer and you have less than a year to live". D3 46-47 LIG states that lately he has been hearing how tobacco companies have `Yeconstituted nicotine back in the cigarettes after drawing it out to make it more addictive. And I know for a fact that they target younger people because they have a longer living clientele and they are not as educated as older people". LIG states that he heard this information after he contracted his illness. PIIYSICIANS Dl 16-17 LIG does recall having a family doctor that he saw as a child growing up in New York from 1951-1971 by the name ofDr. Rashkin. Dr. Rashkin practiced in Queens, New York. He does not recall the names of any physicians other than Dr. Rashkin that treated him from the 1951-1971 time period. In addition, LIG had no hospitalizations during this time period. 02e1676.01 - 13 -
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D2 63-64 LIG recalls a radiologist he saw recently who "nearly killed me", Dr. Jackson. He states that he remembers he because she "radiated an extremely large area ofmy back that affected my colon and created colitis and I got pneumonia". D2 67 LIG sees his cardiologist, Dr. Moazez, every three months. CONCERNS ABOUT DR ROSENBERG Dl 12-13 LIG is not sure that he is going to keep Dr. Rosenberg as his family doctor, because "he's done some unethical things recently ...telling other people that I have cancer that he shouldn't be saying". He has not discussed this "breach of ethics" with Dr. Rosenberg. D l 13 LIG is not critical of any of the care that he has received under Dr. Rosenberg. [Note: He is not critical at this point in the deposition.] D3 27-28 LIG does recall having anti-oxidant testing done in 1997, which he describes as "a waste of $200 dollars. Dr. Rosenberg talked me into it because he was in the Wynn vitamin program...It turned out my insurance didn't cover it. It was a joke". He states that Dr. Rosenberg did give him the results of the test, telling him that he was "low in some things and good in some things...He wanted to sell me vitamins. That's a sideline business. LIG states that Dr. Rosenberg did not tell him that being deficient in total anti-oxidant function was associated with an increased risk of cancer. He states "That's one of the reasons why I'm switching doctors. No. If that's true, I don't know. But he didn't explain much of anything to me except buy his vitamins". LIG clarifies that part of the reason he is thinking about switching doctors away from Dr. Rosenberg is because "you're bringing up stuff that might be true and these things I never heard. And other doctors have brought up stuff same as you that I've never heard". D3 28 LIG goes on to state that in retrospect, he feels there were things that Dr. Rosenberg should have explained to him that he did not. ALCOHOLIDRUG USAGE D 1 21 LIG states that he "doesn't drink" and would not even classify himself as a social drinker. He has had alcohol "occasionally", but has never been a regular drinker, never had a problem with alcohol, never been drunk, and never had an alcohol related offense. D4 52 Later in his deposition, LIG states that it was hard for him to quit smoking because he'd "go out to have a drink that night and it would kill me. I'd have to have one". D4 57 LIG also recalled that he would go out and have a drink "once every three or four months" at a casino while playing video poker. 0281676.01 - 16 -
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Joe Camel ads "helped" him switch to Camel. Advertising, LIG later states, was "strictly" the reason he smoked Camel. D3 8 LIG also states that in addition to switching to Camel because Joe Camel seemed like a cool guy, a cool image, he also switched because he was "curious about experimenting with a non-filter cigarette". D2 37 LIG also recalls seeing advertisements featuring the Marlboro Man. He believes that 39 he first saw these ads "possibly" in the early 1970's, before he went into the military. D4 29 He recalls seeing these advertisements "pretty much all over the place", on television, on billboards, and remembers one in New York City "a big statue of one blowing smoke". He further describes this billboard as being located on 42nd Street in Times Square, showing "this really handsome cowboy- rugged face, black cowboy hat, great tan- and he'd lift the cigarette to his mouth mechanically. And when it would come down, it would blow out a smoke ring. I thought it was the coolest thing". D3 15 LIG can not recall any advertising other than for Marlboro that he believes made him smoke more. He does say however, that if he were to be "refreshed with some previous ads, I'm sure I can. I mean, everybody was bombarded with the ads". D2 39 LIG describes the Marlboro ads of the early 1970's as featuring "some really good D3 73-74 looking cool guy, cowboy, living in the outdoors with the cigarettes just enjoying life. At least that's the way they presented it". Later, LIG states that he remembers the Marlboro ads from the late 1960's as picturing "a guy riding in on a horse, a cowboy with a hat, and he'd get off his horse and had this great tan. And he'd light up a cigarette and sit there and ah, this is so good. Just made it look good". He recalls seeing this advertisement as a television commercial, but he saw it in other places as well, such as on the giant billboard in Times Square. He does not remember the text of the ad. D3 74-75 LIG goes on to state that the effect of this ad was to get him to switch to Marlboro D4 36 from the brand he was smoking. At this same time, all of his friends also switched to Marlboro. He continued to smoke Marlboro because he "loved" the taste of them. It was "strictly advertising" that led LIG to smoke Marlboro. D2 78-79 LIG agrees that there was nothing in the Marlboro advertisements that suggested that Marlboro was safer to smoke, or demonstrated that there were health benefits to switching to Marlboro. He goes on to say that there was more of a "personality benefit than a health benefit" to smoking Marlboro. D4 37 LIG recalls seeing "one or two" advertisements for Vantage, including the ones 42 marked as exhibits during his deposition. He goes on to elaborate that thing that "struck" him about it was the "tar and nicotine report". 0281676.01 - 19 -
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D2 23 LIG does not recall hearing about the Surgeon General's Report about smoking and health when he was 14 to 15 years old. He does not recall hearing at this time that cigarette packages were going to be carrying a warning about smoking. D2 19-20 Before he started smoking at age 15 '/z, LIG states that he had not heard of the terms 22 "cancer stick", "coffin nail", "nicotine stick", or "nicotine fit". He did not hear the terms "cancer stick" or "nicotine fit" until he was "19 or 20". He states that he did not understand what the term "nicotine fit" meant when he heard it with his friends, only that "I knew I wanted a cigarette". He states that he knew in his late teens that cigarettes contained nicotine. He later remarks that his response to hearing the term "cancer stick", was "Why would they call it a cancer stick?" D4 79 Later in his deposition, LIG states that at the time he started smoking in 1966, he knew that smoking was bad for him. He knew to a "certain degree" that smoking was harmful to health. D1 47-48 LIG's father smoked Parliament, and smoked "three to four packs per day". LIG 49 recalls that his father quit smoking when LIG was around 16 years old, and that he 52 quit because "he developed very bad stomach ulcers", and that his father stated the ulcers were due to cigarettes. At the time his father quit smoking, he did not say anything to LIG about smoking being bad for you. D4 32 LIG claims that because his friends and family smoked that he felt "it wasn't that harmful. If they're smokin', how bad could it be". DI 69-70 LIG states that he was never told anything by any of his high school football or D2 15 baseball coaches about smoking. In addition, he states that although he "might have" taken health classes in high school, nothing in those classes "concentrated on the dangers of smoking", in fact, he does not recall anything regarding smoking in any of his classes at all, or any of his teachers even discussing smoking. D2 45-47 LIG does not recall seeing any textbooks in his junior or senior high school health classes by the names of "Health Public and Personal", "Health and Human Welfare", "Building Good Health", "Modem Health" or "Health and Safety For You". He does not recall using textbooks of any kind in his health class. He states that there was no session done at his school concerning nicotine, or the habit-forming nature ofnicotine or discussing the ill effects oftobacco, although there was an educational requirement in the early 1960's in New York public schools to discuss these items. D2 22-23 In addition, LIG does not recall anyone mentioning smoking in his temple (LIG is Jewish) while he was growing up. He states that "in fact, I don't remember even seeing anybody smoke at that time". D2 47-48 LIG does not recall a city-wide anti-smoking campaign put on by the New York City Health Department in 1964-1965. 0281676.01 - 6 -
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D3 47-48 Currently, LIG is collecting his own information on lung cancer and tobacco companies. So far, he has accumulated booklets and diets from the Cancer Institute, and newspaper articles regarding the tobacco companies. LEGAL ISSUES D3 61 LIG has never been a party to any other lawsuit. D3 41-42 LIG states that it was his idea to see an attorney about his injuries, but he first discussed the issue withDr. Manno. He asked Dr. Manno ifhe was "100 percent sure that this was lung cancer and if there was any other way it possibly could have been contracted by me other than cigarettes. And he said 'Go see a lawyer'." LIG relates that Dr. Manno told him to "Go see a lawyer" first, and then answered his questions. Dr. Manno went on to say "several times" that he was 100 percent sure of the diagnosis. D2 85-86 LIG named Rebel Oil in his complaint because "that's the place where I bought most D4 47-49 of my cigarettes when I was living in Las Vegas". He bought his cigarettes there because they were the "cheapest, most convenient, it's where I bought my gas. They had a lot of deals goin' on there- buy one get one free". [Contra: LIG later states that he does not remember if Rebel Oil advertised that they were the cheapest in town. Depo4 49] He goes on to state that he bought most of his cigarettes at two Rebel Oil locations, but primarily from the location at the comer of Rainbow and Cheyenne. Rebel Oil did not do anything to influence how LIG smoked, or how much he smoked, other than the fact that "they had signs out all over the place [that] they were the cheapest". He goes on to state that Rebel Oil did not influence him in anyway-as to how he felt about the health risks of smoking. D2 87 It is LIG's opinion that retailers should not be allowed to sell cigarettes. D3 44-46 LIG states that it is also his belief that tobacco companies should not be allowed to D4 83 manufacture and sell cigarettes because "they are killing people". He states that he formed this belief back in the 1970's, that there was no particular incident that made him come to this viewpoint, just "maturing, just growing up and realizing that these are harmful". When asked ifthe fact that tobacco companies made and sold cigarettes and LIG bought and smoked them is what caused his injuries, LIG says "I guess, yes. To some degree, yes". D3 51 LIG states that he'd "like to see the tobacco industry accept some responsibility here. They've ruined my life...I don't accept responsibility for it...I don't know who's to blame". 0281676.01 - 11 -
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Dl 22 LIG has never taken body-building supplements. Dl 54 LIG has never smoked marijuana, or used any illegal drugs. D 1 55-56 LIG admits that he quit the police department in Glendale, CO. He states that he did not quit the police department because cocaine and drug paraphernalia were found in his home, although that was one of "several reasons". He states that all of the drug paraphernalia found in his home was his wife's. ADVERTISING D4 28 LIG does not recall as a child seeing any cigarette advertisements. D4 29 LIG recalls that he "loved" candy cigarettes as a child, either the ones that were white candy with a red tip, or the ones that you would suck on that would blow smoke. D4 46-47 LIG believes that he has seen "thousands" of cigarette advertisements in his lifetime, "mostly on television. But, as I got older, newspaper, billboards". He claims that all of these advertisements showed "a handsome or a good looking man getting a pretty woman or a cool camel. It was always something to follow to be cool, to be happening, something that would give you pleasure and joy". In addition, many of the advertisements depictedpeople outdoors, or movie stars and celebrities like sports stars. D3 12-14 LIG states that cigarettes advertising not only had the effect of inducing him to switch brands, but also to give him information about the health hazards related to smoking, and to make him buy cigarettes; "you know, it got me to buy cigarettes. It was appealing". D3 14-15 In addition, advertising "made me want to smoke more- I mean, smoke their brand more". He goes on to clarify this by saying that using Marlboro as an example, "It was cool to smoke Marlboros. So once I started smoking Marlboros, the advertisement sucked me into smoking And I felt like it was good- okay to smoke more". D3 5-6 LIG asks to go on the record to say that in the 1960's and 70's there was a time 9 "where you couldn't turn the TV on or drive down the street [without] seeing a D4 35 billboard about cigarette smoking. So I know there's a lot of ads and things that influenced my smoking and what brands smoked...I know there was a whole bunch that I've seen just like everybody else back in the 60's and 70's". He goes on to say "I remember you couldn't open up a magazine or paper or turn on the TV without [seeing them]. He recalls that this advertising focused on a company trying to get you to switch to their brand. 0281676.01 - 17 -
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D2 60 LIG goes on to state that Dr. Manno told him that his cancer was "strictly caused by cigarette smoking; nothing else. He was the one that brought it up to me- I had no clue". D3 41-42 LIG states that it was his idea to see an attorney about his injuries, but he first discussed the issue with Dr. Manno. He asked Dr. Manno if he was"100 percent sure that this was lung cancer and if there was any other way it possibly could have been contracted by me other than cigarettes. And he said 'Go see a lawyer' :' LIG relates that Dr. Manno told him to "Go see a lawyer" first, and then answered his questions. Dr. Manno went on to say "several times" that he was 100 percent sure of the diagnosis. D2 60-61 LIG recalls having a conversation with "one other oncologist since this happened". LIG does not recall the physicians name, but does remember that he was the head of the oncology department at UCLA Medical Center. He states that he was sent to this oncologist by Dr. Manno to see if he could have "experimental treatment, ifpossible. And it wasn't possible". He goes on to state that this doctor also believed "it was in the lung, started in the lung, and moved to the liver". [Note: The doctor he is referring to here is Dr. Robert Figlin.] D2 61-62 LIG further recalls that this doctor from UCLA also told him that his cancer was a small cell carcinoma, and that "it was lung cancer". He says that this doctor told him the experimental treatment would not be appropriate forhim because "there were too many cancer nodes. They were too large for it to affect me". D2 77 Later in his deposition, it was pointed out to LIG that his doctor at UCLA was Dr. Robert Figlin. He does not recall Dr. Figlin saying that he had a "metastatic neuroendocrine carcinoma ofunknownprimary site", and restates that Dr. Figlinwas the "one that told me it was in the liver". He goes on to state that Dr. Manno has never discussed with him anything that Dr. Figlin found. D2 62 LIG has had no conversations with Dr. Rosenberg about primary site verses metastases, or about the cause of his cancer. The only physician he can recall having this conversation with was Dr. Manno, although it is "possible" that he talked with the head oncologist at UCLA about primary vs. metastatic disease. D2 67-68 LIG states that all of his doctors have compared chest/lung x-rays taken in April, 1999 to more recent films. He states that the doctors "haven't said anything about the lungs", never said anything about any changes in his lungs. He states that the doctors do talk about his cancer, that they have told him that his first CAT scan showed the cancer shrinking, but the second one he had recently showed that the cancer was not shrinking, but had not grown any larger. LIG relates that there was "a little promise" that he was fighting the cancer "to some degree". The cancer that his doctors are referring to here is the cancer in "the liver. It's traveled from my lungs" 0281676.01 - I Jf -
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D2 17-18 As a teenager, age 12-16, LIG does not recall seeing anything in magazines or in newspapers during this time about smoking, other than advertisements. He states that he recalls seeing Joe Camel and the Marlboro Man, but it is unclear if he is referring to seeing them during this time period. D3 10 The advertising that sticks out in LIG's mind that got him to switch brands was for Marlboro, Camel and Lark. D4 33 LIG claims that advertising made him smoke Lark, Marlboro and Winston cigarettes. 35 He cannot recall anything about Winston cigarette advertising. Dl 32-33 LIG believes that the second brand he smoked on a regular basis was Lark. He D2 36-38 believes it to be Lark because "that's when the commercials were coming out ' Show D4 33 us your pack of Lark', and I thought that was really cool because it had a charcoal 35 filter on it and it tasted good. So I switched to that". Later, LIG states that this was one of several advertisements that he saw that influenced his cigarette brand choice. He recalls this commercial as showing people ofmany different nationalities "holding up a cigarette or a machine gun...I remember it was an eye-catching campaign. LIG recalls that he saw this ad within the first four years that he began smoking, and that this commercial influenced him to "switch brands from what I was smoking to Lark". He states that he did this because "it was a fun ad. I said well, if everybody else is trying it, I should". LIG fiuther elaborates on this in his final deposition, stating that he began smoking Lark cigarettes because of the commercial "that was cool, I got to try it. Charcoal filter, got the cool music, and had to try that. As soon as advertising came into my life..." Dl 35 LIG states that he only recalls Lark because of the television commercial. D 1 37-39 LIG recalls that he received his information that smoking non-filtered cigarettes was dangerous from television, specifically "commercials, advertisements". He recalls that "they said that filters filtered out like 99 percent of all the toxins and that it wasn't safe to smoke non-filters because of that". He goes on to state that he believed this, because "I used to see how black the filters would get". He believes this would have been sometime "towards the end" of the 1966-1970 time period. He does not recall what brand of cigarettes that this commercial was referring to, but believes that he saw more than one advertisement claiming this. D2 42 LIG later states that he can recall Joe Camel ads which he believes influenced his D3 7-8 smoking. He does not exactly recall when he saw these ads, but believes he saw them D3 76-77 "for a very short time. It was a couple of weeks if that". He later states that he D4 45 believes he saw these ads in the 70's or 80's. He does recall seeing Joe Camel on a motorcycle, but nothing else about the ad. LIG goes on to state that he believes these ads made him switch to Camel. Later LIG states that he saw these ads sometime after 1973, and that this was the time that he tried Camel non-filtered cigarettes, because he was looking for "something a little stronger and different". He believes that the 0281676.01 - 1 g -
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D 1 13-15 LIG did not have a family physician before Dr. Rosenberg in Las Vegas, or when he lived in Colorado. He does not recall visiting any doctors or hospitals while he lived in new York from 1973-1981. D2 104 LIG did visit a police psychiatrist in Denver, Dr. Nicoletti at the time that he was breaking up with his first wife. LIG says that Dr. Nicoletti suggested working out as a stress reliever. Dl 12-13 LIG's current physician is Dr. Murray Rosenberg, who is "also a friend". He has 61 been LIG's physician since around 1992-1993. LIG states that he and Dr. Rosenberg became friends because LIG trained his dogs. Dl 67 Dr. Rosenberg is the only physician to suggest to LIG that he quit smoking. D2 55-56 The chiropractor LIG went to prior to his April, 1999 diagnosis was Premiere Chiropractor, on Rainbow Boulevard, where he saw a Dr. Lawrence. He was given adjustments for sciatic problems, three times a week for two months. D2 56 LIG also saw an acupuncturist three times, called Legacy on Flamingo Street. The acupuncturist stuck needles in the top of his head, which "never made me feel any better. But I was willing to give it a try". D3 67 LIG's dentist in Las Vegas is Mark Ascoto, located at Tenaya and Rainbow. D2 56-57 LIG was sent to rehab at Health South at 500 Rainbow by Dr. Rosenberg. He states that he went to this location three or four times, and was told that his problem was sciatic in nature. He received back treatments here as well. D2 57 LIG's hip replacement was done by Dr. Neibaum, an orthopedic surgeon from Desert Orthopedic. D2 57-58 TheoncologistthatLlGbeganworkingwithwhenhiscancerwasdiagnosedin April, 1999 was Dr. Manno. LIG recalls that Dr. Manno told him his prognosis was "possibly a year. And he told me that lung cancer, my lung cancer is hard to diagnose because it hides behind the breastplate and that its been in me at least a year. And he said no x-rays or anything else would have shown it till this point". D2 59 Dr. Manno also told LIG, according to LIG's recollection, that his cancer was "the most serious cancer because it multiplied so quickly, but it's also the easiest to work with chemo with...but I said to him 'Am I gonna live?' and he said 'Probably not'." D2 59-60 LIG recalls Dr. Manno telling him that his cancer had a primary site in his lungs, whichhas since "metastasized into my liver, colon, muscles andbones. It's in a Stage 4 stage right now". LIG does not recall if Dr. Manno gave him the basis for his opinion that LIG's cancer had a primary site of the lung. 0281676-01 - 14 -
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D3 23-24 LIG thought that smoking helped him to relax, and that it helped him as a "stress reliever", with anxiety and nervousness. He does not recall that smoking helped him concentrate. D4 44 LIG also smoked to relieve boredom while he was a police officer. Because of this, as well as smoking while under stress, LIG recalls that he had a cigarette in his hand "seven, eight hours" out of a ten hour day at work. D3 22 LIG says that he would try not to smoke in front of infants or children, that he would "go out to the patio or something". He states that he would try not to smoke around children because "it's unhealthy, second hand smoke". D1 54 LIG has never used smokeless tobacco products, pipes or cigars, or smoked 70 marijuana. He has never smoked any foreign brands of cigarettes, and does not consider that he was ever a chain smoker. D3 48 LIG states that he is the kind of person that takes responsibility for his own actions "when possible". He does not, however, take responsibility for choosing to smoke cigarettes. He states that the reason he does not take responsibility for this is because "I was 15 years old. I had no knowledge. I had no concept of what these things do to you. By the time I did have knowledge and I did mature enough to realize it, these things had me hooked". D3 49 He goes on to state that he does not take responsibility for continuing to smoke D4 84 between 1966 and his first quit attempt in 1979-80 because "I was not educated enough. I was not mature. I had no knowledge of all this stuff...I do take responsibility now for being such an idiot, putting a gun to my head and pulling the trigger". Later, LIG states that he doesn't "know if I said what an idiot I've been...I can't say, you know, whether I felt that way...I believed I shouldn't have smoked. I took the wrong path". D3 50-51 LIG also does not take responsibility for not reading the warning labels on packages D4 83 of cigarettes for the first 7 or 8 years that he smoked. [Contra: 4 or 5] He believes that "if they [tobacco companies] are going to take responsibility and put a label on it, then why sell them? It's admitting guilt right there on the package". D3 92 During the time that he smoked while living in Las Vegas, LIG states that he bought 95 "90 percent" of his cigarettes from the Rebel Oil Company located at Cheyenne and Rainbow. He goes on to state that if Rebel Oil were ever closed he "probably, sure" would have bought cigarettes elsewhere. BRANDS SMOKED D 1 27 LIG recalls the first brand of cigarettes that he bought out of the vending machine in the basement of his friend's apartment building was Chesterfield. 0281676.01 - 24 -
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D3 20-21 LIG's supervisors at his places of employment were Dick Waugh at Pet City, Kyd Stewart at American Kennels, and Earl Schneider at Petland. His supervisors at the Glendale Police Department were "everybody. I was on the bottom". The Chief of Police was Von Brown, Captain was Bill Angermann, Lieutenant was Dean Felton, Sergeant was George Godoy and Norm Renter. RESIDENCES D2 101-102 LIG has his current home regularly treated for cockroaches and bugs. He has Orkin come by once per month and spray outside his home. He does not recall having these treatments done at any of his other residences. D2 98-99 Before moving to his current address in 1995, LIG lived at 6908 Tulsa Circle. The D3 91 house on Tulsa Circle was "two or three years old when we bought it". His home 93 prior to that, on Buena Vista Dr. in Conifer, CO. was not very old when LIG bought it as well. He recalls that the house on Carrol Lane in Colorado was an older house, and that it was "all brick". It had central heat and air conditioning, forced air. It also had a fireplace and a natural gas range. D2 110 LIG later recalls living in an apartment in between the time he lived in the houses on Carrol Lane and Buena Vista. He recalls that the apartment was located right by the police department, and he was given free rent if he would drive around the complex in his patrol car. He states that he lived in this apartment between marriages. D2 101 LIG had his house on Buena Vista tested for radon. He states that it tested negative. Dl 14-16 LIG moved to Las Vegas in 1991 from Colorado. He lived in Colorado from 1981- D3 91 1991. He lived in New York from 1973-1981, after he got out of the military. LIG was in the military from 1971-1973, and spent his entire life in New York (1951 forward) until he went into the service. D2 99 The address LIG lived at on East 16th Street in New York City was an apartment in Greenwich Village. LIG has no idea of the age of the building, but recalls that it was steam heat with natural gas cooking appliances. D 124 LIG lived with his parents and his sister Linda (now Linda Sirkin) in Queens, Bayside D2 99-100 New York when he was growing up. He lived with his parents at 241 E. Devonia from the time he was 16 to 18 years old. He does not know the age of the house, but recalls that it was a big brick house heated by petroleum oil. D2 100-101 LIG states that none of the houses or residences that he lived in underwent remodeling during the time he was living in them. To his knowledge, LIG has never lived in a house that had asbestos insulation, tiles or flooring. LIG does know what asbestos is, and if he saw it he would know. 0281676.01 - 37 -
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D1 29 LIG states that he did inhale on his second smoking attempt, and decided to try smoking again because ofpeer pressure, and "it just started to taste good". He recalls that he smoked this second time "mostly" because of peer pressure, but also because he "was curious. I wanted to experiment with it". Dl 30 After this second smoking attempt, LIG became a "regular" smoker, "almost D4 27 immediately". He recalls that he smoked "a pack a day" in the beginning, but does not recall what brand he smoked. LIG recalls that he began smoking about a pack a day "within a couple of weeks" of trying cigarettes. D 1 53-54 LIG does not recall any prohibition against smoking at school, that he and his friends D4 31 smoked on the school campus but not in classes. Later, LIG recalls that he and his friends smoked in a little park in front of his school during recess. D 1 30-32 LIG recalls that when he became a regular smoker, he began smoking a pack a day, 41-42 and smoked a pack a day for "years", but also recalls that he smoked "more than a D4 56 pack when I went into the service in 1970". He later states at this time he smoked "a pack and a half to two" packs per day. He believes that this increase in consumption occurred more during the time he was in the service, "toward the `70s". LIG later states that he smoked two packs ofMarlboros per day while he was in the service, and continued to smoke Marlboro until around 1979-1980. He believes that he smoked "between two and three packs a day" between the time he got out of the service in 1972-1973 and 1979-80 when he switched to Vantage. At the time in the 1990's when he was trying to quit with the help of Dr. Rosenberg, LIG states that he was smoking 1'h to two packs per day. D2 40 LIG states that he "smoked more" when he smoked Marlboro, because he liked them. He also states that he "possibly" smoked more Marlboro because of the advertisements. He believes that looking at the ads "could have, yes", made him smoke more. Dl 37-38 LIG recalls that non-filter cigarettes were "harsh", but liked smoking them D4 81 because "they were hip at the time". He stopped smoking them because he became afraid of them because it was just beginning to be publicized the dangers of smoking non-filtered cigarettes. He recalls that "they said that filters filtered out like 99 percent of all the toxins and that it wasn't safe to smoke non-filters because of that". He goes on to state that he believed this, because "I used to see how black the filters would get". LIG got this information from television, specifically "commercials, advertisements". He believes this would have been sometime "towards the end" of the 1966-1970 time period. D 1 39-40 LIG goes on to state that he didn't even "know there were risks to smoking. I just found out that there was a risk to [smoking] non-filters". He did not recall thinking at the time that this meant there were risks to smoking in general, just to smoking non-filtered cigarettes. 0281676.01 - 22 -
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CURRENT STATE OF HEALTH Dl 7-9 The depositions are being taken on LIG's home due to his condition. He has been "in and out" of the hospital recently, and states that he "breaks down" very easily. LIG gets blood transfusions once per month, and chemotherapy every three weeks. Recently, he has had a port put in his arm since "all my veins have dried up from the chemo". He had pneumonia three weeks ago and "nearly died". His legs from his knees to his upper thighs are in constant pain, and in addition to the hip replacement that he had due to cancer, his right hip is starting to weaken due to cancer as well. He has gone through radiation to try and help that situation. D2 63-64 LIG recently received a large dose of radiation to his back "that affected my colon D4 68 and created colitis and I got pneumonia. That's when I said I was in the hospital a couple of weeks ago and nearly died...I go to radiology [sic: chemotherapy] every three weeks. They've had me on three different types of medications, chemotherapies". D2 64 LIG goes on to clarify that he has chemotherapy, not radiology, every three weeks, and has been receiving these treatments since April, 1999. The chemotherapy lasts for about a week, two hours per day. D2 64-65 LIG has been in the hospital "seven or eight times...one time it was very serious". Most of the time he has to be admitted because "radiation kills all the cells good or bad", and thus, LIG becomes susceptible to catching a secondary disease and dying. In order to prevent this from occurring, LIG wouldbe admitted to the hospital for four or five days. D2 65 LIG describes his current chemotherapy regimen as a process that makes him "sick". D4 66-67 He says that "after [the chemotherapy], your body just changes...it kills everything". He goes on to state that the radiologist "fried my body" and that he has to have blood transfusions, two pints of blood after he has chemotherapy. Since being diagnosed with cancer, LIG has been having radiation and chemotherapy treatments. He describes the chemotherapy as being "like hell. It's like being dead but able to walk. It kills everything. It kills your good cells along with your bad. After chemo I used to have to go in for a day or two for a...blood transfusion. And then I pretty much can't leave the house for the rest of the time till I go back for chemo. It's miserable. I don't wish it on my enemies". D4 69 LIG goes on to state that "they tell me I'm alive, but I don't know half the time. I'm miserable. I'm sick all the time. I'm taking medicine all the time". D2 67-68 LIG states that all of his doctors have compared chest/lung x-rays taken in April, 1999 to more recent films. He states that the doctors "haven't said anything about the lungs", never said anything about any changes in his lungs. He states that the doctors do talk about his cancer, that they have told him that his first CAT scan 0281676.01 -12-
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EMPLOYMENT HISTORY D3 19-20 LIG has always had dog related jobs. He worked as a veterinary technician, manager D4 15 of dog kennels and pet stores, and a dog trainer. Before going into the military, LIG 23-26 worked at American Kennels, and Petland, located in Manhattan and New York City. After getting out ofthe military, LIG went back to work for several years at American Kennels, then went to work for a veterinarian, R.J. Sterling in Manhattan for a couple of years. When LIG moved to Colorado, he went to work for Pet City [Contra: Petsmart] in Englewood, CO. as a dog trainer, then opened up his own dog training business in December 1991 or January, 1992. The promotional piece that Petsmart handed out about LIG states that he was a dog obedience trainer for 23 years, and a canine trainer in the Denver, CO. area for 10 years. LIG states that he has been training dogs since he was 16 years old. He enjoyed training dogs, and calls it "the best job alive". D2 94-95 While LIG was a member of the Glendale Police Department, he was a member if D3 20 the Fraternal Order of Police, Lodge 20 in Glendale, Colorado, which is located in 23 southeast downtown Denver. LIG became a police officer at the end of either 1981 86 or 1982. LIG worked the night shift as a police officer. Because of this, he did not D4 15 get to bed until 5:00 in the morning. LIG received several commendations as a D4 16-23 police officer. These commendations included capturing a homicide suspect, arresting another homicide suspect, giving testimony that helped convict a homicide suspect, for putting in overtime during a blizzard, best employee of the quarter in Apri1,1991, arresting a homicide suspect in Glendale, CO., working for the Muscular Dystrophy Association, assisting on making an arrest of a suspect from a high- speed police chase, helping a woman whose husband was having a heart attack, preventing two suicides, making an arrest of a woman with cash and cocaine on her person involving over $200,000, giving a police escort, and helping a heart attack patient who drove off of the road. He also received a commendation for taking his police dog to his son's school for the deaf. D3 86-88 LIG's partner for six of the years that he was a police officer was a German Shepard, Magnum. Magnum was trained in narcotics and had the ability to detect drugs, "had a good nose". LIG states that he and Magnum specialized in narcotics. Magnum came to Las Vegas with LIG after he left the force. LIG sold Magnum to the police department for a dollar when he got him, then bought him back when he moved to Las Vegas. Magnum died in 1993-94, at the age of 12. Dl 55-56 LIG admits that he quit the police department in Glendale, CO. He states that he did D4 15 not quit the police department because cocaine and drug paraphernalia were found in his home, although that was one of"severral reasons". [Note: Magnum must have been going insane in this household.] LIG was a member of the Glendale, CO. police department for approximately 10 years. 0281676.01 - 46 -
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D4 46 LIG believes that filters were "reducing tar and nicotine to a safe level". He believed this, because "that's what they said...thousands of studies". D2 11-12 Before the mid 1970's, LIG states that he had never thought about whether he wanted D4 49-50 to quit smoking or not, because "I was enjoying smoking". [Contra: Later in his deposition, LIG states that he began to dislike smoking "pretty much when I got out of the service. Like '73 I wanted to quit". ] He goes on to state that he started to not like the taste, and "the money that was being spent was ridiculous...It was not convenient anymore. I was short of breath. It was affecting my exercising. It's just not good.". D2 85 Later in his deposition, LIG states that he switched from enjoying smoking to feeling that smoking was "a very, very bad habit and I wanted to get out of it". He believes this switch occurred in the 1979-1980 time period. D 142-43 LIG became aware of the dangers of smoking through his ex-wife, who was a nurse. He then states that between her, television advertisements and "everything else at that time", he became aware that it was dangerous, and switched to Vantage because "it was a lighter brand and supposedly it had less tar and nicotine to it". LIG understood the risks of smoking to be "lung cancer, heart disease", at that time. D 1 43-46 LIG smoked Vantage regular for around "seven or eight years", then switched to Marlboro Light. He states that he switched to Marlboro Light because he had heard from friends "that there was less tar and nicotine and they were a milder cigarette. I felt they would cut the risk down a little bit". During this time period, he smoked "about two packs a day", and continued to smoke that amount until he had a heart attack in 1995. D2 108 LIG states that in the 1980's, "everybody knew I smoked. Everybody. From the ChiefofFoliceondowntotheassistantsanddispatchers. Anybodywho worked with me. I always had a cigarette". D2 95 LIG recalls that the stress of being a police officer would make him smoke more. He D4 44 relates that the stressful times would make him "smoke like a fiend...stress would get to me [cigarettes] would calm me down". He later states that when his adrenalin level was high, he would "light up a cigarette and it'd take me down, make me feel more at ease, more comfortable. I'd smoke a couple at a time". D3 22-23 LIG would have his first cigarette at breakfast, after the meal. He states that he "might have" smoked immediately upon waking up before breakfast. He would definitely smoke at night in bed, but it was not common for him to wake up out of his sleep period and smoke. LIG liked to smoke after meals, while playing games, "all the time". 0281674S.01 - 23 -
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D3 64-65 LIG has never had viral infections, rheumatic, scarlet or typhoid fever, serotina [sic: scarlatina], malaria, insomnia, laryngitis, tonsilitis, appendicitis, black stools or intestinal bleeding, kidney or urinary problems. D2 51 LIG has had his blood pressure regularly checked at the police department, and through Dr. Rosenberg. he states that he would have it checked "at least once a year", and that it was "always really good, like 130 over 80, 85 would be the highest". D2 68-70 Dr. Rosenberg diagnosed LIG with a hiatal hernia in the early 1990's. LIG has always had a problem with heartburn, since the time that he was in the service. He describes the frequency of his heartburn as being "on and off depending on the foods I ate". He recalls having it on an average of 10-15 days per month, but agrees that if he ate "spicy foods, I'd probably get it every night. If I stayed away from it, it would be very infrequent". LIG describes his heartburn as being "moderate. It would wake me up and I have to take some antacid pills". LIG goes on to state that he knew what the heartburn was related to, and that the spicy food "wasn't worth it, but I did it anyway". He relates that he continued to eat spicy food, when he knew it was causing him trouble, because "I tried to cut down, but there's spice in anything. It's hard. I didn't know what to eat or what not to eat". D3 61-63 In the 1980's to early 1990's, LIG states that he would try to stay away from spicy or highly seasoned foods, but once he got Prilosec from Dr. Rosenberg "I could eat it everyday and it wouldn't bother me. So I tried to stay away from it. Don't eat it very often. Maybe once a month". He does not like Cajun or Mexican food, the spicy food he would be most likely to eat would be Italian food. He later states that he would have to take Tums or Maalox "when I ate spicy foods, maybe a couple of times a month" throughout the 1970's-80's. D2 70-71 LIG states that at no point in time has he been concerned about the risk of problems arising from having heartburn. In direct contrast to this statement however, he does recall asking Dr. Rosenberg prior to April, 1999 if heartburn had any relation to cancer, because he had heard in the media that having heartburn could cause throat cancer. LIG says that Dr. Rosenberg told him "No. You don't have it. Don't worry". Dr. Rosenberg did not do any tests in order to come to this conclusion. D 1 62 LIG states at the time that he tried to quit smoking in 1993-1994, Dr. Rosenberg did D4 56 a physical exam on him at the time. LIG was told that he was "in good health", and was able to be prescribed the nicotine patch. LIG recalls that he had chest x-rays at this time as well. He recalls that he had never developed a cough during the time that he was smoking. D4 56 Prior to the ] 995 time period, LIG states that he was "healthy as a bear". D2 49-50 LIG did not have any symptoms prior to his heart attack that he would have related to heart problems. He never experienced shortness ofbreath, except when exercising 028167e.01 - 39 -
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D1 21 LIG never had any physical problems related to all of the exercising that he did. He D3 78 never had any chest pain or breathing problems while exercising. D3 24-25 When asked after his heart attack if any physicians put him on an exercise program, LIG states that he already exercised regularly at that point. When it was pointed out that inhis medical records there are notations concerning LIG's non-compliance with his diet and exercise program, LIG states "I know nothing about that. Nobody ever said anything to me". He goes on to say "I wasn't put on a strict diet or exercise. I did it myself". He does not recall any doctor's orders to follow after his heart attack. MARITAL HISTORY/FAMILY HISTORY D3 32 LIG does not know of any family members that have suffered from any of the following diseases: breathing problems, emphysema, tuberculosis, chronic bronchitis, pneumonia, pulmonary disease, heart disease or problems, high blood pressure, rhinitis or tumors. D3 34-35 He does not recall any family members suffering from diabetes, nervous system or muscular disorders, arthritis, respiratory, throat or digestive system problems, psychological or mental problems, or addictions. Grandparents D1 17 LIG's grandmother died of stomach cancer, as listed in his interrogatory responses. Spouses D 1 42-43 LIG ex-wife, Agnes Patricia Lavin, was a nurse at St. Vincent's Hospital in New 56 York City. They met in 1979-1980, and at this time, she smoked Vantage, around D3 31 a pack per day. LIG and Pat were married in 1981. LIG's ex-wife had asthma. D 1 71-72 LIG's current wife quit smoking at the same time he did in July, 1995. Both LIG and D4 52 Teresa smoked Marlboro Light cigarettes until they quit. At this time, LIG recalls 56 that Teresa was smoking around a pack per day. D2 73-74 LIG states that he and his current wife used to share Xanax, that she used to take it D4 74 "almost daily". She was diagnosed with MS about a month and a half ago. LIG recounts that stress and work makes MS more difficult. D3 54 LIG married the current Mrs. Glass in 1988. He was 34 years old when he met her. D4 13 [Note: LIG would have met her in 1985.] He has been married to Teresa for 11 years. 029167s01 - 34 -
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in my head of when I should smoke...I can't have one for another hour or when this TV show came on I could have one. Real stupid stuff, but it helped me cut back a little bit. Then I'd go right back". He goes on to say that he never "succeeded in cutting back. My willpower was not that strong". D2 28-29 LIG states that in the mid-1970's, when he first became aware of warning labels on cigarettes, he felt "Scared. What an idiot I've been". He responded to this fear, however, by doing "Nothing. Tried to cut down". D2 31-32 When asked what it was he was afraid of, LIG states "the hazards of smoking cigarettes...it wasn't a disease. I remember what scared me is if this is such a big business and they are putting something on there telling you not to smoke it must be dangerous". He goes on to say that in spite of having this feeling, he did not take any action to quit because "I remember in my 20's nothing was going to hurt me...and at that point, like I told you earlier, I couldn't stop". D2 32 LIG goes on to state that in addition to him not being able to stop during this time period, he also "never had to stop. I didn't have the tools. You know, it wasn't acceptable to see a psychiatrist or a doctor". D 1 56-57 LIG states that this first quit attempt was "back in the late '70s" while he was living D4 51 with his first wife Patricia in New York City. He states that he first tried to quit smoking because "I found out cigarettes were dangerous. I believed it, and I believed it at that time...I knew it before, but..." On this attempt, he and Pat tried to quit at the same time. He states that they "Almost killed each other. Very irritable". This caused them both to start smoking again. Later in his deposition, LIG states that before this quit attempt, he decided to quit cold turkey, and recalls thinking "I'm just gonna do it. This is not good anymore". He recalls that he "put on 10 pounds in probably a week. [Pat] decided to bake when she quit smokin, and I decided to eat everything she baked. It didn't work. We were at each other's throats. We were eating. We were doing things that were not our pattern. So we started to smoke again". D4 96-97 Later LIG states that this quit attempt in 1979-1980 was not his first quit attempt, "I tried to quit before that. I couldn't quit. But I've tried. I'd go cold turkey a day or two. That to me is trying to quit". He states that if he said his first quit attempt was in the late 1970's, that that statement was inaccurate, that he made "an earnest attempt to quit smoking back in the late 1970's. But I attempted quitting right after the service. And that's what I thought I stated. Right after I got out of the Army in `73, I started to try to quit. That's when I realized it was harmful". Dl 58-59 LIG states that he was unable to quit, because he was addicted to nicotine, and that he could not quit smoking because "I couldn't sleep. I couldn't function. I felt physically ill". He goes on to state that the longest he could go without smoking was a "couple of days". On this quit attempt, LIG recalls that he and Pat began smoking 028161a.01 - 30 -
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D l 30-31 LIG recalls that when he became a regular smoker "almost immediately" after trying cigarettes, he was smoking about a pack a day, but does not recall what brand he smoked. All he recalls about this brand of cigarettes was that it was filtered, with a "yellowish" color filter. LIG can narrow down the brands he wouldn't have smoked; he never smoked menthol or non-filter cigarettes. Dl 33-34 LIG went through "several" brands before settling on Lark. He recalls them to be 35-36 Chesterfield, Parliament, Camel non-filter, Lucky Strike and Winston. He smoked these brands in the 1966-1970 time period. LIG does not remember how long he smoked Lucky Strike, that it may have been a "couple of months". He believes he smoked Chesterfields for only a"week to two", smoked Parliament "a little longer" in comparison to other brands because his father smoked them, and LIG used to steal his cigarettes. He smoked Camel non-filtered for "maybe a month", a smoked Winston for "a couple of years". D 1 40-41 LIG states that he smoked many different brands during this time period because "as D4 34-35 a group we would switch brands. We would bum cigarettes off each other and try different brands". He doesn't recall liking anything in particular about Lucky Strikes or Chesterfields, but he liked Parliament because "they were free, my dad" (LIG used to steal them from his dad), and he liked "the taste of Winstons, they were sweet". He recalls that the reasons that he and his friends smoked different brands was because Chesterfield's " were pretty strong", Parliament because "they were available", Winston "definitely due to advertising", and Lark because of the advertising. D 137-38 LIG recalls that the Camel non-filter cigarettes were "harsh", but liked smoking them D3 8 because "they were hip at the time". He stopped smoking them because he became D4 45 afraid of them because it was just beginning to be publicized the dangers of smoking non-filtered cigarettes. He recalls that "they said that filters filtered out like 99 percent of all the toxins and that it wasn't safe to smoke non-filters because of that". He believes this would have been sometime "towards the end" ofthe 1966-1970 time period. He later states that he "kind of liked" Camel non-filter cigarettes. He did not like the way the cigarette would get wet with saliva, and that he did not like the taste of tobacco- "I'm not a chewer". D3 8-9 LIG later recalls that he decided to give up smoking Camel non-filters about a month D3 77 after beginning to smoke them because he "started realizing the risk of non-filtered smoke at that point and the dangers of no filters". He states that he recalled thinking "I got to get off of this. It's not healthy, not that any of them are". D2 42 LIG later states that he can recall Joe Camel ads which he believes influenced his D3 7-8 smoking. He does not exactly recall when he saw these ads, but believes he saw them D3 76-77 "for a very short time. It was a couple of weeks if that". He later states that he D4 45 believes he saw these ads in the 70's or 80's. He does recall seeing Joe Camel on a motorcycle, but nothing else about the ad. LIG goes on to state that he believes these 0261676.01 - 25 -
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D3 60 LIG admits in the 1970's that he did nqt wear his spat las;iGVVhi1e driving. He did wear it in the 1980's because it was mandatory for the police department, and it "got me into a good habit". D3 60-61 LIG does not consider himself to be a gambler. He states that he would "visit here D4 57 and I'd blow a couple ofthousand dollars in two days. But I' d come here once a year. So no, I've never been a gambler". Later in his deposition he recounts that he goes to the casino "once every three or four months" to have a drink and play some video poker. 0281676.01 - 57 -
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couldn't diagnose it". He goes on to state that Dr. Manno then told him that "cigarette smoking caused your cancer and you have less than a year to live". He states that his prognosis is "death". D2 59 LIG goes on to say that Dr. Manno told him that his cancer was a small cell carcinoma, which was the "most serious cancer because it multiplies so quickly, but it's also the easiest one to work with chemo with...but I asked him `Am I gonna live?' and he said 'probably not'." D2 59-60 LIG recalls Dr. Manno telling him that his cancer had a primary site in his lungs, D4 64 which has since "metastasized into my liver, colon, muscles and bones. It's in a Stage 4 stage right now". LIG does not recall if Dr. Manno gave him the basis for his opinion that LIG's cancer had a primary site of the lung. LIG's understanding is that the primary site of his cancer is his lungs. D2 62 LIG has had no conversations with Dr. Rosenberg about primary site verses metastases, or about the cause ofhis cancer. The only physician he can recall having this conversation with was Dr. Manno, although it is "possible" that he talked with the head oncologist at UCLA about primary vs. metastatic disease. D2 60-61 LIG recalls having a conversation with "one other oncologist since this happened". LIG does not recall the physicians name, but does remember that he was the head of the oncology department at UCLA Medical Center. He states that he was sent to this oncologist by Dr. Manno to see ifhe could have "experimental treatment, ifpossible. And it wasn't possible". He goes on to state that this doctor also believed "it was in the lung, started in the lung, and moved to the liver". [Note: The doctor he is referring to here is Dr. Robert Figlin.] D2 61-62 LIG further recalls that this doctor from UCLA also told him that his cancer was a D4 78 small cell carcinoma, and that "it was lung cancer". He says that this doctor told him the experimental treatment would not be appropriate for him because "there were too many cancer nodes. They were too large for it to affect me". He later states that he was not a candidate for the program at UCLA because "they told me my cancer was too advanced". D2 77 Later in his deposition, it was pointed out to LIG that his doctor at UCLA was Dr. Robert Figlin. He does not recall Dr. Figlin saying that he had a "metastatic neuroendocrine carcinoma of unknown primary site", and restates that Dr. Figlin was the "one that told me it was in the liver". He goes on to state that Dr. Manno has never discussed with him anything that Dr. Figlin found. D2 67-68 LIG states that all of his doctors have compared chest/lung x-rays taken in April, 1999 to more recent films. He states that the doctors "haven't said anything about the lungs", never said anything about any changes in his lungs. He states that the doctors do talk about his cancer, that they have told him that his first CAT scan showed the 0281676.01 - 43 -
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cancer shrinking, but the second one he had recently showed that the cancer was not shrinking, but had not grown any larger. LIG relates that there was "a little promise" that he was fighting the cancer "to some degree". The cancer that his doctors are referring to here is the cancer in "the liver. It's traveled from my lungs". D4 66-67 Since being diagnosed with cancer, LIG has been having radiation and chemotherapy 78 treatments. He describes the chemotherapy as being "like hell. It's like being dead but able to walk. It kills everything. It kills your good cells along with your bad. After chemo I used to have to go in for a day or two for a...blood transfusion. And then I pretty much can't leave the house for the rest of the time till I go back for chemo. It's miserable. I don't wish it on my enemies". LIG plans to stay with his current treatment plan, "staying sick until I get better", although the chemo does not seem to be working. D2 63 LIG has never discussed or explored any other causes for his cancer with any physicians. In addition, LIG does not recall any physician taking a complete history from him to attempt and identify any other possible causes for his cancer. D3 81 LIG and his wife have researched alternative cancer treatments such as esceact (?) D4 77-78 tea and shark cartilage, but have not tried any of them because he wants his doctor's approval before doing so. He later describes some of the alternative treatments he has researched as being "eastern medicines, teas and shark cartilage". D3 61 Currently, LIG takes vitamins related to his heart, "anti-oxidants and things like that". Before his heart attack in 1995, he would take a multi-vitamin on a regular basis. D3 64-65 LIG has recently had a problem with night sweats, but never had them before 1995. He has also recently had problems with anemia and his urinary tract, beginning in April, 1999. DENTAL HISTORY D3 66-67 LIG has had no significant teeth, gum or mouth problems, other than "my share of root canals". His dentist in Las Vegas is Mark Ascoto on Tenaya and Rainbow. He does not wear dentures. D3 61-63 In the 1980's to early 1990's, LIG states that he would try to stay away from spicy or highly seasoned foods, but once he got Prilosec from Dr. Rosenberg "I could eat it everyday and it wouldn't bother me. So I tried to stay away from it. Don't eat it very often. Maybe once a month". He later states that he would have to take Turns or Maalox "when I ate spicy foods, maybe a couple oftimes a month" throughout the 1970's-80's. 0281676.01 - 44 -
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®AVERY'" HECYCIEU EFMACEFROMFV%POSTCON9UMERCONTEMT 56G6~L86 •
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RECEIVED JAN 1 i 2000 T. P. DURHAM
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charisma to book them. They don't want my worker, they don't want my wife. And I lose them". LIG says that when people call him, he just tells them he can't come out to help them because he broke his hip. He does not tell them about the cancer because "people get very sympathetic. And I don't want pity". D3 20-21 LIG's supervisors at his places of employment were Dick Waugh at Pet City, Kyd Stewart at American Kennels, and Earl Schneider at Petland. His supervisors at the Glendale Police Department were "everybody. I was on the bottom". The Chief of Police was Von Brown, Captain was Bill Angermann, Lieutenant was Dean Felton, Sergeant was George Godoy and Norm Renter. MILITARY SERVICE D2 97-98 LIGwas stationed at Ft. Knox, Kentucky from 1971-1973 [Contra: 1970-1973, Depo D4 23 4 23:19] where he was a clerk typist, honor school. LIG calls himself"the worst clerk typist alive". He never worked around explosives or gunpowder during his time in the military. LIG received an honorable discharge from the military. LIG was a member of the United States Army Reserve. EDUCATION D3 16 LIG attended elementary school at PS 94 in Bayside, New York. He characterizes himself as a good student, who applied himself. D1 70 LIG attended Bayside High School in Bayside, New York. He believes the name of D3 16-17 the junior high school he attended was PS 194 in Queens, New York. He later states D4 14 that his grades were good in junior high and in high school up until his senior year. In LIG's senior year of high school, his school had a lot of race riots, and his school was turned "upside down". LIG states that "thank God due to my good grades for the three years that I did go, I cut out a lot of classes my senior year and got out by the skin of my teeth". LIG recalls that he was very athletic in high school, a member of both the football and the baseball team. D3 17-18 After graduation from high school in 1969, LIG went on to Orange County Community College, where he studied business administration for a year. He states that he got "B's" there, but does not recall taking any classes in science or health. He goes on to state that he dropped out of this school because "I found out what girls were. That's how the Army got me". He also refers to attending Fashion Institute of Technology, studying industrial engineering. He went to school at FIT part time while working full time. FINANCIAL ISSUES D3 56 LIG states that he has "always struggled with money, I'm not a good budgeter", and that he declared a bankruptcy in 1990. He calls it "strictly a credit card bankruptcy. 0281676.01 - 48 -
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D4 25 LIG worked briefly for Bally's as a security officer for two weeks after he moved to Las Vegas. He quit doing this because he was "going crazy". D 1 80-81 Since he moved to Las Vegas in 1991, LIG has been self-employed as a dog trainer. D4 26 His business is run out of his home and a post office box, and is registered as a sole proprietorship known as Las Vegas K-9 training. He is registered to do business in the City of Las Vegas. LIG describes his job as going into people's homes and training their dogs for obedience. He also would hold group classes where the dogs would come to him and his wife to be trained. LIG trained all kinds of dogs, all breeds, all ages. He likes to train with positive reinforcement, not by using force or food. D4 25 When LIG first started his business in the early 1990's, the business was not profitable. The first year of the business, "we lived off our pension", and "really struggled" the first two years until the business became profitable. D 1 81 LIG states that his canine training business has been his sole source of income in the 1990's. He was last able to work in April, 1999 when he broke his hip. LIG is claiming lost income as part of this lawsuit, but has not figured out how much that amount actually is, although "I know I'm losing my house. I'm about to declare bankruptcy, but I couldn't give you a number". D1 82-83 When asked how much LIG makes in his business per year, he asks in retum "Reported to the IRS or not reported? I'm being honest because it's a cash business that I run". He states that he "honestly" takes in about $80,000 per year gross income. He goes on to state that his business has increased about $5,000 per year since it started in 1991, and that his proj ection for this year was over $100,000. His income from January to April, 1999 was "probably $70,000 or close to it", but he does not know what his actual income has been since Apri1,1999. All that he can state is that "we're drowning, I don't know". D1 82 LIG states that he has kept books ever since he started the business, and that "you 84 could see the drop-offs since I stopped being an active participant". He states that he did file income tax returns from 1991 to 1998, but that he under reported his income to the IRS by "maybe 15 to 20 thousand dollars for the year". He has kept records of what his actual income was, and has also kept records of what he reported to the IRS. D 1 85 LIG states that his business changed when he was unable to participate because D4 73-74 "people were calling me...they wanted me. Since my cancer I don't talk to people on the phone anymore. And when I do, I can't do the work. And I'm losing business they are going to other people...I was the draw". LIG goes on to say that his business has declined ever since he got cancer because "I am the business. All our advertisement, all our repeat business, everybodywe deal with wants me because I'm the retired police canine trainer. I'm the one they talk to. I'm the one that has the 0281676.01 - 47 -
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felt pretty comfortable being healthy". He goes on to state that he quit smoking because of his heart condition only. D3 24 After his heart attack, LIG "thinks" he was given a special diet to follow. He recalls being told "different things that we shouldn't eat, and stay away from and things like that...they gave us pamphlets and booklets". D3 24-25 When asked after his heart attack if any physicians put him on an exercise program, LIG states that he already exercised regularly at that point. When it was pointed out that in his medical records there are notations concerning LIG's non-compliance with his diet and exercise program, LIG states "I know nothing about that. Nobody ever said anything to me". He goes on to say "I wasn't put on a strict diet or exercise. I did it myself'. He does not recall any doctor's orders to follow after his heart attack. D3 25-26 LIG later recalls having conversations with his doctors about his ideal weight. He states that he was told that he was "a little heavy. But they kept saying it was muscles, so don't worry about it". He goes on to say that occasionally a doctor "will ask- tell me to try and lose some weight". He would do this "to the best I can", pointing out that he used to weigh 220, but now weighs 185. D3 25 LIG does recall being told after his heart attack to cut down on his cholesterol intake, which he did. D3 26 LIG does not recall coughing up green sputum in August of 1995. D2 72-73 LIG states that he asked Dr. Rosenberg to take a chest x-ray of him in 1997, because he wanted to have his heart checked out, to see if the size of it had increased. Dr. Rosenberg did not say anything about LIG's lungs when he took these chest x-rays in 1997. D3 27-28 LIG does recall having anti-oxidant testing done in 1997, which he describes as "a waste of $200 dollars. Dr. Rosenberg talked me into it because he was in the Wynn vitamin program...It turned out my insurance didn't cover it. It was a joke". He states that Dr. Rosenberg did give him the results of the test, telling him that he was "low in some things and good in some things...He wanted to sell me vitamins. That's a sideline business. LIG states that Dr. Rosenberg did not tell him that being deficient in total anti-oxidant funetion was associated with an increased risk of cancer. He states "Mat's one ofthe reasons why I'm switching doctors. No. Ifthat's true, I don't know. But he didn't explain much of anything to me except buy his vitamins". LIG clarifies that part of the reason he is thinking about switching doctors away from Dr. Rosenberg is because "you're bringing up stuff that might be true and these things I never heard. And other doctors have brought up stuff same as you that I've never heard". 0281676.01 - 41 -
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Woke up one morning and we owed all of this money on credit cards". He agrees that the bankruptcy was stressful, but states that "we were able to deal with it. I knew we had retirement ... so I wasn't really worried that I would be crushed". D4 71-72 Prior to his illness, LIG states that he was "ahead of the game", was in great financial shape, was "ahead of everything,. We had extra money. We were saving for a cruise". D1 81 LIG states that his canine training business has been his sole source of income in the D4 70-71 1990's. He was last able to work in April, 1999 when he broke his hip. LIG is claiming lost income as part of this lawsuit, but has not figured out how much that amount actually is, although "I know I'm losing my house. I'm about to declare bankruptcy, but I couldn't give you a number". Later in his deposition, LIG states that he is two months behind in his mortgage, two months behind in his car payment, "I owe everybody money. I owe $6,000 to medical bills. I have creditors knocking at my door". He goes on to state that he is in danger of losing his house, that "everybody asked to help, but nobody wants to make my house payment for me". Dl 82-83 When asked how much LIG makes in his business per year, he asks in return D4 72 "Reported to the IRS or not reported? I'm being honest because it's a cash business that I run". He states that he "honestly" takes in about $80,000 per year gross income. He goes on to state that his business has increased about $5,000 per year since it started in 1991, and that his projection for this year was over $100,000. His income from January to April, 1999 was "probably $70,000 or close to it", but he does not know what his actual income has been since April, 1999. All that he can state is that "we're drowning, I don't know". Later in has deposition, LIG states that he made $47,000 from January to April of 1999 before he broke his hip. D4 72 LIG states that he reported $55,000 in income to the IRS in 1998. Dl 82 LIG states that he has kept books ever since he started the business, and that "you 84 could see the drop-offs since I stopped being an active participant". He states that he did file income tax returns from 1991 to 1998, but that he under reported his income to the IRS by "maybe 15 to 20 thousand dollars for the year". He has kept records ofwhat his actual income was, and has also kept records of what he reported to the IRS. D4 73-74 LIG states that his business has declined ever since he got cancer because "I am the business. All our advertisement, all our repeat business, everybody we deal with wants me because I'm the retired police canine trainer. I'm the one they talk to. I'm the one that has the charisma to book them. They don't want my worker, they don't want my wife. And I lose them". LIG goes on to say that when people call him, he just tells them he can't come out to help them because he broke his hip. He does not tell them about the cancer because "people get very sympathetic. And I don't want pity". 0291676.01 - 49 -
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D2 102 LIG has never lived in a neighborhood where there were problems with dust, fumes or water pollution. He has never lived near any factories, utilities, mines, natural gas or petroleum refineries, chemical/plasitics plants or toxic waste dump sites. MEDICAL HISTORY D2 68-69 LIG is familiar with the term gastroesophageal reflux disease, or GRD, because he D2 71-72 has suffered from heartburn for "years", since he has been in the service. He did see a doctor for this condition while he was in the service. To his knowledge, he has never been diagnosed with having a peptic ulcer, although he was diagnosed with a duodenal ulcerwhilehe was in the service but, "I don't think they are the same". LIG states that the duodenal ulcerwas treated with medication while he was in the service, and he has had no further problems with it. D3 31-32 LIG has hay fever, which he characterizes as "mild". His symptoms include stuffy nose, sneezing and head cold. D1 15-16 LIG does not recall seeing a doctor from 1973-1981. He did have standard military physicals while in the service, from 1971-1973, but does recall having a family doctor that he saw as a child growing up in New York from 1951-1971. D3 65 LIG recalls having a problem with hemorrhoids back in the 1970's, but "they just cleared up". Dl 14-15 LIG received annual physicals through the Glendale Police Department in 1981- 1991. During this period, he broke a pinky finger and was treated at Colorado General Hospital, in Denver, CO. D3 66 LIG has had lower back problems since he was a police officer. He recalls that it would hurt to bend over or straighten out on both sides of his lower back. Dl 17-18 LIG has never been tested or diagnosed with any of the following diseases; Hepatitis B, Hepatitis C, Epstein-Barr virus, mononucleosis, herpes, or any type of venereal disease. D123-24 LIG has never had any trauma to his kidneys or liver. He does not know of any tests D2 71 or studies that have been done on his liver, nor has any doctor discussed his liver with him. He is not familiar with the terms hyperlipidemia, or hepatocellular dysfunction. He does not know if there were any findings related to liver tests performed on him in 1995. No one has ever told him that he has had any abnormal liver tests. D2 50 LIG has never had a significant head injury, lower extremity problems or broken D3 67 bones except for the broken pinky finger while working for the Glendale Police Department. He has never had any significant eye or ear problems. 028 1676.01 -38- 7
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D2 79-81 In November, 1998, LIG had some "little beauty marks" removed from his face. They were located below each eye socket, and LIG states that they "were not moles, they were not sticking out. They were just brown spots". He goes on to state that he was "told to leave them alone", and that he asked "him" [Dr. Rosenberg?] to send them in for testing, but [Rosenberg?] said'ho. You don't need to. This had nothing to do with cancer". D l 18 After his open heart surgery in 1996 [sic: 1995], until April, 1999,LIGnever suffered from chest pains, shortness of breath, excessive cough or hoarseness. D2 51-52 LIG has been on medication for high cholesterol since his heart attack, but has not been on any medication for blood pressure. D2 55 LIG states that he has been healthy since his heart attack in 1995 until now. He does not believe he has had chest or lung x-rays in this time period, and does not recall any discussions with his doctors concerning his lungs before April, 1999. D2 55 At the fime of his incident in the hot tub in April, 1999, LIG thought "I was in great D4 61 shape". During the couple of months before Apri11999, LIG believed that he had pulled a groin muscle at the gym. He states "I was on the treadmill...I had a tweaky pain in my groin...it felt like a pulled muscle...I went to chiropractors. I went to an acupuncturist. I thought it was just a pulled groin. And that's what everybody was telling me it appeared to be". Later in his deposition, LIG recalls that he had not been working out at the gym for a couple of months because he thought that the pain he had been having in his groin was caused by "overexercising myself at the gym". He recalls that he got into the hot tub because his wife suggested to him that it might make his back feel better. D2 57-58 LIG describes the hot tub incident as "the most painful experience I've ever had in 60 my life, probably worse than the heart attack". He recalls being in the hot tub when D4 62 he felt his leg pop. He knew he had broken something because he couldn't move. 64-66 He recalls that his leg was dangling, and that he cut it up trying to move. The paramedics came and took him to Sunrise Hospital. Once he got to the hospital he was given morphine and pain killers, but the pain was so bad that LIG "still remembers how much it hurt". LIG states that the cancer was found when he was having MRI's and CAT scans. He had a total hip replacement done by Dr. Neibaum. When he woke up from the surgery, the oncologist, Dr. Manno was sitting on his bed. LIG says that Dr. Manno told him that his prognosis was "possibly a year. And he told me that lung cancer, my lung cancer is hard to diagnose because it hides behind the breastplate and that's its been in me for at least a year. And he said no x- rays or anything else would have shown it till this point". LIG says that Dr. Manno told him that his cancer was "strictly caused by cigarette smoking; nothing else. He was the one that brought it up to me- I had no clue". Later in his deposition, LIG recounts that Dr. Manno told him that the "lung cancer was established in my body about a year ago and it hid behind my breastplate. By the time that they found it they 0291676.01 - 42 -
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Siblnes D 1 77-78 LIG's sister, now known as Linda Sirkin, had cancer in her kidney. Her kidney was recently removed because of the cancer. LIG does not know what caused her cancer or what type of cancer it was. His sister has never been a smoker. Aunts/Uncles D3 32-34 LIG states that he had an aunt, Mildred Geistman, his mother's sister in New York City who died of cancer, "I believe it was lung cancer too". LIG recalls that she was a smoker, and that she died when he was 16 or 17 years old. He states that he did not find out the cause of her death until recently, when his mother told him. ul_ ~ ~ G U_ ~ D2 106 LIG relates that he has always been a "homebody", that during both ofhis marriages, 109 his wives "have been my closest friends". He goes on to say that he "didn't socialize outside of my marriage. I didn't hang out with the guys. I'd come home from work and just stay home pretty much". He later states that "I really am a homebody. I just don't trust anybody but my family". D2 106 LIG would sometimes do things with the guys at work. He doesn't remember going out but states that they may have gone to a barbecue on a Sunday when all of the families would get together. LIG does not recall one particular person he could call his best friend during this time period. He goes on to state that he was "friends with them all but not friends...I pretty much stayed to myself'. D2 106-107 He cannot name anyone in particular that he would go out with in the 1980's for a drink or dinner. When asked for names, LIG states that he could "give you the whole police department...there were 30 or so...people. And I'm sure we've all gotten together at one time or another for a barbecue or gone out to dinner. But they are not friends". He continues on with this by saying "I don't know how to answer [this] because we'd get together every now and then and hang out. But it wasn't like friendship...you're tired. You're comin' down from a shift. You might sit around and talk for a little bit. It wasn't like I had, you know, a buddy that would be a confidant or somebody I could talk my troubles to or anything like that". D2 108 When pressed for a name, LIG states that the person he worked the closest with in the 1980's was George Godoy. LIG believes that Godoy is no longerworking for the police department. He refers to Godoy as the "only one that I'd say I liked more than anybody else". D2 108 LIG did not have any human partners while he was working for the Glendale Police Department. He worked solo, in his own car, with his dog as a partner. 029167601 - 36 -
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D 122 Before his heart attack in 1994 [sic: 1995], LIG did not take any type of medication 24 on a regular basis. Between that time and April, 1999, the only medication LIG took was blood pressure medication. The blood pressure medication that LIG took at this time was Zocor. [Note: Zocor is a medication for high cholesterol. It is contraindicated for individuals with liver problems]. D2 51-52 Later in his deposition, LIG states that he has been on medication for high cholesterol since his heart attack, but has not been on any medication for blood pressure. D 123 LIG goes on to state that he "started to, but stopped" taking medication for depression D2 73 during the 1995-1999 time period. He states that he took Zoloft for "about two or 74 three weeks", [Contra: Later states that he took Zoloft for "three or four weeks"] and had a prescription for Xanax, which LIG "stopped taking because I heard it's addictive and I don't like addictive medications". Later in his deposition, LIG states that he took the Xanax "as needed", if he was having a panic attack or severe depression, he would take a "half of a 5 milligram", but that he would try not to take it too often. He states that both he and his wife took Xanax, and that they would "share it". He recalls at this time that he took Xanax three or four times per month, whereas his wife took it "almost daily". Dl 60 LIG states that he and his present wife tried in 1993-1994 to quit smoking twice by 62 using the patch and Buspar, which were prescribed by Dr. Rosenberg. D2 74-75 When asked about the notation concerning a prescription for Viagara, LIG states that he was given a prescription for it by Dr. Rosenberg to see "what's the big deal about", but that he never filled it, and still has the prescription in his wallet. [Yeah, right.] [Note: Medical records indicate that this was a refill of a Viagara prescription.] D2 74 LIG currently takes Xanax once or twice a week. Dl 9 LIG is currently taking the following medications; Lortab, morphine, MS Contin D2 75-76 morphine and Percocet for pain, Kytril, Compazine and Zofran for nausea, and "a D4 69-70 good one that I'm taking called Marinol...It's the THC. It's the extract from marijuana...And what it does is increase appetite. Brand new on the market now. It's legalized pot". LIG goes on to say that although the Marinol has been helping him, he stopped taking it because "I started to get high feelings. So I started getting scared. But it did help for a while... [it was] giving me scary symptoms...like I wasn't normal". [Note: John- Can you or someone who attended the deposition let me know what type of tone was used during this exchange? In reading the transcript, LIG seems to be VERY excited over Marinol- like he was enjoying it immensely while saying he wasn't. Thanks. - DDB] In his final deposition, LIG states that he takes seven different types of nausea medication, several different types of pain medication, as well as Marinol to increase his appetite. He states that all of his medications are not supposed to have an effect on him, but they make him "sleep a lot". 0281676.01 - 45 -
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D2 90 LIG relates that he is not a dessert eater, but was very fond of fresh fruit. "I loved fresh fiuit. I'd eat it all day long...before this [chemotherapy] I used to eat it all the time. I love finit". LIG goes on to state that he ate all fruit, specifically plums, peaches, oranges and grapes. He ate those fruits "pretty regularly". It was not uncommon for him to have fruit in his patrol car, "to stop and get plums and peaches and eat them during the day". D2 91 LIG likes eggs, but did not eat them often because he was "afraid of the cholesterol and warnings about eggs". He states that he received these warnings about eggs by word of mouth, that eggs were "dangerous for your heart. High cholesterol". He believes that he began hearing these warnings about eggs when he was in his late 20's. D2 91-92 LIG does not eat soybeans, yogurt or mayonnaise, and eats peanuts as a snack "every now and then, but not often". He eats ice cream around twice per month. LIG "loves liver", but only eats it "maybe once a month" since that is as often as his wife would make it. D3 62-63 LIG says that he was "never a salt eater", and does not recall any doctor ever asking him to cut down on salt. D3 63 LIG likes barbecued foods, and during the 1980's-90's, he would eat barbecue "maybe once every couple of months". D2 90 LIG has never gone on any health food diets. He has never been a vegetarian, and D3 80 has not followed any special diet for religious or moral reasons. D3 55 LIG states that he and his wife tried eating the Atkins diet to help them quit smoking. He then goes on to say "now they are saying that causes cancer, so..." D3 24 After his heart attack, LIG "thinks" he was given a special diet to follow. He recalls being told "different things that we shouldn't eat, and stay away from and things like that...they gave us pamphlets and booklets". D3 24-25 When asked after his heart attack if any physicians put him on an exercise program, LIG states that he already exercised regularly at that point. When it was pointed out that in his medical records there are notations concerning LIG's non-compliance with his diet and exercise program, LIG states "I know nothing about that. Nobody ever said anything to me". He goes on to say "I wasn't put on a strict diet or exercise. I did it myself '. He does not recall any doctor's orders to follow after his heart attack. D3 25 LIG does recall being told after his heart attack to cut down on his cholesterol intake, which he did. 0281676.01 - 51 -
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hard, when playing ball for example. In addition, LIG never had a problem with coughing or wheezing, excess sputum, coughing up blood, tingling or numbness in any extremity, problems with circulation, or high blood pressure. D4 57-59 LIG recalls that his heart attack occurred at the gym, while he was on the treadmill. He remembers getting pale, and "feeling really bad". He then decided to go home, "denying all the way that I had a heart attack". He does recall having a cigarette on the way home from the gym. His wife rushed him to UMC Quick Care, who in turn sent him to Sunrise Hospital, who diagnosed him as having a heart attack. LIG recalls the feeling as "like having an elephant sitting on your chest". A quadruple bypass was performed. D2 53-54 LIG states that nothing was said by his doctors about the condition of his lungs at the time of his heart attack in 1995. He has no idea whether the doctors even looked at his lungs at that time. D3 26-27 When first asked about an oxygen tank that he was given when getting out of the D4 60 hospital after his heart attack in July, 1995, LIG does not recall it. He then states that he "might have- yeah, I was...I was given a big one". He goes on to say that he does not remember why he was given the oxygen tank, and that no one said anything to him about the condition of his lungs, or the need for oxygen. Later in his deposition. LIG states that he was given the oxygen tank due to his heart condition. D2 52 LIG states that both Dr. Moazez his cardiologist, and Dr. V.C. Smith, his surgeon, told him that smoking caused his heart attack in July, 1995. LIG recalls Dr. Moazez stating that his heart attack had a "primary cause would be hereditary, and I didn't really have any in my family. So his conclusion was cigarette smoke". D2 52-53 LIG goes on to state that his surgeon, Dr. V.C. Smith suggested that his heart attack D4 58-59 was also related to cigarettes. As LIG understands from Dr. Smith, he had "arteriosclerosis and that it caused a lot of plaque...in the four major arteries that feed blood to the heart, three of mine were 100% closed, the fourth one was 80% closed...but cigarette smoke is what he said to me". Later, LIG reiterates that the reason his doctor believes his heart attack as being due to cigarettes was that LIG had arteriosclerosis, which is "typically caused by smoking cigarettes". D2 53 LIG says that his doctors told him that he "was strong, and that's why I lived. They said I was in good health. But I did lose a third of my heart". D4 61 LIG believes that he has made a full recovery from his heart attack. D2 54 It never occurred to LIG that he may have done damage to his lungs over the years that he had been smoking. he says "I felt that I just had the big one...you're going to get one big one in your life: cancer, heart, whatever. I felt the heart was it. So I 02e e7s.oi - 40 -
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P;V?;LIONELSAW'IEA 6 COLLINS .~. : 5 up 6. 07 3 5 6 7 a STATE OF NEVADA ) )81. COf]lVTY OF CLARit ) NQ, 8CC4..or~;. 1'_/2'' ~ STEVEN r. KAREN, beiog first dnly sworn, depoaea .nd .ays: That your ASant iw doty Ucewed to practice law in the State of Nevada and reprereots ! the Pteiatiff in this adion; I~ Tha Plemtili ie caurasly a patiem in U itaenave aare unit at Sununetiin Hoapital. Thqc for this reawo your a9'stot bd[eves PLintiff a depoeidon must be taken inunediat in ordv to perpenua bia testimony in this action. Further ASaat wyeth nwj&. SUBSCAIBFA .nd SWORN to beforo mo this le - day of Oaober, 1999. 5
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D3 57 LIG states that he "took responsibility for it [wife's cocaine problem]. That's why I said I tried to take responsibility for actions that myself and my family take. But I also have to be realistic and realize that I can't control the world". D2 34-35 In discussing his personality around 1993, pre-heart problems, living in Las Vegas, LIG describes himself as being strong-willed, a leader, stubborn, street smart, vulnerable and self-confident. He does not consider himself to be a follower, or cynical about corporate America. He describes himself as "sometimes" being easily influenced by others, and "sometimes" independent. D2 35 LIG further explains what he means by describing himself as "sometimes" easily influenced by others. He says that it depends on the issues involved, and gives the example of "drinking on duty". LIG states that "you could hold a gun to my head and I wouldn't do it. And I know a lot of police officers that did". Yet, he says that he would "possibly" do something socially that wasn't harmful, especially if "the whole group went along with it, I'd probably go along with it too". D2 35-36 In describing what he meant when he considers himself to be "sometimes" independent, LIG states that he can be independent, but can also be "very dependent, like vulnerable". He goes on to say that "there are times when I felt strongly enough about something I'd be very independent. If I didn't really research it or know enough about it, I'd be kind of co-dependent". He says that this co-dependency would "possibly, yes sir" be upon another person, but not on anything else, since "other than cigarettes, I wasn't addicted to anything". D4 32 Later in his deposition, LIG states that sometimes he is a leader, and other times a follower. He recalls that he was a follower at the time that he decided to try cigarettes, because "everybody was doin' it. It didn't seem a threat". D2 106 LIG relates that he has always been a "homebody", that during both of his marriages, 109 his wives "have been my closest friends". He goes on to say that he "didn't socialize outside of my marriage. I didn't hang out with the guys. I'd come home from work and just stay home pretty much". He later states that "I really am a homebody. I just don't trust anybody but my family". D3 48 LIG states that he is the kind of person that takes responsibility for his own actions "when possible". He does not, however, take responsibility for choosing to smoke cigarettes. He states that the reason he does not take responsibility for this is because "I was 15 years old. I had no knowledge. I had no concept of what these things do to you. By the time I did have knowledge and I did mature enough to realize it, these things had me hooked". D3 49 He goes on to state that he does not take responsibility for continuing to smoke between 1966 and his first quit attempt in 1979-80 because "I was not educated enough. I was not mature. I had no knowledge of all this stuff...I do take 0281676.01 - 54 -
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lived in a house that had asbestos insulation, tiles or flooring. LIG does know what asbestos is, and if he saw it he would know. D2 101-102 LIG has his current home regularly treated for cockroaches and bugs. He has Orkin come by once per month and spray outside his home. He does not recall having these treatments done at any of his other residences. D2 101 LIG had his house on Buena Vista tested for radon. He states that it tested negative. D3 30-31 LIG states that the home on Buena Vista had its well water tested as part of the appraisal when he bought the house. He does not remember if he ever had the water tested again in the 3 or 4 years that he owned the house. D2 100-101 LIG states that none of the houses or residences that he lived in underwent remodeling during the time he was living in them. To his knowledge, LIG has never lived in a house that had asbestos insulation, tiles or flooring. LIG does know what asbestos is, and if he saw it he would know. D2 102-103 LIG has had pets since he left his parents house, who never had any. He has always 110-111 had dogs and cats. He has not treated them with any flea treatments. LIG has had his bird, Petry, for about 5 years. The bird is the responsibility ofhis daughter Sarah, as well as the ferrets. LIG takes care of the dogs. OCCUPATIONAL EXPOSURES D2 93-94 LIG has worked with radar guns during his tenure as a police officer. He states that he did not use them daily, but "taught the department how to use them". He would use them mainly when he worked day shift, which occurred "three months out of every two years". LIG has not seen any warning about radiation from radar guns until recently, when he heard in a commercial that it can cause testicular cancer. He states that in "all of the courses I took...I've had over a hundred and fifty hours of training- I never heard anything about it. No instructors ever brought it up". HOBBIES/ACTIVITIES/RISK TAKING BEHAVIOR D3 36 LIG went out to eat two or three times per month. He would "on occasion" go to bars, around once every 5 or 6 months. He would also occasionally go to clubs or other places with his friends. D3 58-60 LIG has never used go-carts, tall ladders (he is afraid of heights), participated in mountain climbing, operating heavy equipment, hunting, skydiving, boxing, automobile or motorcycle racing, bungee jumping, skiing or snowboarding. 0281676.01 - 56 -
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MLIUNEL,SAWYER LCOLLINS a-. 1 W. RANDALL. ASAINOR, ESQ. Iv1ATNOR & HARRIS ."N N0. 8004.93/P. 7/20 1 2 Neveda Bar No. 001318 3 530 South Sixth Street Les VeQae, Nevsds 89101 (702) 385-1400 4 etld STEVEN 1. KAitEN. ESQ. 5 Nevada Bar No. 004651 6 521 South Sixth Strm Lee VeW Neveds 89101 (702) 382-9307 \0 7 Attorneys 8n pltintiff Cb B v UPii.TiCD STATES DtSTaICI' COURT w 9 \~o DISTRICT OF NEVADA V ~ 10 t# 0 0 0 (1\ 11 12 LLOYD GLASS 13 Pleinti$ vc. Csee No. CV.S.99.999-fIDM (RLH) 14 PHILIP MORitIS WCORPORAT'FD, i5 LlG(3ETY & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; 16 BROWN & WILLIAMSON TOBACCO CORPORATION u accenor by,aerver to MOTION FOALicAVF; OF COURT TO TAKZ rL"11F7S DICPOSLTION 17 THE AMERICAN TOBACCO COWANY snd ita pradaeeerorr in iptetert: LORII.LA1tD, (FRCP 30(C)) 18 3NC, ae sueanor by meraer to P. LORII.I.ARD end/or LORILLALtD DATE OF HEARING: 19 TOBACCO COMPANY; BROWN & Virn.r.r.MeON TOBACCO TIME OF HEAItlNG: 20 CORPORATION; DNA PLANT TECHNOLOGY COAPOAATION; AATUS 21 HOLDIIYGS, IINC.; B.A.T, TNDUSTRIES, P.L.C.; BAITiSH AMBAICAN TOBACCO 22 COMPANY, L.TD.; THE AMERICAN TOBACCO COAdPANY; R89EL OIL 23 COMPANY, IIYCORPORATED, JOHN DOES 1-300, 24 25 COMES NOW, the PlsintiffLLOYD GLASS, by and through hie Attorney, STEVEN Ji 26 KAREN, ESQ., and moves this Honorable Court for leave of court to take Plaintiff e depositio~ a7 prior to the FACP Riule 26 (d) meet and conS.r conference. 2B This Motion is made and beeed upon the pleqdinge eaW pspers on Slo horein, as well as i
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2 7• i9~932: OIP,~;LIONEL,SAWYER i COLLINS NO, 8004,.asP, 10/20r WSEREF'OAE, the Pieintiff re.peeedtUy requeas tlut tLe Co4ct ellow Plaintiff le.ve to conduct hif depoaitioa prior to the moet and confir oonfenace. DATED dtia S day of Ootoba, 1999. 5 7 B 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 By, 8 Nevada Bar No. 004651 521 South Sixth Straet Lae Vepa, Neveda 89101 (702) 382-9307 aad W. RAImALL MAINOR, ESQ. MAIIVOR & HARRIS Neveda Bta No. 001318 530 South Sixth Streee Las VeM N"a 89101 (702) 385-1400 4
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vc=alo99 i:i 2O7 iPM:LIORELiSAWYER & COLLINS II ~^ i"~ NQ 8004, oA/P. 8/20ir the Poipta tud Authortiea atttched bereto, .nd the wffidtvih of muead ^fficed her.witb. DATED this -a day of Oaober, 1999. 2 3 7 8 - 1 Hv JkJ/`EIGN r1 --~ Las V%s!, Nevada 29 101 (702)392-9307 fiod W. RAPIDALL MAINOA, ESQ. MAINOR & HARRIS Nevada Her No. 001318 530 South SiaRh Strat Las VeM Nevada 89101 (702) 385-1400 Nevads 8v No, 004651 521 South S'otth Str®ot S 2
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responsibility now for being such an idiot, putting a gun to my head and pulling the trigger". D3 50-51 LIG also does not take responsibility for not reading the warning labels on packages of cigarettes for the first 7 or 8 years that he smoked. He believes that "if they [tobacco companies] are going to take responsibility and put a label on it, then why sell them? It's admitting guilt right there on the package". He goes on to state that he'd "like to see the tobacco industry accept some responsibility here. They've ruined my life...I don't accept responsibility for it...I don't know who's to blame". D3 80 LIG has never "dabbled" in any "alternative lifestyles" such as vegetarianism or S&M. ENVIRONMENTAL EXPOSURES D3 65-66 LIG has been bothered by air pollution , and states that it hurts his eyes. He has noticed air pollution in both Las Vegas and Denver, "every couple of months". He uses eye drops such as Visine when it bothers him. D2 92 Otherthanhis cancer treatments, LIG does not recall being exposed to any radiation. He has not been around asbestos, and has not had any hobbies involving woodworking or building things. He has never painted his house, or anything else. D3 78-80 Glendale, Colorado was not near the Rocky Mountain Arsenal where nuclear weapons are stored. He does not recall and sort of radiation emissions occurring while he was living in Colorado. D2 92-93 LIG does use spray deodorant, but has not often used hair spray. He does not use spray household cleaners, and has not used fertilizer in spray form. D2 96-97 LIG has never worked in an environment where people were chopping, sawing or scraping metals, wood, sand or clay. LIG himself used to chop wood when he lived at his home in the mountains. In addition, he has never lived or worked near a place where people worked with tar, paint, insecticides, sawdust, fiberglass, sand or coal. He has never lived near a shipyard, petroleum, natural gas or chemical plant. D2 102 LIG has never lived in a neighborhood where there were problems with dust, fumes or water pollution. He has never lived near any factories, utilities, mines, natural gas or petroleum refineries, chemical/plastics plants or toxic waste dump sites. D2 97 LIG never worked around explosives or gunpowder during his time in the military. D2 100-101 LIG states that none of the houses or residences that he lived in underwent remodeling during the time he was living in them. To his knowledge, LIG has never 0281616.01 -55-
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TO THE DEFENDANT: A civil Complaint has been filed by the plaintiff against you for the relief set forth in the Complaint 1. If you intend to defend this lawsuit, within 20 days atber this Summons is served on you exclusive of the day of service, you must do the following: & File with the Clerk of this Court, whose address is shown below, a formal written response to the Complaint in accordance with the rules of the Court. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2. Unless you respond, you default will be entered upon application of the plaintiff and this Court may enter a judgement against you for the relief demanded in the Complaint, which could result in the taking of money or property or other relief requested in the complaint 3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be filed on time. Issued at the direction of SHIRLEY B. PARRAGUIRRE, CLERK OF THE COURT DEPUTY/CL DA'1'E S'I'EVEN l. KFKEN, ESQ. County CourthousPE(aGY WILCOX Nevada Bar No. 004651 200 South Third Street 521 South Sixth Street Las Vegas, Nevada 89155 Las Vegas, NV 89101 Attorney for Plaintiff JUL 1 5 1999 27
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DI 85 LIG states that he did not use his house as a business deduction because "my deductions were all legitimate". D2 66 LIG does have medical insurance, but does not have life insurance, since he was D3 67 turned down for it after he had his heart attack. He has not applied for Social Security, but does intend to do so. D3 51 LIG states that he is "not looking to make a fast buck...I'm going to die real soon. D4 76-77 1 have no life insurance and nothing to take care of my family". In addition, LIG is concerned because "my wife never worked...there's no insurance. I know what'll happen to them. They'll be poor and broke and on the street". He goes on to state that all of his retirement money and savings are "spent". EATING HABITS D3 61-63 In the 1980's to early 1990's, LIG states that he would try to stay away from spicy or highly seasoned foods, but once he got Prilosec from Dr. Rosenberg "I could eat it everyday and it wouldn't bother me. So I tried to stay away from it. Don't cat it very often. Maybe once a month". He does not like Cajun or Mexican food, the spicy food he would be most likely to eat would be Italian food. He later states that he would have to take Tums or Maalox "when I ate spicy foods, maybe a couple of times a month" throughout the 1970's-80's. D2 87-88 LIG has never been a coffee or tea drinker. He used to drink "a lot of soda...I haven't recently at all. Won't drink it anymore". It was common, however, from the time he was a teenager until 1995 for him to drink soda at dinnertime. LIG normally drank "Coke or Diet Coke" with his dinner meal. D2 89 LIG describes his typical diet from the time he was in the military unti11995 as being "pretty good". He recalls that he was "in very good shape. I wasn't fat". LIG describes himself as a"meat eater", eating "steak, potatoes, home-cooked meals, fish" and a "cheeseburger every now and then". D2 89-90 LIG was not a big breakfast eater, having typically a bagel with a little butter and D4 57 orangejuice. He describes a typical lunch as being "anything", a hamburger or a slice ofpizza, generally fast food. A typical dinner would include fish, chicken, and some meat. LIG would eat vegetables with his dinner, usually "greens, carrots, potatoes, celery and lots of salads". He later states that he "always had a home cooked meal at night". D3 62 LIG states that he does not eat fried foods, as his parents always steered him away from them. He would eat baked or broiled food instead. He then states that he would eat fried food whenever he ate fast food. 0281676.01 - 50 -
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i99 93: 2:09FMi:L iONG.sArnes e CotL 103 r. ,O, N0: 8004p.12P._ 16/20t Each Defendant reserves all riahtr, including, but not limited to, all defenaec and a 3 4 5 6 7 a 27 objections as to venue, JurlsdlctJon, and service of process. MAINOR & HARRIS ~ ~ ! ~ ~ Kt By,; W_ RANDALL MAINOR, ESQ. 530 South Sixth Street Las Vegae, lYV 19101 STEVEN J, KAREN, ESQ. 521 South Sixth Streat Las VeSss, NV 89101 Attorneys for Plainttft r..'n.d M+ •3- LIONEL SAWYER & COLLINS By: DENNIS L. KENNEDY. ESQ. DAVID J. MERRlLL, ESQ. 1700 &u1k of America Plua 300 South Fourth Street Las Veaas, Nevada 89101 Attorneys for R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation (individually and as successor by merger to The Amerio.n Tobacco Company), nnd, for the purposes of this Joint Status Report only, siping on behalf of all other defendmte who have been served with a aummons and complaint or consented to rsmovel.
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_- Jy93:.?' 08PMiA IONEL, SAWYEA i COLLINS NO. 8004>.osF. 13/20, /"1 \..ALR.tiR & BLR/ SF~'J6.JAi.YiJl.7 OFNEVADA {7o!]YBIZ-Me • Fsu (ytn)t123-100i August 2, 1999 Steven ]. Keron, Atty• 521 S. 6'" Street Las vegas, NV 89102 RE: Lloyd Glass Dear Mr. Karen, EDCAIL A. PAYLONA, M.D: PHILLeP ). MANNO, Nf.D. GILDiRT IM. NYAUuawA M.D. PUG )_ 7 1999 ~~- - .l, As requested, I am writing a letter regerding the prognosis an Mr. Lloyd (3less. As you Imow, he was diagnosed with extensive at6ge sm.ll cell lung cancer, which often carries a survivai rate of approaim.teiy six months. I3c has boea undergoing systemic chanothatapy with some improvettunt of his foitiat olinicral symptoms. The patient does oany a vory bad prognosis associated with his disease, with an estimated life span of len then one yeer. If I can be of any fiuther service, pieese do not hesitate to oon= my office. RespectiWlly youts, Phillip r'. irianno, M.D. Main Oi/iee • 58 N. Pruas. Henderson, NV 99014 Satellae Loeations 653 Town Center Drive. Suile 300 • Las Vepas, NV 89134 801 South Rancho, SuBe D•2. Las Vegas, NV 69106 noe Adams. SuNe 1112 • Boumer CNy, Nv eeaos 1225 Haneoek - BuBhead CMv. AZ 66442
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N0. 8004, io F.- 14/20r ~'~S; 2: OBPM:LIONEL,SANYER i COLLINS ,~. ~ 1 Dennis L. Kennedy, 8aq. David J; Merrill, Esq. 2 LIONEL, SAWYER & COLLINS 1700 Bank of America i'tve 3 300 South Fourth Street 4 Las Vegas, NV 89101 702.383.8888 5 e Attorneys for RJ. Rayomdds Tobacco Company and Brown t Williamson Tobacoo Corporation ~ (individually and as aua:esaor by merger to The Aaterican Tobatxo Company) 8 9 10 UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA lu LLOYD GLASS, 12 1'laindff, Cue No. CV-S-99-999-HDM (RLH) 13 vs. JOINT STATUS REPORT 14 PHILIP MORRIS INCORPORATED; 16 LIOGETT& MYERS, INC.; R.]. REYNOLDS 16 TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION 17 iS as aueoeswr by trarget to THE AMERICAN TOBACCO COMPANY rnd ita ixedeeessora in interest; LOBII.LAiU ), AVC., es aueces.or by i4 merger to P, LORILLARD and/or LORILLARD TOBACCO COMPANY; 20 BROWN & WILLIAMSON TOBACCO CORPORATION; DNA PLANT 21 TECHNOLOGY CORPORATION;BATUS \O 22 HOLDINGS, INC.; N.A.T. INDUSTRtES, P.L.C.; BRITISH AMERICAN TOBACCO Oo V w 23 COMPANY, L.T.D.: THE AMERICAN ~ TOBACCO COMPANY; REBEL OIL 00 24 COMPANY, INCORPORATED; and lOt1N Q DOES 1-300. W 25 26 I lefendants. 27 25 LIOMCL e4MYeA 6 GqLUMs .~N{Y* V LY'! . ,rm..w or.pews~ IIaY im w.rtp sar,..... Na.MwV~IY~ - I .
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ri *-, 1 UMM W. RANDALL MAINOR, ESQ. 2 MAINOR & HARRIS 001318 Nevada Bar No . 3 530 South Sixth Street Las Vegas, Nevada 89101 (702) 385-1400 4 and 5 STEVEN J. KAREN, ESQ. Nevada Bar No. 004651 6 521 South Sixth Street Las Vegas, Nevada 89101 (702) 382-9307 7 Attorneys for Plaintiff 8 9 DISTRICT COURT 10 CLARK COUNTY, NEVADA 11 s.ss. 12 LLOYD GLASS 13 Plaintiff, 14 vs. Case No. /q Dept. No. ~x 15 PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R. J. Docket No. 16 REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO 17 CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY 18 and its predecessors in interest; LORILLARD, INC, as successor by merger to 19 P. LORILLARD and/or LORILLARD TOBACCO COMPANY; BROWN & ~ 20 WILLIAMSON TOBACCO GQ v CORPORATION; DNA PLANT TECHNOLOGY CORPORATION; BATUS W ~ 21 HOLDINGS, INC.; B.A.T. INDUSTRIES, co P.L.C.; BRITISH AMERICAN TOBACCO 0 22 COMPANY, L.T.D.; THE AMERICAN Ua 23 TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED, JOHN DOES 1-300. 24 Julu ~ . 25 26 NOTICE! YOU HAVE BEEN SUED, THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING 27 HEARD UNLESS YOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW. i
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~~ 1 coMP ~ ~~ W. RANDALL MAINOR, ESQ. 2 MAINOR & HARRIS Nevada Bar No 001318 ~ 3 . iUL 15 a 16 530 South Sixth Street , Las Vegas, Nevada 89101 4 (702) 385-1400 rIA-16 and CLERK 5 STEVEN J. KAREN, ESQ. Nevada Bar No. 004651 6 521 South Sixth Street Las Vegas, Nevada 89101 7 (702) 382-9307 Attorneys for Plaintiff 8 9 DISTRICT COURT 10 CLARK COUNTY, NEVADA 11 ««««« 12 13 14 LLOYD GLASS 15 Plaintiff, vs. Case No 16 PHILIP MORRIS INCORPORATED . Dept. No. Docket No / 17 , LIGGETT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; . 18 BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to 19 THE AMERICAN TOBACCO COMPANY and its predecessors in interest; 20 LORILLARD, INC, as successor by merger to P. LORILLARD and/or LORILLARD % 0 21 TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO 1 co V 22 CORPORATION; DNA PLANT w TECHNOLOGY CORPORATION; BATUS ~10 23 HOLDINGS, INC.; B.A.T. INDUSTRIES 00 , P.L.C.; BRITISH AMERICAN TOBACCO ~ 24 COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; REBEL OIL ~ 25 COMPANY, INCORPORATED, JOHN DOES 1-300. 26 27 COMPLAINT EXEMPT FROM ARBITRATION 28
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1 d AFFIDAVIT OF SERVICE STATE OF NEVADA ) 2 1 ) ss: COUNTY OF CLARK ) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 being first duty sworn says: That at all times herein Affiant was and is a citizen of the United States, over 18 yean of age, not a party to or interested in the proceeding in which this Affidavit is made. That Affiant received copy(ies) of the Summons and Complaint. on the day of , 1999, and served the same on the day of .1999. (Affiant must complete the appropriate paragraph) 1. Delivering and leaving a copy with the Defendant at (state address) 0 2. Serving the Defendant by personally delivering and leaving a copy with , a person of suitable age and discretion residing at the Defendant's usual place of abode located at (state address) (Use paragraph 3 for service upon agent, completing A or B) 3. Serving the Defendant by personally delivering and leaving a copy at (state address) a with as an agent lawfully designated by statute to accept service of process; b. with pursuant to NRS 14.020 as a person of suitable age and discretion at the above address, which address is the address of the resident agent as shown on the current certificate of designation filed with the Sxretary of State. 4. Personally depositing a copy in a mail box of the United States Post Office, enclosed in a sealed envelope postage prepaid. (Check appropriate method): _ ordinary mail _ certified mail, return receipt requested _ registered mail, return receipt requested Addressed to the Defendant at the Defendant's last known address which is (state address) Signature of Person Making Service SUBSCRIBED AND SWORN to before me this day of .1999. NOTARY PUBLIC in and for said County and State. My commission expires: 98739810
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GENERAL ALLEGATIONS PLAINTIFF, LLOYD GLASS COMPLAINS OF DEFENDANTS, AND EACH OF THEM, AND ALLEGES: 24 25 26 27 28 1. The overwhelming scientific and medical evidence confirms that both tobacco additives and cigarette smoke contain many carcinogens and are toxic to the human system. Cigarette smoking is a substantial contributing force, if not the predominant factor, in the development of lung cancer, other cancers, heart disease, strokes, and other diseases. After years of study, it is uncontroverted that smoking-caused diseases are dose dependenr, that is, each and every exposure to these carcinogens increases the risk of disease. 2. For years the defendant cigarette manufacturers, defined in have known both about the carcinogenic and toxic properties of cigarettes. The cigarette defendants have known that tobacco products could cause lung cancer since at least 1946, and they have intentionally conspired to mislead, deceive and confuse the government, and the public, including plainti$ concerning the harmful and debilitating effects smoking has on the health of individuals, that nicotine in cigarettes is a powerfully addictive substance, and that defendants intentionally manipulated levels of nicotine delivery in cigarettes to ensure that smokers remain addicted and continue to buy the products of the CIGARETTE DEFENDANTS. 3. Since the 1950's the CIGARETTE DEFENDANTS publicly promised to lead the effort to discover and disclose the truth about smoking and health. However, they systematically suppressed and concealed material information and waged an aggressive campaign of disinformation about the health consequences of smoking. They have known for years, based on their own secret research, that their product eventually injures or kills the consumer when used exactly as intended. Even now, these CIGARETTE DEFENDANTS continue to deny and conceal the facts that smoking cigarettes causes lung cancer and other diseases and that nicotine is addictive and purposefully manipulated. \.o 00 v 2 `~ co ~ N
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1 and continue to be the City of Las Vegas and County of Clark, and other cities and counties in 2 the State of Nevada 3 6. Plaintiff is informed and believes and thereon alleges that Defendant PHILIP 4 MORRIS, INC., is a Virginia corporation engaged in the business of manufacturing cigarettes 5 and tobacco products for sale and distribution in the United States, and in the State of Nevada as 6 more specifically outlined above. Philip Morris manufactures, advertises and sells Philip Morris, 7 Merit, Cambridge, Marlboro, Benson & Hedges, Virginia Slims, Alpine, Dunhill, English Ovals, 8 Galaxy, Players, Saratoga and parliament cigarettes throughout the world and in the State of 9 Nevada as more specifically described above. 10 7. Plaintiff is informed and believes and thereon alleges that defendant BROWN & 11 WILLIAMSON TOBACCO CORPORATION, successor by merger to the American Tobacco 12 Company, is a Kentucky corporation engaged in the business of manufacturing cigarettes and 13 tobacco products for sale and distribution in the world, the United States, and in the State of 14 Nevada as more specifically described above. 15 8. Plaintiff is informed and believes and thereon alleges that Defendant BATUS 16 HOLDINGS, INC., ("Batus Holdings") is a Kentucky corporation engaged in the business of 17 manufacturing cigarettes and tobacco products for sale and distribution in the United States and 18 the world, and in the State of Nevada as more specifically described above. 19 9. Plaintiff is informed and believes and thereon alleges that defendant BATUS, 20 INC., (`Batus") is a Kentucky corporation engaged in the business of manufacturing cigarettes 21 and tobacco products for sale and distribution in the United States and in the world, and in the 22 State of Nevada as more specifically described above. 23 10. Plaintiff is informed and believes and thereon alleges that Defendant BAT 24 INDUSTRIES, P.L.C. (`BAT Industries") is a British corporation. 25 11. Plaintiff is informed and believes and thereon alleges that defendant BAT 26 Industries and British American Tobacco are either directly or indirectly the sole shareholder of 27 28 11 4
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9. 199 313 2: 09PM,waia+eL,tAWEe 4 COLLINS ^ L/GNeL SAWYtR s GPL4/M~ aT'oa,tv~ .1 4aw IaePMY+Ma.N/O.n.y. fG0 WVTR IpyaH, ~t Ntv.b, Nel 1~~ NO. 8004P i.P, 17/2017 I hereby certify that on the ~ day of September, 1999, I caused to be deposited a true and cot7ect copy ofthe above and foregoing JOINT STATUS I2)}:PQRT in the United States Mails, postage prepaid at Las Vegas, Nevada. addressed to the following at their last known address: W. Randall Mainor, Esq. Mainer & Harris 530 South Sixth Street Las Vegas, Nevada g9101 Attorneys for PlaintifP Gary Long. Esq. John IL Shark, III, Esq. Shook Hardy k Bacon, L.L.P. One Kattsas City Place Kansas City, Missouri 64105 Attorneys for Philip Morris Incorporated and Lorillard, Inc. John K. Gailagher, Esq. Guild Russell Gallagher & Fuller, Ltd. 100 West Liberty Street, N800 Reno, Nevada 99501 Attorneys for Liggett dk Myers, Inc. Brucc Wold, Eaq. Sedgwick Detert Moran & Arnold One Embarcadero Center 16" Floor Sen Francisco, CA 941 t 1-3628 `4Brovm & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company) snd BATUS Holdings, Inc. ~ Mark A. Hutchison, Esq. Hutchison & Steffen 9831 W est Sahara Avenue Las Vegas, Nevada 89117 ~ Attorneys for British American Tobacco Company, Ltd. Steven J. Karen, Esq. 521 South Sixth Street Las Vegas, Nevada 49 101 Attorneys for Plaintiff Steve Morris, Etq. Schreck Morris 1200 Bank ofAmerioa Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Attorneys for Philip Morris Incorporated H. Joseph Escher, III Howard Rice Nemarovski Canady Falk & Rabkin Three 8mbareadero Center Seventh Floor San Francisco, CA_94111-4065 Attomeys for RJ. Reynolds Tobacco Co. NPhiilip W. Bartlett, Esq. Burton Bartlett h Glogovac 50 West Liberty Street, Suite 650 Reno, Nevada 89501 ~1p Attotneys for Lorillard, Inc. 00 V W 1~o C!s 0 a4 James Silvestri, Hiq. Pyatt A: Silvestri. Chtd. 201 Las Vegas Houlevard South, #300 Las Vegas, Nevada 89101 Attorneys for Rebel Oil 1 mployee of Lionel Sawyer & Collins -4-
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Defendant BROWN & WILLIAMSON. 12. Plaintiff is informed and believes and thereon alleges that defendants BAT Industries and British American Tobacco are either directly or indirectly the sole shareholder of Defendant BROWN & WILLIAMSON. 13. Plaintiff is informed and believes and thereon alleges that Defendants BROWN & WILLIAMSON, Batus Holdings, Batus, BAT Industries, and British American Tobacco, either directly or indirectly as part of the same overall organization and operation, manufacture, distribute, offer for sale, promote, and sell Kool, Barclay, BelAir, Capri, Raleigh, Richarland, Loredo, Eli Cutter and Viceroy cigarettes throughout the United States and in the state of Nevada as more specifically described above. 14. Plaintiff is informed and believes and thereon alleges that Defendant LIGGETT & MYERS is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, distributes, offers for sale, and sells chesterfield, Decade, L&M, Pyramid, Dorado, Eve, Stride, generic and Lark cigarettes throughout the United States, the world, and the State of Nevada as more specifically described above. 15. Plaintiff is informed and believes and thereon alleges that Defendant(s) THE AMERICAN TOBACCO COMPANY and/or BROWN & WILLIAMSON CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, distributes, offers for sale, and sells Lucky Strike, Pall Mall, Tareyton, Malibu, American, Montclair, Newport, Misty, Barkeley, Iceberg, Silk Cut, Silva Thins, Sobrania, Bull Durham and Carlton cigarettes throughout the United States, the world, and Nevada as more specifically described above. 5
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insffucted in their use by defendants' advertising and promotion prior to 1969, and at all times material herein by CIGARETTE DEFENDAIVTS' marketing, public statements, "infomiational" communications, sponsorship of athletic events, concerts, and other activities, and inducements such as coupon-for-gifts and other efforts. 41. At times material to this action, CIGARETTE DEFENDANTS actually knew, or in the discharge of ordinary care should have known of the following: a. That the harms listed above would or might occur if the cigarettes were used as intended; b. that the harms listed above would more likely be experienced if users did not restrict their intake of defendants' cigarettes, or if they began to use the products at an early age. c. that use of the products as intended was likely to lead to addiction, habituation, and/or dependence, particularly if begun at an early age. d. that termination or limitation of use would be exceedingly difficult if consumption was initiated and that this difficulty would increase as cumulative consumption increased; e. that developing knowledge before and after 1970 demonstrated that previous users are at great risk of harm (as listed above) and should seek medical monitoring; £ that CIGARETTE DEFENDANTS could establish a reasonably safe dose for foreseeable users; g. that there were feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable nicotine levels by smoking more; h. that switching to the so-called "light" cigarette would not be less hazardous because the individual would compensate for the decreased nicotine levels by smoking more; i. that the FTC method of measuring "tar & nicotine" levels underestimated the levels of nicotine actually delivered; and j. that adding ammonia, or otherwise altering the PH of the tobacco, enhanced the delivery of nicotine, thereby increasing addiction and/or dependence. 42. The CIGARETTE DEFENDANTS at times material had the following legal duties to users who consumed their cigarettes: a. prior to 1969, duty to foreseeable users of CIGARETTE DEFENDANTS' 11
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THE PARTIES 4. The true names and capacities, whether individual, corporate, associate, governmental or otherwise, of defendants FIRST DOE through THREE HUNDREDTH DOE, inclusive, are unlmown to plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true names and capacities of said defendants have been ascertained, plaintiff will amend this Complaint accordingly. Plaintiff is informed and believes and thereon alleges that each defendant designated herein as a Doe is responsible, negligently or in some other actionable maffier, for the events and happenings hereinafter referred to, an caused injuries and damages proximately thereby to the plainti$ as hereinafter alleged. 5. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, defendants PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R J. REYNOLDS TOBACCO COMPANY; BROWN & WIL,LIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD, INC, as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, BATUS HOLDINGS, INC.; BATUS, INC.; B.A.T. INDUSTRiES, P.L.C.; BRPITSH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; (hereinafter "CIGARETTE DEFENDANTS"), DNA PLANT TECHNOLOGY CORPORATION (hereinafter "TOBACCO DEFENDANT") and defendant REBEL OIL COMPANY INCORPORATED, are corporations organize and existing under and by virtue of the laws of the State of Nevada, or the laws of some state or foreign jurisdiction as more specifically described below, and that said defendants were and are authorized to do and are doing business in the State of Nevada, and that said CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED, have regularly conducted business in, and have intentionally placed cigarette products in the steam of commerce whose destination have been 3
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r-, cause him to develop, lung cancer, when he was induced by the pre-1969 public advertising and representations by the CIGARETTE DEFENDANTS to smoke cigarettes as a minor, before any caution or warning labels were placed in cigarette packages by the CIGARETTE DEFENDANTS pursuant to federal law. 25. Plainti$'was diagnosed with lung cancer on or about Apri118, 1999. 26. Had Plaintiff known the true facts concerning the magnitude of health risks of smoking, the addictive nature of nicotine, the intentional manipulation of nicotine levels in cigarettes, or the targeting of his and other youths like him to replace in the market those older cigarette smokers who were dying from smoking, he would never have started smoking. By the time plaintiff was aware that there were indeed deadly health risks associated with smoking, he was addicted, which addiction was maintained by the purposeful actions of the CIGARETTE DEFENDANTS as described in more detail below. 27. As a direct and proximate result of the aforesaid conduct of defendants, and each of them, Plaintiff is dying and has suffered, and continues to suffer permanent injuries to his person, body and health, including but not limited to lung cancer, shortness of breath, anatomical changes to his alveoli, and other lung damage. Plaintiff has further suffered, continues to suffer, and will suffer in the future pain, discomfort, fears, anxiety and other mental and emotional distress directly and proximately caused by the aforesaid conduct of defendants and each of them, all to his general damages in a sum in excess of the jurisdictional limits of the District Court. 28. As a direct and proximate result of the aforesaid conduct of the defendants, and each of them, plaintiff has incurred, is presently incurring and will incur in the future liability for physicians, surgeons, nurses, hospital care, medicine, hospitals, x-rays and other medical treatment, the true and exact amount thereof being unknown to plaintiff at this time, and plaintiff prays leave to amend this Complaint accordingly when the true and exact cost thereof is ascertained. 29. Plaintiff Lloyd Glass has lost prejudgment interest, the exact amount of which 8 W
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5 13 14 Plaintiff is further informed and believes and thereon alleges that THE AMERICAN TOBACCO COMPANY was purchased by BAT Industries. 16. Plaintiff is informed and believes and thereon alleges that Defendant R.J. REYNOLDS TOBACCO COMPANY is a New Jersey corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, offers for sale, distributes and sells Camel, Vantage, Now Dora, Winston, Sterling, Magna, More, Cemury, Bright Rite and Salem cigarettes throughout the United States, the world, and in the State of Nevada as more specifically described herein. 17. Plaintiff is informed and believes and thereon alleges that Defendant Lorillard Corporation is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, offers for sale, distributes and sells Old Gold, Kent, triumph, Satin, Max, Spring, Newport and True cigarettes throughout the Untied States, the world, and in the State of Nevada as more specifically described herein. 18. Plaintiff is informed and believes, and thereon alleges, that defendant PHILIP MORRIS, INC., LIGGETT & MYERS, INC., BROWN L& WILLIAMSON COMPANY, LORILLARD, INC.,. and each of the remaining CIGARETTE DEFENDANTS, and REBEL OIL COMPANY, INCORPORATED, was the agent, servant, employee and/or joint venturer of its co-defendants, and each of them, and at all said times, each defendant was acting in the full course and scope of said agency, service, employment and/or joint venture. 20. Plaintiff is informed and believes and thereon alleges that Defendant DNA PLANT TECHNOLOGY CORPORATION (DNA) is a Nevada Corporation. 21. CIGARETTE DEFENDANT Brown & Williamson commercially developed a tobacco plant with twice the nicotine content of standard tobacco code-named "Y-1." Defendant 6
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Q93: P}4 :LIONELSAWYER 4 COLLIN5 PoINTS AM . ArrrsoMM I SEete F= N0.8004,_05,P, 9/%01T Plaintiff Woyd Giaa wes diegnoeed with eraelt oall cercinotna on Aprii 18, 1999. Pisintiff ellePa ttut his ranar wes cweml by .mokino ciaerettes, Iiu prognoeis is extremely poor. On August 2, 1999 PhiUip I Menao, M.D, vvrote: "..,I em writ4ag tlns letter regarding the prognosis on Mr. Lloyd Gler. As you lmow, he wee diagnosed with extensfve stege small eell h5ng cancer, which often carries a wrvivel rate of epproidrtwceiy ea months. •.." (See, bxhibit One). Mr. Glese was reeently ed5nitted to the intersive care unit et Stwtrtterlin Hospital where he presently ramrins. All of the defendente heve now been served. None of them have Skd an answer yet. (See, Joint Statua Report). AocordinQly a FRCP 26(d) meet and eonfr aonfic.nce hae not beq held yet. II. $11ULDAWr The Federel Rula of Civil Proudure, Rule 30(2)(C) requiras a party to obtain leave of court to conduct a deposition prior to the FRCP 26(d) naec and caufeY conference. "A party must obtain leave of court, which ilWl be granted to the extent conavtent with the principles stated in Rulc 26(b)(2). " rYere, PtalntiR desiree to petpetuste hia testimony. There ia a auhstaodal dur!ger t6st if the pepoettion te not beld poet bsete, Pleintiff'will die b.fore his deposition can be taken, 3
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the CIGARETTE DEFENDANTS' cigarettes were used as intended. b. prior to 1969, in failing to warn or wam adequately that the harms listed above would be more likely experienced if users did not restrict their intake of defendants' cigarettes, and/or in failing to provide some guidelines on reasonably safe dosage or amount of cigarette consumption, and/or in failing to warn that use of their cigarettes at an early age was exceedingly harmful; c. prior to 1969 in failing to warn or warn adequately that use of cigarettes as intended was likely to lead to addiction, habituation or dependence, particularly if begun at an early age; d. prior to 1969, in failing to warn or warn adequately that termination or limitation of cigarette use would be exceedingly difficult if cigarette consumption was initiated and that this difficulty would increase as cumulative consumption increased. e. prior to 1969, in fai lng to watn or warn adequately of developing knowledge demonstrating that previous users of cigarettes are at great risk of harm (as listed above) and should seek medical monitoring, £ in failing to establish a reasonably safe dose for foreseeable users, of their cigarettes, if any such safe dose exists; g. in designing, manufactiuing, selling, and promoting the sale cigarettes that when used as intended were not reasonably safe for foreseeable users; h. in failing to make such feasible improvements in design, composition or manufacAure, of their cigarettes such as to materially decrease the foreseeable risk to users; i. prior to 1969, in failing to disclose to plaintiff and other foreseeable users of their cigarettes of the defendants' own scientific and other scientific research known to them which disclosed that use of cigarettes as intended caused a great risk of barm as described above; and, j. in furtherance of the ongoing conspiracy described below, and to deceive, conceal material information, while simultaneously affirmatively misrepresenting to plaintiff and other members of the public, through continuing advertising campaigns in the print, radio, cinema and television media until 1969, and prior and after 1969 in"informational" communicating, sponsorship of sports activities, concerts, and other events, testimony and public statements by officers, agents and employees of the CIGARETTE DEFENDANTS that the cigarettes manufactured sold, or distributed by defendants were safe in their ordinary and foreseeable use, which induced plaintiff to unknowingly expose himself to the hazards of cigarettes. Further, plaintiff was induced to begin smoking because these defendants targeted, and continue to target, youths as young as under 10 to hook them early on their cigarettes to replace older, dying smokers. The following are but a representative sample of the literally thousands of advertisements and promotions prior to 1969, and deceptive and fraudulent "informational" communications and authorized public statements thereafter, the defendants used defendant REBEL OIL COMPANY, INCORPORATED impliedly endorsed and 13
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c. the cigarettes failed to perform as safely as an ordinary consumer would expect when used as intended or m a manner reasonably foreseeable by the plaintiff; d. the risk of danger from the design of defendants' cigarettes outweighed the benefits obtained with the use of the products, and, e. prior to 1969, defendants' cigarettes did not contain sufficient warnings as previously alleged, or alternatively, were labeled with inadequate warnings. 48. Plaintiff' s illness is a direct and proximate result of the defects set forth above and the plaintiff has suffered damages more fully described above. WHEREFORE, plaintiff prays for judgment against the CIGARETTE DEFENDANT as hereinafter set forth. THIRD CAUSE OF ACTION - FALSE REPRESENTATION CIGARETTE DEFENDANTS 49. Plaintiff repeats and realleges each of the foregoing paragraphs as if fully stated herein. 50. At the aforementioned time when the CIGARETTE DEFENDANTS manufactured and distributed, tested, designed, paokaged, sold, and/or placed into manufactured and distributed, tested, designed packages, sold, and/or placed into the steam of commerce in and into the State of Nevada numerous brands of defective cigarettes, or other tobacco products, or, in the course of business, materially participated with, conspired with, and/or otherwise aided, abetted, and assisted others in so doing, the CIGARETTE DEFENDANTS, and each of them, expressly and impliedly represented to members of the general public, including the purchasers, users and bystanders of said product, and including the plaintiff herein that cigarettes and other tobacco products were of merchantable quality, and safe for the use for which they were intended. The CIGARETTE DEFENDANTS accomplished these representations and induced members of the public and government, including plaintiff, to rely thereon through, among other methods, an aggressive and continuing campaign up to 1969 of deceptive, erroneous, misleading and false advertisements in the print, cinema, radio and television media designed to conceal the 16
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DNA Plant Technology developed a pollen-free male sterile derivative tobacco were stored in warehouses by Brown & Williamson, and this tobacco was put into cigarettes by Brown & Williamson that have been sold nationwide. One of the intended purposes of this practice was to manipulate nicotine delivery to the smoker, thereby increasing the likelihood of addiction and ensuring continued demand for its product. Over the course of more than a decade, Brown & Williamson conspired to falsely and fraudulently deny both the genetic manipulation of the nicotine content in tobacco plants and the commercialization of such a tobacco plant. 22. Each and every CIGARETTE DEFENDANT and TOBACCO DEFENDANT is alleged to have been a member of, or participant in, the conspiracy described herein, and each and every act of the conspiracy was directed toward, and accomplished in whole or in part in, the State of Nevada. Each and every act of the conspiracy also had, and will continue to have, a substantial impact in the State of Nevada. The cigarettes and tobacco products manufactured by these defendant conspirators were intentionally placed in the stream of commerce whose destination have been, and continue to be, among others, defendant REBEL OIL COMPANY, INCORPORATED, and other premises in the City and County of Clark and other cities and counties in Nevada. One of the goals of the conspiracy described herein was to create a false controversy regarding the health hazards of tobacco use an the addictive properties of nicotine in order to protect the market for cigarette sales and the profits of the tobacco industry, the CIGARETTE DEFENDANTS. 23. Plaintiff herein inhaled smoke from cigarettes manufactured by the CIGARETTE DEFENDANTS and purchased many of the cigarettes he smoked at REBEL OIL CO1vIPANY , INCORPORATED. He began smoking as a minor, in 1967, having been influenced and induced to smoke, relying to his detriment upon the continuing aggressive campaign of advertisements, inducements, informational communications, and promotional items to hook youth smokers as hereinafter described in more detail. 24. Plaintiff was not aware that smoking increased his risk of developing, and did 27 28 11 7
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I Plaintiff prays leave to insert herein when finally ascertained. 2 30. As a further direct and proximate result of the said conduct of defendants, and 3 each of them, Plaintiff has incurred, and will incur, loss of income, wages, profits and 4 commissions, an diminishment of earning potential, and other pecuniary losses, the full nature 5 and extent of wbich are not yet known to plaintiff, and leave is requested to amend this complaint 6 to conform to proof at the time of trial. 7 FIRST CAUSE OF ACTION - NEGLIGENCE 8 (CIGARETTE DEFENDANTS) 9 31. Plaintiff repeats and realleges Paragraphs 1 through 30 as fully as if restated 10 herein and complains of the CIGARETTE DEFENDANTS as follows: 11 32. The cigarettes designed, manufactured, advertised, marketed, and sold by the 12 CIGARETTE DEFENDANTS were as follows: Marlboro and Marlboro Lights, Benson & 13 Hedges, Kent. Eve, More, Raleigh, Vicerov Virgin_ia sIims and Winston. 14 33. The CIGARETTE DEFENDANTS' cigarettes, when used as intended, were 15 highly likely to be a substantial contributing factor in causing the following human illnesses, 16 injuries, and conditions: 17 18 19 20 21 22 23 24 25 26 27 a. Bronchogenic carcinoma or lung cancer of all cell types; b. Chronic obstructive pulmonary disease of all types, including emphysema, chronic bronchitis, and reversible airway obstruction; c. Cardiovascular disease including atherosclerosis and its consequences, including myocardialinfarction (heart attack), cerebrovascular accident (stroke), peripheral vascular disease, aneurysm, and other conditions; d. Cancers of the mouth, throat, larynx, esophagus, kidney, bladder, and other organs; e. Genetic damage to cells of the airways, lungs, and other organs; £ Impairment of lung function; and, 28 11 9
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r-. 1 8 9 10 11 12 24 25 26 27 28 true health hazards and addictive nature of cigarettes and to lure new, especially youthful, users to replace the older ones who died. After 1969, the aforesaid CIGARETTE DEFENDANTS continued to disseminate deceptive, erroneous, misleading, and false statements concerning the state of the medical research concerning cigarettes and the diseases they cause as sell as the extent of health hazards and the addictive nature of cigarettes and continued to lure new, especially youthful smokers to replace the older one who died via "informational" communications, the dissemination of coupons and gifts, the underwriting of sports, concerts, and other such events, and the "underwriting" of purportedly scientific research and studies. 51. Plaintiff relied, to his detriment, upon the representations of the CIGARETTE DEFENDANTS and co-conspirator wholesalers and retailers in many of the literally thousands of pre- 1969 advertisements and promotional activities, and pre-and post 1969 dissemination of free cigarettes, and informational communications aimed at members of the public and the Nevada and federal government, and consumers, including plaintiff 52. Said representations by CIGARETfE DEFENDANTS and co-conspirator wholesaler and retailer entities, and each of them, were false and untrue, in that cigarettes and other tobacco products were not safe for their intended use, nor were they of merchantable quality as represented by defendants, and each of them in that cigarettes and tobacco products have very dangerous properties and defect whereby said products cause lung cancer and other lung disabilities, heart disease and have other defects that cause injury and damage to the users of said products and bystanders to those users, including plaintiff herein, thereby threatening the health and life of plaintiff. 53. As a direct and proximate result of said false representations by defendants and each of them, the plaintiff sustained the inj uries and damages hereinabove set forth. WHEREFORE, Plaintiff prays judgment against the CIGARETTE DEFENDANTS, and each of them, as hereinafter set forth. FOURTH CAUSE OF ACTION - DECEIT. FRAUDULENT CONCEALMENT 17
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g. Other types of injuries. So highly likely were the serious health consequences of defendants' cigarettes, that over one in three foreseeable users would be expected to suffer premature death or serious impairment. 34. At times material, the ordinary consumer, including the Plaintiff, did not in the exercise of ordinary diligence know of the likelihood of, the severity of, or the extent of the risks from CIGARETTE DEFENDANTS' cigarettes, which are outlined above. 35. The CIGARETTE DEFENDANTS' cigarettes, when used as intended, were highly likely to induce in foreseeable users a state of addiction, habituation, habit formation, and/or dependence, characterized by users' inability to terminate or restrict their chronic use. 36. The risks of harm to foreseeable users as listed above in paragraphs 33 and 35 would increase in any of the following circumstances. a. Greater eumnlative consumption, including rate of consumption and length of time the product was consumed; and b. beginning use at an early age in life. 37. At times material, and specifically prior to 1969, the CIGARETTE DEFENDANTS conducted an aggressive marketing, promotional and advertising campaign intended to induce foreseeable users, particularly youths, to purchase their cigarettes. Such marketing and advertising occurred in printed media, on television, radio, on billboards and by other means. After 1969, the CIGARETTE DEFENDANTS issued informational literature and other writings, as well as coupons-for-gifts and inducements intended to induce foreseeable users, particularly youths, to purchase their cigarettes. 38. Plaintiff purchased and consumed defendants' cigarettes within the State of Nevada at times material to this aomplaint. 39. Plaintiff consumed the defendants' cigarettes in the intended manner and without significant change in their condition from purchase. 40. Plaintiff was induced to purchase the cigarettes and impliedly or expressly 10
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11 27 281 0 of that meeting reflect the fact that a Dr. Kotin, their own employee as the scientific adviser of the TIItC, would soon become the associate director of the National Cancer Institute. Additionally, the CIGARETTE DEFENDANTS and co-conspirators "unanimously agreed"...if there was to be a statement after the Surgeon General's report, it should be an industry statement rather than separate statements by one or more companies. This would obviate the possibility that a statement by one company might be inconsistent with that made by another. The same method of procedure was recommended as well in the event of a Federal Trade Commission (FTC) or Congressional aotion." 60. CIGARETTE DEFENDANT'S concealed their actual knowledge concerning their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addiction to cigarettes, which was critical to the conspiracy as set forth below. 61. Defendant Brown & Williamson developed a genetically-engineered tobacco plant which had a much higher nicotine content than other naturally-cured tobacco code-named "Y-1." 62. The conspiracy between Defendants DNA Plant Technology and Brown & Williamson led to development of a pollen-free male sterile derivative of the high-nicotine "Y-1" tobacco plant, "PF Y-1." 63. The Food and Drug Administration first learned of the existence of "Y-1" in Portugal with the discovery of a Brazilian patent for a new variety of flue-cured tobacco plant. The English translation of the patent stated: "The nicotine content of the leaf of this variety is usually higher than approximately 6% by weight ..which is significantly higher than any normal variety of tobacco grown commercially. 64. Prior to the discovery of the patent, a tobacco industry executive had told the food and Drug Administration ("FDA") that "flue-cured tobacco naturally contains 2.5 to 3.5 percent nicotine." Thus, this new specially bred plant contained approximately twice the nicotine that naturally occurs in flue-cured tobacco. The holder of the Brazilian Y-1 patent was Defendant Brown & Williamson Tobacco Corporation, maker of such cigarettes as Viceroy and Raleigh. 21 0
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Plaintiff was a substantial factor contributing to Plaintiff s illness described herein and Plaintiff has suffered damages therefore as more fully described herein. 78. In January of 1998, DNA was indicted for illegally exporting tobacco seeds and pled guilty. 79. DNA and Brown & Williamson were interested in controlling and manipulating nicotine in cigarettes because senior industry officials were well aware that nicotine is the critical ingredient in cigarettes and the one ingredient that guarantees continued usages by consumers. 80. The addictive effect of nicotine has long been known and concealed by the CIGARETTE DEFENDAIVTS. The intentional concealment of facts concerning nicotine, as well as the CIGARETTE DEFENDANTS' manipulation of both the nicotine content in cigarettes and the use of other chemicals to further enhance the addictive qualities of nicotine is shown by the following representative examples. The CIGARETTE DEFENDANTS' efforts included Brown & Williamson' rejection of its owa general counsel's advice in 1963 to disclose to the U.S. Surgeon General what the company knew about the adverse effects of smoking on health and the addictiveness of nicotine. They included advice by another Brown & Williamson general counsel in 1985 to remove documents and files and to ship documents out of the United States. CIGARETTE DEFENDANTS became aware that cigarette smoking is probably hazardous to the smoker, as reflected in excerpts from industry documents: A. In 1959, and RJR scientist, Alan Rodgman, concluded that there is a"distinct possibility" that substances in cigarette smoke could have a carcinogenic effect. B. In 1962, Rodgman wrote: The amoimt of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming, [while] the evidence challenging the indictment is scant C. In 1967, G. F. Todd of the Tobacco Research Council wrote a letter to Mr. Addison Yeaman. Yeaman was the Vice President and general counsel of Brown & 25
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9 10 65. The CIGARETTE DEFENDANTS have repeatedly stated for the public record that they do not manipulate nicotine levels in cigarettes. However, the plant described in this patent represents a dramatic attempt to manipulate nicotine. Moreover, when the FDA asked company officials whether tobacco plants were bred specifically for higher nicotine content, they were told that this was not feasible. The CIGARETTE DEFENDAIVTS asserted that tobacco growers and cigarette manufacturers had an agreement that the nicotine level of new varieties of tobacco grown in the United States would vary only slightly from the level of standard varieties. Supposedly, under this agreement, a new high-nicotine tobacco plant that varied more than slightly from the standard variety could not be commercially grown by farmers in the United States. 66. Nevertheless, the FDA learned that.interestin developing a high-nicotine tobacco plant dated back to at least the mid-1970's. In 1977, Dr James F. Chaplin stated: " manufaciurers have means of reducing tars but most of the methods reduce nicotine and other constituents at the same time. Therefore it may be desirable to develop levels constant or to develop lines higher in nicotine so that when the tar and nicotine are reduced there will still be enough nicotine left to satisfy the smoker." 67. 1n truth, Dr. Chaplin had been working on genetically breeding tobacco plants with varying nicotine levels. In a 1977 paper, Dr. Chaplin indicated that tobacco could be bred to increase nicotine levels, specifically by cross-breeding commercial varieties of tobacco with Nicotiana ruslica, which is a wild variety, very high in nicotine, but not used commercially in cigarettes because it is considered too harsh However, Dr. Chaplin told the FDA that his specially bred plants were not commercially viable because they did not grow well and literally did not stand up in the field. Furthermore, he indicated that he was surprised that he could not get the nicotine levels as high as he anticipated. In fact, in his 1977 paper, the highest nicotine level he reported in these specially bred lines was 3.4 percent total nicotine within the normal range for flue-cured tobacco. 22
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-vc-9a ~ij:,a ~~iw~n:LICNEL,SAWYER d COLLINS u 1~ 6 12 13 14 1s 16 17 18' 19 / 20 21 H. G~004...?, iL/ir 1 CERTIFICATE OF MAIL4VQ l 2 1 hereby certiiy that on the. I ip day of October, 1999, I deposited a true and correct 3 copy of the above and foregoing MOTION FO& LEAVE OF COURT TO TAKE 4 PLAINTIFF'S DEPOSIT[ON in the United States mai.l, postage fu11y prepsid at Las vegas, 5 Nevada, addressed to the foUowing: Bruce Wold, Esq. Sedgwick Detert Morsa & Arnold One EmDarcadero Center, 16th Floor San Francisco, CA 94111-3625 DNA Plapr Technology Corporation 6701 Saa Pablo Avenue Oakland, CA 9460? Liggeu & Myer, Inc. 810 Craghead Street Denvill., VA 24541 Aenerio.n Tobacco Cnmp.ny 1500 Brown & Williawson Tower Louieville, KY 40202 John K. (iallsRher, Guild nwell Oellagher & Fuller, Ltd. 100 West Liberty Street, N800 Mark A. NLRel+inan, Eaq. Hutchinson & Steffen 8831 W. Sahara Avenue Las Vegrs,NV 89117 B.A.T.Indusuies Wiadsor House 50 Victoria Street London,. EnQland The Liggett Group, Inc. 300 North Duke Street Dorham, NC 27202 Gary LocS, $ag. Shook, Hardy & Bacon One xaneas City rlaee Kaneas City, MO 64105 Steve Ivlorris, Esq. Sehreck Moerfa 1200 Bank of America Plasa 0 Reno, NV 39501 300 S. Foiath Street 0o Ii. Josepb Escher, IYi Las VeQas,NV 89101 Phillip W. Bardett, Esq. v cN \10 Three Embarcadero Center Sevcnth F]oor Button Bartlea & Glogovac 50 W. Liberty Stteet, Suite 650 m 0 San Francisco, CA James Silvesai, Esq 94l 11-4065 . Reno, NV 89501 J Pyatt & Silvesnri, C 201 Las Vegas Blvd 1,®s Vegas, NV 891 ~ . South #300 01 a ~ ._a An eroployee of La~
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r suppressed and confused the facts about the health dangers of smoking, including addiction. They concealed their actual knowledge concerning their own negative health and addiction research results an their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addiction to cigarettes were critical to the conspiracy. CIGARETTE DEFENDANTS claimed, falsely, that there is insufficient "objective" research to determine if cigarette smoking causes disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers [in a so- called "gentlemen's agreement"], for otherwise the revelation by one company of what it knew about the health consequences of smoking and/or the availability of a "safe(r)" cigarette andlor the addictive nature of the manufacturers' cigarettes would have thwarted the conspiracy. Third, CIGARETTE DEFENDANTS used lawyers to misdirect what purported to be objective scientific research to create favorable, and to suppress and/or destroy unfavorable findings regarding the health consequences of smoking to discourage meritorious litigation by plaintiffs injured due to tobacco, they engaged in "scorched earth" litigation tactics in combination with suppressing and distorting evidence in order to protect the CIGARETTE DEFENDANTS' existence and profits. 58. The following allegations are a representative sample: In January, 1954, when the CIGARETTE DEFENDANTS announced they were establishing a joint industry group known as the tobacco Industry research Committee, TIRC, they simultaneously pledged, through TIRC, aid and assistance to the research efforts into all phases of tobacco use and health, expressly undertaking an interest in health as their basic responsibility paramount to every other consideration. At the same time, CIGARETTE DEFENDANTS represented that there was no proof that cigarette smoking is one of the causes of lung cancer. When they made these representations, CIGARETTE DEFENDANTS intended that the public, including plaintiff, would both believe in and rely upon this public announcement, and they knew or should have known that these pronouncements would permeate I 19 U
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6 altavative could be readily produced, undercutting the industry position to the contrary. Cigarette defendant conspirators also internally recognized the validity of non-industry research efforts, such as animal smoke-inhaling and skin-painting with smoke ingredients, but publicly downplayed the significance of that research. In fact, in furtherance of the conspiracy to conceal adverse scientific information, there was a longstanding "gentleman's agreement" among the conspirator defendants and co-conspirators to not conduct, i.e., to suppress, independent research on the issue of smoking and health, as referenced in a 1968 internal Philip Morris draft memo which stated, " We have reason to believe that in spite of gentlemen's [sic] agreement from the tobacco industry in previous years that at least some of the major companies have been increasing biological studies within their own facilities." 98. The gentleman's agreement described above notwithstanding, defendant R.J. Reynolds conducted research in the 1960's to study the mechanism whereby smoking causes emphysema. This research was described as important because it came close to determining the underlying pathobiology of emphysema. In 1970 R.J. Reynolds closed down the project and fired the scientists working on it. None of the work done on the project has been disclosed to the public. 99. Publicly, the CIGARETTE DEFENDANTS took another stance. They used counsel-sponsored studies, among others, to attempt to show pockets of high cancer incidence without relation to smoking, to find instances of cancer in nonsmokers, and to show that duration and amount of smoking have no relation to the age of peak incidence of lung cancer. Documents suggest as well that in 1984 the in-house lawyers for CIGARETTE DEFENDANTS, which formed a "Committee of Counsel," thwarted industry scientists' desires to assure the safety of the product by testing ingredients adequately. The appellate court in Florida in July, 1997 refused to overtum findings that there was evidence "that the defendants hid from and misrepresented to the public the health risks of smoking and that their conduct constituted fraud on the public," and "that the defendants utilized their attorneys in carrying out 34
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agreement to place cigarettes prominently in areas at eye-level designed to entice, tempt, and induce consumers, particularly minors, including plainti$ to purchase cigarettes at retail facilities. The profits from these sales, resulting from the targeting of minors to attract new smokers and repeat, already-addicted smokers, ranged to 15-20% to a high of 40-50% of overall profits gained by the co- conspirator point of sale retailers including, but not limited to REBEL OIL COMPANY, INCORPORATED. Plaintiff is unable to allege in full the thousands of statements that defendants have prepared and released over the last almost 50 years both because they do not have access to this information, and because to allege each and every such advertisement or point-of-sale enticement here would entail hundreds or even thousands of pages of pleading; indeed, it is the CIGARETTE DEFENDANTS and the co-conspirators themselves which have this knowledge and information, and are in the best position to know the content of each and every such advertisement released in furtherance of their conspiracy, and to mislead the public and plaintiff, misrepresent the true hazards and addictive nature of smoking, and to conceal material facts from the public, the government, and plaintiff. 45. As a direct and proximate result thereof, ~laintiffhas suffered damages as more specifically set forth above. WHEREFORE, plaintiff prays for judgment against the CIGARETTE DEFENDANTS as hereinafter set forth. SECOND CAUSE OF ACTION - STRICT LIABILITY (CIGARETTE DEFENDANTS) 46. Plaintiff repeats and realleges all foregoing paragraphs as if fully stated herein. 47. The CIGARETTE DEFENDANTS' cigarettes when used as intended and without substantial change from the time of manufacture, were defective for foreseeable users and bystanders for the following reasons: a. the cigarettes when used as intended caused or contributed to the illnesses listed in paragraph 33 above; b. the cigarettes were addictive, habituating, habit-forming, and once used caused physical and psychological dependence; 15
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~. i909,;_2:08PMMonel.s,ulrea t couiNs LtoneL s.wrew s eoLywe .Troawrn r u. .1m YA.CI ~ ia0 fYY~M rWM~F ~T. tw~ Vw~, NN.4 4019, i7a:, as1.6e6e N0. 8004, ,,,P, 15/20 In accordance with thic Court's Order of August 11, 1999,/ the parties in the above- captioned ttlatter submit this loint 3tatus Repott: l. The St.ttu oP this Actioa: a. Plaintiffcommenced this action by filing a Complaint on July 15,1999, in the Diatrict Court Clark County. Nevada. Removing Defendann= timely removed the action to this Cotut on Au6uat 6, 1999. On August 26, 1999, n:rnovitig Defendants timoly filed their joint statement concerning removal in response to this Cotnt's Order of August 11, 1999. b. Defendants DNA Plant Technology, BATUS Holdings, Inc., Lorillard, [nc., British American Tobacco Company Limited, Brown Qs Williamson Tobacco Corporation (individually and as successor by merger to The Ametican Tobacco Company), Liggett & Myers, Inc. and B.A.T Industries p.l.c have not yet been served with a Summons and Complaint. c. No Defendem hass filed an answer to the t:omplalnt. In a stipulation and order entered August 20, 1999, the plaintiff granted all duly served defendants an extension of time to fite their answers or otherwise respond to the Complaint until thirty days from the datte of the Coutt's order grsnting or denying the plaintiPf e anticipated motion to remattd. d. The plaintifCinteted+, but has not yet filed, a motion to remand. There are no other tnatters presently pending which require the attention of the Court. 2. Acqas to be Talcea by Court: None. .WA A copy of whtch Is attaehed as Exhibk A. Defendants, Philip MeRie tnattporueq, 41. Reynolde Tobacco Company, Brown & Wiiliamson Tobacco Corporation (indivtdually and as auaerser by mer4a to The Amertean Tobacco Co y), and Lorillard Tobacco Company joined in the removal of Case No. A40SesS tYom the tiighth Judicial District Court. Clark County, Nevada, to this Court. Defendants Lig{ett & Myeq, Inc.. Lorilfard. Ine., BATUS Holdings Inc., Britieh Amerian Tobacco Company Limiied, and RebN Oil Company Incorporated filed Consents To Removal. Defendante B.A_T Industries p.l.c. and DNA Plant Technology Corporation have not been served and, therefore, did not join or consent to tne removal. .Z. i
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2 3 4 5 cigarettes to warn of the likelihood, probability, and/or foreseeability that the harms listed above would or might occur if the products were used as intended. b. prior to 1969, a duty to foreseeable users to warn that the harms listed above would be more likely experienced if users did not restrict their intake of CIGARETTE DEFENDANTS' cigarettes and/or to provide some guidelines on reasonably safe dosage or amount of consumption, and a duty to warn that use of the cigarettes at an early age was most h fu1; c. prior to 1969, a duty to warn foreseeable users that use of the cigarettes as intended was likely to lead to addiction, habituation and/or dependence; d. Prior to 1969, a duty to warn users that terminarion or limitation of use of cigarettes would be extremely difficult if consumption was initiated, particularly at an early age and that this difficulty would increase as cumulative consumption increased. e. a continuing duty to warn previous cigarette users of developing knowledge demonstrating that previous users are at great risk of harm (as listed above) and should seek medical monitoring; f. a duty to establish a reasonable dose for foreseeable users; g. a duty to design, manufacdue, and sell cigarettes that when used as intended was reasonably safe for foreseeable users; h. a duty to make such feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable risk to users; 16 11 i. a duty to disclose to consumers of cigarettes the results of their own and other scientific research known to them which indicated that use of cigarettes caused 1711 users a great risk of harm (as listed above); 18 j. a duty to warn previous users, users and foreseeable users of cigarettes through 1y non-adverlasmg pr promotional communications of the daneers listed above_ k. a continuing legal duty to refrain from manufacturing, selling, and/or 20 promoting the sale of cigarettes to minors and youths. 21 43. The CIGARETTE DEFENDANTS had a legal duty to refrain from selling, 22 promoting, targeting, and inducing the sale of cigarettes to minors. 23 44. CIGARETTE DEFENDANTS, and each of them, negligently breached one or 24 more of their duties, to members of the general public, including cigarette users such as plaintifl; 25 in one or more of the following ways: 2611 a. prior to 1969 in failin to warn or wam ade tel f tb lik 1ih d ua o e e 27 , q y , o0 probability, or foreseeabi ity that the harms listed above would or might occur if 28 11 12
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personal injury litigation against them, to the point where defendants could and did assert that they never paid a cent to a personal injury claimant on account of smoking. 108. The aforementioned conspiracy by the cigarette defendant conspirators and their co-conspirators resulted in plaintiff being unaware of the extent to which smoking was a hazard to his health, that the nicotine therein would addict him to smoking, or that defendants manipulated nicotine levels and targeted youth so as to hook youth before majority and then assert adult free choice as a defense once so hooked. This conspiracy proximately and legally caused the injuries he has sustained and the damages plaintiff claims herein. As a result, plaintiff has now developed and will die in the future from cancer caused by plaintiff's addiction to smoking. WHOZEFORE plaintiff prays judgment against the CIGARETTE DEFENDANTS and DNA Plant Technology as hereinafter set forth. SIXTH CAUSE OF ACTION - BREACH OF EXPRESS WARRANTY (CIGARETTE DEFENDANTS) 24 25 26 27 28 109. Plaintiff repeats and realleges Paragraphs 1 through 109, inclusive, in their entirety as if fully stated herein. 110. At all times relevant herein, the CIGARETTE DEFENDANTS pursued a more than 40-year campaign of advertising and communications, directed at government and the public, including plaintiff, designed to communicate to the consumer, including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexy, and in all was desirable. Hundreds or even thousands of advertisements and communications were published by the CIGARETTE DEFENDANTS in the various media, so many that it would be neither economically feasible nor practicable for plaintiff to identify each and every one of them 37
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1 2 3 4 not for the promotion of scientific goals, but for purposes of public relations, politics, and positioning for litigation. The T1RC and CTR were used to support an industry strategy of denying or creating doubt that smoking causes disease. When CTR- sponsored research produced results unfavorable to the industry strategy, the results were suppressed. 82. As recounted in recently revealed excerpts, lawyers, rather than scientists or researchers, handled the purported scientific research conducted by or for CIGARETI'E DF.FENDANTS: A. In 1978, Sheldon Sommers, M.D., who was then Chairman of the CTR Scientific Advisory Board, complained to William Gardner, who was then the Scientific Director for CTR, that he [Sommers] was unable to understand the legal counsel he was being given. The clear import of Sommers' letter was that the CTR lawyers were controlling tobacco research by CTR based upon legal considerations. B. In 1970, Helmut wakeham, Head of Research and Development of the Philip Morris Company wrote a memorandum to the president of Philip Monis, Joseph Cullman. In this memorandum, Wakeham discussed the raison d'etre of the counsel for Tobacco Research-U.S.A., Inc, ("CTR"). Wakeham wrote: It has been stated that CTR is a program to find out the 'truth about smoking health.' What is truth is one is false to another. CRT and the industry have publicly and frequently denied what others find as 'truth.' Let's face it. We are interested in %0 evidence which we believe denies the allegations that cigarette °O smoking causes disease. v CN C. A hand-written memorandum dated Apri121, 1978, produced from the \0 CO fles of Defendant Lorillard Tobacco Company ("Lorillard"), complains that: v We have again abdicated the scientific research directional management of the industry to the 'Lawyers' with virtually no involvement of the part of the scientific or business management side of the business. 27
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I (CIGARETTE DEFENDANTS & TOBACCO DEFENDANT 2 54. Plaintiff realleges and incorporates by reference each of the foregoing paragraphs 3 and makes them a part hereof as though fully set forth herein. 4 55. Beginning at an exact time unknown to plaintiff, and continuing even today, the 5 CIGARETTE DEFENDANTS have carried, and continue today to carry out a campaign designed 6 to deceive the public, including plaintiff, the government, and others as to the health hazards of 7 smoking, the addictive nature of smoking, to conceal their knowledge concerning these things, 8 the results of their own research, and to misrepresent their actual role in manipulating the 9 addictive properties of cigarettes via ammonia and other additives and/or via the engineering of 10 higher nicotine tobaccos. 11 56. The CIGARETTE DEFENDANTS made literally hundreds of misrepresentations 12 to plaintiff and others over the course of the last 40 years. Plaintiff is unable to allege in full the 13 thousands of pre-1969 advertisements, and the continuing press releases, "frank Statements," 14 testimony by tobacco manufacturers' officers and employees before Congress and other 15 governmental entities, etc., that defendants and their co-conspirators, the Tobacco Institute and 16 TIRC, have prepared, participated in, given, and released over the last almost 50 years both 17 because they do not have access to this information, and because to allege each and every such 18 misrepresentation, false statement, and concealment of material information here would entail 19 hundreds or even thousands of pages of pleading; indeed, it is the CIGARETTE DEFENDANTS 20 themselves which have this knowledge and information, and are in the best position to know the 21 contents of each and every such misrepresentation, false statement, and concealment of material 22 information. 23 57. The CIGARETTE DEFENDANTS carried out their campaign of fraud, false 24 statements, misrepresentations, and concealment of material information in three ways: First, 25 they agreed falsely to represent to plaintiff and others that questions about smoking and health 26 would be answered by a new, unbiased, and trustworthy source. Second, they misrepresented, 27 28 11 18
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68. Over the next several years Dr. Chaplin continued his efforts to breed a tobacco plant with a higher nicotine level. Daring that time, an employee of a Brown & Williamson- affiliated company asked Dr. Chaplin for some of his seeds. Some of Dr. Chaplin's original plant varieties were used as a basis for Brown & Williamson's work. In the early 1980's, Brown & Williamson grew a number of different plant lines, selecting those that had the best agronomic characteristics. 69. In 1983, CIGARETTE DEFENDANT Brown & Williamson contracted with TOBACCO DEFENDANT DNA plant technology to work on tobacco breeding. Much of the developmental work on "Y-1" took place in the laboratories, greenhouses, and fields owned by DNA plant technology. After he retired from the USDA, in 1986, Brown & Williamson also hired Dr. Chaplin as a consultant to work on "Y-1" and other projects. 70. The high-nicotine tobacco variety "Y-1" was developed by a combination of conventional and advanced genetic breeding techniques. The value of "Y-1" to Brown & Williamson is reflected in the fact that Brown & Williamson had DNA Plant Technology make "Y-1" into a male sterile plant. This procedure ensures that when a plant is grown it will not produce seeds that cann be appropriated by others. 71. Brown & Williamson characterized its achievement in a patent filing as follows: " by the present invention or discovery, applicants have succeeded in developing a tobacco plant that is agronomically and morphologically suitable for commercial tobacco production, i.e. it closely resembles SC 58, and provides a pleasant taste and aroma when included in smoking tobacco products, vet it is nossessed of the N. Rustica hi¢h-nicotine attribute. So far as we know, this has not been accomplished before..." What v as accomplished was the development of a tobacco plant with a high-niootine content -- about 6 percent -- that grew well and could be used commercially. 72. Defendant DNA plant technology and Dr. Chaplin both told the FDA that they saw "Y-1" growing in Rio Grande Du Sul, Brazil in the 1980's. These farms were under contract to Souza Cruz Overseas, a sister company of Brown & Williamson. 23
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0 © Z 583 561 590 LAWOFFiCSOF 414 STEVE= szi so san9ury~ LAS VEGAS, NEVADA 99101 a986Ves 0 Iarillard Tobacco Company 714 Gteen Valley Road Greensboro, NC 27408
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22 23 24 25 26 27 their misrepresentations and concealment to keep secret research and other conduct related to the true health dangers of smoking," sufficient to show that the attorneys were used to perpetuate the fraud. American Tobacco Co. v. State of Florida. 697 So. d. 1249, 1257(Fla. App.1997). 100. Over the next 40 years, the tobacco industry continued this conspiracy to suppress the accumulating scientific and medical evidence of the health hazards of smoking by claiming to "help" science determine the true facts concerning smoking and disease and continuing to manipulate the nicotine level of cigarettes to keep smokers addicted and to lure and hook younger smokers. 101. Building on the efforts they launched in 1954 with the public announcement of TIRC, which became CTR, CIGARETTE DEFEIVDANTS through TIRC and the Tobacco Institute continued to state publicly in 1970 and thereafter, up through testimony to Congress in 1994, that they recognized a special responsibility to the public to help scientists determine the facts about tobacco use and health, and they supported CTR for independent research to that end. 102. In furtherance of the conspiracy to conceal relevant information regarding smoking and health, CIGARETTE DEFENDANTS through CTR, The Tobacco Institute, and otherwise continued to insist throughout the 1970's, 1980's, and 1990's that there still was a question about smoking and health and that cigarette smoking had not been established to cause chronic diseases such as cancer or emphysema and claimed that studies showing smoking causes disease were flawed. 103. The nicotine in cigarettes is addictive, due to the pharmacological effect of nicotine. CIGARETTE DEFENDANTS and co-conspirators have known this since at least the early 1960's. As stated by defendant Philip Morris in a 1969 research report to the Philip Morris board of directors: [... smoking a cigarette for a beginner is a symbolic act... "I am no longer my mother's child, I'm tough, I'm an adventurer, I'm not square... As the force from the psychological symbolisms subsides, the pharmacological effect takes over to sustain the habit..." Nicotine is now recognized as an addictive substance by such major medical organizations as the 28 N 35
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1 2 3 4 5 6 cigarettes to satisfy their nicotine addiction, thus negating, because of the dose dependent nature of the health risk of smoking, any health advantage CIGARETTE DEFENDANTS and co- conspirator wholesale and retail entities touted in low-tar cigarettes, including Marlboro Light 100's. 118. As a proximate cause of the breach of express warranty on the cigarettes, including but not limited to the brands listed above, by co-conspirator wholesale and retail entities and CIGARETTE DEFENDANTS, plaintiff has suffered, and will suffer until he likely dies therefrom, development of terminal, inoperable lung cancer. WHEREFORE, plaintiff prays for all consequential damages from CIGARETTE DEFENDANTS as hereinafter set forth. SEVENTH CAUSE OF ACTION - UNFAIR COMPETITION/UNLAWFUL BUSINESS PRACTICES (CIGARETTE DEFENDANTS & REBEL OIL COMPANY, INCORPORATED) 119. Plaintiff realleges each of the foregoing paragraphs above as if fully set forth herein. 120. Plaintiff at all times relevant herein, is a resident of the State of Nevada and a member of the consuming public at whom CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED, aimed their advertisements and communications. 121. At all times relevant herein, the CIGARETTE DEFENDANTS engaged in an ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully in above, of the true state of the scientific research showing cigarette smoking causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, often youth, smokers to purchase 40
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73. Until December 13, 1991, export of tobacco seeds or live tobacco plants was prohibited under Federal law unless a Tobacco Seed Plant Export Permit (Form TB 3 7) was granted by the United States Department of Agriculture. Such a permit could be granted only after satisfactory proof was offered that the seeds or plants were to be used solely for experimental purposes and then only in amounts of a half a gram or less. 8 9 10 11 74. Brown & Williamson and DNA Plant Technology each informed the FDA that they believed the other may have been responsible for the shipment of "Y-1 " seeds outside the United States. Both companies were asked to furnish copies of any Tobacco Seed Plant Export permits for "Y-1." 75. Subsequently, TOBACCO DEFENDANT DNA Plant Technology falsely and fraudulently informed the FDA that, as far as DNA Plant Technology knew, "Y-1 " was never commercialized. However, the FDA obtained two invoices filed with the U.S. Customs Service in 1992. The invoices were addressed to CIGARETTE DEFENDANT Brown & Williamson Tobacco Corporation, Louisville, Kentucky from Souza Cruz Overseas. They referred to "Your Order Project "Y-1" and revealed that more than one-half a million pounds of Y-1 tobacco were shipped to Brown & Williamson in 1992. Eventually, after discovery of these invoices, Brown & Williamson informed the FDA that, in fact, three and a half to four million pounds of "Y-1" tobacco has been stored in company warehouses in the United States. More significantly, Brown & Williamson revealed that "Y-1 " had, in fact, been commercialized. 76. Brown & Williamson brands of cigarettes, including Viceroy and Raleigh, were manufactured and distributed nationally in 1993 with a tobacco blend that contained approximately 10 percent of this genetically-- bred high- nicotine tobacco called "Y-1." 77. It is uncontroverted that smoking-cause diseases, including lung cancer, are dose dependent, that is, each and every exposure to these carcinogens increases the risk of disease. Thus, each and every cigarette, which contained the ]righ-nicotine tobacco" Y-1," smoked by 24
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5. For plaintiffs costs of suit herein; 6. As to those cigarette defendants named for punitive damages alleged, for exemplary or punitive damages according to proof; and As to cigarette defendants and Rebel Oil Company Incorporated: 7. For redress and restitution for past and continuing acts of unfair competition and illegal conduct; 8. For permanent injunction enj oining the cigarette defendants, and each of them from selling any more cigarettes containing carcinogenic substances or other additives; 9. For a permanent injunction enjoining the cigarette defendants, and each of them from selling any more cigarettes to minors and youths; 10. For disgorgemenTof all profits unjustly gained from the illegal sale of cigarettes to minors; 11. For disgorgement of all profits unjustly gained from the continuing and ongoing sale of cigarettes to those consumers, including plaintiff, whom the defendants addicted to cigarettes as minors, and who, including plaintiff, continued to purchase them because of their addiction; 12. For reimbursement to the State of Nevada and all other public and other entities from which plaintiff received or will receive benefits and services for cigarette-related illnesses and conditions; 13. For reasonable attorney's fees; and. 14. For such other and finther relief as this Court deems just and proper. 49
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"IN 21 22 23 these studies caused what cigarette company officials later called the `Big Scare." 94. In response to Dr. Wynder's definitive study in 1953, the chief executive officer of the leading cigarette manufacturers met and conspired to deal with the "health scare" presented by smoking. Acting in concert at an industry strategy meeting on December 15, 1953, at the Plaza Hotel in New York, the participants, except defendant Liggett, agreed to orchestrate a public relations program to promote cigarettes and protect themselves from the perceived threat posed by these and other expected attacks. Participants agreed to have the public relations firm of Hill Knowlton, which attended the meeting, serve as operating agency for all the companies. 95. Nine days after the December 15, 1953, meeting described above, Hill & Knowlton presented a detailed memorandum to the cigarette manufacturers. The memorandum characterized the grave nature of recent reports on the health effect of cigarette smoking as a serious public relations problem, a situation of extensive delicacy, and recommended that the industry avoid appearing callous to health or to be belittling negative medical research. 96. Five of the six cigarette companies attending the December 15, 1953, meeting agreed to form the Tobacco Tndustry Research Committee ("TIRC^). Defendant Liggett, which initially did not participate in the public relations effort, joined TIRC in 1964, the same year the surgeon General issued his first report on smoking, in which he concluded that cigarette smoking was a cause of lung cancer. TIRC changed its name this same year to the council for Tobacco Research ("CTR"). A second trade group, the Tobacco lnstitute, was formed in 1958 by cigarette manufacturers. The cigarette defendant conspirators and other co-conspirators were members and directors, with the purpose of providing a "voice to speak on behalf of the industry on all matters" and to provide disinformation to media and others on the dangers of cigarette use. 97. CIGARETTE DEFENDANTS and others developed safer cigarettes by determining which parts of cigarette smoke caused disease. They did not market those cigarettes and they did not release the research that led to development of the safer cigarettes, because either move would be an admission that the existing cigarettes were not safe and that a safer 33
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DATED this E-day of Jnly,1999. MAIIdOR & Nevada Bar N6.,6r01318 530 South S' Street Las Vegas, Nevada 89101 (702) 8 -1400 and By. ~ STE .I ,ESQ. Nevada Bar No. 004651 521 South Sixth Street Las Vegas, Nevada 89101 (702) 382-9307 50
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them part hereof as though fully set forth herein. 88. This action arises of an ongoing conspiracy by the CIGAREI"I'E DEFENDANTS herein, and their trade associations, their lawyers, TOBACCO DEFENDANT and persons and/or entities unknown to plaintiff at the present time which together control the cigarette industry for the following purposes: 23 24 25 26 27 28 a. To intentionally suppress and/or conceal knowledge of the extent of the harmful effects of cigarette smoking from the public, the press, the government, including from plaintiff; b. To intentionally frustrate the flow of information from the medical and scientific community to the general public on the health risks and addictive nature of cigarettes; c. To purposefully create an illusion of conducing scientific research on cigarettes so as to mislead the public into believing that cigarettes were safe to smoke, when in reality no such bona fide research was ever conducted; d: To knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national government in order to avoid and/or control regulation of the sale of cigarettes to the consumer, including plaintiff; e. To knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national government in order to "immunize" defendant from claims of false and misleading advertising and promotion; f. To knowingly and intentionally sell cigarettes to minors to ensure a future lucrative market for cigarettes as older smokers died; g. To induce and entice minors to smoke so as to hook another generation of smokers who by the age of majority were addicted or dependent and against whom defendants could now assert "adult free choice" defenses; and h. To purposefully create the illusion that a medical and scientific " controversy" existed as to whether or not cigarettes were harmful to human health when in truth and fact no 30
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®AVE(jY RECYCLEOPTPERMROEFROM1120%POSTCORSLMERCORFENM • ~90 u65_L8b w
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1 cigarettes would have thwarted the conspiracy. Third, defendants used lawyers to misdirect what purported to be objective scientific research to create favorable, and to suppress or destroy unfavorable, findings regarding the health consequences of smoking. To discourage meritorious litigation by plaintiffs injured due to tobacco, they engaged in "scorched earth" litigation tactics in combination with suppressing, destroying and distorting evidence. 91. The conspiracy began at a time unknown to plaintiff, but at or about the time of the first scientific research by the CIGARETTE DEFENDANTS and cigarette manufacturers. Over the years the conspirators, acting in concert, performed numerous overt acts to further the purposes of the conspiracy. Because many of these acts were concealed, plaintiff is not able to state all overt acts, but allege the following representative acts as examples. Beginning as early as 1946, cigarette industry researches reported a link between use of tobacco and cancer development The CIGARETTE DEFENDANTS knew and acknowledged internally these and other health hazards of smoking. Internal industry documents reveal knowledge of carcinogens in tobacco smoke, contribution of smoking to lung cancer, and that the irritation caused by smoking leads to chronic bronchitis and emphysema, among other health hazards caused by smoking. 92. In the ensuing years, CIGARETTE DEFENDANTS knew and acknowledged internally the health hazards of smoking. Internal industry documents reveal knowledge of carcinogens in tobacco smoke, contribution of smoking to lung cancer, and irritation caused by smoking leading to chronic bronchitis and emphysema, among other health hazards presented by smoldng. 93. In 1952, a British researcher, Dr. Richard Doll, published a statistical analysis showing that lung cancer was more common among people who smoked than among non- smokers, and that the risk of lung cancer was directly proportional to the number of cigarettes smoked. In December, 1953, Dr. Frnst L. Wynder of the Sloan-Kettering institute published the results of a study definitively linking cigarette smoking and cancer. The widespread reporting of 2 3 32
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D. A 1976 internal memo by a tobacco scientist at BAT, S.J. Green, also discusses the extent to which "legal considerations" dominated scientific research: The public position of tobacco companies with respect to causal explanations of the association of cigarette smoking and diseases is dominated by legal considerations...by repudiation of a causal role for cigarette smoking in general they [the companies] hope to avoid liability in particular cases. This domination by legal consideration thus leads to the industry into a public rejection in total of any causal relationship between smoldng and disease and puts the industry in a peculiar position with respect to product safety discussions, safety evaluations, collaborative research, etc. E. In November 1979, the corporate counsel for B& W's, Kendrick Wells, wrote a memorandum to Ernest Pepples, B&W's vice president of law. In this memorandum, Wells outlined a plan to wrap scientific information in attorney-client privilege. Mr. Wells' proposal specifically provided that"... In the operational context BAT would send documents without attempting to distinguish which were and which were not litigation documents." 83. When cigarette manufacturers were sued by persons claiming their or their decedents' lung cancer was caused by smoking, to avoid liability CIGARETTE DEFENDANTS denied that cigarettes are addictive and claimed that smoking was a matter of free choice and the claimant (or his or her decedent) could quit smoking if they chose. 84. CIGARETTE DEFENDANTS claimed attorney-client privilege for, and refused to produce, or ordered destroyed, documents which were scientific in nature and specifically related to health issues. 85. CIGARETTE DEFENDANTS, when sued for smoking-related injuries, conducted the litigation in such a way as to cause the maximum expenditure of time and resources by the claimant. G'IGARETTE DEFENDANTS consistently adopted the strategy that 28
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the public conscience and allow present and future smokers to believe that, despite what they may have heard elsewhere, the hazards of cigarette smoking had not been proven. A. In 1962, the Tobacco Institute, Inc., an agent of the CIGARETTE DEFENDANTS, ("Tobacco Institute") issued a press release which stated, in pertinent part: We in the tobacco industry recognize a special responsibility to help science determine the facts and we believe we are fulfilling this responsibility through the Tobacco Industry Research Committee. B. In 1971, the tobacco Institute in a press release stated: Any organization in a position to apply resources in the search for those keys -- and which fails to do so - will continue to be guilty of cruel neglect of those whom it pretends to serve. C. In a 1972 Wall Street Journal article, James Bowling, a Vice President of co- conspirator Philip Morris, Inc., {"PM") was quoted as saying: If our product is harmful... we'll stop making it. We now know enough that we can take anything out of our product, but we don't know what ingredients to take out.. . D. In 1982, the tobacco Institute published a pamphlet in which it wrote: Since the first questions were raised about smoking as a possible health factor, the tobacco industry has believed that the American People deserve objective, scientific answers. The industry has committed itself to this task. E. In 1990, a public relations employee of Defendant R J. Reynolds Tobacco Company ("RJR") wrote a letter to a person by the name of Rock in Minnesota, apparently in response to a letter from Rock. The public relations employee asserted in that letter that ". ..scientists do not know the cause or causes of the chronic diseases reported to be associated with smoking. "The letter went on: Our company intends, therefore, to continue to support [research] in a continuing search for answers. 59. On August 21, 1963, CIGARETTE DEFENDANTS and unnamed co-conspirators met to discuss their defense of the impending cancer litigation they expected in the wake of the Surgeon General's first report linking smoking and lung cancer. The September 3, 1963, minutes 20
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such controversy existed so as to encourage the public to start or to continue smoking cigarettes. These cigarette defendant co-conspirators and others have pursued a conspiracy deceit and mis<epresentaflon designed to amass enormous profits through the continued sales of cigarettes and tobacco products. 89. CIGARETTE DEFENDANTS Liggett Group, Inc., and Philip Morris, Inc., R.J. Reynolds, Brown & Williams, as successor by merger to The American Tobacco Company and its predecessors in interest, Brown & Williamson, and Lorillard have together controlled almost 100% of the cigarette market in the United States. These defendants, their trade associations, their attorneys, and other conspirators agreed and undertook the conspiracy described herein, which existed at all times material to this lawsuit, and continues to exist at the present time. They have agreed to carry out the purposes of the conspiracy, as listed above, and have participated in and cooperated with each other in the conspiracy. Each act of the conspiracy was ratified by the other co-conspirators, who acted as each other's agents. 90. The CIGARETTE DEFENDANTS carried out their conspiracy in three ways: First, they agreed falsely to represent to plaintiff and others that questions about smoking and health would be answered by a new, unbiased, and trustworthy source. Second, they misrepresented, suppressed and confused the facts about the extent of the health dangers of smoking, including addiction and their manipulation of nicotine levels. Concealment of their actual knowledge concerning their own negative health and addiction research results and their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addition to cigarettes were critical to the conspiracy. Defendants claimed, falsely, that there is insufficient "objective" research to determine if cigarette smoking causes disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers, for otherwise the revelation by one company of what it knew about the health consequences of smoking and the addictive nature of the manufacturers' 31
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2 3 4 5 6 7 8 authorized to use, and to continue to use: 1. Beginning in 1952 and contin'~'' for many years up to 1969, defendant Liggett Myers promised in their Chesterfield pre-1969 advertisements and post- 1969 statements: ...[P]roved by over 40 years of continuous use... as entirely safe for use in the mouth - chemically pure, far more costly glycerol and pure sugars which are natural to tobacco - nothing else. [bold emphasis added] A medical specialist is making regular bi-monthly examinations of a group of people from various walks of life. 45 percent of this group have smoked Chesterfield for an average of over ten years. After eight months, the medical specialist reports that he observed no adverse effects On the nose, throat and sinuses of the group from smoking Chesterfield. 2. Beginning in 1951 and continuing for many years up to 1969, defendant RJ. Reynolds advertised, and after 1969 stated, that its camel cigarettes were "tested" by "noted throat specialists." Not one single case of throat irritation due to smoking camels! More doctors smoke Camels than any other cigarette. 3. In 1962, the Tobacco Institute issued a press release promising: We in the tobacco industry recognize a special responsibility to help science determine the facts. 4. In 1972, James Bowling, a Vice President of co-conspirator Philip Morris, Inc., was quoted as saying: If our product is harmfiul... we'll stop making it. We now know enough that we can take anything out of our product, but we don't know what ingredients to take out... 5. In 1978, a Tobacco Institute information pamphlet stated: The flat assertion that smoking causes lung cancer and heart disease and that the case is prove dis not supported by many of the world's leading scientists. 6. In 1983, RJR represented: It has been stated so often that smoking cause cancer, it's no wonder most people believe this is an established fact But, in fact, it is nothing of the kind. The truth is that almost three decades of research have failed to produced scientific proof for this claim ... in our opinion, the issue of smoking and lung cancer is not a closed case. It's an open controversy. k. In furtherance of the conspiracy detailed above and below, the CIGARETTE DEFENDANTS carried out an ongoing campaign of financial and other inducements and rebates offered to, and accepted by, co-conspirator supermarkets, convenience stores, and other point of sale retailers including but not limited to REBEL OIL COMPANY, INCORPORATED, in return for said co-conspirators' 28 11 14
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herein. 111. At all times relevant herein, co-conspirator wholesale and retail entities enabled and encouraged the CIGARETTE DEFENDANTS to pursue a more than 40-year campaign of advertising and communications, directed at government and the public, including plaintiff, designed to communicate to the consumer, including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexy, and in all ways desirable, by allowing prominent placement of the advertisements and communications by CIGARETTE DEFENDANfS in and around its retail facilities where consumers, including plaintifl~ saw, read, and relied on the representations made therein. Hundreds or even thousands of advertisements and communications were published by the CIGARETTE DEFENDANTS in the various media including in and around co-conspirator retail facilities, so many that it would be neither economically feasible nor practicable for plaintiff to identify each and every one of them herein. 112. From the time plaintiff was a minor, he read, heard, and saw the aforementioned advertisements and communications. Beginning at the age of 16 when he purchased for his consumption his first of the hundreds of packages of cigarettes he purchased and smoked, including but not limited to the brands known as MARLBORO, MARLBORO LIGHT, LUCKY STRIKES, CHESTERFIELD, PARLIAMENT, CAMEL -NON FILTERED, VANTAGE, AND WINSTON,, the aforementioned advertisements and communications were the basis of the bargain, and plaintiff relied upon the published advertisements and communications to his detriment. 113. Beginning at a time relevant herein, and continuing up into the present, CIGARET"TE DEFENDANTS, warranted to government and the public, including plaintiff, that they had further "improved" the safety, taste, enjoyment and relaxation consumers, including plaintiff, would derive from smoking low-tar cigarettes, including Marlboro cigarettes by developing Marlboro Light 100's. 38
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they would defend every claim, no matter what the cost, and spare no cost in exhausting their adversaries' resources. As set forth in the published opinion in Haines v. Lig¢ett Group. Inc.. 814 F. Supp. 414(D.N.J. 1993), the attitude of CIGARETTE DEFENDANTS is exemplified by a statement attributed to counsel for RJR in reference to oases filed in Northern Califomia just prior to the 1988 statute, California Code 51714.45: The aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs' lawyers, particularly sole practitioners. To paraphrase General Patton, the way we won these cases was not by spending all of [RJR's] money, but by maldng the other son of a bitch spend all of his. 17 18 86. The aforementioned intentional acts by the CIGARETTE DEFENDANTS and their co-conspirators, as described more fully below, resulted in plaintiff being unaware the extent to which smoking presented a serious hazard to his health, that the nicotine therein would addict him to smoking, or that CIGARETTE DEFENDANTS had manipulated the delivery of nicotine in such a way as to increase the likelihood of addiction of which would cause him to develop, and indeed he has developed, lung cancer, from which he will in all probability die in the near future. Had plaintiff known the true dangers of smoking, the extent of the health risk smoking posed, that he as a minor was being targeted by the CIGARETTE DEFENDANTS to replace older, dying smokers, or the addictive nature of nicotine, or the deliberate manipulation of nicotine levels, he would not have smoked. These actions proximately and legally caused the injuries he has sustained and the damages plaintiff claims herein. %10 VJHEREFORE, plaintiff prays for judgment as hereinafter set for[h O° V w FIFTH CAUSE OF ACTION-CIVII. CONSPIRACY c' c..(CIGARETTE DEFENDANTS & TOBACCO DEFENDANT) ~ 87. Plaintiff incorporates by reference Paragraph 1 through 86 inclusive, and make ~10 29
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®AVERY` (f,/y f+E^YIXEDPAPEHIMDEFqCMM%/V9TOU~ COMEM L986CLL86 N
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1 2 5 3 4 6 8 DISTRICT COURT CLARK COUNTY, NEVADA LIONEL SAWYER _ & COLLINS ATTORNEYB LT LAW lYW BFMR OF AMERICA Py/~(,- 3nD BOU/H FOURT ~~KY"M US VECMB. NEVAoA 89101 1>02, 383-8898 16 15 13 14 27 28 Dennis L. Kennfdy, Esq. Nevada Bar No. 1462 David J. Merrill, Esq. Nevada Bar No. 6060 LIONEL, SAWYER & COLLINS 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, NV 89101 (702) 383-8888 Attorneys for R.J. Reynolds Company and Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company) LLOYD GLASS, Plaintiff, Case No. A405885 Dept. No. IX vs. PHILIP MORRIS INCORPORATED; LIGGETT & MYERS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD, INC., as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION: DNA PLANT TECHNOLOGY CORPORATION; BATUS HOLDINGS, INC.; B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED; and JOHN DOES 1-300. f removal.not Defendants. -I- NOTICE OF FILING NOTICE OF REMOVAL
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Williamson Tobacco corporation. In his letter, Todd observed: The only real difficulties that we encountered arose out of the unavoidable paradox at the center of out operations- namely that, on the one had the manufacturers control TRC's operations and do not accept that smoking has been proved to cause lung cancer while, on the other hand, TRC's research progam is based on the working hypothesis that this had been sufficiently proved for research purposes. In addition, the Council senior scientists accept that causation theory...We have not yet found the best way of handling this paradox. D. In 1979, P N. Lee of BAT expressed his impressions of a 1979 Surgeon General's report dated January 11, 1979. In this memorandum, Lee considered at length the Tobacco Institute publication entitled " The Continuing Controversy," also identified as TA73. Lee characterized that report as "misleading." He wrote that the report did not appear to understand what causation is. Lee wrote: Discussion of the role of other factors can be particularly misleading when no discussion is made of relative magnitudes of effects. For example, heavy smokers are observed to have 20 or more times the 1ung caner rates of non-smokers. Sure, this does not prove smoking causes lung cancer, but what is does mean, and TA 73 never considers this, is that for any other factor to explain this association, It must have at least as strong an association with lung cancer as the observed association for smoking (and be highly correlated with the smoking habit). TA 73 seems ready to accept evidence implicaring faotors other than smoking in the aetiology of smoking associated disease without requiring the same stringent standards of proof that is requires to accept evidence implicating smoking. This is blatantly unscientific. E. In 1984, a paper written by Colin Grieg for BAT describes a cigarette as "...a `drug' administration system for public use..." It further went on to state: 24 25 26 27 28 Within 10 seconds of starting to smoke, nicotine is available in the brain. Before this, impact is available giving an instantaneous catch or hit, signifying to the user that the cigarette is 'active.' Flavor, also, is immediately perceivable to add to the sensation. 81. Joint industry research efforts undertaken by TIRC and CTR were neither disinterested nor obj ective. Industry documents, recently revealed, show that CTR functioned 26
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1 2 3 4 5. In actions removed on the basis of this Court's jurisdiction in which the action in state court was commenced more than one year before the date of removal, the reasons this action should not summarily be remanded to the state court. 6. The name(s) of any defendant(s) known to have been served before you filed the notice of removal who did not formally join in the notice of removal and the reasons they did not. IT IS FURTHER ORDERED that all defendants who joined in the notice of removal may file the statement required by the foregoing jointly. IT IS FURTHER OItDERED that counsel shall have tbirty (30) days within which to file a Joint Status Report which must 1. Set forth the status ofthis action, including a list of any pending motions and/or other matters which require the attention of this Court. 2. Include a statement by counsel of action required to be taken by this Court. 3. Include as attachments copies of any pending motions, responses and replies thereto andlor any other matters requiring the Court's attention not previously attached to the Notice of Removal. wnlOn'J G6I-1 COOOCOC701 2 9, SN11103 1 8 3UAYS 13N011-1oJ d lgdB9: E0 88-ZI-BO
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7 merger to P. LORn=-1.ARi) and/or LORILLARD TOBACCO COMPANY, BROWN & WII,LIAMSON TOBACCO CORPORATION, BATUS HOLDINGS, INC., BATUS, INC., B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICA TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY AND THREE HUNDRED FIRST DOE THROUGH THREE HUNDRED FIFTY-FIRST, INCLUSIVE, and each of them, as described in the preceding paragraphs and causes of action detailed above manufactured, distributed, tested, designed, promoted, marketed, packaged, sold, and/or placed into the stream of commerce in and into the State of Nevada numerous brands of defective, unreasonably dangerous and hazardous cigarettes, or other tobacco products, without informing and/or warning the public, consumers, the government or plaintiff in order to continue to amass millions of dollars in profits from the sale and consumption of these dangerous tobacco products. 147. Further, the CIGARETTE DEFENDANTS manufactured, distributed, tested, designed, marketed, packaged, sold, andJor placed into the stream of commerce in and into the State of Nevada numerous brands of defective, unreasonably dangerous and hazardous cigarettes, or other products, whose nicotine content they had manipulated in order to increase the addictive effect on consumers in order to ensure that the public, consumers, and plaintiff remained addicted to cigarettes and other tobacco products and unable to stop purchasing and using them. Prior to 1969, these same CIGARETTE DEFENDANTS also used aggressive campaigns of advertisements and promotional activities to further ensure that the public, consumers, including plaintiff, would purchase their cigarettes, become addicted, and become unable to stop purchasing and using them. 148. After 1969, these same CIGARETTE DEFENDANTS continued to use aggressive campaigns of public statements and communications, and underwriting of sports and musical events, and giveaways of free coupons redeemable for gifts, to further ensure that the public, consumers, including plaintiff would purchase their cigarettes, become addicted, and become unable to stop purchasing and using them. 28 47 I
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I 11 114. Beginning at a time relevant herein, and continuing up into the present, co- conspirator wholesale and retail entities impliedly warranted to government and the public, including plaintiff, the truth of the aforementioned representations by the CIGARETTE DEFENDANTS that they had further °improved" the safety, taste, enjoyment, and relaxation consumers, including plaintiff would derive from smoking low-tar cigarettes, including Marlboro cigarettes by developing Marlboro Light 100's by allowing the placement of informational communications, etc., in and around its retail facilities, where plaintiff purchased his cigarettes. 115. Plaintiff heard, read, and saw the aforementioned advertisements and communications concerning the "improved" low tar cigarettes, including Marlboro Light 100's cigarettes, which became the basis of the bargain when he purchased for his consumption the first and each consecutive of hundreds of packages of Marlboro Light 100's after careful consideration of the lower risk these co-conspirator wholesale and retail entities and the CIGAREITE DEFENDANTS warranted Marlboro Light 100's and other low-tar cigarettes presented, and in reliance upon the aforementioned advertisements and communications. 116. THE CIGARETTE DEFENDANTS and the co-conspirator wholesale and retail entities at all times pertinent herein failed to disclose to government and the consuming public, including plaintiff, that Marlboro cigarettes were addictive, that CIGARETTE DEFENDANTS knew from their own secret research that they were addictive, and that they knew from their own secret research that the carcinogens contained in them would place plaintiff at increased risk for the diseases and conditions described at paragraphs 32 and 34 above. 117. CIGARETTE DEFENDANTS and co-conspirator wholesale and retail entities at all times pertinent herein failed to disclose to government and the consuming public, including plaintiff, that although the tar and nicotine content were lower in low-tar cigarettes, Marlboro Light 100's, than in the full-tar cigarettes plaintiff previously smoked, the lower nicotine delivery in these cigarettes would cause plaintiff and other cigarette consumers to smoke more such 39
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Office of the U.S. Surgeon General, the World Health Organization, and the American Medical Association. Each of these organizations now acknowledges tobacco use as a form of drug dependence or addiction with severe adverse health consequences. CIGARETTE DEFENDANTS continue to dispute this fact 104. In furtherance of the conspiracy, defendants have controlled, and continue now to control nicotine content of their cigarettes, including by developing high-nicotine tobacco and blending of tobacco, and engineer their cigarettes to control nicotine delivery to the smoker, through adding ammonia, and through the use of reconstituted tobacco.. They then concealed their knowledge of the addictive nature of nicotine and of their manipulation of nicotine levels and delivery. They have denied, and continue to deny publicly that nicotine is addictive, or that they attempt to or do achieve levels of nicotine in their products to create or sustain addiction. 105. Defendants have squelched and kept secret information they had about the hazards of smoking to health, and about the addictive nature of nicotine and their manipulation of nicotine levels and delivery. The March 1997 defection of Liggett from the conspiracy affirms its existence, for the cigarette manufacturers sought to suppress all Liggett documents relating to the conspiracy from the public. 106. In furtherance of the conspiracy, CIGAREI"I'E DEFENDANTS deliberately abused the litigation process, as described more fully in the Eighth Cause of Action above. They conspired to resist all discovery aimed at them, to force litigating plaintiffs to obtain a court hearing, and then demanded confidentiality orders once court rulings were obtained to prevent the rnlings from becoming public knowledge. They have demanded extensive expert and plaintiffs depositions, and have at every juncture tried to force seriously ill plaintiffs to incur massive costs associated with litigation while the co-conspirators pooled the costs of defense. 107. The combination of litigation tactics adopted by defendants and their suppression of the information available to them regarding the health hazards of tobacco, the addictive nature of nicotine, and their manipulation of nicotine levels and delivery, operated to discourage 36
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UNITED STATES DISTRICT COUft C E I V E:1 DISTRICT OF NEVADA W~ F( .'F D L 3 I Lloyd Glass, ) Suc I I 10 os sM '99 a PLAINTIFF, L, • .L:~s .. IT 5 VS. DEPUTr ~V.S-99-949-HDM (R1 H) 6 Philip Morris, Inc., et al., 7 DEFENDANTS. 8 9 10 ORDER COIYCERNING RFMOVAL 11 To all parties removing actions to this Court: 12 You must, no later than fifteen days from the date hereof, file and serve a signed statement 13 under the case and caption that sets forth the following information: 14 1. The date(s) on which you first received a copy of the sumtnons and complaint in the 15 removed action. 16 2. The date(s) on which you were served with a copy of the summons and complaint, 17 if any of those dates are different from the date(s) set forth in item number 1. 18 3. In removals based on diversity jurisdiction. the names of any served defendants who 19 are citizens of Nevada, the citizenship of the other parties and a summary of defendant's 20 evidence of the amount in controversy. 21 a. If your notice of removal was filed more than thirty (30) days after you first received 22 a copy of the summons and complaint, the reason removal has taken place at this time and the 23 date you first received a paper identifying the basis for removal. 24 .. ~ 25 co V 26 crl ~ 27 ... co ~ 28 1 .p <woncerini C4111f11 9 N7AMtlC 1aN011-WO1j IdQy;QO 88-tt-£Q
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PLEASE TAKE NOTICE that on August 6, 1999, Defendants, Philip Morris Incorporated; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company); and Lorillard Tobacco Company filed a Notice of Removal, a copy of which is attached hereto, of the above- entitled action to the United States District Court for the District of Nevada. You are also advised that Defendants, Philip Morris Incorporated; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company); and Lorillard Tobacco Company, on filing such Notice of Removal in the Office of the Clerk of the United States District for the District of Nevada, also filed thereof with the Clerk of the Clark County, Nevada District Court to effect removal pursuant to 28 U.S.C. § 1446(d). DATED this 6' day of August, 1999. LIONEL SAWYER & COLLINS By: ~...'ra~ DENNIS L. KENNEDY, ESQ. DAVID J. MERRILL, ESQ. 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Attorneys for R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company), and, for the purposes of this Notice of Filing Notice of Removal only, the other joining defendants. 28 LIONEL SAWYER & COLLINS ATTORNEYS AT L/~W ITGp91NKGFAMERK:APh6ftE .i00 ROUTM FOURTN ET. LAS VEGAS. NEVAO. 89101 1702. 383-8888 f ¢mnval nut -2
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IT IS FURTHER ORDERED that the removing defendant(s) shall serve a copy of this order on all other parties to the action no later than the time they file and serve a copy of the Statement required by this order. Any party who learns at any time that any of the information provided in the Statement(s) filed pursuant to this order contains information that is not correct shall immediately notify this Court in wTiting. IT 15 SO ORDERED. The date of the Clerk's file stamp shall constitute the date of this order. 13 f= HO b. iv[CKI B N Chief, United States District J PHILIP M. pR0 United States District Judee DAVID w. HAGEv EDWARD C. REED, JR. JOHNNIE B. F2AWL,iNSON L#ted States District Judge 3? 2; 24 25 n- 6 17 Senior. 'nited Sta nite~ StaLes District Judge _ R rl_~c .~- J Qa 0 tted St es District udge 98739866 ceaaracln! q!tti101 7 83AMtlS 13N0I1-WOij weBV:EO 86-dl-BO
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II. NOTICE OF REMOVAL IS TIMELY 5. On July 15, 1998, plaintiff Lloyd Glass filed this lawsuit. Pursuant to 28 U.S.C. § 1446(a), a complete copy of the state court file, including the Complaint and process, is attached here to as Exhibit I. 6. As of the date of filing this Notice of Removal, some but not all of the defendants have been served with process. All defendants hereby reserve any and all rights to assert the insufficiency of process and/or insufficiency of service of process as defenses to plaintiff's complaint. No defendant was served with, or otherwise received notice of the Complaint in the state court action earlier than July 19, 1999. 7. This Notice of Removal is timely filed under 28 U.S.C. § 1446(b), which provides that a notice of removal shall be filed within thirty (30) days after receipt by a defendant, by service or otherwise, of the initial pleading. 8. No further proceedings have been had in the District Court, Clark County, Nevada, as of the date of filing this removal. III. DIVERSITY JURISDICTION EXISTS 9. This is a civil action over which this Court has original jurisdiction pursuant to 28 U.S.C. § 1332. This action may be removed pursuant to 28 U.S.C. § 1441, because the amount in controversy exceeds $75,000, exclusive of interest and costs, the suit involves a controversy between citizens of different states, and none of the properly joined defendants is a citizen of Nevada. 28 l1ONEL SAWYER & COLLINS ATTORNEYS AT lAW ,JMYARR OP MIERIG PL~~~ 300 SOUTH FOUR 1~~~~T LAS VEGA6. N[VAOA 9s~o1 17021 383-8888 A. The Amount in Controversy Requirement is Satisfied 10. Plaintiff is seeking compensation for "permanent injuries to his person, body and health," which allegedly were incurred as a result of defendants' conduct. Complaint 127. Plaintiff s Complaint requests an extensive array of damages: (1) general damages for lung cancer -5- not 98739$75
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1-1. 1 CERTIFICATE OF MAILING 2 I hereby certify that on the ~day of August, 1999, I caused to be deposited a true 3 and correct copy ofthe above and foregoing NOTICE OF REMO VAL in the United States Mails, 4 postage prepaid at Las Vegas Nevada addressed to the following at their last known address: 5 , , 6 B W. Randall Mainor, Esq. Mainor & Harris 530 South Sixth Street Las Vegas, Nevada 89101 Attorneys for Plaintiff Steven J. Karen, Esq. 521 South Sixth Street Las Vegas, Nevada 89101 Attorneys for Plaintiff 9 Gary Long, Esq. Steve Morris, Esq. 10 John K. Sherk, III, Esq. Shook Hardy & Bacon P. L.L Schreck Morris 1200 Bank of America Plaza 11 , , . One Kansas City Place 300 South Fourth Street 12 Kansas City, Missouri 64105 Attorneys for Philip Morris Incorporated and Las Vegas, Nevada 89101 Attorneys for Philip Morris Incorporated 13 Lorillard, Inc. 14 John K. Gallagher, Esq. Guild Russell Gallagher & Fuller Ltd. H. Joseph Escher, III Howard Rice Nemerovski Canady Falk & 15 , 100 West Liberty Street, #800 Rabkin 16 Reno, Nevada 89501 Attorneys for Liggett & Myers, Inc. Three Embarcadero Center Seventh Floor 17 San Francisco, CA 941114065 Attorneys for R.J. Reynolds Tobacco Co. 18 Bruce Wold, Esq. Phillip W. Bartlett Esq. 19 Sedgwick Detert Moran & Arnold , Burton Bartlett & Glogovac 20 One Embarcadero Center 16' Floor 50 West Liberty Street, Suite 650 Reno, Nevada 89501 \D 21 San Francisco, CA 94111-3628 Attorneys for Brown & Williamson Tobacco Attorneys for Lorillard, Inc. co v 22 Corporation (individually and as successor by W ~ 23 merger to The American Tobacco Company) and BATUS Holdings, Inc. CIO V 24 Mark A. Hutchison, Esq. O James Silvestri, Esq. 25 Hutchison & Steffen 8831 West Sahara Avenue Pyatt & Silvestri, Chtd. 201 Las Vegas Boulevard South #300 26 Las Vegas, Nevada 89117 , Las Vegas, Nevada 89101 27 Attorneys for British American Tobacco Attorneys for Rebel Oil Company, Ltd. ~ 28 ~. LIONEL SAWYER & COLLINS ATTORNEYS AT LAW IT009ANK OF AMERICA IiA]A An Employee of Lionel Sawyer & Collins 3C0 SOUTN FOURTN ST. LAS VEGAS. NEVADA 89101 (702) 383-9888
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I 136. Beginning at a time unknown exactly to plaintiff, but prior to his first cigarette at the age of 16 in or about 1967 and continuing thereafter due to his addiction, plaintiff saw, believed, and relied on the CIGARETTE DEFENDANTS' representations, including those placed in and around the retail facilities of co-conspirator retail entities. In reliance on them, he purahased various cigarettes including, but not limited to the brands listed herein, MARLBORO, MARLBORO LIGHT, LUCKY STRIKES, CHESTERFIELD, PARLIAMENT, CAMEL -NON FILTERED, VANTAGE, AND WINSTON cigarettes. 137. At the time the CIGARETTE DEFENDANTS negligently made these misrepresentations as herein alleged and co-conspirator retail entities assisted, aided in, and enabled these representations and sold plaintiff cigarettes, the defendants and each of them had no reasonable grounds for believing the representations to be true. 138. As a proximate result of the CIGARETTE DEFENDANTS' and co-conspirator retail entities' negligent misrepresentations, plaintiff continued to smoke despite numerous attempts to quit and thereby developed terminal, inoperable lung cancer from which he will likely die in the near future. R'HEBEFORE, plaintiff prays for relief as hereinafter set forth. NINTH CAUSE OF ACTION - INTENTIONAL FALSE AND MISLEADING ADVERTISING (CIGARETTE DEFENDANTS) 139. Plaintiff realleges each of the foregoing paragraphs as if fully stated herein. 140. At the time of the CIGARETTE DEFENDANTS made point of sale targeting using the representations herein alleged, they knew the representations were false. 141. Beginning at some t.ime unknown to plaintiff, co-conspirator retail entities lmew the representations herein alleged were false. 45 U
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1 2 142. The CIGAREITE DEFENDANTS herein, and each of them, made the representations herein with the intention of depriving the public who smoked, including plaintiff, of their health in order to maintain and/or increase their profits and induce new, often youth smokers, to buy their cigarettes. 143. As a proximate result of CIGARETTE DEFENDANTS' intentional misrepresentations as heretofore described, plaintiff was initially induced, and then forced by his ongoing addiction to spend total sum cirrently unknown to him on cigarettes manufaetured by the CIGARETTE DEFENDANTS and sold by, among others, co-conspirator retail entities. Plaintiff requests leave to amend this Complaint at trial when the exact amount becomes known. 144. As a further proxirnate result of CIGAREITE DEFENDANTS' intentional misrepresentations, plaintiff developed terminal, inoperable lung cancer from which he will likely die in the near futnre. Plaintiff availed, and continues to avail, bimself of public benefits and services valued in an amount at present unknown to him. Plaintiff seeks leave to amend this Complaint to conform to proof at trial. .o WHEP.EFORE, plaintiff prays for relief as hereinafter set forth. a' v ~ TENTH CAUSE OF ACTION - PUNITIVE DAMAGES c` crI (CIGARETTE DEFENDANTS) ~ 145. Plaintiff repeats and realleges each and every of the foregoing paragraphs in this Complaint as if folly stated herein. 146. The CIGARETTE DEFENDANTS, PHIIdP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORTi.T.ARII, INC., as successor by 46
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25 26 27 28 use for which they were intended. 126. Although the content of the statements and communications changed regularly, they retained these consistent themes and misrepresentations, concealment, and distortions. Due to the sheer number and volume of the thousands of such advertisements and communications through the years, plaintiff is unable to recount specifically herein each and every one. Indeed, it is the defendants herein which have superior knowledge concerning the thousands of advertisements and communications. The statements and communications were misleading and deceptive, and induced the consuming smokers, including plaintiff, to rely to their detriment upon them. As a proximate cause of such misleading and deceptive statements and communications, plaintiff has developed, and will likely die therefrom, inoperable, terminal lung caacer. 127. As a result of the point of sale targeting of youth and minor smokers, at least 90% of adult smokers began purchasing the cigarettes to which they became addicted while under the age of 18. ln reliance upon the representations and inducements of the point of sale targeting of minor smokers by the CIGAR.ETTE DEFENDANTS, as described above, plaintiff; and countless other smokers like him, purchased cigarettes at retail facilities and became addicted to cigarettes, which he continued to smoke until developing lung cancer from which he now suffers and from which he in all likelihood will die from in the near future. 128. The purchase by minors throughout the years relevant herein, including plaintiff, of cigarettes sold by the CIGARETTE DEFENDANTS, and each of them, and the development of the addiction of these smokers, including plaintiff, resulted in the defendants', and each of them , profiteering unjustly and unfairly from the illegal sale of cigarettes to the minors, including plaintiff in an amount presently unknown to plainti$ who requests leave to amend this Complaint to conform to proof at trial when the true amount of illegal profit made by these sales of cigarette to minors becomes known. 129. As a proximate cause of plaintff s addiction to cigarettes and injuries therefrom, 42
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1 2 3 4 149. The CIGARETTE DEFENDANTS did and continue to conspire with one another and with other, known and unknown conspirators in order to continue to control the market for cigarattes and tobacco products, mislead and deceive the public and the government as to the health hazards of smoking and the addictive nature of tobacco products, and prevent injured persons and governments form making claims or litigating against them. 150. The acts and conduct of the CIGARETTE DEFENDANTS, as summarized above and described in detail in the foregoing paragraphs inclusive, were motivated by the financial interests of the CIGARETTE DEFENDANTS in the continuing uninternrpted distribution and marketing of cigarettes and tobacco products and the acquisition of new, youhful consumers. In pursuance of said financial motivation, the CIGARETTE DEFENDANTS consciously disregarded the safety of the users of and persons exposed to the smoke of, cigarettes and other tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiff. 151. The conduct of the CIGARETTE DEFENDANTS as described herein was and is willfal, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiff. For the sake of example, and by way of pnni ching the CIGARETTE DEFENDANTS, plaintiff seeks punitive damage according to proof. PRAYER WHEREFORE, Plaintiff Lloyd Glass prays judgement against cigarette defendants, and DNA Plant Technology Corporation and each of them, as follows: 1. For plaintiff's general damages according to proof; 2. For plaintiff Lloyd Glass' loss of income, wages and earning potential according to proof; 3. For plaintiff Lloyd Glass' medical and related expenses according to prooF 4. For plainti~ s prejudgment interest according to proof 2811 48
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4 132. CIGARETTE DEFENDANTS breached their duties of care as heretofore set out above by their ongoing campaign and conspiracy to deceive and mislead government and the public, including plaintiff, and to conceal and/or distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine, and the CIGARETTE DEFENDANTS' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and communications directed at the consuming public in the State of Nevada, including plaintiff. 133. Co-conspirator retail entities, at times material had the following legal duties: a_ a legal duty to refrain from selling cigarettes to minors; b. a duty to warn previous users, users, and foreseeable users of the cigarettes it sold of the dangers listed above; c. a duty to disclose to consumers of cigarettes the results of their own, if any, and other scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above). 134. These co-conspirator retail entities breached their duties of care above by its years-long course of conduct aiding, assisting, and enabling the CIGARETTE DEFENDANTS' ongoing campaign and conspiracy to deceive and mislead government and the public, including plaintiff, and to conceal and/or distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine, and the CIGARETTE DEFENDANTS' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and communications directed at the consuming public in the State of Nevada, including plaintiff, in that said defendants sold cigarettes to minors, including plaintiff and allowed minors easy access to cigarettes. 135. The statements and communications the CIGARETTE DEFENDANTS presented to the public, including plaintiff, and which the co-conspirator retail entities placed and allowed to be placed in and amund their various retail facilities, were made with the intention of inducing the public, with youths and minors as the particular targets, to purchase the cigarettes, including but not limited to the brands listed herein. 281 44
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Dennis L. Kennedy. Esq. David J. Merrill, Esq. LIONEL, SAWYER & COLLINS 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, NV 89101 (702) 383-8888 Attorneys for R.J. Reynolds Tobacco Company and Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company) UNITED STATES DISTRICT COURT DISTRICT OF xF.VADA I CV-S-99-0999-HDM-RLH LLOYD GLASS, Plaintiff, vs. PHILIP MORRIS INCORPORATED; LIGGETT & MYERS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD. INC.. as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO NOTICE OF REMOVAL w co V r,~ ~10 00 V ~ CORPORATION; DNA PLANT TECHNOLOGY CORPORATION; BATUS 0 ~ ~ HOLDINGS, INC.; B.A.T. INDUSTRIES, ~ P.L.C.; BRITISH AMERICAN TOBACCO ~ D ~p COMPANY, L.T.D.; THE AMERICAN z o-, ~. x rn m ;7~ c> TOBACCO COMPANY: REBEL OIL ~ rC w T/ M COMPANY, INCORPORATED: and JOHN r= ~ ~- -~ DOES 1-300. .~ m 3 Defendants. 27 28 LIONEL SAWYER 8 COLLINS ATTORNEYS AT LAW t]00 iANK OF AMERICA~~ ]00 90UTM FOURTHS'T.~~ LAR VEGAS. N[VI1GA 88101 1702 i 383-8888 -I-
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6 12 13 14 15 16 17 28 and future physical, mental and emotional distress; (2) loss of income and diminished earning potential; (3) reimbursement for all medical expenses; (4) prejudgment interest; (5) plaintiff's costs; and (6) punitive damages. Complaint, ¶ 27-29, Prayer ¶ 1-6. 11. In addition, plaintiff requests numerous forms of equitable and injunctive relief: (1) redress and restitution; (2) a permanent injunction enjoining defendants from selling cigarettes containing "carcinogenic substances"; (3) a permanent injunction enjoining defendants from selling cigarettes to minors; (4) disgorgement of profits from the sale of cigarettes to minors; (5) disgorgement of profits from the sale of cigarettes to "addicted" consumers; (6) reimbursement to the State of Nevada and other entities for benefits and services plaintiff has or will receive in treating his cigarette-related illness; and (7) attorney's fees, Complaint, Prayer ¶¶ 7-12. 12. There is no doubt that on the face of his complaint plaintiff seeks damages from this lawsuit well over the $75,000 jurisdictional requirement. Indeed, recent experience in the United States District Court for the District of Nevada confirms that plaintiff's claims exceed the jurisdictional amount. In a case filed and currently pending in the United States District Court for the District of Nevada, plaintiff seeks damages in excess of $75,000 for his throat and lung cancer which allegedly was caused by smoking, smokeless tobacco and exposure to second-hand smoke. See Murohv v. The American Tobacco Companv. Inc., Case No. CV-S-98-00021-PMP (RJJ) (D. Nev. filed Jan. 6, 1998). In addition, four smoking and health class actions are now pending in the United States District Court for the District of Nevada, one of which was originally filed in federal court. See Badillo, et al. v. The American Tobacco Comnanv Inc et al, Case No. CV-S-98-1764- PMP (RLH) (Base File) (D. Nev. filed Oct. 8, 1997). The other three putative class actions were originally filed in state court, were removed to federal court and remain in federal court either because the court found that the amount in controversy was satisfied or because plaintiffs conceded that the amount in controversy was satisfied. See Christensen, et al. v. Philin Morris Companies LIONEL SAWYER " & COLUNS 98739876 RTTOHNEYS AT LAW I'ttpMMNOiAMERKTAIpA~ [ - 6 - 9C0 8011TN FOURTM ST. us vscns. NEVwow 88101 (J021 3B3-BBSH
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B. The Parties Who Are Not Fraudulently Joined Are Diverse 14. The diversity ofcitizenship requirement is satisfied. Defendants are informed and believe that plaintiff Lloyd Glass was at the time of his Complaint and is now a citizen and resident of the State of Nevada. Complaint ¶ 12. 15. Defendant Philip Morris Incorporated was at the time of the filing of plaintiff s Complaint and is now a Virginia corporation with its principal place of business in New York. 16. Defendant Liggett & Myers, Inc. was at the time of the filing of plaintiff's Complaint and is now a Delaware corporation with its principal place of business in North Carolina. 17. Defendant R.J. Reynolds Tobacco Company was at the time of the filing of plaintiffs Complaint and is now a New Jersey corporation with its principal place of business in North Carolina. 18. Defendant Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company)5 was at the time of the filing of plaintiff s Complaint and is now a Delaware corporation with its principal place of business in Kentucky. 19. Defendant Lorillard, Inc. wasat the time ofthe filing ofplaintiff s Complaint and is now a Delaware corporation with its principal place of business in New York. 20. Defendant Lorillard Tobacco Company was at the time of the filing of plaintiff s Complaint and is now a Delaware corporation with its principal place of business in North Carolina. 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW I]M EINR OF /.MERIC~ 300 SOUTM FOURT . LAS VEGAS. NEVew 89101 (702 1 383-8888 4. (...continued) damages, and $79.5 million in punitive damages which were subsequently reduced to $32.5 million). 5. The American Tobacco Company, before it merged with Brown & Williamson Tobacco Corporation, was never a Nevada corporation and never had its principal place of business in Nevada. -8 not 98739878
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98739885
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6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW IYC4 BAMK OF AMERICA P,Y ,lW SOUTH FOURT ~SY~X Defendants, Philip Motris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company), and Lorillard Tobacco Company (collectively, "defendants"), hereby give notice of their removal of Case No. A405885 from the Eighth Judicial District Court, Clark County, Nevada, to this Court.' This Notice of Removal is filed pursuant to 28 U.S.C. §§ 1441(a) and 1446. As grounds for removal, defendants state as follows: I. INTRODUCTION 1. The parties in this case are diverse. However, in an obvious attempt to defeat this Court's jurisdiction, plaintiff has fraudulently joined Rebel Oil Company Incorporated ("Rebel Oil"), a Nevada corporation. Plaintiffs have failed to state any valid cause of action against Rebel Oil. The Ninth Circuit has recognized that "[i]f the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, joinder of the resident defendant is fraudulent." McCabe v. General Foods Coro., 811 F.2d 1336, 1339 (9th Cir. 1987).2 2. Plaintiff also has joined DNA Plant Technology Corporation ("DNA"), and alleges that DNA is a Nevada corporation. Complaint, ¶ 20. This allegation is incorrect - DNA is Defendants Liggett & Myers, Inc., Lorillard, Inc., BATUS Holdings Inc., British American Tobacco Company Limited, and Rebel Oil Company Incorporated, are filing Consents To Removal, which are attached herewith as Exhibit A. Defendants B.A.T. Industries pJ.c and DNA Plant Technology Corporation have not been served and, therefore, are not joining or consenting to this removal. In orderto avoid a multiplicity ofremoval notices, each of the remaining Defendants has either executed this Notice of Removal or filed herewith its Consent to Removal. Defendants are represented by separate counsel and each reserves its right to assert independent interests as to any issue or matter, including any issues and matters related to the above-captioned action. ByjoininginthissingleNoticeofRemoval,nodefendantauthorizesanyotherpartytoactonitsbehalf as to any matter or issue relating to the above-captioned action. Each of the defendants reserves all rights, including but not limited to, defenses and objections as to venue, personal and/or subject matterjurisdiction, and service of process, and the filing of this Notice of Removal is subject to and without waiver of, any defenses and objections. 2. The Tenth Circuit has similarly recognized that "[t]he joinder of a resident defendant against whom no cause of action is stated is patent sham, and though a cause of action be stated, the joinder is similarly fraudulent if in fact no cause of action exists." Smoot v. Chicaeo, R.I. & Pac. R.R., 378 F.2d 879, 882 (10th Cir. 1967). -2 RIR 98739872 us vECS. NEVAM A9101 17021 383-8986
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Inc.. et al., Case No. CV-S-98-1764-PMP (RLH) (Base File) (D. Nev. filed Apr. 3, 1998) (denying plaintiffs' motion to remand because "some class members claims exceeded $75,000"); Di nno et al. v. Liavett Grou~. Inc., Case No. CV-S-98-1764-PMP (RLH) (Base File) (D. Nev, filed Dec. 22, 1997) (plaintiffs conceded that a majority of the class members' claims exceeded $75,000); elcer, et al. v. R.J. Reynolds Tobacco Company, et al., Case No. CV-S-97-00334-PMP (RLH) (D. Nev. filed Mar. 7, 1997) (after briefing on the removal issue was completed, plaintiffs filed an amended complaint in federal court which in effect conceded that the amount in controversy was met). 13. The history of tobacco litigation in recent years further confirms that the amount in controversy exceeds $75,000. Plaintiff s counsel in smoking and health cases have filed their cases in federal court, and specifically alleged that the jurisdictional amount was met. See. e.e., Emiq. et al. v. The American Tobacco Co.. et al., Civ. Action No. 97-1121-MB (D. Kan. filed Apr. 11, 1998) ("addiction" and personal injury); Walls, et al. v. The American Tobacco Co.. et al.. Civil Case No. 97-CV318-H (N.D. Okla. filed June 20,1997) ("addiction" and personal injury); McGin et al. v. The American Tobacco Co.. et al., Civ. A. No. LR-C-96-881 (E.D. Ark. filed Nov. 4,1996) ("addiction"); Ruiz, et al. v. The American Tobacco Co.. et al., Civ. A. No. 96-2300 (D.P.R. filed Oct. 23, 1996) ("addiction" and personal injury). Indeed, a consortium of plaintiffs' attorneys also filed the Castano case in federal court on behalf of a proposed nationwide class of addicted smokers, alleging that the minimum amount in controversy was satisfied. See Castano v. The American Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996) (noting that the plaintiffs asserted damage claims that "are high," and that "[ijn such a case as this one, each plaintiff may receive a large award").° 26 27 28 LIONEL SAWYER & COLLINS ATTORNEY6 AT LAW 1)UO9INKOFAMEFOVFRK:~ 3oU SOUTN T LAs VEGn9. NEVnw 89101 1]021 383-8888 4. Plaintiffs in individual smoking and health cases who also suffered from lung cancer and brought similar, if not identical, claims have received extremely large verdict awards wel I in excess of $75,000. See. e.E., Henlev v. Philip Morris Incornorated, Case No. 995172 (Sup. Ct. of Cal., San Francisco County Feb. 9 and 10, 1999) (awarding $1.5 million in actual damages and $50 million in punitive damages, which were subsequently reduced to $25 million); Williams v. Philip Morris Incomorated, Case No. 9705-03957 (Cir. Ct. of Or., Mu ltnomah County Mar. 30,1999) (awarding $21,485.80 in economic damages, $1.6 mil lion in non-economic (continued...) not -7 9s739877
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v. General Foods Coro., 811 F.2d 1336, 1339 (9th Cir. 1987); Stephans v. State ofNevada, 685 F. Supp. 217, 220 (D. Nev. 1988). 27. Only one of plaintiffs ten causes of action is directed toward Rebel Oil. The other nine causes of action are directed solely toward the tobacco manufacturers, their parent or related companies and/or defendant DNA. Plaintiff alleges in his seventh cause of action that Rebel Oil should be held responsible for its alleged "Unfair Competition/Unlawful Business Practices." Complaint, ¶¶ 119-30. Plaintiff, however, alleges no facts -- and cannot allege any facts - to establish: that Rebel Oil is anything other than a good faith retailer of cigarettes, which were acquired and sold in sealed containers; that Rebel Oil competed "unfairly" with plaintiff so as to cause him damage; that Rebel Oil engaged in any business practices that could be considered "unlawful"; or that Rebel Oil made any specific representations concerning cigarettes. As such, plaintiff has no possibility of recovery against Rebel Oil on his Unfair Competition/Unlawful Business Practices claim. 28. Plaintiff s Complaint completely fails to describe how Rebel Oil competed "unfairly" with the plaintiff so as to cause him damage. Indeed, plaintiffs legal theory appears misplaced. Nevada courts consider trademark infringement and other similar claims to be the types of claims that may be brought for unfair competition. See. A.L.M.N.. Inc. v. Rosoff, 757 P.2d 1319, 1321 (Nev. 1988) ("Common law tradename infringement falls within a broader category of prohibited unfair competition."); Hutchinson v. KFC Corn., 809 F. Supp. 68, 71 (D. Nev. 1992) (plaintiff s unfair competition for misappropriation ofa trade secret was displaced by Uniform Trade Secrets Act). Plaintiff clearly has no claim against Rebel Oil for trademark infringement or any claim of that nature and has alleged no facts to support such a claim. Plaintiff, therefore, cannot recover against Rebel Oil for "Unfair Competition." 98739880 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW qW SANK OF AMERICAA4ASE 300 SOUTH FOURT ~~~Y ~N LAS VEGAS. NEVAOA 89101 /9021 383-8888
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1 2 3 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1lDJS/.NKOFM1MERICR/p-pjAY 300 SOUTH FOURT M LAS VEGAS. NEVADA 89101 (7021 383-8886 after briefing on the removal issue was completed, a status conference was held to discuss all outstanding issues, including removal. Without issuing a formal order, Judge Ezra stated, "I'm inclined to deny [plaintiffs' motion to remand] because I think there was a fraudulent joinder." See Transcript of Proceedings Before the Honorable David A. Ezra, Status Conference, DiEttno, Case No. CV-S-98-1764-PMP (RLH) (Base File) (D. Nev. Dec. 10, 1998) (attached hereto as Exhibit D). Plaintiffs subsequently withdrew their motion to remand. See also Badillo. et al. v. The American Tobacco Companv. Inc.. et al., Case No. CV-S-98-1764-PMP (RLH) (Base File) (D. Nev. filed Oct. 8, 1997) (second hand smoke class action filed in federal court; a local defendant was not joined); Murphv v. The American Tobacco Companv. Inc. et al., Case No. CV-S-98-00021-PMP (RJJ) (D. Nev. filed Jan. 6, 1998) (individual smoking and health case filed in federal court; a local defendant was not joined). Clearly, plaintiff in this case also has no real interest in suing Rebel Oil and has fraudulently joined it as a defendant solely to defeat this Court's diversity jurisdiction.3 3. Numerous federal courts around the country in tobacco-related actions have rejected plaintiffs' attempts to fraudulently join non-diverse defendants solely for the purpose of defeating diversity jurisdiction. See. e.g., Anderson v. American Tobacco Co., Case No. 3:97-CV-044I (E.D. Tenn. Oct. 31, 1997) (denying motion to remand because plaintiffs' allegations were "obviously made against the manufacturers and not the wholesalers or retailers who received the products and sold them in sealed containers") (attached hereto as Exhibit E); Chamberlain v. The American Tobacco Co., Case No. 1:96CV2005 (N.D. Ohio Nov. 3, 1997) (denying plaintiffs' motion to remand because there was no "reasonable basis for predicting" that the local defendants may be liable to plaintiffs under theories of strict liability and negligence) (attached hereto as Exhibit F); Chester Lyons v. Brown & Williamson Tobacco Coro., Case No. 1:97-CV-1850-CC (N.D. Ga. Mar. 23, 1998) (denying motion to remand because plaintiff had fraudulently joined the local distributor defendants fmding, "they do nothing more than buy the cigarettes from the manufacturers and then sell the cigarettes in sealed containers to retailers") (attached hereto as Exhibit G); Coyne v. American Tobacco Co., 1999 WL 477012 at' 3 (6th Cir. July 12, 1999) (affirming district court's decision to deny plaintiffs' motion to remand on the basis of fraudulent joinder); Gloria Lyons v. American Tobacco Co.. Inc., 1997 U.S. Dist. LEXIS 18365 at •15-16 (S.D. Ala. Sept. 30, 1997) (denying motion to remand because "there exists no specific factual al legations in the Complaint to support [plaintiff s fraud and breach of waranty claims] against the distributors"); Jackson v. Philip Morris Inc., Case No. 2:98CV00178B (D. Utah June 17, 1998) (denying plaintiffs' motion to remand because the local distributors were fraudulently joined) (attached hereto as Exhibit H); Masepohl v. American Tobacco Co., 1997 WL 456585 (D. Minn. Aug. 8, 1997) (denying plaintiff's motion to remand because the plaintiff could not recover from the local defendant and, thus, the local defendant was fraudulently joined); Wakeland v. Brown & Williamson Tobacco Coro., 996 F. Supp. 1213 (S.D. Ala. 1998) (denying plaintiffs' motion to remand because the distributor defendants were fraudulently joined); Walls, et al. v. American Tobacco Co.. No. 97-CV-0218-H, 1997 U.S. Dist. LEXIS 11214, at'5-6 (N.D. Okla. July 10, 1997) (denying plaintiffs' motion to remand because "[n]one of these allegations -- marketing claims, claims of manipulation of content -- remotely pertain to the in-state defendants in this case"). IMI -4- 98739874
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1 2 3 35. Pursuant to 28 U.S.C. § 1441(a), removal is made to this Court as the district and division embracing the place where the state action is pending. 28 U.S.C. § 108. 36. Defendants reserve the right to amend or supplement this Notice of Removal. 37. Defendants reserve all defenses, including, without limitation, the defense of lack of personal jurisdiction. 38. Defendants request trial by jury of all issues. 39. Defendants are providing plaintiff, by and through his counsel, written notice of the filing of this Notice of Removal as required by 28 U.S.C. § 1446(d). Further, Defendants are filing a copy of this Notice of Removal with the Clerk of the District Court, Clark County, Nevada, where the action is currently pending. DATED this 6' day of August, 1999. LIONEL SAWYER & COLLINS By: ~. ~'.' DENNIS L ~KENNEDY, ESQ. DAVID J. MERRILL, ESQ. 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Attorneys for R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company), and, for the purposes of this Notice of Removal only, the other joining defendants. 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW I]W SANH Or AMER"19116% ]CO SO VTN FOURTH ST. LAS VECwS. 14EYAOA 89101 1702 1 383-8888 t -13-
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21. Upon information and belief, Defendant DNA Plant Technology Corporation was at the time of the filing of plaintiff's Complaint and is now a California corporation with its principal place of business in California. DNA is not presently, nor has it ever been, incorporated in the State of Nevada. See Certificate of Non-Existence. 22. Defendant BATUS Holdings Inc. was at the time of the filing of plaintiffs Complaint and is now a Delaware and United Kingdom corporation with its principal places of business in Kentucky and the United Kingdom. 23. Defendant B.A.T Industries p.l.c. was at the time of the filing of plaintiff's Complaint and is now a public limited company incorporated under the laws of England and Wales 27 28 LIONEL SAWYER & COLLIN9 A~ORNEYS AT LAW 1]OO RANK Of AMERICAr@,WE 3O06OVTN FOURTH ST LAS VEGAS. NEYAGP 89101 ,902/ 383-8888 with its registered office at Globe House, 4 Temple Place, London WC2R 2PG England. 24. Defendant British-American Tobacco Company Limited was at the time of the filing ofplaintiff's Complaint and is now a company incorporated under the laws of England and Wales with its registered office at Millbank, Knowle Green Staines, Middlesex, England. C. The Sole Nevada Defendant. Rebel Oil Company Incorporated. Has Been Fraudulently Joined 25. Plaintiff also names Rebel Oil as a defendant. Defendants are informed and believe that Rebel Oil is a Nevada corporation organized and existing under and by virtue of the laws of the State of Nevada. 26. The citizenship of Rebel Oil, however, must be disregarded for purposes of determining jurisdiction under 28 U.S.C. § 1441 because plaintiff has failed to state a claim against Rebel Oil, has no possibility of recovery against Rebel Oil, and has named Rebel Oil solely for the improper purpose of attempting to defeat this Court's diversity jurisdiction. Because Rebel Oil has been fraudulently joined solely for the purpose of attempting to defeat diversity jurisdiction, removal jurisdiction is proper. See. Illinois Cent. R.R. co. v. Sheegoe, 215 U.S. 308 (1909); McCabe -9- O[ 98739879
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John K. GallaFJter, Esq. GUILD, RUSSELL. GALLAGHER & FULLER lUU West Liberty, Suite 800 P. O. Box 2838 Reno, Nevada 89501 (775) 786-2366 Attorneys for LIGGEI'I' & MYERS, INC. UNITED STATES DISTRICT COUR1' DISTRICT OF NEVADA LLOYD GLASS, ) ) Plaintlffs, ) CASE NO. ) vs. ) CONSENT TO RHMOVAL ) PHILIP MORRIS INCORPORAT.ED, ct al. ) 8c ) Ikfendants. ) 1 DeEendanf, Liggett & Myers, Inc., hereby consents to the removal of Case No- 99- A-405885-C from the Eighth Judicial District Court, Clark County, Nevada, to the United States District Court for the District of Nevada in Las Vegas.' DATED UiisU!"Ibday ofAugus*., 1999. GUILD, RUSSELL, GALLAGHER J ohn K. Gallagher, Esq. 100 West Liberty Suite 800 Reno,Nevada 89505 (702)786-2366 Attorney s for Liggett & Myers, Inc. 27 , By conecntiog to this reraoval, this defendant ressrvea ell rigltts, tndud'mg but not limited to, defenses and objections As to venue, petsonal and/or subject matter jurisdietion, and service of procecs, and the exectrtioo ot'this Consent to Removel is subject to, and without waiver ot; any such defenses and otryettioas.
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1 2 3 DENNIS L. KENNEDY, ESQ. DAVID J. MERRILL, ESQ. LIONEL SA ;VYER & COLLINS 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 702.383.8888 Attorneys for Defendant BATUS HOLDINGS, INC. UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 21 22 23 24 25 26 27 28 LIONEL SAWYER & COLLINS ATTONNEYS L 1)W 9ANR OF ANERICR atAIA JOO SOUTM FOURTM ST LAS VEGAS. 01 NEVAOA 89, iY02i 3838898 LLOYD GLASS, Plaintiff, vs. PHILIP MORRIS INCORPORATED, et al., Defendants. Case No. CONSENT TO REMOVAL Defendant BATUS HOLDINGS, INC.,' hereby consents to the removal of the above- captioned action from the District Court, Clark County, Nevada to the United States District Court UI Defendant BATUS HOLDINGS, INC., reserves all rights, including but not limited to, defenses and objections as to venue, personal and/or subject matter jurisdiction, and service of process, and the execution of this consent is subject to, and without waiver of, any such defenses and objections. G.!USER~DIMUIIIO.UUIBbaua M1aldiner raunvW cns
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9. Rebel Oil does not control any advertising by tobacco co.npanies. 10. At no time has Rebel Oil made any representations or statements concerning: a. Cigarettes and "addiction" or the "addictive" qualities or Properties of nicotine; b. The alleged regulation of nicotine yields in cigarettes or So-called "nicotine manipulation" as that term is used by Plaintiffs in the Complaint. 11. Rebel Oil has never represented or made statements that it, or any of its employees or agents, possesses any unique or superior knowledge relation to the claimed health risks of smoking cigarettes, or nicotine "addiction." 12. Rebel Oil has never communicated with or received any information from any cigarette manufacturer or any tobacco research entity regarding the claimed health risks of smoking cigarettes, nicotine yields in cigarettes, the alleged regulation of nicotine yields in cigarettes, or nicotine "addiction." (Except to the extent such information is contained on preprinted warnings required by law to be placed on cigarette packages and in cigarette advertising). 13. Rebel Oil has never conducted, sponsored or participated in any m _Q research regarding the claimed health risks of smoking cigarettes, the yields of ~ 3
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4. Rebel Oil does not advertise or promote cigarettes, cigars, or other tobacco products, except to place point-of-sale advertising materials that are supplied by the tobacco companies through the wholesalers from which Rebel Oil purchases tobacco products. Rebel Oil has not made representations or statements of any sort to anyone about smoking and health, other than selling tobacco and cigarettes in packages that have printed on them warnings required by law. 5. Rebel Oil has never been a member of the Tobacco Institute ("TI") or the Council for Tobacco Research-USA., Inc. ("CTR"). Nor has Rebel Oil ever had any ownership interest in or ever exercised any control over the activities of TI or CTR. In addition, neither of these entities has ever had an ownership interest in or exercised any control over the activities of Rebel Oil. 6. Rebel Oil has never bought or blended tobacco for use in cigarettes or designed, manufactured, packaged or label cigarettes or held itself out as playing such a role. 7. Rebel Oil has never made or sold cigarettes under its own brand or label or otherwise held itself out as a manufacturers of cigarettes. 8. Rebel Oil has never had any input into any aspect of the design, composition, or quality of cigarettes, or over the content of any national promotional or advertising materials related to cigarettes. 2
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98739896
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1 CERTIFICATE OF MAILING 2 i~ I hereby certify that on the ~; day of August, 1999, 1 caused to be deposited a true 3 and correct copy of the above and foregoing NOTICE OF REMOVAL in the United States Mails, 4 postage prepaid at Las Vegas Nevada addressed to the following at their last known address: 5 , , 6 W. Randall Mainor, Esq. Mainor & Harris Steven J. Karen, Esq. 521 South Sixth Street 7 530 South Sixth Street Las Vegas, Nevada 89101 8 Las Vegas, Nevada 89101 Attorneys for Plaintiff Attorneys for Plaintiff 9 Gary Long, Esq. Steve Morris, Esq. 10 John K. Sherk, III, Esq. Shook Hardy & Bacon L.L.P. Schreck Morris 1200 Bank of America Plaza 11 , , One Kansas City Place 300 South Fourth Street 12 Kansas City, Missouri 64105 Attorneys for Philip Morris Incorporated and Las Vegas, Nevada 89101 Attorneys for Philip Morris Incorporated 13 Lorillard, Inc. 14 John K. Gallagher, Esq. Guild Russell Gallagher & Fuller Ltd. H. Joseph Escher, III Howard Rice Nemerovski Canady Falk & 15 , 100 West Liberty Street, #800 Rabkin 16 Reno, Nevada 89501 Attorneys for Liggett & Myers, Inc. Three Embarcadero Center Seventh Floor 17 San Francisco, CA 94111-4065 Attorneys for R.J. Reynolds Tobacco Co. 18 Bruce Wold, Esq. Phillip W. Bartlett, Esq. 19 Sedgwick Detert Moran & Arnold Burton Bartlett & Glogovac 20 One Embarcadero Center ]6`h Floor 50 West Liberty Street, Suite 650 w Reno, Nevada 89501 co 21 San Francisco, CA 94111-3628 Attorneys for Brown & Williamson Tobacco Attorneys for Lorillard, Inc. V w 22 Corporation (individually and as successor by %10 m 23 merger to The American Tobacco Company) and BATUS Holdings, Inc. Co X~- 24 Mark A. Hutchison, Esq. James Silvestri, Esq. 25 Hutchison & Steffen 8831 West Sahara Avenue Pyatt & Silvestri, Chtd. 201 Las Vegas Boulevard South, #300 26 Las Vegas, Nevada 89117 Las Vegas, Nevada 89101 27 Attorneys for British American Tobacco Attorneys for Rebel Oil Company, Ltd. /11 28 LIONELSAWYEH & COLLIN S ATfORNEVS AT LAW I.RAN.oF,R~ ~.P... An/$mployee of Lionel Sawyer & Collins 9OU SOUTN FGURTM ST. LAS VEGAS. NEVAOA 89101 17021 383-8888
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Mark A. Hutchison (4639) HUTCHISON & STEFFEN Lakes Business Park 8831 West Sahara Avenue Las Vegas, Nevada 89117 (702) 385-2500 Attorneys for Defendant British American Tobacco (Investments) Limited, formerly known as British-American Tobacco Company Limited UNITED STATES DISTRICT COURT DISTRICT OF NEVADA %10 00 V LLOYD GLASS, ) w Plaintiff, ) 0~) ) Case No. p vs. ) Cr\ ) CONSENT TO REMOVAL PHILIP MORRIS INCORPORATED, et al., ) ) Defendants. ) ) ) . Defendant British American Tobacco (Investments) Limited, formerly known as British-American Tobacco Company Limited C'BATCO"),' hereby consents to the removal of the above-captioned action from the District Court, Clark County, Nevada, to the United States District for the District of Nevada, Southern District. Dated thisZK-4(day of August, 1999. HUTCHISON & STEFFEN By: Lakes Busin 8831 West $hharCAvenue Las Vegas, Nevada 89117 (702) 385-2500 HUTCHISON & STEFFEN .MV ...~MG.. .... seM....VSMOe su, wW LwG V[G.,G. MV iY11J ncer auaew .u 11021 ssa-zos 'Defendant BATCO reserves all rights, including, but not limited to, defenses and objections as to venue, personal and/or subject matter jurisdiction, and service of process, and the execution of this consent is subject to, and without waiver of, any such defenses and objections.
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,---......... ` EXHIBIT D 98739902
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11 Defendant, Lorillard, Inc.,' hereby consents to the removal of the above-captioned action from the District Co•irt, Clark County, Nevada, to the United States District Court for the District of Nevada, Southern Division. DATED this 1611 day of August, 1999. BURTON, BARTLETT & GLOGOVAC 50 West Liberty Street, Suite Reno, Nevada B9$Q1 By: 650 PHILLIP W. BF((KTLETT, ESQ. Nevada Bar No. 000723 11 12 13 14 15 16 17 18 19 20 21 BURTON,BARTLETT & GLOGOVAC ATTORNEVS AT LAW 50 WEST I/BEWY STREET SU/TE 650 RENO.NEVACM 69501 JOHN K. SHERK, III TAMMY COKER SHOOK, HARDY & BACON L.L.P. One Kansas City Place 1200 Main Street Kansas City, Missouri 64105 _ ATTORNEYS FOR LORILLARD, INC. 5:\MYFILES\Lorillard\G1assConsent.wpd Defendant, Lorillard, Inc., reserves all rights, including but not limited to, defenses and objections as to venue, personal and/or subject matter jurisdiction, and service of process, and the execution of this consent is subject to, and without waiver of, any such defenses and objections. 2
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facts sufficient to support such recovery. Furthermore, any attempted allegations of fraud are certainly not pled with particularity and, thus, cannot stand under NRCP 9(b) and Fed. R. Civ. P. 9. See Ivory Ranch. Inc. v. Ouinn River Ranch, Inc, 705 P.2d 673, 675 (Nev. 1985).' 31. Therefore, plaintiff s joinder of Rebel is fraudulent because plaintiff has "no real intention to get a joint judgment, and ... there [is] no colorable ground for so doing." Aids Counseling & Testing Center v. Groun W Television, 903 F.2d 1000, 1003 (4th Cir. 1990). IV. REMOVAL TO THIS DISTRICT IS PROPER 32. Pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, removal of the above- captioned state court action to this Court is appropriate. 33. Removal is appropriate in this case because plaintiff has no real cause of 24 25 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW ITOG 9ANK OF AMERICAAyEillkl 900 SOUTN fOURTN ST. LAS VEGAS. N¢vwGA 89101 f7021 383-8888 action against Rebel Oil who is the only non-diverse defendant in the lawsuit. Plaintiff has named Rebel Oil as a defendant solely to defeat this Court's diversityjurisdiction. As demonstrated by the absence of any material allegations directed specifically toward Rebel Oil and the legal insufficiency of the single claim that is directed toward Rebel Oil, it is evident that plaintiff's only purpose in naming Rebel Oil as a defendant is to avoid a perceived less-favorable federal fotum. Plaintiff's forum shopping intentions are also demonstrated by his naming only one of the numerous retailers (including those who are not Nevada citizens) that sells cigarettes in Nevada. 34. All named defendants, with the exception of B.A.T. Industries p.l.c and DNA Plant Technology Corporation, who have not been served, join in or consent to this Notice of Removal, including the fraudulently joined Rebel Oil, who need not join but has consented to removal. Plaintiff also fails to allege facts sufficient to recover against Rebel Oil based on a conspiracy claim. A conspiracy claim is not an independent tort and must be predicated on the underlying tortious conduct. See Rashidi v. Albrieht. 818 F. Supp. 1354, 1360 (D. Nev. 1993); Morris v. Bank of America Nevada, 110 Nev. 1274, 1276 n.l, 886 P.2d 454, 455 n.l (1994). Since plaintiff has no cause of action against Rebel Oil, plaintiff cannot recover on any purported conspiracy claim against Rebel Oil. aot -12- 98739882
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12 13 14 15 16 17 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW I'/O] BANK OF AMERICftThM1 JOO SOUTH FOVRTN $TLA6 V[GAS. NEVA01 89101 702) 383-88BB 29. In addition, plaintiffcites no statutory or common law authority to support his purported claim for "Unlawful Business Practices." Plaintiff simply makes conclusory statements regarding an alleged "campaign" of misrepresentations, concealments and distortions. Complaint ¶¶ 122, 125-26. However, plaintiff again does not assert any specific facts in support of this allegation. Furthermore, it is unclear from the face of plaintiff s Complaint how these allegations, if proven, would ever form the basis for the imposition of liability on Rebel Oil under the purported claim of "Unlawful Business Practices.° 30. Instead, plaintiff's allegations in the seventh cause of action relate to the alleged fraudulent conduct on behalf of defendants, including Rebel Oil. Plaintiff, however, fails to allege a single misrepresentation made by Rebel Oil relating to smoking and health.6 Indeed, Rebel Oil has never made a representation or statement concerning smoking and health. See Cason Aff. ¶¶ 4, 8-12, 15. Moreover, plaintiff has failed to allege that Rebel Oil had any knowledge of the alleged, undefined "campaign" of misrepresentations, concealments and distortion. Sgg Coyne v. American Tobacco Co., 1999 WL 477012 * 3 (6th Cir. 1999) (finding that plaintiffs could not recover against the local defendants for failure to watn or negligent sale of cigarettes because "[p]laintiffs do not allege that the wholesalers and retailers knew of the so-called nicotine defect any sooner than members of the general public"). Plaintiff, therefore, has no possibility of recovering from Rebel Oil for any alleged misrepresentation because plaintiff has not -- and cannot -- a]]ege 6. To the extent plaintiff intends to rely on failure to warn or concealment claims, these claims are barred because they would impose on Rebel Oil a duty to supplement the already legally-adequate federal warning that is found on all cigarette packages and advertising. The United States Supreme Court has held that such claims are preempted by the Federal Cigarette Labeling and Advertising Act, IS U.S.C. §§ 1331, et ,,M. Citwllone v. Liegett Grouo. Inc., 505 U.S. 504, 523-25 (1992). Similar claims of non-disclosure have been rejected around the country. 5ee Allgood v. R.I. Reynolds Tobacco Co 80 F.3d 168,171 (5th Cir. 1996), cert. denied, 117 S. Ct. 300 (1996) ("To the extent plaintiff s claims are based on fraudulent concealment after 1969, they are preempted by the Federal Cigarette Laheling and Advertising Act."); Perez v. Brown & Williamson Tobacco Coro., 967 F. Supp. 929 (S.D. Tex. 1997) (finding that plaintifFs "claims [for conspiracy, fraud, misrepresentation and breach of warranty] were predicated on duties based on smoking and health and ... [thus] are preempted"); Lacy v. Lorillard Tobacco Co., 956 F. Supp. 956 (M.D. Ala. 1997) (fraudulent concealment/suppression claims preempted). ll 98739881
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98739894 .
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nicotine yields in cigare:tes, or nicotine "addiction." ACK E. CASON SIGNED and SWORN to before me on this 4th day of August, 1999. NOTARY PTdBLIC My Commission Expires: n~POd -------------------I + . NcgryPu61ic3uleOfNSVae ~ COUNivOFCLARK ~ CAROL J. SHIVERS ~ 6ryAppoiremaME»irw t ~ Ho 92.9BS04 J* 22.2000 ~------------------- 5
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.., AFFIDAVIT OF JACK E. CASON STATE OF NEVADA ) COUNTY OF CLARK ) ss. ) JACK E. CASON, being first duly sworn, states as follows: 1. I am the President and principal shareholder in Rebel Oil Company, Inc., a privately held Nevada corporation (Rebel Oil). I know the facts recited here of my own personal knowledge. If called as a witness in this case, I would be competent to testify on behalf of the corporation to each fact set out. 2. Rebel Oil sells petroleum products in southern and central Nevada at a number of locations. Most of Rebel Oil's gas stations are in Clark County, Nevada. Rebel Oil's corporate office is at 2200 South Highland, Las Vegas, Nevada 89102. Many of these gas stations also sell food and beverages in "convenience stores" that are co-located on with property gas pumping equipment. 3. Tobacco and tobacco-related products are sold at retail to the public in Rebel Oil's convenience stores. All such products are purchased from wholesale companies licensed to sell them by the State of Nevada. Rebel Oil does not own or otherwise have an interest in any tobacco company or company that distributes o\0o V tobacco or tobacco-related products, nor does any such company own or otherwise ~ 00 have an interest in Rebel Oil or exercise control over any of its activities. v
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1 PHILLIP W. BARTLETT, ESQ. Nevada Bar No. 000723 2 BURTON, BARTLETT & GLOGOVAC 50 West Liberty Street, Suite 650 3 Reno, Nevada 89501 (775) 333-0400 4 JOHN K. SHERK, III 5 TAMMY COKER SHOOK, HARDY & BACON L.L.P. 6 One Kansas City Place 1200 Main Street 7 Kansas City, Missouri 64105 8 Attorneys for Defendant Lorillard, Inc. 9 10 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 12 13 LLOYD GLASS ) CASE NO.: 14 ) Plaintiff, ) 15 ) vs. ) 16 PHILIP MORRIS INCORPORATED, ) CONSENT TO REMOVAL 17 LIGGETT & MYERS, INC., R.J. ) REYNOLDS TOBACCO COMPANY; ) 18 BROWN & WILLIAMSON TOBACCO ) CORPORATION as successor by ) 19 merger to THE AMERICAN ) TOBACCO COMPANY and its ) 20 predecessors in interest; ) LORILLARD, INC, as successor ) 21 by merger to P. LORILLARD ) and/or LORILLARD TOBACCO ) 22 COMPANY; BROWN & WILLIAMSON ) TOBACCO CORPORATION; DNA PLAN) 23 TECHNOLOGY CORPORATION; BATUS) HOLDINGS, INC.; B.A.T. ) 24 INDUSTRIES, P.L.C.; BRITISH ) AMERICAN TOBACCO COMPANY, ) 25 L.T.D.; THE AMERICAN TOBACCO ) COMPANY; REBEL OIL COMPANY, ) 26 INCORPORATED, JOHN DOES ) 1-300., ) 27 Defendants. 28 BURTON.BARTLETT & GLOGOVAC ) ATTORNEYSATLAW !U WEST LI9ERIY STREET SIIITE 65U RENQ NEVAW B%01
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SuVi dY Laaki: lltn rioor t12-zB-aa 1 z+odrM Lionei^ wyer-550'i51tiJ022tl1d1B4215;. S OrfglN 3 4 6 2 IIliIT=D AT11Ti4 D2iTRIGR' COURT DISTl:ICT 07 xiV11DR L71P VSlii18, N=vADA 5 V2TO D==IOYO, at al. , ) ) FiaiatAsi., ) ) ~. ) ev-s-96-4e9-D~s(aLS~ ) 9 LIGQiT O1,OQl. .t al.,? ) 10 D.l.adaats. ) ~ 11 12 RsPC!RM• a TR7UiYCRIPT Os PROCESDIDiQB 13 sPtO~ Txz S06f. DAVID a. ZZRA STr.it.d_8tsts District Judg. 14 dtatus Cenf.r.nc. 15 Raport.d on Decemb.r 10, 1996 16 at $300 11.tI. Courtrocm4 #5 - w 17 co V 18 11Pg371RUAtCXi CN ~ 19 ter th. P1alntif! ~ 0 (r 20 $OSS itT 8. O~D DiIC$OL71/ ]1. aOYL" 21 sdnards, qisott, Naita i Niat.rtoa 702/363-0327 22 23 (Pleasa s.• aparata paga for dalans• app.araac.a) 24' 25 Rliportad by Diaa Dalton, C.C.R. 619, RPR TOM MFRCPR & AaSQGIATii (!03) 3S6-1973
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14 2 4 5 6 7 B 18 19 20 21 22 23 24 25 other view on this? MR. MORRIS: We agree with everything you've said, your Honor. We definitely believe the cases should be consolidated together in Judge Pro's court for judicial efficiency and all the other reasons that the Court has already articulated. THE COURT: Anyone over here in the box? MS. ciOIIGH : No. THE COURT: How's the view over there? I've never sat over there. Did you get a lot of power over there? I'm sure -- I)mow that when I was a trial lawyer I would have liked to do a little jury nullification on the judge if I would have had the opportunity. _ Okay. What I'm going to do, because I have carefully considered the matter myself and we have everybody involved here that's of interest to this matter anyway, i'm not going to do anything further on it in terms of a hearing. I will take the matter of the motion to consolidate under advisement immediately and I will issue an order today, before I leave, consolidating these two cases. I've cleared this with Judge Pro. He is willing to accept the consolidated case. So as of MERCER & A88OCIAT88,CWL9. (70Z)SSa-9l93
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JCIYi tlf~ w~~ i7Ln riGG( ~i,c-LG-tlo . y•urriN ~ ~iGne~~Wyei~o9o'/.i0uuc~~IG~04GlD~aiii 2 3 4 5 6 23 24 25 feels about whether that should be decided before anything else is done in this case because if there is not going to be Federal Court jurisdiction, if we're not going to be here, we don't reach the consolidation iasue.' THE COURT: Well, I will tell you that my concern is about -- you see, we have competing ' interests here, Counsel. One is you want to get in, if you're going to be consolidated with that other case, you want to get in there as quickly as you can because of the very concern that you just raised. There is another lawyer or set of lawyers who are representing the plaintiffs in that class action who are moving ahead, deeply entrer.^,hing themselves in whatever positions they are taking, dealing with Judge Pro, and you aren't. You want to be part or that. You want to represent your clients.. You want to have a shot at having a say so in how those motions are argued, the issues raised, and you want to participate in that. %10 co =f you're over here for the next three to ---I ~ four weeks dealing with me, you're not dealing with ~ him. And I don't think that's what you want. Now, if I'm going to decide that motion, I have to give -J MERCER & ASSOCSATBB, clPS'L. (702) 388-Z973
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dtiVf dY~LS&G 1YLn rioar ~12-`ld-dd . d~JUrM ~ uonei dawyer-55u'/5iouu~z816164215ai 4 3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA LAS VEGAS NEVADA THE COURT: All right. Good morning. I believe we need to have appearances. We've got a lot of people here today. And we'll kind of start over here and wind our way around. MR. BOYLAN: Nicholas Boylan representing the plaintiff. MR. GSRARD: Robert Gerard representing Plaintiffe. MR. EDGARa John Edgar for the plaintiffs. MR. $HERK; John Shark for Philip Morris and Lorillard. MR. MORRIS: Steve Morris for Philip Morris. MR. KENNEDY Dennis Kennedy for Brown & williar.ieon, R.J. Reynolds and Batus. 1~o 00 MR. KLWER: Thomas F. Kummer for Lorillard. ~ W MR. GOODFJ•rARTc Gary Goodheart for the \10 ~ Tobacco Institute. CD vl MS. COICaR: Tamny Coker for Lorillard and Phillip Morris. MS. GOUGH: Gayle Gough for Brown and MERCER & ASSOCIATES,CHTD. (702)388-2973
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7 24 25 this way and you shouid rule this way, Judge," puts a lot of pressure on the other judge. I rule on something. Judge Pro's got it. He may think it should go the other way. I've already ruled. He doesn't want to embarrass me. Already it looks bad. The lawyers feel they are being sandbagged in the other case because of one ruling in the other case and it creates double appeals. Because what happens if you're going along and the Judge makes a rather significant decision in one case, grants an interlocutory appeal, and the other judge doeen't feel an interlocutory appeal.is appropriate in his or her case and that one is going forward, it's a nightmare. Having said all of that, there are cases which should not be consolidated for one reason or the other. I can't see why these cases shouldn't be consolidatedd aAd I need to hear from you if you think there is a legitimate reason why these cases should not be consolidated. MR. BOYLAN: Your Honor, I think there is, v w though, good reason to avoid consolidation, but ~ ~ there are other problems that can perhaps be 0 ~1L; anticipated. it's my understanding a certification motion is set to be heard. I would like to be MERCER & ASSOCIATES,CHTD. (7oa)ate-Zl7S
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EXHIBIT E r n'rr..._J \ 98739919
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i[-La-ytl ~ 3•uuf'M ~ ~cNl DY~~~dl+ i(SO rloor i - -- .__,- ARRSANARM FOlt TBS Di8'ZNDAW4'S i 25 DimIS L. LZWipY, XSQ. TODD S. XzmwlDY, 2SQ. Lionel Sawyer Collins 702/303-8889 ~ionei ~awyer~»U751oJJ225~81ti421~.a 3 JOBDP x. G71LLR01KNR, bSQ. TODD G71Li.hom, . sSQ. Oiiild Russell Gallagher i Fuller Ltd. 702/ 786-2366 STZV= IiOR1tIS, sSQ. Sbrsak Morris eoasoai Goodrich Rosati 702/302-2101 JOlDi K. Smmm, 38Q . Shook, 8ardy • Sacoa, LLB. 816/474-6850 TMNM .F. mwuaeR, sSQ. ICus®ar Ta.oepl.r saaa.r i R.ushaw 702/792-'7000 liAYLi a4IIQ;B, =SQ . SadQNriak a.t.rt l[oraa & Arnold L=L.111D =43k1T1 ikCRVB, =8Q. JO= i. aiLlXLM ia. $8Q: Laland tuQ.aa iaakue a Aasoa., Ltd. 702/872-5565 DODOLLS W. z011711i, iiQ. Paarao3, PattOn, Shaa, Foley 8 Aurts PC 702/228-773,7 DOIIQL7IS A. IfITCB=LL, 3SQ. Dia]mrsoa: Diakhssoa, Consul ie Pocker 702/388-8600 GARY R. OOODUL11tT, =SQ . Jonss VarQa! 702/734-2220 TAiW COICiSv =8Q. ROD21E7f OTT, ESQ. TJM MERCER & ASSOCIATES (702) 388-2973
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~~u.7JUJ..r lJIU: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DIS'fRICT OF TENNESSEE AT KIYOXVII.LE JOANNE ANDERSON, et a[., ) Plaintiffs ) v_ ) THS AMEI2ICAN TOBACCO ) COMPANY. INC.. aa[., ) Defendants ) VAI,. u i, . W ia .. „ ,:1 .,, I~~ * I`~i :( ?r,~rzkr,w c+Fa. c:es: No. 3:97-cv-441 This is a cigarette class aedon case originaIIy brought in the Circuit Coua for Knox County, Tennessee, on behalf of a pntported claas of cigarette users who are addicted to nicotine. The eight named plaintiffs are all Tennessee residents and putport to represent a class of only Tennessee residents. The caption of the complaint names as defendants a conglomeration of tobacco manufacmrers and/or their parent corporations, all of whom are residents of states other than Tennessee. The caption of the complaint also names six Tonnessee residents as defendants, all of whom are retailers aadlor wholesalers of cigarettes, rather than manufacnuers. The defendants removed the action to this court
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15 2 3 5 6 7 25 today, you will be condolidated with Judge Pro and under Judge Pro's civil number. What I would advise you to do, those of you who are not a part of that other caae already, is to carefully apprise yourself before you leave today of exactly what ie happening in Judge Pro's case by checking with the Clerk's Office to find out what's pending. Get copies of what you need to get copies of and so that you make aura. And then I would address myself in an appropriate fashion to Judge Pro and let him know of your concerns regarding the matter of your participating. MR. BOYLAN: Thank you, your Honor. THE COURT; I would do that sooner rather than later since you're talking about the 18th. That's right around the corner. Are you here in Las Vegas? MR. BOYLAN: I travel back and forth between hare and San Diego, California. THE COURT: All right. Well, I know some of you came some distance for this and I'm terribly sorry that you traveled as far as you did, but the matter of consolidation is not unimportant and this really just came to my attention very recently after we had set this. I couldn't get in touch MERCER & A98OCIATEB,CYft, (7pa)3a1-.Zl73
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:. .. ,.a...~ .... . ... ....._1_. .~.....,....._..._. _ L' . 9 2 3 4 5 6 7 24 z5 class certification, and the day before Thanksgiving, we filed our opposition to that certification. THE COURT: is that to be heard on the leth? iNit. BHSRK: It is not. The lBth is a status conference. THE COIIRT: That's what S understand. That's what he told me, on the lath, a status conference. MR. BOYLAN: Thank you, your Honor. So we could have some type of prophylactic protection. THE COURT: I want to be very honest with you. Judge Phil Pro and I are very close friends but I don't tell him how to run his court. So I can't make cotnnitments for Judge Pro. MR. SOYLAN: 6o'this case, both cases would go to Judgs Pro? TIS C9URT: Yes, sir. He has the low number. I have other things here in Nevada I'm handling. _ don't know if any of you are involved in the Poulos case, one 04 the.country's largest antitrust case and involves every gaming operation in the United States over video poker, It'a a racketeering case. I'm ha4dling that. And I've got other things going here. So it'a not a matter of my turning thie case MERf2Ut a .AASpQ2ATRB,CfITD. (702)388-2973
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.iLIVI JI rdp41l ~lal ~ I./VI I~~ ..v .u i./ u/.~l ~ ~~GJul/f~l ~.J ~JVV.~~i~.1iYL.a~.! v .. . ~ ... .....J y.-..~~-.~-..~...:._..~... .~..._.~~. .' A._....._...' ._... 4 25 Williamson and Batus. MR. OZT: Rodney Ott for the Counsel for Tobacco Research. MR. MITCHBLL: Doug Mitchell for the Counsel of Tobacco Research. MR. BACKUS: Jean Backus and John Delikanakis for B.A.T. Industries, PLC. We're unserved in this proceeding and just here for observation basis. MR. TODD KENNEDY: Todd Kennedy for R.J. Reynolds. MR. GALLApIiBR: John Gallagher for Ligget companies, the Brooke Group, Liggett & Myers. 1KR; ROWAN: Douglas Rowan for Sun Valley Distributing. MR. BRONBON: 41enn Bronson from British American Tobacco Group. THE COURT: Those of you who are sitting back here, particularly those in the first row, I'm going to give you a chance to do something you don't get to do very often, move over to the jury box. I_used this courtroom several years ago and had a huge antitrust case over, of all things, cow feed. And we had a lot of lawyers. I don't know if any of you were involved in that case. I don't MERCER & ASBOCIATBS,Cjrft, (qa=)388-2973
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JtlW]~0f"77Ui:i0UULLSItl104Clp.w' 0 5 6 7 19 20 23. 22 23 24 25 think so. We had enough law-,n:.rs so the whole place back there filled and the jury box and everything else. It was quite a scene. MR. BOYLAND: Is that cow feed or dung, your Honor? THE COURT: It was cow fead, but it smelled bad. I had a motion for summary judgment where one of the lawyers saw fit to show everyone just exactly how similar these products were so he brought bot#, very large balsa of both, in and tr..rew.zh.nt Qn the bench up here. Unfortunately one of them broke open and tainted the proceedings. All right. = wa;st to -- many of you have travElad some distance to be here obviously and I want to thusk you for make ma4)cinq the effort. Mr. Kennedy and I were together yeeterday in another mtlttar. ' This caae, before we go any further, is compaaion, so to speak, with enother case which was originally filed in State Court ar;d which r- well, this case was originally filed in state Court and then removed-: The other one was originally filed in Federal Court. The other case is presently pending before Judge Pro. What I want to do today informally, because MERCER & ASSOQ$U,+$88,CPiTD. (7Q2)388-2973
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~cv or•~~a~ ~~cn r uur . ,r . z„-zo-ya ~ o•~ori+t . ~iune ~wyar~opu751oU~229td164215~814 13 2 3 4 5 6 counsel fair notice and the hearing, and it's not going to give you time to get into that other case. Unless I were to decide it just out of hand, I carn tell if you want to hear it, what I'm inclined to do with that motion, but you may not want to hear it. MR. BOYLAN: It couldn't hurt, your Honor. THE COURT: I'm inclined to deny it because I think there was a fraudulent joinder. And I hate that term because it sounds perjurative. it's a terrible term. When I®it on the Court of Appeals and we have to say a District Judge abused his die~--retion, when, in fact, it may have been something very different. I hate these terms and believe since you look at the pleading at the time it's filed, the attempt to join somebody else is not going to work either. I don't think Judge Pro is going.to 7Cule any differently. I would be surprised. I think you're here. I think your best bet is to take consolidation now and let Judge Pro decide that motion. MR. BOBLAN: Let's do that then, your Honor. Let's do that. MR. GERARD: We agree, your Honor. THE COURT: 2s there anybody else that has any MERCER & ABSOCIATES,CHTD. (702)388-2973
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MGiI~ ..~ r+o1r i~.n ~-~uu~ ~~<'.J-.~J . r.vrr~ r LaJIiGi Ja~~f~I~i.~b1:~~OJUGG710104LI0~s . 16 2 4 5 6 7 wit23 Judge Pro. He was in Washington. And my feeling was, and Judge Pro agreed, that we should get your input before we made that decision, and the only way to effectively do that was to come in and have this this morning. So I do appreciate your travel here. The order, as I said, will be filed this morning. And then you should follow-up accordingly and maybe you'll have the opportunity, good or bad, to appear before me at some other time in some other caae. Thank you, very much. ATTSBTe True, full and complete transcript of proceeding. DATSD• 4,- af-99 Dina Dee Dalton, CCR 519, RPR MERCER & ASSOCIATa9,QiTD. (7o7t)3e8-2l73
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JGIYi LI:'LJOIV ~/~/i /111Vi :L'-LJ~Jv r J'JJ/'19 . ~\' - +1l'v /'04 6r/rGl':JY iJ IJHJLGO IJ IYYL I.I/M 1 1 10 2 3 4 5 6 19 20 21 22 23 24 25 over because I'm suddenly going to relieve myself of matters in Las Vegas because I've got other things going here. It's just my concern, quite frankly, for your clients, plaintiffs and defendants, in having to basically do what just happened here really. Come back next week or the weak after next, and all of the other things I won't repeat that I've already decided and discussed. MR. BOYLAN: Perhaps given that you and Judge Pro are so closa, could there be some type of ' informal agreement, such as if there is a consolidation, we'll have time to be involved in a certification motion in due course? THE COURT: I can't make a commitment, to you an that. I will be happy -- I'm having lunch with Judge Pro this afternoon. He and I are on the Board of the Federal Judgee' Association together and on other committees together, are on the Judicial Counsel of the Ninth Circuit. I deal with him there plus we've been frienda for the ten and a fialf years I've been on the Federal Bench, and I'll be more than happy to tell him of your concern that the parties, that the lawyers that may be in this case -- many of the lawyers in this case are in the MERCER & ASSOCIATSS,CCFITD. (702)388-2973
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.~.(~..~~I ~i~L.7CjV ~IL1~ I 1(/YI ~IL~LV +Y ~ V'ML:.~I 1 ...VII . J6~/fv V .~JVV~`.. V+L~J~Y! ~ . . ' . . . .. ~ . - ~~~~~...___ ~... '...-~..'._... ' S.. .. .. .... ..'.... '.. . . . .. ~. ... 6 23 24 25 I'm going to take the matter under advisement on the papers, but I do want to hear your discussion on it and that's why I've continued this even though I knew the situation was going to exist where there may be a consolidation. I want to hear your thoughts on consolidation this morning. I have talked at some length with Judge Pro with regard to consolidating these two cases and I will tell you, because I would like to be as forthright as I can, because I used to be a trial 'lawyer once upon a time, that I am inclined to consolidate.these two cases. One involves casino employees generally. This one involves dealers. Outside of that, a few other rather small issues that aren't common, essentially, the casea are the same. And it seems to me to be awfully burdensome on the parties as well as the judicial process to have the same cases essentially going along parallel tracks before two different judges in the ame district. You have the potential for inconsistent rulings which..is always an unhappy experience. You have people running between courtrooms essentially citing rulings from one judge to the next. "Well, you know, Judge pro heard this motion and he ruled MERCER & ASSOCIATES,Qftp, (te2)388-2973
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/
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Mar.?0.1998 9:05AY --~ Nu.9549 °. ?3/S1 requireaient of ft Federal liauas of Civil Ptocedure, It cerraialy ...,es not state a cause of acdon agamst the aon-dlverse defetd= under any tegal rheoty, and due only coacinsion thac na be reached is that die non-divaae defendaats were fruudnlently joined. pWadfb' mod= to rqmod diia action to dfe Chcait Court for Knox County, Tenna:ee, (Court F~lt M will be DEIV]ED. Ordar acwid9agly. . ames 7arvis, DLSTRICT It7DGE 5
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. ~ . 7 ._..._.r~~_ ~ , . . . . . ~ , , . . . 1i 2 3 4 5 6 a 23 24 25 other case, but that tae lawyers in this case -- MR. BOYLAN: On the defense side, your Honor. THE COURT: Yes, I understand. -- that the plaintiffs' counsel is concerned that they be given' an opportunity for some input if these are consolidated immediately, and you're in a situation where you will then be in some -- and this is the problem always for the plaintiffs. You're going to be in some circumstances with the other plaintiffs' lawyers with who is going to be the lead counsel and who isn't going to be the lead counsel. This always happens in class action cases. The biggest fight frequently in a class action case typically isn't between defendants' counsel. It's between plaintiffs' counsel as to who is going to be the big chaese. MR. BOYLAN: It's an unfortunate reality, your Honor. TFIB COURT: Xt is. I've seen it more than once. I've been involved in it more than once. MR. BOYLAN: The other thing, your Honor, if I may interrupt, is a motion to remand was filed in this case in April of this year. THE COURT: Right. MR. BOYLAN: And I was wondering how the Court MERCER & A88OCIATES,CHft, (702)3B8-ai73
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~~~ci aarvYe;~^o.~ioiu~u..y~alo4[7o.w` J ~..._.^_.~__r_.__:. _ _ .: .... ....... . ' O 2 3 4 S 6 l8 19 20 21 22 23 24 25 correct, but I may be wrong. A certification motion is set to be heard in the other case on the ieth of this month. So what is at stake here, really, we think, is whether the citiaens of Nevada are going to take part in what will be billions of dollars flowing from the tobacco companies. Are they going to be part of that or not? We want to make sure if there is consolidation that we have the opportunity to win or lose that certification on the merits and not based on the work of other lawyers. Coa.olidation makea sense, but the timing of certain utotione #4%d how we would move forward together, I think, needs to be addressed. TSTi COURT: You're talking about in Judge Pro's case? MR. BOYLAN; Yes, your Honor. THE COURT: Iwas not aware of a certification motion in Judge Pro,'s case. I talked to him this morning and he advised ne on the 18th at 1:30, he has a status conference. MR. sEiSR&: That is correct, your Honor. THE COURT: Is there a certification motion pending in that case? MR. SHERIt: Plaintiffs have filed a motion for MERCER & ASSOCZA1%4iQK*D. (702)388-a!?9
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J EXNIBR O 98739933
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pSaf.!U. (yytl y:UOAM No, yy4y Y. ?;,/bl The allegattoas of the complaint concern the addiction of plaintiffs to cigarettes and manipulation of nicotine levels by maoaifaautets to conarol the plaintiffs' addiction. These are claims obviously made against the mataiftcturea and aot whoiesalers or retailers who received the products and sold them in sealed containers. Plaiatiff coatsnd that they could potentially recover against the non-diverse defeltdatus imder an aaplied warranry theory. Howeva, in their complaiat, they do not even attempt to minimally plead facts whirlt would suppore such a theory. Any implied warranty claim cannot be maiafabmd if the goods at issue: (1) "pass without objection in the trade"; (2) 'are of fair avenge qualiry within the description"; (3) `are fit for the ordirnry pttrposes for which such goods are ttxd"; (4) "nm ... of even ldad, quality and 4uantiry within each unit and among all units iavolved'; (5) 'ate adequately contaiaed, packaged, and la6eled"; and (6) "confotmed with the promises or a!£itmadons of fact made on the container or label, if any.' T.C.A. § 47-2-314. There is no allegation that the goods sold differ in any way from other goods of the same type generally accepted in the trade. In essence, the plaintifB simply named the non-diverse defendants in the %10 caption of the complaint without aIIy fltrther attempt to connect them with the actual allegations found in the complaint. That does not satisfy even the miaimal pleading Co V W ~ ~ N 4 W
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Ya r. ZU. 199a 9: USAY „_- No. 9549 F. 20/61 on Inne 9. 1997, contendin8 that the non-diverse defendants had been fraudulently joined solely to avoid this court's diversity jutisdiction. Curreatfy pending is the piaipsiifs' motion to remand this action to the Knox County Circuit Court [Court File A61. For the reasons that follow, the motion will be denied. I. Applicable Lagal Saardard The burden to esrablish federal jurisdiction in a diversity case is upon the renmoviag party. Ga)rord v. General FiecAZe Cwnpany, 997 F.2d 150, 155 (6° Cir. 1993). The removing party also bears the burden of demonitrating fraudulent joinder. Her Majesty the Queen in Righr of the Province of Onrerio v_ City of Detroit, 874 F.2d 330, 332 (6° Cir. 1989). Moreover, tbe removal statuoes are strictly construed. WiLtorr v. U.S. Deparvnaru of Agriculr.tve, 584 F.2d 137, 142 (6i° Cir. 1978). The United States Court of Appeals for the Sixth Circuit has observed the following with respect to fraudulent joinder: There can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged or on the facts in view of the law. ... One or the other at (east would be required before it could be said that there is no real intention to get a joint judgmetlt, and that there was no colorable ground for so claiming. 2
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fEXHIBIT H , J 98739943 ,
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.tlesander v. Elecrroaic Data Syarenu Corporation. 13 F.3d 940, 949 (6' Cir. 1994), quoting Bobby Jones Carden Apan*urus, iisc. v. Svlssxi, 391 F.2d 172, 176 (5'k Cir. 196g). The qttestion becomes whether t4ere is arguably a reasonable basis for predictiag that the suoe law might impose liability on the fias involved. Id. That question has been rastaGed as whetber there was any "reasonable basis for predicting that the plaintiff could prcvall.' Id The question In this ease bceomea whether there is any reasonable basis for predicting that the plaintiffs could prevail ott any of their claims against any of the non- diverse defcadaats. 11. AnalYsW The conrt is of the opinion tbu the plaindffs have failed ro state any canae of acriaa agaiast any Tenaessee tesideat under .vhich they might reasonably claim that they have any chance of recovery. Six allegedly non-diverse defeadants are named in the caption of the complaint. None of them are manafactnrers of cigarettes and none of them are mentioned anywbere else in the complaint. Obviously lacldng is any allegaaon that any of the tocal wholesale disaibutors or retailers sold any products to any of the piaintiffs. 3
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mil. lu. ij7c J.uOAm no. y04y rr ce/ol IN THE tllYfTED STATES DLSTRICT COURT FOR THE SASTERN D3STRICT OF TENNESSEE '' AT ffiNOXVIIZ.E , ~;=•C{1:."sT JOANNE ANDERSON, er al., ) Plamplf5 ) .Si. iS "H. O:P,Cl4RC ) No. 3:47-cv-q41 TH8 AMBRICAN TOBACCO ) COMlANY, WC., rr al., ) ) For the reasons set fosh in the Meaioramdum Opiaion this day passed to the Clerk for filing, it is hereby ORDERED dnu plaindffa' motion to remand this action to du Circuit Court for Knox County, Tennessee (Court File A16] is DENDr.D. ENTER: w ~ ama H. Jarv_ia, v 1-1 ATES DISTRICT JUDGfi ~p ~ N U'1
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("distributors"). Although none of the tobacco companies are citizens of Utah, two of the three distributors are Utah corporations and the other is a Nevada corporation. Plaintiffs specifically allege claims of "deceptive sales practices, strict product liability, unjust enrichment, fraud, fraudulent concealment, negligent misrepresentation, negligence, breach of express and implied warranties, [and] civil conspiracy." Compl. 18. Out of these ten claims, only two are alleged against the distributors: (1) deceptive sales practices under the Utah Consumers Sales Practices Act ("UCSPA") and (2) strict product liability. Plaintiffs' petition for relief include~, "damages for ... personal injuries, economic losses, punitive and exemplary damages, equit2ble relief, disgorgement of profits, and the return of monies spent to purchase Defendants' manipulated and dangerously defective products...." Compl. 18. On March 13, 1998, Defendants removed the instant action to this Court pursuant to 28 U.S.C. §§ 1441(a) and 1446. The alleged basis for removal is that plaintiffs fraudulently joined the distributors in order to defeat diversity. Plaintiffs move to remand, arguing that complete diversity is lacking since they have set forth colorable claims against the distributors. The distributors, on the other hand, move to dismiss plaintiffs' claims against them for failure to state any viable claim for relief. On May 21, 1998, this Court heard oral argument on all pending motions. DISC CCION I. Law of Fraudulent Joinder In order for this Court to have diversity jurisdiction it must be shown that (1) the amount in controversy exceeds $75,000 for each plaintiff and (2) "none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." 28 ~
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2. Distributors' Motion to Dismiss is GRANTED; 3. Plaintiffs' Motion to Stay is DENIED; and 4. Plaintiffs' request for payment of costs and attorneys' fees is DENIED. -/"'-,~ DATED this ~.~-cay of June, 1998. Dee United States Distffct Judge 9
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PoU1. (.V. {JJV • . +JSe ., dw u. Aftyw.. ,U[bouah p]atttttCk assert in their memwandam in support of remaad that their complaint allegasg causes of action against the Ohio defetdants for rtegGgencq str'rct liability, breaeh of warranty, violations of Ohio's ooawmer protection stadrtes, bneaeh of irnplied warranty and claims under Ohio's Product Liability Law, Ohio ReY. Code § 2307,71 er seq. (the "OPL.A"}, in urging rernand plamtiffs ague anly that they have viable claims against the Ohio defendants under the OPLA. (See Mott to Rem. at 15-18, Pltf Reply. Pkf Supp. Mem.) In addition, although they do not state to which of their claims against the Ohio defendanu the argument pertains, plaintiffs also argue in their memorandum in support of their motion to remand that their clauns are based in part upon the fact that cigarettes contain an inherently dangerous design defect (the ability to form a life-long and life-thraatening addiction to nicotine) and "their unwitting addiction to cigarettes while still a minor," and that "[a]t this stage of the Gtigation, rJx question of the Ohio Wholesa]dReta7 Defendatus' knowledge of the addictive qualities of cigarenes, as well as their participation in the marketing and promotion of cigarettes to minors is unanswered." (Id. at 19) Plaintiffs state that they have "every reason to beGeve," based upon evidence of the tobacco manufaerurers' practices in marketing cigarettes tb minors, "that the Ohio Wholesdtatgti+t Defendants, as suppliers and distributors, actively participate with the tobacco companies in the marketing, promotion and advestising of cigarettes to minors." (Id. at 21-24.) The Court 5rst addresses whether the Ohio defendants may be liable to plaintiffs under the OPLA as that is the only state law plaintiffs have specifically addressed in their memorandum in support of their motion to remand. 00 V W ~ W ~ AC 72a Fs•.&82)
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1990). Ultimately, as one court noted, "fraudulent joinder exists if, whatever the plaintiffs' motive, their claim against an in-state defendant has no chance of success." Schwenn v. Sears, Roebuck & Co., 822 F.Supp. 1453, 1455 (D.Minn. 1993). II. Plaintiffs' Causes of Action Against the Distributors Plaintiffs have alleged a total of ten causes of action, only two of which are claims against the distributors. Compl. ¶¶ 141-54. The remaining eight causes of action are solely against the out-a`-state tobacco companies. Plaintiffs argue they have allcged colorable claims against the distributors, defendants counter that there is no possibility of recovery on either of the plaintiffs' claims against the distributors. Each claim against the distributors will be considered individually. A. Deceptive Sales Practices Plaintiffs' first claim is that the defendants (including the distributors) engaged in deceptive sales practices in violation of Utah Code Annotated § 13-11-1 et seq., or the Utah Consumer Sales Practices Act ("UCSPA"). Compl. ¶¶ 141-47. In paragraph 144 of their Complaint, plaintiffs assert that "[b]ecause of [defendants'] violations [of the UCSPA], members of the Plaintiff Class, started using, and continue to use, cigarettes without adequate knowledge of these products' seriously harmful and addictive characteristics and effects ... and have subsequently become, or will become, ill and will need to be treated for tobacco-related diseases." Additionally, paragraph 145 states that "members of the Plaintiff Class have suffered and will continue to suffer substantial actual injuries and damages and are entitled to recover such damages ...." These paragraphs indicate that plaintiffs' claim is a personal injury claim which is specifically excluded from available actions under the UCSPA. Section 13-11-22(1)(c) 4
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no. y54y r. Cb/O1 v IINITF.D STATES DISTRKT COURT NORTHERN DLSIltICT OF OffiO EA87ERN DIVISiON e Jndith E. Cbamberlain, et il., ) CASE NO.1: 96 CV 2003 ) Plaiatil6, ) JUDGE PATRICIA A. GAUGHAN ) vs. ) ) The Americaa Tobacco ) CompaAy, Inc., N aL, ) M onndum of Ou}nion a d Order ) Defend.atr. ) Before the Court ia plaintiffs' motion to remand. (Doe. 7). For the reasons set forth below, the motion is denied. - Facts plaintiffs Judith E. Chamberlain and William O. Crider, Oh9o residefts, fikd this case on August 14, 1996 in the Cuyahoga County Court of Common Pleas on behalf of themselves and a purported class of other Ohio residents who are either addicred, or are in danger of becoming addicted, to cigarettes. (See Complt_) The complnint alleges eleven causes of action under Ohio statucory and common law arisiag out of defendants' alleged Iraowledge that nicotine is addictive andd coospiracy to manipulate the level of nicotine in c9garetres for the Sc rzo iAe•.&821
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HOLME ROBERTS & SN LLC 111 E BROADWAY STE 1100 SALT LAKE CITY, UT 84111 FAX 9,5219639 Mr. Peter W. Billings Sr., Esq. FABIAN & CLENDENIN 215 S STATE STE 1200 PO BOX 510210 SALT LAKE CITY, UT 84151 Mr. James S Lowrie, Esq. JONES WALDO HOLBROOK & MCDONOUGH 170 S MAIN ST STE 1500 PO BOX 45444 SALT LA1CE CITY, UT 84145 Mr. Neil A. Kaplan, Esq. CLYDE SNOW & SWENSON 201 S Y,J1IN ST STE 1000 SALT LAKE CITY, UT 84111 FAX 9,5216280 Mr. Paul S. Felt, Esq. RAY QIIINNFY & NEBEKER 79 S MAIN ST PO BOX 45385 SALT L]!RE CITY, UT 84145-0385 PFA% 9,5327543
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U.S.C. § 1441(b). In this case, plaintiffs' )tion to Remand involves only the question of whether complete diversity exists between the parties.' When considering a motion to remand, the removal statute is construed against the party seeking removal and all doubts regarding the existence of federal jurisdiction are resolved in favor of remanding the action. It has long been the rule that the propriety of removal must be determined by looking at the record at the time the petition for removal is filed. See Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939). Only the initial Complaint may be considered in ruling on a motion to remand--subsequent amendment cannot defea: removal. !d. With respect to fraudulent joinder, Wright & Miller's Federal Practice and Procedure outlines the relevant inquiry to determine the validity of plaintiff s Motion to Remand: The Court ... will not allow removal to be defeated by the collusive or improper joinder of parties or assignment of claims. The claim that joinder is fraudulently intended to defeat removal must be asserted with particularity and supported by clear and convincing evidence. However, it is immaterial that the joinder of a particular party or an assignment is intended to defeat federal jurisdiction so long as it is not merely colorable or made in bad faith. The federal courts will remand cases in which there has been a joinder of parties :hat defeats removal. A party will be considered fraudulently joined when plaintiff has not stated a claim for relief or does not intend to secure a judgment against that defendant, but there need be only a possibility that a right to relief exists to avoid this conclusion, and plaintiff s ultimate failure to obtain a judgment is immaterial. 14A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3723, at 342-53 (2d ed. 1985). Additionally, joinder of nondiverse defendants is considered fraudulent "where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment." Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. ' No party disputes that the amount in controversy exceeds the $75,000 threshold. 3
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Section 402A requires plaintiffs to show: that the distributors (1) sold a product to the use, consumer and (2) that tae product was unreasonably dangerous. Plaintiffs fail to plead the above prerequisites for bringing a strict product liability claim against the distributors. Although paragraph 149 of the Complaint alleges that "Defendants ... designed, manufactured, marketed, distributed or sold cigarettes to the Plaintiff Class; " the Complaint fails to specifically allege that the distributors ever sold cigarettes to any of the named plaintiffs. This Court finds the holding of Walls v. American Tobacco Co., 1997 U.S. Dist. LEXIS 11215 (N.D. Okla. 1997) persuasive on this issue. The district court in Walls emphasized the "well-established principle of law" that a "plaintiffcannot claim defendant is responsible for selling plaintiff product unless plaintiff also claims that defendant actually sold the product to plaintiff." Id. at *6. Recognized by the judge in Walls, and applicable in this case, is the fact that °[n]oticeably lacking [in the complaint] is any allegation that ... the wholesale distributor ... sold any product to these plaintiffs. And plaintiffs make no allegation that any of them ever used cigarettes purchased from the Oklahoma defendants which is the sine qua non of their strict liability theory" Id. at *6. As a result, the court denied a motion to remand finding that named resident distributors had been fraudulently joined. In the present case, plaintiffs have equally failed to make any allegation that either of the Utah distributors ever sold any product to the named plaintiffs. As such, the requisite causal link between the distributors' sale of a product and plaintiffs' physical harm cannot be made and the strict product liability claim fails as a matter of law. Plaintiffs contend that although not specifically alleged, "implicit in Plaintiffs' claim is the allegation that they purchased products from the state distributors." Reply Mem. p. 14. However, this "implicit" argument is not persuasive and was similarly rejected in Walls. See 7
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Walls at *7, n.3. Therefore, because plaintiffs fail to meet even the first prong of a strict product liability claim, it is unnecessary to address the issue whether plaintiffs have sufficiently alleged that cigarettes are unreasonably dangerous products. III. Preemption and Statute of Limitations Defendants raise arguments that plaintiffs have no possibility of recovery on their strict product liability or deceptive sales practices claims because such claims are preempted by the Federal Cigarette Labeling and Advertising Act of 1965, 15 U.S.C. §§ 1331-40. Additionally, defendants argue that plaintiffs claims against the distributors are time barred under the applicable statute of limitations. This Court finds no reason to address either of these arguments since it has detennined that plaintiffs have failed to state any claim against the distributors. IV. Costs and Attorneys' Fees Plaintiffs have requested an award against the defendants for costs and attorneys' fees incurred as a result of the defendants' removal of this action. The Court determines that because removal was proper, Plaintiffs are not entitled to costs and attorneys' fees. CONC'LUSION Plaintiffs' Complaint does not state a claim against the distributors and the Court finds that the distributors are improperly joined. Accordingly, this Amended Memorandum Opinion and Order vacates the previous Memorandum Opinion and Order dated June 15, 1998 and HEREBY ORDERS THAT: 1. Plaintiffs' Motion to Remand is DENIED; 9
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' ~ JUN 2 2 1998 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH - CENTRAL DIVISION CARROLL JACKSON, SUSAN HOGGAN, PARLEY R. YOUNG, and MARYLYN TAYLOR, individually and on behalf of all others similarly situated, Plaintiffs, vs. AMENDED MEMORANDUM OPINION AND ORDER Case No.: 2:98 CV 00178B PHTT.TP MnRRTS TNC.- et aI I t.nRIS75t2 (( CLASS AC ON JA~KON K7L. ~,wr Defendants. t RECEI Y: C k I EXPED COPIES TO: GRL JKS TBC LCW MCK This matter comes before the Court on plaintiffs' Motion to Remand the instant action to state court. Additionally, the distributor defendants have 61ed a Motion to Dismiss or in-the Alternative, Motion to Drop Distributors from the Action, to which plaintiffs have responded with a Motion to Stay. For the following reasons, the Court denies plaintiffs' Motion to Remand, grants distributors' Motion to Dismiss, and denies plaintiff s Motion to Stay. i3ACKGROUND On February 13, 1998 the four named plaintiffs filed a complaint in the Third District Court of Salt Lake County, Utah, on behalf of themselves and a proposed class of plaintiffs including generally "all nicotine dependent persons who are residents of the State of Utah and who have purchased and smoked cigarettes designed, tested, manufactured, marketed, distributed or sold by the Defendants." Compl. 119. The Complaint collectively names as "Defendants" seventeen manufacturers ("tobacco companies") and three distributors of tobacco products Spmted vV
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EXHIBIT I 98739956
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United States District Court for the District of Utah June 18, 1998 * * MAILING CERTIFICATE OF CLERK * * Re: 2:98-cv-00178 kam True and correct copies of the attached were mailed by the clerk to the following: Mr. Robert S. Campbell Jr., zsq. CA1fP8ELL MAACK & SESSIONS 201 S MAIN STREET STE 1300 SALT LAKE CITY, UT 84111-2215 FAZ 9,5375199 Mr. Richard D Burbidge, Esq. BURBIDGE & MITCHELL 139 E SODTH TEMPLE STE 2001 SALT LAKE CITY, UT 84111 FA& 9,3552341 Mr. Donald J Winder, Esq. WINDER & HASLAM 175 W 200 S PO BOX 2668 SALT LAKE CITY, UT 84110 FAX 9,5323706 Mr. Alan L Sullivan, Esq. SNELL & WILMER LLP 111 E BROADWAY STE 900 SALT LAKE CITY, UT 84111 FAX 9,2371950 110 Gary R. Long, Esq. ~ SHOOK HARDY & BACON LLP ONE KANSAS CITY PL 1200 MAIN ST v W ~ KANSAS CITY, KS 64105-2118 ~ FAX 8,816,3915598 c3'~ W Taamy Grubb Coker, Esq. SHOOK HARDY & BACON LLP ONE KANSAS CITY PL 1200 MAIN ST 1CANSAS CITY, KS 64105-2118 Anna S. McLean, Esq. HELLER EHRMAN WHITE & MCAULIFFE
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333 BUSH ST SAN FRANCISCO, CA "94104 Brent V. Idanning, Esq. MAIINING CURTIS BRADSHAW & BEDNAR LLC 370 E S TEMPLE STE 200 SALT LAKE CITY, UT 84111 FAX 9,3645678 Kevin A. Dorse, Eaq. JONES, DAY, REAVIS & POGUE 555 West Fifth Street, 414600 Los Angeles, CA 90013-1025 Jerome R. Doak, Esq. JONES DAY REAVIS & POGUE 2001 ROSS AVE DALLAS, TX 75201 Daniel F. &o1b, Saq. DAVIS POLK & WARDWELL 450 LEXINGTON AVE NEW YORK, NY 10017 Gordon L. Roberts, Esq. PARSONS BEHLE & LATIMER 201 S MAIN ST STE 1800 PO BOX 45898 SALT LAKE CITY, UT 84111-0898 PFAZ 9,5366111 John P. Ashton, Esq. PRINCE YEATES & GELDZAHLER 175 E 400 S STE 900 SALT LAKE CITY, IIT 84111 R. Brent Stephens, Esq. SNOW CHRISTENSEN & MARTINEAU 10 EXCHANGE PLACE PO BOX 45000 SALT LAKE CITY, itT 84145-5000 FAX 9,3630400 John J. Kenney, Eaq. SIMPSON TEACHER & BARTLETT 425 LEXINGTON AVE NEW YORK, NY 10017 Jay R. Henneberry, Esq. CHAABOLJRNE & PARKE 601 S FIGUEROA ST STE 1600 LOS ANGELES, CA 90017 Mr. E Scott Savage, Esq. BERMAN GAIIFIN TOMSIC & SAVAGE 50 S MAIN ST STE 1250 SALT LAKE CITY, UT 84144 FAX 9,5319926 Mr. Robert L Stolebarger, Esq.
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I COMP W. R4ND-9LL MAJNOP ; E_ Q. ? MAINOR B: Ii4RRIS Nevada Bar No. 001318 ~7J i1 3 .:JL 530 South Sixth Street 4 Las Vegas, Nevada 8910: (702)385-1400 5 and OL_ni: STEVEN J. KAREIN, ESQ. 6 Nevada Bar No. 004651 521 South Sixth Street 7 Las V egas. Nevada 89101 (702)382•9307 8 Attorneys for Plaintiff 9 DISTRICT COURT 10 CLARK COUNTY, NEV:4D A 11 ..... 12 13 14 LLOYD GLASS 15 PlaintL 16 vs. Case No. Dept. No. ~ ~ 17 PHILIP MORRIS INCORPORATED, LIGGETT & MYERS. LNC.. R J. Docket No /. 18 REYNOLDS TOBACCO COMPANY; BROWN & WILLL4MSON TOBACCO 19 CORPORATION as successor by merger to THE AMERIC.4N TOBACCO COMPAN'Y 20 and its predecessors in interest; LORILT.AR T1. INC, as successor by merger to 21 P. LORILLARD and/or LORILLARD TOBACCO COMPANY: BROWN & WII.LLAMSON'TOBACCO CORPORATION: DNA PLANT TECFiNOLOGY CORPOR-LTION; BATUS .c co --3 HOLDINGS. INC.; B.A.T. LsMUSTRIES, P.L.C.; BRITISH AMERIC=LN TOBACCO w ~ 24 COMPANY, L.T.D.; THE _ZMERICAN ~ TOBACCO COMPA-w-Y; REBEL OIL COMPANY. LNCORPORq'ED, JOHN DOES 1-300. U" v 26 ,7 COMPLAINT EXEMPT FROM ARBITR4TION ,8
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Stasdard of Franduimt Joinder The removing party ban the burden of demonstrating fraudulent joinder. Alexander v. Elecvatic Data S3ste.>as Carp.. 13 F.3d 940, 949 (6` Cir. 1994). The Sixth Circuit has stated 17tere can be no fratadukat jander unless it be clear that there can be no recavery [agaiost aon-diveree defetdams] under the law of the state an the cause alleged or on the taus in view of the law .... One or the other at least would be required before it could be said that there was no intemion to get a joim judgment, and that there was no eoiarable gramd for so claiming. Id, quotrng Bobby Jones Garden Apwamenn, InG v. Suleski, 391 F.2d 172, 176 (5'" Cir. 1968). "Therdore, the question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved" Id Accordingly, if there is "arguably a reasonable basis for predicting" that the plaintiffs may recover against the Ohio defendants, this Court must remand this action to state court. Removal statutes, moreover, are strictly construed, and a11 doubts as to the propriety of removal are resolved in favor of remand. See id "[•4lny disputed questions [ofJ fact and ambiguities in the controlling state law should be resolved... in favor of the non-removing parry." Id, quotingCorrrere v. SerasRoebyek & Ca, 893 F.2d 98, 100 (5° Cir. 1990), cert. denied, 498 U.S. 817 (1990). In addition, while the determination as to the propriety of removal is based upon the plaiatiff s pleadings at the time of removal, the court may pierce the pleadings and consider "sutnmary judgment-type" evidence such as affidavits and deposition testimony in determining whether the standard for fraudulent joinder has been met. See Cavallini v. Stare Farm Mnt. Ins. Co., 44 F.3d 256, 263 (5* Cir. 1995). \0 00 V (N \1D 4 ~O G.I O c 72A I
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states that the UCSPA does not apply to a "claim for personal injr , oF death or claim for damage to property other than the property that is the subject of the consumer transaction." Despite the language used in their Complaint, plaintiffs, in their Reply Memorandum in Support of Motion to Remand, allege that they are not claiming personal injury damages under the UCSPA, but instead claim they "are entitled to restitution and damages other than those for personal injury or wrongful death." Reply Mem. p. 8. The basis for this alleged relief is not clear. Plaintiffs appear to be relying on the language employed in paragraph 142 of the Complaint which alleges that "[d]efendants have engaged in, and continue to engage in, deceptive sales practices ... and continue to engage in, deceptive acts and practices in connection with consumer sales of cigarettes by: [inter alia] making false representations ... regarding true carcinogenic, pathologic and addictive qualities of cigarettes." Even assuming, as plaintiffs allege, that they are not bringing a personal injury suit against the distributors,2 paragraph 142's allegations of fraud and deceit likewise cannot be maintained. Rule 9(b) of both the Federal and Utah Rules of Civil Procedure require claims alleging fraud and deception to be pled with particularity. See Williams v. State Farm Ins. Col, 656 P.2d 966, 972 (Utah 1982) (holding that the requirement of Rule 9(b) that circumstances constituting fraud should be stated with particularity reaches "all circumstances where the pleader alleges the kind of misrepresentations, omissions, or other deceptions covered by the 2 Plaintiffs offer, as further evidence that they are not bringing a personal injury claim, the fact that they are requesting injunctive and ancillary relief such as unjust enrichment and "restitution of purchases of cigarettes." Such a request, plaintiffs argue, are claims for damage to "property that is the subject of the consumer transaction" and thus not excluded under 13-11-22(1)(c). These claims fail for the same reasons stated below. Nowhere in the Complaint do plaintiffs allege that the distributors ever engaged in any deceptive sales practices which are in need of being enjoined or that the distributors ever sold any cigarettes to the named plaintiffs which would entitle them to restitution of their purchases. 5
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1 4 14 15 16 17 GENERAL ~.LLEGATIONS PLAL:TIFF, LLOYD GLASS COMPLAIl.'S OF DEFENDAI`TS. AND EACH OF THEM, :~N'D ALLEGES: 1. The overwhelming scientific and medical evidence confirms that both tobacco additives and cigarette smoke contain many carcinogens and are toxic to the human system. Cigarette smoking is a substantial contributing force, if not the predominant factor, in the development of lung cancer, other cancers, heart disease, strokes, and other diseases. After years of study, it is uncontrovened that smoking-caused diseases are dose dependent; that is, each and every exposure to these carcinogens increases the risk of disease. 2. For years the defendant cigarette manufacturers, defined 'm~fr have known both about the carcinogenic and toxic properties of cigarettes. The cigarette defendants have known that tobacco products could cause lung cancer since at least 1946, and they have intentionally conspired to mislead, deceive and confuse the government, and the public, including plaintiff, concerning the hatmfiil and debilitating effects smoking has on the health of individuals, that nicotine in cigarettes is a pou•erfully addictive substance, and that defendants intentionally manipulated levels of nicotine delivery in cigarettes to ensure that smokers remain addicted and continue to buy the products of the CIGARETTE DEFENDANTS. 3. Since the :950's the CIGARETTE DEFENDANTS publicly promised to lead the effort to discover and disclose the truth about smoking and health. However, tbey systematicallv suppressed and concealed material information and waged an aggressive campaign of disinformation about the health consequences of smoking. They have known for yeats, based on their own secret research. that their product eventually injures or kills the consumer when used exactly as intended. Even now, these CIGARETTE DEFENDANTS continue to deny and conceal the facts that smoking cigarettes causes lung cancer and other diseases and that nicotine is addictive and purposefuliv manipulated. 98739958 ,
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term 'fraud' in its broadest dimension."). Plaintiffs have failed to plead with the requisite particularity that the distributors have engaged in any of the wrongful conduct listed in paragraph 142 of the Complaint 3 The reasoning in Chester Lyons v. Brown & Williamson Tobacco Corp., Case No. 1:97-cv-1850-CC (N.D. Ga. 1998) is helpful where, as in this case, the distributors "do nothing more than buy the cigarettes from the manufacturers and then sell the cigarettes in sealed containers to retailers." Slip op. at 4. The court in Chester Lyons determined that since "[p]laintiff has done nothing more than lump all of the defendants together, and then state that they all have knowingly and willfully misrepresented and concealed material facts so as to deceive the purported plaintiff class with respect to the risks associated with smoking" the requirements of Rule 9 were not satisfied and the Motion to Remand was denied. Id. at 5. Likewise, plaintiffs in this case have lumped the distributors and the tobacco companies together and made only general allegations of fraud and deception which are insufficient under Rule 9. B. Strict Product Liability Utah courts have adopted Restatement (Second) Torts § 402A regarding strict product liability. Section 402A, under the heading "Special Liability of a Seller of a Product for Physical Harm to User or Consumer," states that: (1) One who sells any product in a defective condition unreasonably ds.ngerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer. ~10 m ' Indeed, plaintiffs have not refuted the affidavits accompanying the defendants' Notice of V Removal which aver that the distributors (1) had nothing to do with the design or marketing of cigarettes, w (2) have no special knowledge of the contents of cigarettes or their properties, and (3) have never made ~ ~ any representation to the public about any effect that nicotine may have on smokers. The Tenth Circuit ~ has held that such failure to contradict a defendant's showing of fraudulent joinder accompanying the ~ Notice of Removal will result in denial of a motion to remand. See Updike v. West, 172 F.2d 663, 666 (l Oth Cir. 1949) 6
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.96 18:43 :ING 8 9PRLDING /00%~ 0404 572 5142 117n09050a1S334 P.10/11 RICO 7tti1US4 A01 t0 A1dIt10t1 thC Obv10W flMtfi 0f h1{Ijt&t10M PfObkOK that ifS60 when a .pOC. OJltiOls vied Ow c.y.. 1on aftw b! MW tbe pOSt1011l11fWC. T}AKk tfli tO/dplt DOfpfdtillti tift7 So11!lOd. Yld tAIAPltC AVlmlY WJM bCtvYtitll the fCfltlOt[ig wRld. AuordinglY. PldntiBs Moth to Rsmsatl(11-1) is DEMIED- It is SO ORDERBD thin ZddsY of ~' e 1992. ~ i',/a - ,UtBNCB CoOPER LTNeI'ED S'IATBS DIS'[ltiCT 1UDGE I f• . ~r~~~ Mt'~Il: f * i.1< ` ^ ~ NqR 2 4 ~a~ (r. AO 72A fRer. !A9
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20 and continue to be the Citc of Las Veeas and County of C:ark, and other cities and counties in the State of\ecada 6. Plaintiff is informed and believes and thereon alleges that Defendant PHILIP MORRIS. INC., is a Virginia orporation engaged in the'_usiness of manufacturing cigarettes and tobacco products for sale and distribution in the United States, and in the State of Kevadaa as more specifically outlined above. Philip Morris manufac:ures, advertises and sells Philip Morris, Merit, Cambridge, Marlboro. Benson & Hedges, Virginia Slims, Alpine, Dunhill, English Ovals. Galaxy, Playe: s, Saratoga and parliament cigarettes throughout the world and in the State of Nevada as more specifically described above. 7. Plaintiff is informed and believes and thereon alleges that defendant BROWN & WILLL41vfS0N'TOBACCO CORPOR4TION, successo_ ~Nc merger to the American Tobacco Company, is a Kentucky corporation engaged in the busi.ess of manufacturing cigarettes and tobacco produ,s for sale and distribution in the world, the United States, and in the State of Nevada as more specifically described above. 8. Plaintiff is info:med and believes and thereon alleges that Defendant BATUS HOLDIINGS. L\C., (`Batus Holdings") is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and the world. and :n the State of \ evada as more specifically described above. 9. Plaintiff is informed and believes and thereon alleges that defendant BATUS, Lr1C., i"Batus" , is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the Unite-' States and in the world, and in the State of Nevada as more specifically described above. 10. Plaintiff is informed and believes and thereon alleges that Defendant BAT LT1Dt-STRIES. P.L.C. ("BAT Industries") is a British corporation. 11. Plaintiff is informed and believes and thereon alleges that defendant BAT Industries and British American Tobacco are either directiy or indirectly the sole shareholder of -sll 4 98739966
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~. 1•KN7 31 '98 1c:d3 ' 1NG 8 5Pi'd.DING 110~ 0d0G 572 5142 Ti 7A0505a7G1caaa r.11/11 IN TfM UIu-"rII) Sl'ATES DISTRiCT COURT FOR TM NORTHFRN D18'17tIC1' OF 'C60RGIA ATLANTA DMSION ; A.°. 23 llq% r S.CSerS: CHE$T'ERLYONS.Onbdultofhimtelfsad Otlk[f simdadY sitwe4 vs. phkadM . Ciya, AClION NO. 1:97-ev-ISiO-CC HROqrN & q/Q,LUMSON TOBACCO CORPORA'IION; .t d•• Deandsnts am= Coaat.ry to tM law 5rm's w®esvoo otharniss. this setim 6ss oot 9at a°° eet>&d u s dus aaiod 0 AO 77A (Rwr.NRf pmdiog 6a6ore the Couet is tbs Modoe ioWithWrxwn oourd tar t6e PisinWof lfie law 5nm of Qwmmgbsm~ Houads. Ymot; Crowder .nd Brown L23-11• B.wu.m it dws not • .pprr8wnlh.modontea the rumhs eompb.awp6Loala>,irq.l0W),•prdtz*d0W to wuhdmw. thR pauhm1nOt1oR to wltbdriM ts Millln. T%$fm m&ySt i 1=tiNmdt00t1q1 to .riddra.r wfiieh is in cauq&M °Ath the rulm of thit Court It is SO ORDEABD this fSL1W7 of ?YA.Iw ~ . 199d• ...,- ..,. ~~a`998 ~. cAP Q.At<F.NCB CO , , ~ UNnFD STATES DLSTRICP JUDGE ~ TOTqL PqGE.11 **
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g. Other t-,-pes of injuries. So itighi}' likely were the serious health consequences of def ndanu' cigarettes, that over one in three foreseeable users would be expected to suffer premature death or serious impairmen:. 34. At times material, the ordinary consumer, including the PlaintiffE did not in the exercise of ordinary diligence know of the likelihood of, the severity of. or the extent of the risks from CIGARETTE DEFE\'DA\TS' cigarettes, which are outlined above. 35. The CIGARETTE DEFENDANTS' cigarettes, when used as imended, were highly likely to induce in foreseeable users a state of addiction, habituation, habit formation, an&or dependence, characterized by users' inability to terminate or restrict their chronic use. 36. The risks of harz~ to foreseeable users as listed above in paragraphs 33 and 1 5 would increase in any of the fol:owing circumstances. a. Greater cumulative consumption, including rate of consumption and length of time the product was consumed; and b. beginning use at an early age in life. 37. At times mazeria:, and specifically prior to 1969, the CIGARETTE DEFEV-DA\TS conducted an aggressive marketing, promotional and advertising campaign intended to induce foreseeable users, particularly youths, to purchase their cigarettes. Such marketing and advertising occurred in printed media, on television, radio. on billboards and by other means. After 1969, the CIGARETTE DEFENDANTS issued informational literature and other writings, as well as coupons-for-gifts and inducements intended to induce foreseeable users, particularly youths, to purchase their cigarettes. 38. Plaintiff purchased and consumed defendants' cigarettes within the State of Nevada at times material to this complaint. 39. Plaintiff consumed the defendants' cigarettes in the intended manner and without signincant change in their condition from purchase. 1%0 40. Plaintiff was induced to purchase the cigarettes and impliedly or expressly 00 10 V w ~ ~ ~ rn
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Ya r. 20. 1998 9; 06AN No. 9549 P, 2i/61 purposs of antiog mrd sumining smokas' addictions to tobacco products. The complaint alleges cvims for fraud and decat (First Claim for Reliat), coeupiracy to, inter olia, reurain and suppms research and the diesaninatron ofinformation as to the }Wrmtul effetts of snmling (Second Claim for Radiet), te*att mixWasmrmon (Third C/aim for Itetief). intentional inffiaion of emotional distress (Fourtfi Claim for Relief), negligeace (Fifth Ctaim for Reliet), negligent inflietion of emotional distress (Sucth Claim for Relief), violations of Ohio's eoo.wmer protection stanrtes, Ohio Rev. Code §§ 1345.02, 1345.03 and 1365.02 (Seventh Claim for Reliet), breach of express warranty (Fignth Claim for Relief), breach of imp8ed warraa¢y (Ninth Claim for Relief), saiat product liability under Ohio law (Tenth Claim for Relief) and a claim for equitable injunctive or dedaratory relief (Fleventh Claim for Relief). Named as defatdam.s in the Cfaamberlain action ue various out-of-state tobacco I manuficnuets and related entities, an out-of-state trade association of tobacco manufacturers and four Ohio wholesale and retail suppliers and distributors of tobacco products; Novelart Manufaceuting Conepany, a.vhalesale distributor located in Ci,tanr.+i; EBY-Brown Company. a wholesale distributor located in Spring5eld; The ICtroger Co., a cotporation having its principal place of business in Cincinnati openting retaii grocery stores throughout the state; ~ and Riser Foods Inc., a corporation having its principal place of business in Bedford owning and operating retail grocery stores throughout the state. (See Compltt at N 20-23.) (The I Ohio wholesale and retail suppliers and distributors are hereinafter collectively referred to as the "Ohio defendants.") Defendants timely removed the case to federal court on the basis of diversity "0 co ' U} jurisdicrioa Defendants assert that diversiry exists because plaintiffs fraudulently joined the 2 W , ~ >0 za A...arezi
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.. Y'f{c 1 '98 10:41 F 'NU & SF4L.DINu 0404 57e 5142 TO r.z_ 11 I IN THE UNI7ED STATFS DISTRICT COURT FOR TtM IVORTHERN DISTRICT OF GEOROU ATLANTA DIVISION vtn ; 2 3 CtlEBTSRLYONS.onbehdfofhiodaKand otnar, dmgarly aiwnW, PhktK CIYII, ACTION NO. vs. BROWN k WII,L[AMSON TOBACCO CORPOItA17ON: a al.. 1:97.ev-IgS0-CC . Defeodm QBM Pmdins bdb~a tba Court in drs products liabil'ity aetioa is PWaaEC6ssar Lyons' ("PlaintiR") Motioo to Raomd [11-1]. I. $~ Puintiit a dtiao of Geagk ®ed thu action in ths Superior Coaet ofFuhon Counry on May 27. 1997. on 6a1>vf of4iandf and a qupaad dau of"[apl aure+u residents of tbe State ofGeorgia wlw an cprette snwlmrt, and aD penons mtitled to briag an aetion for the wrongful death ofdeoaasod mqkers w6ou daath is ann'buuble to alroldng "(Complaint, 126.) PBineilf allega six pirses of aubn in his Complaint: (1) striet Rabiliry; (2) negliSencr, (3) medieal moniterinK (4) dyl eoaWinu.y; (5) Ewd and deeeir, and (6) violations of the Georgia Raoketeer, InNuenoed and ComW Orpniutions Aa ("RICO"). O.C.O.A. ;4 16-14-1 er seq. Plaintiff names as defpxiaats »cious dgarene mamficeuing eompaniss and t3Kir parenc comPaw« Cmanubenubs Defendant.'7, two tobacco tnde associations ("trade association Deteed+att"), tfc.e dprette distnbutors ("distcibution Defadaan'"), and F. Rou Iohnson %1C 00 AO 77A V C..N ~ ~ G7~i -A
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9ia r. 20. 1998 9: 07AM L The OPLA No, 9549 P. 31/61 Section 2307.78 of the OPLA sets forth the eircumsances under whieh "stippliers"= may be liable under Ohio law for utjuries eauxd by a product and provides: (A) Subject to division (8) of this setAOa and subject to section 2307.E0 [relating to evidmee of mcall notification], 2315.20 (talatittg to the defesues of assumption of tisk, eootnbutory negligence or other oonneloatory tortfoua conduet], and 2323.59 [relating to a presumption as to a pl.intiff a dtirmg under the influence of alcohol in products cases] of the Revised Code, a suppLer is sttbjecc to liability for compensatory damages based an a product liability claim only if dte claimant eatablishes, by a preponderance of the evidence, that either of the foilowiog applies: (1) The supplier was negligmt, and, the negligence was the prwAomate cause of harm for which the claimant seeks to recover compensatory damages. (2) The product did not conform, when it left the control of the supplier, to a representation made by the auppGer, and tite representation and the failure to conform to it were a proximate cause of hatm for which the claimant seeks to recover compensatory damages. A utppiier is subject to liability for the representation and the faihaa to conform to it even though the supplier did not act frauduleotly, recklessly, or negligently in making the representatioa (B) A supplier of a product is subject to liability for compensatory damages based on a product liability under sections 2307.71 to 2307.77 of the Revised Code, as if it were a manufacturer of that product, if the tuanufacturer of that product is or would be subject to liability for compensatory damages based on a product liability claim... and any of the following applies: (1) The manufacnuer of that product is not subject to judicial process in this state. (2) The claimant will be unable to enforce a judgment against the manufacnuer of that product due to actual or asserted insolvency of the •^-•nufacturer. (3) The supplier owns ... owned ._. the manufaeturer of that product. (4) The supplier is owned or ... was owned ... by the manitfacturer .... (5) The supplier created or fiunished a manufacturer with the design or formulation that was used to produce ... that product. \O • 00 V The parcies agree chat the Ohio defendants are "suppliers" of cigarettes. w \0 6 \0 (N N k0 72A ;r.s=!
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I 2 3 11 12 13 14 15 16 17 18 19 20 21 ,'1 23 24 ,5 26 27 28 Plaintiff prays leave to insert herein when finally ascertained. 30. As a further direct and proximate result of the said conduct of defendants. and each of them. Plaintiff has incurred, and will incur, loss of income, wages, proia and commissions, an diminishment of earning potential, and other pecuniary losses, the full nature and extent of which are not yet known to plaintiff, and leave is requested to amend this complain: to conform to proof at the time of trial. FIRST CAUSE OF ACTION - NEGLIGENCE (CIGARETTE DEFENDANTS) 31. Plaintiff repeats and realleges Paragraphs I through 30 as fully as if restated herein and complains of the CIGARETTE DEFENDANTS as follows: 32. _ne cigarettes designed, manufactured,adverrised, marketed, and sold b-,-the CIGARETTE DEFENDAtiTS were as follows: Marlboro and Marlboro Lishts. Benson & Hedges. Kent. Eve. More. Ra1ei¢h. Viceroy. Virginia slims. and Winston. . 33. The CIGARETTE DEFENDANTS' cigarettes, when used as intended, were highly likely te be a substantial contributing factor in causing the following human illnesses, injuries, and conditions: a. Bronchogenic carcinoma or lung cancer of all cell types; i-. Chronic obstructive pulmonary disease of all types, incluan¢ emphysema, chronic bronchitis, and reversible airway obstruction; Cardiovascular disease including atherosclerosis and its consequences, including myocardial infarction (heart attack),cerebrovaszilar accident (stroke). peripheral vascular disease, aneurysm, and other conditions: Cancers of the mouth, throat, larvnx, esophagus, kidney, b:adder, and other organs; Genetic damage to cells of the airways. lungs, and other or_ans; Impairment of lung function; and, ~10 co ~J cu 9 \0 w ON 0-s
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1) 20 21 TEiE PARTIES 4. The =ue names and capacities, whether individual, corporate, associate, governmental or otherw:se4 o: defendants FIRST DOE through THREE HL'NDREDTH DOE, inclusive, are unknown to plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true names and capacities of said defendants have been ascertained, plaintiff will amend thi_ Complaint accordingly. Plaintiff is informed and believes and thereon alleges that each defendan- designated herein as a Doe is responsible, negligently or in some other actionable manner, for the events and happenings hereinafter referred to, an caused injuries and damages proximately thereby to the plainti$ as hereinafter alleged. :. Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, def:adanrs PHILIP MORRIS INCORPORATED, LIGGETT & vIXERS, INC., R. J. REYNOLDS TOBACCO CONIPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERI .C.AN TOBACCO COMPA'vTY and its predecessors i: interest; LORILLARD, INC, as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO CO-WANY, BROWN & WII.LLAMSON TOBACCO CORPORATION, BATCJS HOLDINGS, LNC.; BATUS, LvC.; BA.T. INDL'STRIES, P.L.C.; BRITISH A-\E-RIC.AN TOBACCO COMPA'.'Y, L.T.D.; THE AMERIC4': TOBACCO COMPA':Y:,hereinafter "CIGARETTE DEFENDANTS"j, DNA PLANT TECIiNOLOGY CORPORATION (hereinafter "TOBACCO DEFENDANT") and defendant REBEL OIL CO_MP.ANY L\CORPORATED, are corporations organize and existing under and by virtue of the laws of the State ofNevatla- or the laws of some state or foreign jurisdiction as more specifically described below, and that said defendants were and are authorized to do and are doing business in the State of vevada, and that said CIGARETTE DEFENDANTS and REBEL OIL COMPA\-Y. LNCORPORATED, have regularly conducted business in, and have intentionally e'.aced cigarette products in the steam of commerce whose destination have been 3 98739959
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21 of that meeting reflect the fa`: that a Dr. Kotin, their own employee as the scientific adviser of tbe TIRC, would soon i:eco_e the associate director of the National Cancer Institute. Additionally, the CIGARFT- DEFENDA-tvTS and co-conspirators `'unanimously agreed" ...if there was to be a statement z wr the Suraeon General's report, it should be an industry statement rather than separate sratem en_ by one or more companies. This would obviate the possibility that a statement by one comrz3}- might be inconsistent with that made by another. The same method of procedure was rec: mmended as well in the event of a Federal Trade Commission (FTC) or Congressional actic=." 60. CIGARETTE DEFENDANTS concealed their actual knowledge concerning their manipulation and control of ~_- e nicotine content of their products to create and perpetuate smokers' addiction to cigaret-..s. which was critical to the conspiracy as set forth below. 61. Defendan: Brc ~.n & Williamson developed a genetically-engineered tobacco plant which had a much higher nic: :ine content than other naturally-cured tobacco code-named;`Y-1:' 62. The conspirar,: between Defendants DNA Plant Technology and Brown & W illiamson led to developme_: of a pollen-free male sterile derivative of the high-nicotine `Y-I" tobacco plant, "PF Y-1:" 63. The Food and Drug Administration first learned of the existence of"Y -1" in Portugal with the discove-y o' a Brazilian patent for a new variety of flue-cured tobacco plant. The English translation of the =atent stated: "The nicotine content of the leaf of this varien- is usually hi__her than approxim=.ely 6% by weight. ..which is significantly higher than any normal variety of tobacco grown commercially. 64. Prior to the dis_:)very of the patent, a tobacco industry' executive had told the food and Drug Administration ("FDA") that "flue-cured tobacco naturally contains 2.5 to 3.5 percent nicotine." Thus. this new spec:ally bred plant contained approximately twice the nicotine that naturallv occurs in flue-cured *.z)bacco. The holder of the Brazilian Y-1 patent was Defendant Brown & Williamson Tobacce Corporation, maker of such cigarettes as Viceroy and Raleigh. '_1
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5 ,2 23 24 ^5 26 27 28 Plaintiff is further informed and believes and thereon alle¢es that THE AMERICAN TOBACCO COVIPAT."I- was purchased bl BAT Industries. 16. Plaintiff is info:med and believes and thereon alleges that Defendant R J. REI'NOLDS TOBACCO COMPANY is a New Jersey corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, offers for sale, distributes and sells Camel, Vantage, Now Dora, Winston, Sterling, Ma_ena, More, Century, Bright Rite and Salem cigarettes throughout the United States, the world, and in the State of Nevada as more specifically described herein. 17. Plaintiff is informed and believes and thereon alleges that Defendant Lorillard Corporation is a Delaware corporation engaged in the business of manufacnuing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, offers for sale, distributes and sells Old Gold, Kent, triumph, Satin, Max, Spring, Newport and True cigarettes throughout the Untied States, the world, and in the State of Nevada as more specifically described herein. 18. Plaintiff is informed and believes, and thereon alleges, that defendant PHILIP MORRIS. INC., LIGGETT B'SfYERS, LNC., BROWN L6c WILLIAMSON COMPANY, LORII.LARD, LNC., and each of the remaining CIGARETTE DEFE'_VDAN'TS, and REBEL OIL COMP.~NI', INCORPOR4TED, was the agent, servant, employee and/or joint venturer of its co-defendants. and each of them, and at all said times, each defendant was acting in the full course and scope of said agency. service, employment and or joint venture. 20. Plaintiff is informed and believes and thereon alleges that Defendant DNA PL~NT TECHNOLOGY CORPORATION (DNA) is a Nevada Corporation. ~ 1. CIGARETTE DEFENDANT Brown &Wiliiamson commerciallc developed a tobacco plant with twice the nicotine content of standard tobacco code-named "Y-1." Defendant 6
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1 Defendan: BROWN &-- R~II,LL-XMSON. 1=. Plaintiff is informed and believes and thereon alleges that defendants BAT Indusrries and British American Tobacco are either directly or indirectly the sole shareholder of Defendan: 3ROWN 8. VVII..LDLMSON. 13. Plaintiff is informed and believes and thereon alleges that Defendants BROWN &: WILLL4MSO\, Batus Holdings, Batus, BAT Industries, and British American Tobaccc, either directly or indirectly as pan o'the same overall organization and operation, manufacture. distribute. offer for sale, promote, and sell Kool, Barclay, BelAir, Capri, Raleigh, Richa: iand, Loredo, EH Cutter and 4 icero}- cigarettes throughout the United States and in the state of Nevada as more specifically described above. 14. Plaintiff is informed and believes and thereon alleges that Defendant LIGGETT & .MYERS is a Delaware coroora*.ion engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, inc,ludinc She State of *i evada as more specincally described above. Said defendant manufactures, promotes, distributes, offers for sale, and sells chesterfield, Decade, L&M, Pyramid, Dorado. Eve. Stride, eeneric andLark cigarettes throughout the United States, the world, and the State of Ne, •ada as more specifically described above. 1:. Plaintiff is informed and believes and thereon alleges that Defendant(s) T.E -'--\tERIC --~-\ TOBACCO COMPANY and/or BROWN & WILLIAMSON CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant tnanufactures, promotes, distributes, offers for sale, and sells Lucky Strike, Pall Mall, Tareyton, Malibu, American, Montclair, Newport, Misn, Barkeley. Iceberg, Silk Cut, Silva Thins, Sobrania, Bull Durham and Carlton cigarettes throughout the T'nited States, the world, and Nevada as more specifically described above. 5
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1 (CIGARETCE DEFENDANTS & TOBACCO DEFENDANT 54. Plaintiff realieges and incorporates b}'reference each of the foregoing paragraphs and makes them a part hereof as though fully set forth herein. j:. Beginnin¢ at an exact time unknown to plaintiff, and continuing even today, the CIGARETTE DEFENDANTS have carried, and continue today to carry out a campaign designed to deceive the public, inclu 'aa¢ plaintiff, the government, and others as to the health hazards of smoking, the addictive nature of smoking, to conceal their knowledge concerning these things, the results of their own resea-ch, and to misrepresent their actual role in manipulating the addictive properties of cigarettes via ammonia and other additives and/or via the engineering of higher nicotine tobaccos. 56. The CIG.4RE-TE DEFENDANTS made literally hundreds of misrepresentations to plaintiff and others over the course of the last 40 years. Plaintiff is unable to allege in full the thousands of pre-1969 advertisements, and the continuing press releases, "frank Statements," testimony by tobacco manufacturers' officers and employees before Congress and other governmental entities, etc., that defendants and their co-conspirators, the Tobacco Institute and TIRC, have prepared, participated in, given, and released over the last almost 50 years both because they do not have access to this information, and because to allege each and evere• such misrepresentation, false statement, and concealment of material information here would entail hundreds or even thousands of pages of pleading; indeed, it is the CIGARETTE DEFEI`I)P...~ TS themselves which have this knowledge and information, and are in the best position to know the contents of each and even. such misrepresentation. false statement. and concealment of material information. 57. The CIGA.R.ETTE DEFENDANTS carried out their campaign of fraud, false statements, tnisrepresentations. and concealment of material information in three ways: First, they ag7eed falsely to represent to plaintiff and others that questions about smoking and health would be answered by a new, unbiased, and trustwvrthy source. Second, they misrepresented, , 18
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I 20 cause him to develop, lu := cancer, when he was induced by the pre-1969 public advertising and I i representations by the CIGJL?.=TTE DEFENDANTS to smoke cigarettes as a minor, before any caution or wazning labels we-: placed in cigarette packages by the CIGARETTE DEFEVDANTS pursuant to federal law. 2-5. Plaintiff was c'.agriosed with lung cancer on or about April 18, 1999. ~ 26. Had Plaintiff !=own the true facts concerning the magnitude of health risks of I smoking, the addictive n3tur: af nicotine, the intentional manipulation of nicotine levels in ci¢arettes, or the targetinz of ='s and other youths like him to replace in the market those older cigarette smokers who were c~ing from smoking, he would never have started smoking. By the { i time plaintiff was aware that -here were indeed deadly health risks associated with smoking, he was addicted, which addictio_ xas maintained by the purposeful actions of the CIG4RETTE. DEFENDANTS as descr'bec --t more detail below. 27. As a direct anc proximate result of the aforesaid conduct of defendants, and each i of them, Plaintiff is dyinc anc has suffered, and continues to suffer permanent injuries to his person, body and health, inclu :ing but not limited to lung cancer, shortness of breath, anatomical changes to his alveoli, and o;--:r lung damage. Plaintiff has further suffered, continues to suffer, , and willl suffer in the futt::: ciin, discomfort, fears, anxiety and other mental and emotional distress directl} and proxima:e:y' caused by the aforesaid conduct of defendants and each of them. j all to his general damages in =_ sum in excess of the jurisdictional limits of the District Court. ~ As a d'trec: and uroxitnate result of the aforesaid conduct of the defendanu. and ~ . ~ each of them• plaintiff has inc r.-red, is presently incurring and will incur in the future liability for physicians, surgeons, nurses. hospital care, medicine, hospitals, x-rays and other medical treatment, the trae and exact a.wunt thereof being unknown to plaintiff at this time, and plaintiff prays leave to amend this Complaint accordingly when the true and exact cost thereof is \o 00 ascertained. v W 29. Plaintiff Lioc~c Glass has lost prejudgment interest, the exact amount of which ~ ~ ~ I O~ .t~ 8
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68. Over the next several years Dr. Chaplin continued his efforts to breed a tobacco plant witbh a higher nicotine level. During that time, an employee of a Brown & Williamson- affiliated company asked Dr. Chaplin for some of his seeds. Some of Dr. Chaplin's original plant varieties were used as a basis for Brown & Williamson's work. In the early 1980's. Brown & Williamson grew a number of different plant lines, selecting those that had the best agronomic characteristics. 69. In 1983, CIGARETTE DEFENDANT Brown & Williamson contracted with TOBACCO DEFENDANT DNA plant technology to work on tobacco breeding. Much of the developmental work on "Y--1 " took place in the laboratories, greenhouses, and fields owned by DNA plant technology. After he retired from the USDA, in 1986, Brown & Williamson also hired Dr. Chaplin as a consultant to work on "Y-1" and other projects. 70. The high-nicotine tobacco variety "Y-1" was developed by a combination of conventional and advanced genetic breeding techniques. The value of "Y-1" to Brown &• Williamson is reflected in the fact that Brown & Williamson had DNA Plant Technolop.- make "Y-1" into a male sterile plant. This procedure ensures that when a plant is grown it will not produce seeds that can be appropriated by others. 71. Brown &«'illiamson characterized its achievement in a patent filing as follows: " by the present invention or discovery, applicants have succeeded in developing a tobacco plant that is agronomically and morpholoeicallv suitable for commercial tobacco production, i.e. it closely resembles SC 58. and provides a pleasant taste and aroma when included in smoking tobacco producu, vet it is Dossessed of the N. Rustica hieh-nicotine attribute So far as we know, this has not been accomplished before..." What was accomplished was the development of a tobacco plant with a hi-2h-nicotine content -- about 6 percent -- that grew well and could be used commercially. 72. Defendant DNA plant technology and Dr. Chaplin both told the FDA that they saw='Y-1" growing in Rio Grande Du Sul. Brazil in the 1980's. These farms were under contract to Souza Cruz Overseas, a sister company of Brown & Williamson. 23
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I 3 12 7_. lintil Decem'--tr 13, 1991, export of tobacco seeds or Gve tobacco plants was prohibited un_er Federa ia«' unless a Tobacco Seed Plant Export Permit ( Form TB 3 7.1 was granted by the '.itited States Department of Agriculture. Such a permit could be granted only after satisfacto:v proof was offered that the seeds or plants were to be used solely for experimental purposes and tLen only in amounts of a half a grain or less. 74. Brown &«"LIL amson and DNA Plant Technology each informed the FDA that they believed tae other may cave been responsible for the shipment of "Y-I" seeds outside the United States. Both companies were asked to furnish copies of any Tobacco Seed Plant Export permits for "Y-:." 75. Subsequentli, TOBACCO DEFENDANT DNA Plant Technology falsely and fraudulentl.~ in_ormed the FD.: that, as far as DNA Plant Technology knew, "Y-1" was never commercialize5. Howeve:, the FDA obtained two invoices filed with the U.S. Customs St'vice in 1992. The i^_voices were aedressed to CIGARETTE DEFENDANT Brown & R%illiamson Tobacco Corporation, Louisti-i:ie, Kentucky from Souza Cruz Overseas. They referred to "Your Order Project °I"-1 " and re% ea:--d that more than one-half a tnillion pounds of Y-1 tobacco were shipped to Bro•xn & Williamson in 1992. Eventually, after discovery of these invoices. Brown & Williamson in:1-med the FD A that, in fact, three and a half to four million pounds of "Y-1 " tobacco has bee-- stored in company warehouses in the United States. More significantly. Brown & Williamson re~ealed that "T-1" had, in fact, been commercialized. 76. Brown & Williamson brands of cigarettes, including Viceroy and Ralei¢h, were 'l, '_3 manufactured and distributed nationallc in 1993 with a tobacco blend that contained approximately 10 percent of this genetically- bred high- nicotine tobacco called "Y-1." %0 24 77. Is is uncontroveaed that smoking-cause diseases, including lung cancer, are dose Go ~J dependenr; that is. each and even exposure to these carcinogens increases the risk of disease. V w ~ 26 Thus, each and every cigar=tte. which contained the high-nicotine tobacco" Y-1,'° smoked by ~ ^7 e:) O 24
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3 4 instructed :n their use by defendants' advertising and promotion prior to 1969, and a: all times material herein 1y CIGARETTE DEFENDAN'TS' marketing, public statements. "informational" commturication-i, sponsorship of athletic events, concerts. and other activities, and indu.-ements such as co::aoz-for-gifts and other efforts. 41. .=.t times material to this action, CIGARETTE DEFENDANTS actuall}• knew, or in the disc~:arge of ordinary care should have known of the following: __. That the harms listed above would or might occur if the ciaareaes were used as ~:tended; ~ c. that the harms listed above would more likely be experienced if users did not restrict their intake of defendants' cigarettes, or if they began to use the products a: an early age. .. that use of the products as intended was likely to lead to addiction, habituation, =.ad/or dependence, particularly. if begun at an early age. ~. that termination or limitation of use would be exceedingly difficult if ;onsumption was initiated and that this difficulty would increase as cumulative consumption increased; e. that developing knowledge before and after 1970 demonstrated thatprtvious users are at great risk of harm (as listed above) and should seek medical aonitorittg; _' that CIGARETTE DEFENDANTS could establish a reasonabl.-safe dose for fz)reseeable users: s. that there were feasible improvements in design, composition, or manufacture c: cigarettes such as to materially decrease the foreseeable nicotine levels b}- smoking more; =. that switching to the so-called "light" cigarette would not be less hazardous c_cause the individual would compensate for the decreased nicotine levels by smoking more; :. that the FTC method of ineasuring "tar & nicotine" levels underestimated the ;_cels of nicotine actually delivered; and i. that adding ammonia, or otherwise altering the PH of the tobacco, enhanced the d=iivery of nicotine, thereby increasing addiction andior dependence. 42. :ne CIGARETTE DEFENDANTS at times material had the following legal duties to users uho consumed their ci¢arettes: a. prior to 1969, duty to foreseeable users of CIGARETTE DEFENDAN TS' II
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.-. D. A 1976 i;_temal memo by a tobacco scientist at BAT. S.J. Green, also discusses the extest te which "legal considerations" dominated scientific research: The pubii: position of tobacco comTanies with respect to causal explanatiens of the association of cigarette smoking and diseases is dominated by legal considerations...by repudiation of a causi role for cigarette smoking in general they [the companies; hone to avoid liability in particular cases. This domination by legal consideration thus leads to the indusm into a public r.i ection in total of any causal relationship between smoking and disease and puts the industry in a peculiar position %;:th respect to product safety discussions, safety evaluatio~~. collaborative research, etc. 13 23 24 ,5 26 27 E. In November 1979, the corporate counsel for B&W's, Kendrick. Wells, wrote a memoran_~urrm to Ernest Pepples, B&W's vice president of law. In this memorandurv Wells outlined a plan to wrap scientific information in attorney-client privilege. Mr. Wells' proposal specifically provided that"... In the operational :ontext BAT would send documents without attempting to distinguish whi:h n:re and which were not litigation documents." 83. When cigz ette manufacturers were sued by persons claiming their or thei decedents' lung cancer was caused by smoking, to avoid liability CIGARETTE DEFENDANTS denied that cigarettes are addictive and claimed that smoking was a matter of free choice and the claimant (or his or her decedent) could quit smoking if they chose. 84. CIGARETTE DEFENDANTS claimed anomey-client privilege for, and refused to produce, or ordered de;zoy-ed, documents which were scientific in nature and specifically related to health issues. 85. CIGARETTE DEFENDANTS, when sued for smoking-related injuries. conducted the litigation iL such a way as to cause the maximum expenditure of time and resources by the claiman:. CIGARETTE DEFEND ANTS consistently adopted the strategy that 2811 28
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Plaintiff was a substantial faaor contributina to Plaintiff s illness described herein and Plaintiff has suffered damages therefore as more fully described herein. 78. In January of : 998, DNA was indicted for illegally exporting tobacco seeds and pled guilty. 79. DNA and Broun & Williamson were interested in controlling and manipulating nicotine in cigarettes because senior industry officials were well aware that nicotine is the critical ingredient in cigarettes and the one ingredient that guarantees continued usages by consumers. 80. The addictive effect of nicotine has long been known and concealed by the CIGARETTE DEFENDtLNT'S. The intentional concealment of facts concerning nicotine, as well as the CIG.ARETTE DEFENDANTS' manipulation of both the nicotine content in cigarettes and the use of othe- chemicals to fiuther enhance the addictive qualities of nicotine is shown by the following representative examples. The CIGARETTE DEFENDANTS' efforts included Brown & Williamson' rejection of its own general counsel's advice in 1963 to disclose to the U.S. Sur¢eon General what the company knew about the adverse effects of smoking on health and the addictiveness of nicotine. They included advice by another Brown & Williamson general counsel in 1985 to remove documents and files and to ship documents out of the i: nited States. CIGARETTE DEFENDANTS became aware that cigarette smoking is probably hazardous to the smoker, as reflected in excerpts from industry documents: A. In 1959, and RJR scientist, Alan Rodgman, concluded that there is a`°distinct possibility" that substances in cigarette smoke could have a carcinogenic effect. ~10 21 ,^) '3 24 26 27 CO V B. In 1962, Rodgman wrote: Q'i The amount of evidence accumulated to indict cisarette smoke ~ as a health hazard is overwhelming, [while] the evidence challen_sing q the indictment is scant. C. In 1967, G. F. Todd of the Tobacco Research Council wrote a letter to Mr. Addison Yeaman. Yeaman was the Vice President and general counsel of Brown 8: =811 25
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/uu1. -V. 1JJV J.I/V.VY - l, . JJS.. •. LU/ U. Ohio defendants for the specific purpose of defeating diversity over the action.' Plaintiffs now move to remand the action to state courL arguittg that they have viable claims against the Ohio defendants and, therefore, complete diversity is leddng. In addition, plaintiffs argue that diveraity jurisdiaioa does not edst beesuse the jurisdictional amount in controversy requirement is not satis8ed Defeadants argue that plaintiffs have no reasonable possibility of recovering against the Ohio de&ndants and, thexefore, removal of the action is proper on the basis of diversity. They contend that the jurisdidional amount in controversy requirement is met. i Defendants assert that the same "consortium" of lawyers representing the plaintiffs in this case have followed a similar strategy in Hiing class action lawsuits in state courts across the country on behalf of nicotine-addiaed smokers. Defendants assert that these state court class action suits were Sled by the consortium of plaimiffs' lawyers in the wake of the F~iRh Circuit's decision in Casrono er aL v. Amert'an Tobacco Co.. et aL, 94 F.3d 734 (5e Cir_ 1996). In Costm+o, the plaintiffs' lawyers raised, on behalf of a purported nationwide class of addicted cigatette smokers, the same underlymg allegations as plautuffs raise in this case (i.e., that the tobacco industry fraudttleatly concealed thc addictive ntaure of nicotute and intentionally manipulated the nicotine in eigarettes to hook smokers to their produets)_ The Fifth Circuit, however, decetti6ed the nationwide class reasoning in patt, that the district court erred in catifying a nationwide class of addicted smokers without adequately evaluating how variations in state laws with respect to plaittdffs' "novel and umested" nicotine-addiction claims would affect the predom+niince and superiority of a class action suit. See Casrmto, 84 F.3d at 740-744. DePendants assert that the plaintiffs' consortvutn, "[h]aving lost in the Fifth Circuit," "vowed to refitigate" the cJass certification issue in state courts across the country. (De£ Br. in Opp. at 1.) Plaintiffs on the other hand argue that in 5ling the class actions in state court, they are following the Fifth Circuit's directive in Castmto that their novel and untested state law claims for nicotine addiction injuries are best resolved by state courts. (Pltf. Mem. in Supp. of Rem. at 6.) Indeed, plaintifrs point out that in urging decertification of the nationwide class in Castmro, the tobacco ittdusny defendants themselves argued that the court in Casmiw would "inevitably. ... need to construct new state law," and "fedetal courts sitting in diversity are particularly ill-suited to attempt to develop state common law where there is none." (Id. at 6, n. 4.) 3 O 72A 7eo B/821
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6 7 8 9 10 11 1? 13 14 15 16 17 18 19 20 '' 1 23 24 25 26 ,7 cigarettes to warn of the likelihood probability, and/or foreseeability that the harms listed at ove would or might occur if the products were used as intended. b. prior to 1969. a duty to foreseeable users to w•am that the harms listed above would be more likely experienced if users did not restrict their intake of CIGARETTE DEFENDANTS' cigarettes and/or to provide some guidelines on reasonably saf-: dosage or amount of consump tion, and a duty to warn tha: use of the cigarettes a: an early age was most harmful; :. prior to 1969. a duty to warn foreseeable users that use of the cigarettes as intended was likely to lead to addiction, habituation andor dependence; d. Prior to 1969, a duty to warn users that termination or limitation of use of cigarettes would be extremely difficult if consumption was initiated, particularly at an early a¢e and that this difficulty would increase as cumulative consumption increased. e. a continuing duty to warn previous cigarette users of developing knowledge demonstrating that previous users are at great risk of harm (as listed above) and should seek medical monitoring; :. a duty to establish a reasonable dose for foreseeable users; z. a duty to desiffi, manufacture, and sell cigarettes that when used as intended u•as reasonabh' safe for foreseeable users; , h. a duty to make such feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable risk to users; a duty to disclose to consumers of cigarettes the results of their own and other scientific research known to them whiA indicated that use of cigarettes caused users a great risk of harm (as listed above): ~ ~. a duty to warn previous users, users and foreseeable users of cigarettes through =~on-advertisin_e pr promotional communications of the dangers listed above: a continuing legal duty to refrain from manufacturin¢. selling, and/or riromoting the sale of cigarettes to minors and youths. 43. -lte CIGARETTE DEFENDAN-TS had a legal duty to refrain from selline, promoting. tazgeting, and inducing the sale of cigarettes to minors. 44. CIGARETTE DEFEND4tiTS, and each of them, negligently breached one or more of their d_*.ies. to members of the general public, including cigarette users such as plaintiff, in one or more of the following ways: 2. prior to 1969, in failing to warn or warn adequately of the likelihood, ^robabilitv, or foreseeability that the harms listed above would or might occur if
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.-, .~. DNA Plant Technology deve':oped a pollen-free male steriie derivative tobacco were stored in warehouses b}- Brown & R'iLamsoam and this tobacco was put into cigarettes by Brown cfi Williamson that have been so:d nationwide. One of the intended purposes of this practice was to manipulate nicotine delivery t, the smoker, thereby increasing the likelihood of addiction and ensuring continued demand for its product. Over the course of more than a decade. Brown & Williamson conspired to :alse:v and fraudulently deny both the genetic manipulation of the nicotine content in tobacco piants and the commercialization of such a tobacco plant. 22. Each and even• CIGARETTE DEFENDANT and TOBACCO DEFENDANT is alleged to have been a member of, or participant in, the conspiracy described herein, and each and every act of the conspiracy was directed toward, and accomplished in whole or in part in, the State of lNevada. Each and every act of the conspiracy also had, and will continue to have. a substantial impact in the State oftievada The cigarettes and tobacco products manufactured b}- these defendant conspirators Nvere intentionally placed in the stream of commerce whose , destination have been, and continue to be, among others, defendant REBEL OIL COMPAlv'Y, INCORPORATED, and other premises in the City and County of Clark and other cities and counties in?vevada One of the goals of the conspiracy described herein was to create a false controversy regarding the heal:h hazards of tobacco use an the addictive properties of nicotine in order to protect the marke: for cigarette sales and the profits of the tobacco industrc; the CIGARETTE DEFENDA2,~TS. _3. Plaintiff herein inhaled smoke from cigarettes manufactured by the CIG.AR.ETTE DEFE\-DA'.'TS and purchased many of the cigarettes he smoked at REBEL OIL COMP?NTY. INCORPOR.ATED. He began smoking as a minor, in 1967, having been influenced and induced to smoke. relying to his detriment upon the continuing aggressive campaign of advertisements, inducements, informational communications, and promotional items to hook youth smokers as hereinafter described in more detail. 24. Plaintiff was not aware that smoking increased his risk of developing, and did 7 98739963
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l 1 such contiovers-, existed so as to encourage the public to start or to continue smoking 2 cizarer.es. 3 These cig::2tte defendant :o-:onspirators and others have -jursued a conspiracy deceit and 4 misrepresentation designe,: to amass enormous profits through the continued sales of cigarettes 5 and tobacco products. 6 89. CIGARETTE DEFENDANTS Liggett Group, Inc.. and Philip Morris, Inc., RJ: 7 Reynolds. Brown & Williams. as successor by merger to i ae American Tobacco Company and 8 its predecessors in interes:, Brown & Williamson, and Lorillard have together controlled almost 9 100% of the cigarette market in the United States. These defendanu, their trade associations, 10 their attorneys, and other conspirators agreed and undertook the conspiracy described herein, 11 which exisced a-L all times material to this lawsuit, and continues to exist at the present time. 12 They have azoreed to catn out the purposes of the conspiracy, as listed above, and have 13 parricipate:: in and cooperated with each other in the conspiracy. Each act of the conspiracy was 14 ratified by the other co-conspirators, who acted as each other's agents. 1> 90. The CIGARETTE DEFENDANTS carried out their conspiracy in three ways: 16 First, thev agreed falsely to represent to plaintiff and others that questions about smoking and 17 health wou:d be answered by a new, unbiased, and trustwor•.hy source. Second, theN - 18 misrepresented. suppressed and confused the facts about the extent of the health dangers of 19 smoking, including addiction and their manipulation of nicotine levels. Concealment of their '_0 actual kno..led2e concerning their own negative health and addiction research results and their 21 manipulation and control of the nicotine content of their products to create and perpetuate '_2 smokers' addition to cigarettes were critical to the conspiracy. Defendants claimed, falsely, that 23 there is insufficient "objective" research to determine if cigarette smoking causes disease and that 24 cigarettes are not addictive. The success of the conspiracy depended upon the concerted action 25 of the cisarette tnanufacturers. for otherwise the revelation by one company of what it knew 26 about the health consequences of smoking and the addictive nature of the manufacturers' 3 -8 1
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r^~ MRR 31 '96 18:42 " .tNG 8 SFFLDING 0404 572 5142 T''^'7a0905aa1c».t F.aaiil AO 72A (Rw. b/pl ("Johnsoa'), a former corporate offieer of one of the manufacturing Defettdants.' None of the manufacturing or trade association Defendants reside in Georgia. However, Johnson and the distribution Defendants are Georgie residents (eoll.otively teferced to huein as the "resident Dafendants"). The only alleQaion nade by Plairniff speei6Wly against the resident Defendaata is as follows: "The to-conspirators, who are eKUher forsoa corpor.te offieers, distributors of dgarettes, or owners and operuors of vending machines from which dgarette are sold, have acted on their own and in oonart with the rneoufaataing defndaxs to oonenl the tnu h.zards of smoking and to sell cigarettes notaitheandmg their knowledge of those hasvvds." (eottpieitu,139.) With resp.ct to Johroon only, PLiatiff avo .tlsga that "as an anpbyee of R7A Nabisco lioldnITs, Lic., [Jo6osat] conducted or participated in suah [RICO) effierprise through a pattem of radteteerina adivity." (Compl.int,157.) On Jnne 26, 1997, the amrdeenuiog and ttsida essodatim Ddandanta 8{ed a Notice of Removal on the grvunds thu Plaintiff has no possibility of reoovery agaiast Johnson and the distributor Defmdaots, and that tbese defenderw had baen traudulaody join.ed by Plaimiff in an atternpt to defat tha divenity jurisdiction of this Coun. In respottse, Plsindtf 51ed the instant motion to remand, eomending that complete diversity of dtizenship does not exist because Ptaintiff has alleged valid deinu a;sinst the resident Defendans.' II r FnAt- cr.rtnatn The andyeis to be.mployed by a court in eonsidetitq a removal case allegiog traudutatt I , 0 loheson was the Chief Executive Officer of RJ.R Nabisco from January 1, 1987 to Pebruny !0, 1999. Plaintiff don not contest tlefendaats' contention that the jtuitdictiont! amount in controversy requiraroot is met in this we. . W ~ ~ ~ C.T~
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3 6 19 20 21 24 25 26 27 R'illiamson Tobaccc corporation. In his letter. Todd observed: The only real difficui:ies that we encountered arose out of the unavoidable paradox at the center of out operations-- namely that on the one had the manufacturers control TRC's ooerations and do no: accept that smoking has beea proved to cause lung cancer w•tie. on the other hand, TRC's research progam is based on the working hypothesis that this had been sufAciently proved for research purposes. In addition, the Council semor scientists acc t that causation theory...R'e have not yet found the bes way of~dling this paradox. D. In 1979, P.N.=ee of BAT expressed his impressions of a 1979 Surgeon General's report dated January 1. 1979. In this memorandum, Lee considered at length the Tobacco Institute pubiication entitled " The Continuing Controversy," also identified as TA73. Lee characterized that report as `lmisleading." He wrote that the report did not appear to understand what causation is. Lee wrote: Discussion of the role of other factors can be particularly misleading when no discussion is made of relative magnitudes of effects. For example, heavy smokers are observed to have 20 or more times the lung caner rates of non-smokers. Sure, this does not prove smoking causes lung cancer, but what is does mean, and TA 7_ never considers this, is that for any other factor to explain this association, It must have at least as strong an association with lung cancer as the observed association for smoking (and be highlicoaelated with the smoking habit). TA 73 seems ready to accept evidence implicating factors other than smoking in the aeiology of smoking associated disease without requiring the same stringent standards of proof that is requires to accept evidence implicating smoking. Tais is blatanthy unscientific. E. In 1984, a paper written by Colin Grieg for BAT describes a cigarette as "...a 'drue' administration system for public use..." It fur[her went on to state: Within 10 seconds of s•,arting to smoke, nicotine is available in the brain. Before this, impact is a•, ailable giving an instantaneous catch or hit, sienifying to the user that the cigarette is 'active.' Fiavor, also. is immediately perceivabie to add to the sensation. 81. Joint industrv research efforts undertaken by TIRC and CTR were neither disinterested nor objective. Industry documents, recently revealed, show that CTR functioned 28 11 26
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c. the cigarettes failed to perform as safeh' as an ordinary consumer wouid expect when used as i.aended or in a manner reasonably foreseeable by the plaintiff; j. the risk of danger from the design of defendants' cigarettes outweighed the 'Denefits obtained with the use of the products, and, e. prior to 1969. defendants' cigarettes did not contain sufficient warnings as oreviouslv alleged, or alternatively, were labeled with inadequate warnings. 48. °laintiff's illness is a direct and proximate result of the defects set forth above and the plaintiff h=; suffered datttages more fully described above. WIEPEF ORE, plaintiff prays for judgment against the CIGARETTE DEFE?qD.~~T as hereinafter se: _'orth. THIRD CAUSE OF ACTION - FALSE REPRESENTATION CIGARETTE DEFEV"DAIr\TS 49. °iaintiff repeats and realleges each of the foregoing paragraphs as if fully stated herein. 50. at the aforementioned time when the CIGARETTE DEFENDANTS manufactured sd distribu*et+: tested, designed. packaged, sold, and/or placed into manufactured and distributed. rsted, designed packages, sold, and/or placed into the steam of commerce in and into the State o: Nevada numerous brands of defective cigarettes, or other tobacco products, or, in the course of business, materially participated with, conspired with, and'or otherwise aided, abetted, and asssted others in so doing, the CIG.-kRETTE DEFENDP,.'NTS, and each of them, expressly and impliedly represented to members of the general public, including the purchasers, users and bystznders of said product, and including the plaintiff herein that cigarettes and other tobacco produc ts were of merchantable qualin•, and safe for the use for which they were intended. The CIGARETTE DEFENDANTS accomplished these representations and induced members of the public and government, includine plaintifF, to rely thereon through, among other methods. an ag3essive and continuing campaisn up to 1969 of deceptive, erroneous, misleading and false advertisements in the print, cinema, radio and television media designed to conceal the 16
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?"N MfiR 31 '98 18:42 ;ING 8 9PqLDiNG I ^ 8404 572 5142 T ,'7n89g5ge16334 P.06i11 monitotiag of the purported plsintiff class, civil conspiracy, and violations of the Georgia RJCO statute. In the &u instanee, rAW13ff may oot rnoowr a=ainst the reWM Defeedaats for oqlijenee beestse thse ddYtrMees do not muuh=ra, dsslpt or tsiarhst ciprates,: IMPOA11"'M~ntpaet Wair tlsrF ddr'Ibtiiesrrer.~.a buy tAr dpretas kom the ssaauAseturas md then seG the eiSarattes in sal.d eorwaieers to retsilrs. (See Eu. A-D attached to defeedaats' opposition btief.) Distributrs sueh as the defendants named 6r.ia simply atma be fouad 6s61a ia smO`ena tbr the mudwin of allegedly dafative oomuma >oeds.. Funh.r, tha Federal Clprette LabePms and Advatising Aa, 15 U.S.C. 111331, sr seq., prtxmpts PqiotiR's negipoe dmm to the ensa thay an preseised upoe.dvstisieq/pnomotiou a/tv3ue to wattt. Ssev. j.eeQ [karie nic SOS U.S. 504, 52a23. 112 S.Ct.160t, 2621.22, 120 LE.2d 407 (1992). Secondly, PhintiR'esseotnooverfrom thatetideatDsfeodsswttudarathearyofsnadical ~ baewus sue6 a wa af aetlaa is s oc nooSniz.d io G.orpa . Witlt rnpea to PfaiepiE's dsim for fmtd as d daeat, the Court agees with defaodams Gairgia Civl Practice Act or the Fedrai Roles of CivD Procedure. Rule 9 under both statutes that Plaintiff has not pkd this etaim witE par4aduity as required uodet Rule 9 of either the 4 To the eutsnt that Plaintiff is contending that Johmoa in his capaeiry as an ofScer of onerof the marwfaeauioS Defeadams, puueipued in the a+.mdfmtre, de3igk or toalcaing of cigarettes, Pfsintiff has alleged no specific fsets with respect to Johnson's alleged role in these acts, or 6cts demonsttatitg that Joiassoa somehow breaehed a duty that he owed to the purported plaiouff dass. Fiuthettrwre, there are obvious statute of limitatioos praobkms with respect to PlsiatiC's daims aQaina Johnson, given that be hasn't been employed by RJ.R Nabisco sinee Febniary of 1969, over eight yean before Plaintiff iastiutted this suk. 4 , w 00 W v W %10 AO 72A IAe.. t4R1 \C V
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12 13 cigarettes would have thwar:: d the conspiracy. Third, defendants used lawyers to misdirect what purported to be objective scielrific research to create favorable. and to suppress or destroy unfavorable. nndings regard_c the health consequences of smoking. To discourage meritorious litigation by piaintiffs injure~~ due to tobacco, they engaged in '-scorched earth" litigation tactics in combination with supprssmg, destroying and distorting evidence. 91. The conspirac;~ began at a time unknown to plaintiff, but at or about the time of the first scientific research by 1ie CIG-4RETTE DEFEND A.>\ TS and ciaarette manufactluers. Over the years the conspirato-s. acting in concert, performed numerous overt acts to fvr[ner the purposes of the conspiracy. Because many of these acts were concealed, plaintiff is not able to state all overt acts, but allege :he following representative acts as examples. Beginning as early as 1946, ci¢arette industrc res:arches reported a link between use of tobacco and cancer development. Ihe CIG ARETTE DEFENDANTS knew and acknowledged internally these and other health hazards of smokL-g. Internal industry documents reveal knowledge cf carcinagens in tobacco smoke, contribution of smoking to lung cancer, and that the irritation caused by smoking leadsto chronic bror__hitis and emphysema, among other health hazards caused by smokin¢. 92. In the ensuing :::ars, CIGARETTE DEFE.*iDANTS knew and acknowledged internally the health hazards of smoking. Internal industry documents reveal knowledge of carcinogens in tobacco smoke. contribution of smoking to lung cancer, and irritation caused by smoking leading to chronic bronchitis and emphysema, among other health hazards presented b-, smoking. 93. In 1952, a Brita~i researcher, Dr. Richard Doll, published a statistical analysis showing that iung cancer was more common among people who smoked than among non- smokers, and that the risk of ]t:.^.g cancer was directly proportional to the number of cigarettes smoked. In De;ember, 19::. Dr. Ernst L. Wynder of the Sloan-Kettering institute published the results of a stuny definitively iinking cigarette smoking and cancer. The widespread reporting of 3'_
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21 23 the public cons:ience and allow present and future smokers to believe that, despite wha: tuer may have heard elsewhere, the hazards of cigarette smoking had not been proven. A. In 1962, the Tobacco Institute, Inc., an agent of the CIG 4RET7E DEFE\-D. _\TS, ("Tobacco Instintte") issued a press release which stated, in pertinent part: We in the tobacco industry recognize a special responsibilitv to help s:ience determine the facts and we believe we are fulfilling this responsibility through the Tobacco Industry Research Committee. B. In 19' 1, the tobacco Institute in a press release stated: .-~ny organization in a position to apply resources in the search for those keys -- and which fails to do so - will continue to be guilty of cruel neglect of those whom it pretends to serve. C. In a'_973 Wall Street Journal article, James Bowling, a Vice President of co- conspirator Philip Mor:s, Inc., ("PM") was quoted as saying: I: our product is harmful... we'11 stop making it. 'We now know enough that we can take anything out of our product, but we don't know what intaedients to take out. . . D. In 1982, the tobacco Institute published a pamphlet in which it wrote: Since the first questions were raised about smoking as a possible health factor, the tobacco industry has believed that the American People deserve objective, scientific answers. The industry has committed itself to this tssk. E. 1_-. 1990, a public relations employee of Defendant R. J. Reynolds Tobacco Compan} ("RJR") wrote a letter to a person by the name of Rock in Minnesota, apparentiy in response to a letter from Rock. The public relations employee asserted in that lene: that "... scientists do not know the cause or causes of the chronic diseases reported to be associated with smoking. "The letter went on: Our company intends, therefore, to continue to support [research] in a continuing search for answers. : 9. On Au_gust 21, 1963. CIGARETTE DEFENDANTS and unnamed co-conspirators met to discuss their defense of the impending cancer litigation they expected in the wake o-'the Surgeon Genera!'s first report linking smoking and lung cancer. The September 3. 1963, minutes 20
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I 3 true health hazards and addictive nature of cigarettes and to lure new, especially youthfv!, users to replace the older ones who died. After 1969, the aforesaid CIG-ARETTE DEFENDANTS continued to disseminate deceptive, erroneous, misleading, and false s.atement concerning the state of the medical research concerning cigarettes and the diseases they cause as sell as the extent of health hazards and the addictive nattse of cigarettes and continued to iure new. especially youthful smokers to replace the older one who died via "informationa'." communications, the dissemination of coupons and gifts, the underwriting of sports, concerts, and other such events, and the "imderwriting" of purportediy scientific research and studies. 51. Plaintiff relied, to his detriment, upon the representations of the CIGARETTE DEFE?vTDANTS and co-conspirator wholesalers and retailers in many of the literally thousands of pre-1969 advertisements and promotional activities, and pre-and post 1969 dissemination of free cigarettes, and informational communications aimed at members of the pubiic and the Nevada and federal govemment, and consumers, including plaintiff. „ 24 25 26 27 '' 8 52. Said representations by CIGARETTE DEFENDANTS and co-conspirator wholesaler and retailer entities, and each of them, were false and untrue. in that cigarettes and other tobacco products were not safe for their intended use, nor were ther of iner=hantable qualin. as represented b} defendants, and each of them in that cigarettes and tobacco products have ven' dangerous properties and defect whereby said products cause lung cancer and other lung disabilities. heart disease and have other defects that cause injury and damage to the users of said products and bystanders to those users, including plaintiff herein, thereby threatening the health and life ofplaintiff. ==. As a direct and proxunate result of said false representations by defendants and each of them, the plaintiff sustained the injuries and damages hereinabove set forth. «TIEREFORE, Ptaintiffprays judanent against the CIGARETTE DEFENDANTS, and each of them, as hereinafter set forth. FOURTH CAUSE OF ACTION - DECEIT. FRAUDULENT CONCE?.LMENT 17
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they would defend ever cla= no matter what'the cosc and spare no cost in exhausting their adversaries' resources. r's se: forth in the published opinion in Haines v. Liggtett Group. Inc.. 814 F. Supp. 414(D.N._. ' 9c :1. the attitude of CIGARETTE DEFENDANTS is exemplified b, a statement attributed te _ou=sel for RJR in reference to cases filed in Northern California just prior to the 1988 statute. Ca:i:otnia Code S1714.45: The aggressive resn:x we have taken regarding depositions and discovery in gen::al :oatinues to make these cases extremelv burdensome and esp:nsive for plaintiffs' lawyers, particularly sole practitioners. Te pa.-:phtase General Patton, the way we won these cases was not by spen u'ng all of (RJR's] money, but by m tiing the other son of a bitch spend a1 of his. 18 19 20 86. The aforemea-doned intentional acts by the CIG.ARETTE DEFENDANTS and their co-conspirators, as ces,=bed more fully below, resulted in plaintiff being unaware the extent to which smokins_ nres_nted a serious hazard to his health, that the nieotine therein would addict him to smoking, o- tha: CIGARETTE DEFENDANTS had manipulated the delivery of nicotine in such a way as to increase the likelihood of addiction of which would cause him to develop, and indeed he h=- dvveloped, lung cancer, from which he will in all probability die in the near future. Had plaiaiff Anown the true dangers of smoking, the extent of the health risk smoking posed, that he as a r..inor was being targeted by the CIGARETTE DEFEND ANTS to replace older, dying smoi<2rs. or the addictive nature of nicotine, or the deliberate manipulation of nicotine levels, he wou:d nott have smoked. These actions proximately and legally caused the injuries he has sustained and -he damages plaintiff claims herein. Vl'HEREFORE, plaintiffprac; for judgment as hereinafter set forth. %1p 00 FIFTH CAL'SE OF ACTION-CIVIL CONSPIRACY v ~ ~ (CIGARETTE DEFENDANTS & TOBACCO DEFENDANT) co tn S7. Plaintiff in:orporates by reference Paragraph 1 through 86 inclusive, and make 2811 29
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them part hereof as though fiiy set forth herein. 88. This action arises of an ongoing conspiracy by the CIGARETfE DEFEti'D.%-N7S herein, and :aeir trade associations, their lawyers. TOBACCO DEFE:ti•D.AXT and persons and/or entities un:-nown to plaintiff at the present time which together control the cigarette industry for the following purposes: 19 20 21 24 25 26 27 a. To intentionallv suraress and/or conceal knowled¢e of the extent of the harmful effects of cigarette smoking from the public, the press, the oovernment, including from plaintiff; b. To intentionally frustrate the flow of information from the medical and scientific community to the general public on the bealth risks and addictive nature of cigarettes; c. To purposefully crea:e an illusion of conducing scientific research on cigarettes so as to tnislead the public inte believing that cigarettes were safe to smoke, when in realitv no such bona f de research was ever conducted; d: To knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national government in order to avoid and/or control regulation of the sale of cigarettes to the consumer, including plaintiff; e. To knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national govetrtment in order to "immunize" defendant from claims of false and misleading advertising and promorion; :. To knowingly and intentionally sell cigarettes to minors to ensure a future lucrative market for cigarettes as older smokers died; g. To induce and entice minors to smoke so as to hook another generation of smokers who by the age of majority were addicted or dependent and against whom defendants could now assert "adult free choice" defenses; and h. To purposefully create the illusion that a medical and scientific " controversy" existed as to whether or not cigarettes were harmftil to human health when in truth and fact no '-811 30
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142. The CIG.aRETTE DEFENDANTS herein. and each of them, made the representations herein aith the intention of depriving the public who smoked, including plaintiff. of thei: health in order to ma:ntain and/or increase their profits and induce new. often youth smokers, to buy their cigarettes. 143. As a proximate result of CIGARETTE DEFENDANTS' intentional misrepresentations as heretofore described, plaintiff was initially induced, and then forced by his ongoing addiction to spend total sum currently unlmown to him on cigarettes manufactured by the CIG_4RETTE DEFE'.VD.~LNTS and sold by, among others, co-conspirator retail entities. Plaintiff requests leave to amend this Complaint at trial when the exact amount becomes known. 144. As a further proximate result of CIGARETTE DEFEND ANTS' intentional misrepresentations, plaintiff developed terminal, inoperable lung cancer from which he Aill likely die in the near future. Plaintiff availed, and continues to avail. himself of aublic benefits and s°rvices valued in an amount at present unknown to him. Plaintiff seeks leave to amend this Complaint to conform to proof at trial. RrFiEREFORE, plaintiff prays for relief as hereinafter set forth. %D oD V 4~1 TEl\ TH C AUSE OF ACTION - PUNITWE DArL4GES 0 0 (CIGARETTE DEFENDANTS) 0 20 21 23 24 '' S 26 27 28 N 145. Plaintiff repeats and realleges each and every of the foregoing paragraphs in this Complaint as if fully stated herein. 146. The CIGARETTE DEFENDANTS, PHILIP MORRIS L-ICORPORATED, LIGGETT & MYERS, L\'C., R. J. REYNOLDS TOBACCO COMPA\'Y; BROWN & WILLL-UMSO?: TOBACCO CORPORATION as successor by merger to THE 4MERIC AN TOBACCO CO?vIP Ah-I' and its predecessors in interest; LORILLARD. INC., as successor by 46
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I 23 24 25 26 27 28 agreement to place cigarettes prominently in areas at eve-level designed to entice, tempt and induce consumers, particularly minors, including plaintiflr to purchase ci¢arettes at retail facilities. The profits from these sales. resulting from the targeting of minors to attract new smokers and repeat, already-addicted smokers, :anged to 15-20% o to a high of 40-50% of overall profits gained by the o- conspirator point of sale retailers including, but not limited to REBEL OIL COMPAt.Y. LNCORPORATED. Plaintiff is unable to allege in full the thousands of statements that defendanss have prepared and rei:ased over the last almost 50 years both because they do not have access to this informatio n, and because to allege each and every such advertisement or point-of-sale enticement here would entail hundreds or even thousands of pages of pleading; indeed, it is the CIGARETTE DEFENDANTS and the co-conspirators themselves which have this knowledge and information. and are in the best position to know the content of each and every su:h advertisement released in furtherance of their conspiracy. and to mislead the public an-4 plaintiff, misrepresen*t the tnte hazards and addictive nature of smoking, and to conceal materia: facts from the public, the govertunent, and plaintiff. 45. As a direct and proximate result thereof, ainti has suffered damages as more specificallc set forth above. WK-F-REFORE, plaintiff prays for judgment against the CIGARETTE DEFE\7D.A\TS as hereinafter set forth. SECOND CAUSE OF ACTION - STRICT LIABILITY (CIGr1RETTE DEFENDANTS) 46. Plaintiff repeats and realleges all foregoing paragraphs as if fully stated herein. 4'. The CIGARETTE DEFENDANTS' cigarettes when used as intended and without subs•.antial chane: from the time of manufacture, were defective for foreseeable users and bystanders for the following reasons: a. the cigarettes when used as intended caused or contributed to the illnesses listed in paragtaph 33 above; b. the cigarettes were addictive, habituating, habit-forming. and once used caused physical and psychological dependence; 15
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1 the CIG.9RET`E DEFENDANTS' cigarettes were used as intended. b. prior to 19c~. in failing to warn or warn adequately that the harms listed above w-ould be more ii.kely experienced if users did not restrict their intake of defendants' ci:arettes, and/or in failing to provide some guidelines on reasonabh• safe dosage or amount of cigarette consumption, andior in failing to warn that use of their cigar-_-es at an early age was exceedingly harmful; c. prior to 1963 in failing to warn or warn adequately that use of cigarettes as intended was i`::elyto lead to addiction, habituation or dependence, particularly if b egun at an ea::3, age; d. prior to 196~. in failing to warn or wam adequately that termination or iimitadon of cizarette use would be exceedingly difficult if cigarette consumption v,as initiated azd that this difficulty would increase as cumulative consumption increased. e. prior to 196~. in failing to warn or warn adequately of developing knowledge demonstrating that previous users of cigarettes are at great risk of harm (as listed above) and should seek medical monitoring; f. in failin¢ to establish a reasonably safe dose for foreseeable users, of their cigarettes. if ary such safe dose exists; s. in desi®ing. manufacturing, selling, and promoting the sale cigarettes that when ttsed as intended were not reasonably safe for foreseeable users; h. in faiting to make such feasible improvements in design, composition or manufacture, of their cigarettes such as to materially decrease the foreseeable risk to users; i. prior to 1969. in failing to disclose to plaintiff and other foreseeable users of their cigarettes of the defendants' own scientific and other scientific research known to them which disclosed that use of cigarettes as intended caused a great risk of harm as sescribed above; and, j. in furtherance of the ongoing conspiracy described below, and to deceive, conceal materia: information, while simultaneously affumatively misrepresenting to plaintiff and other members of the public, through continuing advertising campaigns in the print, radio, cinema and television media until 1969, and prior and after 1969 in"informational" communicating, sponsorship of sports activities, concerts, and other events. testimony and public statements by officers, agents and employees of the CIGARETTE DEFENDANTS that the cigarettes manufactured sold, or distributed bv defendants were safe in their ordinary and foreseeable use, Which induced plai.nriff to unknowingly expose himself to the hazards of cigarettes. Further, plaintiff was induced to begin smoking because these defendants targeted, and continue to target , youths as young as under 10 to hook them early on their cigarettes to replace older, dying smokers. The following are but a representative sample of the literally thousands of advertisements and promotions prior to 1969, and deceptive and fraudulent "informational" communications and authorized public statements thereafter, the defendants used defendant REBEL OIL COMPANY. INCORPORATED impliedly endorsed and 13
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authorized to u:e. and to continue to use: 7 8 9 10 20 „ 74 26 '' 7 "' 8 1 Be_ginn1zg in 1952 and contint u'ng for many years up to 1969. defendan: Liggett Myers promised in their Chesterfield pre-1969 advertisements and post- 1969 statemen-s: ...(P]roved by over 40 years of continuous use... as entirely safe for use in the mouth - chemi:ally pure, far more costly glycerol and pure sugars which are natural to tobacco - nothing else. (bold emphasis added] A medical specialist ismakmg regular bi-monthlv examinations of a2roup of people from va:ious walks oflife_ 45 percent of tltis group have smoked Chesterfield fo- an average of over ten years. After ei¢ht months, the medical specialist reports that he observed no adverse effects On the nose, throat and sinuses of the group from smoking Chesterfield. ' Beginnia¢ in 1951 and continuing for tnany years up to 1969, defendant RJ. Reynolds aivertised, and after 1969 stated, that its camel cigarettes were "tested" bg' "noted throat specialists." Not one single case of throat irritation due to smoking camels! More doctors smoke Camels than any other cigarette. In 1962. the Tobacco Institute issued a press release promising: w"e in the tobacco industry recognize a special responsibility to help science determine the facts. 4. In 197_. James Bowling, a Vice President of co-conspirator Philip Morris. Inc., was quotec as saying: If our product is harmfitl... we'll stop making it. We now know enough that we can take anything out of our product but we don't know what ingredients to take out.. . In 1978. a Tobacco Institute information pamphlet stated: The flat assertion that smoking causes lung cancer and heart disease and that the case is prove dis not supported by many of the world's leading scientists. 6. In 1983. RJR represented: It has been stated so often that smoking cause cancer, it's no wonder most people believe this is aL established fact. But, in fact, it is nothing of the kind. The truth is that almost three decades of research have failed to produced scientific proof for this claim ... in our opinion, the issue of smokins and lun¢_ cancer is not a closed case. It's an open controversy. k. In furtherance of the conspiracy detailed above and below, the CIGARETTE DEFE*IDA'vTS carried out an ongoing campai¢n of financial and other inducements and rebates offered to, and accepted by. co-conspirator supermarkets. convenience stores, and other point of sale retailers including but not limited to REBEL OIL CONfPA-NY, LhCORPOR4TED, in return for said co-conspirators' 14
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I these studies :aused what cigsrette company officials later called the "Big Scare:" 2 94. ia response to Dr. Wynder's definitive study in 19=:. the chief executive officer 3 of the leadinz ziaarette manufacturers met and conspired to deal with the "health scare" 4 presented bv :.roking. Acting in concert at an industry strategy meeting on December 15, 1953, 5 at the Plaza l:otel in New Yor's, the participants, except defendant Liggett, agreed to orchestrate 6 a public relations program to promote cigarettes and protect themselves from the perceived threat 7 posed by these and other expected attacks. Participants agreed to have the public relations firm 8 of Hill Know::on, which attended the meeting, serve as operating agency for all the companies. 9 95. Nine days after the December 15, 1953 , meeting described above, Hill & 10 Knowlton presented a detailed memorandum to the cigarette manufacturers. The memorandum 11 characterized .e grave nature of recent reports on the health effect of cigarette smoking as a 12 serious public ::iations problem, a situation of extensive delicacy, and recommended that the 13 industry avoid appearing callous to health or to be belittling negative medical research. 14 96. : ive of the six cigarette companies attending the December 15, 1953, meeting 15 agreed to form the Tobacco Industry Research Committee (`=TIRC"). Defendant Liggett, which 16 initiallv did no: oarticipate in the public relations effort, joined TIRC in 1964, the same year the 17 surgeon Gene --' issued his first report on smoking, in which he concluded that cigarette smoking 18 was a cause o: `uns cancer. TIRC changed its name this same year to the council for Tobacco 19 Research ("CA second trade group, the Tobacco Institute, was formed in 1958 by cigarette 20 manufacturer: The cigarette defendant conspirators and other co-conspirators were members ? I and directors. %•.ith the purpose of providing a`woice to speak on behalf of the industry on all _2 matters" and tc =ovide disinformation to media and others on the dan2ers of ciearette use. ''3 97. CIGARETTE DEFE?YDANfS and others developed safer cigarettes by 24 determining w-'-;.h parts of cigarette smoke caused disease. They did not market those cigarettes 25 and they did no: release the research that led to development of the safer cigarettes, because 26 either move would be an admission that the existing cigarettes were not safe and that a saf r 27 28
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not for the promotion of scientific goals, but for purposes of public relations, politics; and positioning for litigation. T'a. TIRC and CTR were used to support az industry strategc of denying or creating doubt that smoking causes disease. When CTR- s5onsored research produced results unfavorable to the industry snategy, the results were suppressed. 82. As recounted in recently revealed excerpts, lawyers, rather than scientists or researchers. handled the purported scientific research conducted by or for CIGARETTE DEFENDANTS: A. In 1978, Sheldon Sommers, M.D., who was then Chairman of the CTR Scientific Advisory Board, complained to R%illiam Gardner, who was then the Scientific Director for CTR, that he [Sommers] was unable to understand the legal counsel he was being given. The clear import of Sommers' letter was that the CTR lawyers were controlling tobacco research by CTR based upon legal considerations. B. In 1970, Helmut wakeham, Head of Research and Development of the Philip Morris Company wrote a memorandum to the president of Philip Morris, Joseph Cullman. In this memorandum, Wakeharn discussed the raison d'ette of the counsel for Tobacco Research-L:.S A., Inc, (`•CTR"). R%alceham wrote: It has been stated that CTR is a pro_a= to find out the - t:uth about smoking health.' What is truth is one is false to another. CRT and the industry have publicly and frequently denied what others find as 'truth.' Let's face ite w'e are interested in evidence which we believe denies the allegations that cigarette smoking causes disease. C. A hand-written memorandum dated April 21, 1978, produced from the files of Defendant Lorillard Tobacco Company ("Lorillard"), complains that: We have again abdicated the scientific research directional management of the industry to the 'Lawyers' with virtually no involvement of thepart of the scientific or business management side of the business. 27
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12 13 14 21 suppressed and confused the fac ts about the health dangers of smoking, including addiction. They concealed their actual knowledge concerning their onn negatix e health and addiction research results an their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addiction to cigarettes were critical to the conspiracy . CIGARETTE DEFENDA\TS claimed, faLaely, that there is insufficient "objective" research to determine if cigarette smoking c auses disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers [in a so- oalled "gentlemen's agreemen:"], for otherwise the revelation by one company of what it knew about the health consequences of smoking and/or the availability of a"safe(r)° cigarette and/or the addictive nature of the manufacturers' cigarettes would have thwarted the conspiracy. Third, CIGARETTE DEFENDA\ TS used lawyers to misdirect xhat purported to be objective scientific research to create r"avarable, and to suppress and or destroy unfavorable findings regarding the health consequences of smoking to discourage meritorious litigation by plainfiffs injured due to tobacco, they engaged in "scorched earth" litigation tactics in combination with suppressing and distorting evidence in order to protect the CIGARETTE DEFENDANTS' existence and profits. 58. The followin2 alie¢ations are a representative sample: In 7anuar~:, 1954, when tne CIGARETTE DEFENDA\TS announced the~ were establishing a joint industn groun known as the tobacco Industry research Committee, TIRC, they simultaneously pledged. through TIRC, aid and assistance to the research efforts into all phases of tobacco use and health. expressly undertaking an interest in health as their basic responsibility paramount to even other consideration. At the same time. CIGARETTE DEFEND-4NTS represented tha* there was no proof that cigarette smoking is one of the causes of lung cancer. When they made these representations, CIG.aRETTE DEFENDANTS intended that the public, including plaintif-, would both believe in and rely upon this public announcement, and they knex or should have known that these pronouncements would permeate 19
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F1FR 31 '98 13:42 F ^*N NG 3 SPAL.DING 0404 5-2 5142 7-- ~e3e5c=_=--- =. joindu was deariy xt forth in the reunt eue of Crowe v. Coleman 113 F.3d 1536 (11 tth Cir. 1997). In that case the F.IeveAth Circuit determined that the removing party !tas the burden of proving thu IitMr: (1) there is no post+'M7ity the pbiatie' eut wbG16 a tauie of aeeion a6ainu the resident defmdarm or (2) t6spl.iztsliflus>lwdttlaKN Pkd *wdiaiatd fias to Erina the raidau d.tatdats iato state couet. The burden of the i4aoving party is a heavy one. AO )2A .e- 0.11 To detmmins wbether the ase should be remanded, the distries court rtwst evaluate the Paeeuel allegations io 16e 6slu most 6vcrable to the plaintiff and mwttetolve any tmcetamesa6out aate tubsnativeLw inlitvorof theplairndE The feda.t coutt aaaiou thw datavvinsum bamd oa the phs plesdings at the time of rentovd: but the court may consider affdavits and depodtioe tranaeripts wbtnitted by the Panies. at 153! (iRertt.l quotations and aalatioas otnitud). DeSeedatns do ttot contend that Plsin>ilt has ErattdtdaatlyPladjtmdietimel doteinord.rtobriesdtereeidentbefettdaapinto statecourt. Thw, the queaioo for the Court to deemiine is whether there is no possibility that Plaintiff can enablish ra wtse of uxion against the reWmt Dafeodants M ANALySIS Considering the pk.din6s, the reepadve brab Gled by the parriar and atl other pertinent portions of the reeord, and evaltwt" the allegatiane in the light most favorable to-Plaintift the Court concludes that Plaintiff hes failed to tsate a cause of action against the resident Defendants. Plaintiff does not contend that the resident Defendants are liable to her under a strict liability theory.' Plaintiff does, however, contend that thae defetdaets, along with the manufacturing and trade assotaatioa Defendants, are liable for negligmee, the costs of medical I In C>torg~k only the meoubetaras of defective products may be held strialy liable. o.C.C}.A. 4 s1.1•11(roxl).
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I use for which taev were intenied. 2 1-26. Although the : intent of the statements and communications changed regularly. 3 they retained these consisten: aemes and misrepresentations, concealment, and distortions. Due 4 to the sheer number and volu3e of the thousands of such advertisements and communications 5 through the years, plaintiff is _aable to recount specifically herein each and every one. Indeed, it 6 is the def ndants herein which have superior knowledge concerning the thousands of 7 advertisements and communi:ations. The statements and communications were misleading and 8 deceptive, and induced the co^sumin¢ smokers, including plaintiff, to rely to their detriment 9 upon them. As a proximate cause of such misleading and deceptive statements and 10 communicatiotu, plaintiff has developed, and will likely die therefrom, inoperable, terminal lung 11 cancer. 12 1='. As a result of the point of sale targeting of youth and minor smokers, at least 90% 13 of adult smokers began purchasing the cigarettes to which they became addicted while under the 14 age of 18. In reliance upon the representations and inducements of the point of sale targeting of 1 5 minor smokers by the CIGAI2ETTE DEFENDANTS, as described above, plainriff, and 16 countless other smokers like :.im, purchased cigarettes at retail facilities and became addicted to 17 cigarettes. which he continued to smoke until developing lung cancer from which he no« suffers 18 and from which he in all likelihood will die from in the near futtue. 19 1'_8. Tne purchase by mirtors throughout the years relevant herein, including plaintiff, of 20 cigarettes sold by the CIG4REITE DEFENDANTS, and each of them, and the development of 21 the addiction of these smokers. including plaintiff, resulted in the defendants', and each of them . '_'2 profiteering unjustly and unfailc from the illegal sale of cigarettes to the minors, includine '_'3 plaintiff in an amount present} unknown to plaintiff, who requests leave to amend this 24 Complaint to conform to proof at trial when the true amount of illegal profit made by these sales I 25 of cigarette to minors becomes known. 26 129. As a proximate cause of plaintiff's addiction to cigarettes and injuries therefrom, 27 2811 42
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D.aTED this LS- day of July, 1999. 20 21 27 MANOR & S Nevada Bar . 1318 530 South S' Sueet Las Ve¢as, Nevada 89101 (702) ' 84; -1400 and By S .i Nevada Bar No. 004651 521 South Sixth Street Las Vegas, Nevada 89101 (702) 382-9307 281 50
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14 _3 Office o' se U.S. Surgeon General. the World Health Chganiza:ion, and the American Medical Associati:n. =ach of these c ganizations now acknowledges tocacco use as a form of d.-ug dependen:e o: addiction with severe adverse health consequences. CIGARETTE DEFE\D3.NTS continue to dispute this fact. 1 C4. In furtherance of the conspiracy, defendants have controlled, and continue now to control ni:otine content of their cigarettes, including by developing high-nicotine tobacco and blending e'tobacco, and engineer their cigarettes to control nicotine delivery to the smoker, through adding ammonia, and through the use of reconstituted tobacco. They then concealed their knowiedg; of the addictive nature of nicotine and of their manipulation of nicotine levels and deliven-. i ney have denied, and continue to deny publicly that nicotine is addictive, or that they attempt to or do achieve levels of nicotine in their products to create or sustain addiction. 105. Defendants have squelched and kept secret information they had about the hazards of smoking te '--ealth, and about the addictive nature of nicotine and their manipulation of' nicotine levels and delivery. The March 1997 defection ofLiggett from the conspiracy afftrms its existence, for the cigarette manufacturers sought to suppress a1 Liggett documents relating to the conspiracy from the public. 106. i: furtherance of the conspiracv, CIGARETTE DEFE'DANTS deliberately abused the litigation process, as described more fully in the Eighth Cause of Action above. The}- conspired to resist all discoverc aimed at them, to force litigating plaintiffs to obtain a court hearing, and then demanded confidentiality orders once court rulings were obtained to prevent the rulings from becoming public knowledge. They have demanded extensive expert and plaintiffs depositions, and have at every juncture tried to force seriously ill plaintiffs to incur massive costs associated with litigation while the co-conspirators pooled the costs of def nse. 107. :ne combination of litigation tactics adopted by def ndants and their suppression of the information available to them regarding the health hazards of tobacco, the addictive nature of nicotine. and their manipulation of nicotine levels and delivery. operated to discourage 2811 36
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1-. 5 personal inja-~ litigation against them, to the point where defendants could and did assert that they never pai,: a cent to a per sonal injury claimant on account of smoking. 108. The aforementioned conspiracy by the cigarette defendant conspirators and their co-conspirato-> resulted in plaintiff being unaware of the extent to which smoking w-as a hazard to his health, that the nicotine therein would addict him to smoking, or that defendants manipulated nicotine levels and targeted youth so as to hook youth before majority and then assert adult free choice as a defense once so hooked. This conspiracy proximately and legally caused the injuries he has susained and the damages plaintiff claims herein. As a result, plaintiff has now developed and will die in the future from cancer caused by plaintiff's addiction to smoking. WHEREFORE plaintiffprays iudgment against the CIGARETTE DEFENDAI'TS and DNA Plant Technolo¢r as hereinafter set forth. , I SIXTH CAUSE OF ACTION - BREACH OF EXPRESS WARR4NTY (CIGARETTE DEFENDAtV"TS) 109. , Plaintiff repeats and realleges Paragraphs 1 through 109, inclusive, in their entirety as if fLiiy stated hereic. 110. At all times relevant herein, the CIGARETTE DEFENDANTS pursued a more than 40-year campaign of advertising and communications. directed at government and the public. including plaintiff designed to communicate to the consumer. including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexv, and in all was desirable. Hundreds or even thousands of advertisements and communications were published by the CIGARETTE DEFENDANTS in the various media, so many that it would be neither economically feasible nor practicable for plaintiff to identify each and every one of them 37
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65. The CIG.4RETTE DEFENDANTS have repeatedly stated for the public record that they do not manipulate nicotine levels in cigarettes. However, the plant described in this patent represents a dramatic attempt to manipulate nicotine. Moreover, when the FDA asked company officials whether tobacco plants were bred specifically for higher nicotine content, they were told that this was not feasible. The CIGARETTE DEFENDA>\TS asserted that tobacco growers and cigarette manufacturers had an agreement that the nicotine level of new varieties of tobacco grown in the United States would vary only slightly from the level of standard varieties. Supposedly, under this agreement, a new high-nicotine tobacco plant that varied more than slightly from the standard variety could not be commercially grown by farmers in the United States. 66. Nevertheless,the FDA learned that interest in developing a high-nicotine tobacco plant dated back to at least the tnid-1970's. In 1977, Dr James F. Chaplin stated: " manufacturers have means of reducing tars but most of the methods reduce nicotine and other constituents at the same time. Therefore it may be desirable to develop levels constant or to develop lines higher in nicotine so that when the tar and nicotine are reduced there wiIl still be enough nicotine left to satisfy the smoket." 20 21 'YI ~ 23 24 25 26 27 6'. In trath, Dr. Chaplin had been working on 2enetically breeding tobacco plants with varying nicotine levels. In a 1977 paper, Dr. Chaplin indicated that tobacco could be bred to increast nicotine levels, specifically by cross-breeding commercial varieties of tobacco with Nicotiana rustic2 which is aAild variety, very high in nicotine, but not used commercially in cigarettes because it is considered too harsh However, Dr. Chaplin told the FDA that his specia:i}- bred plants were not commercially viable because they did not grow well and literally did no: stand up in the field. Furthermore, he indicated that he was surprised that he could not get the nicotine levels as high as he anticipated. In fact, in his 1977 paper, the highest nicotine level he reported in these specially bred lines was 3.4 percent total nicotine within the normal range for flue-cured tobacco. 28 11 1) 1)
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5. For plaintiff s costs of suit herein; 6. As to those cigarette defendants named fo- punitive damages alleged, for exemplary or puritive damages according to proof; and As to cigarette defendants and Rebel Oil Company Incorporated: 7. For redress and restitution for past and continuing acts of unfair competition and illegal conduct; 8. For permanent injunction enjoining the cigarette def ndans, and each of them from sellia¢ any more cigarettes containing carcinogenic substances or other additives; 9. For a permanent injunction enjoining the ci¢arette defendants, and each of them from selling any more cigarettes to minors and youths; 10. For disgorgement of all profits unjustly gained from the illegal sale of cigarettes to minors; 20 11. For disgorgement of all profits unjustly gained from the continuing and ongoing sale of cigarettes to those consumers, including plaintiff, whom the defendants addicted to cigarettes as minors, and who. including plaintiff, continued to purchase them because of their addiction: 12. For reimbursement to the State of Nevada and all other public and other entities from which plaintiff received or will receive benefits and services for cigarette-related illnesses and conditions; 13. For reasonable attorney's fees; and 14. For such other and further relief as this Court deems just and proper. 28 11 49
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4 5 6 7 8 9 10 11 12 17 18 19 20 21 23 24 25 26 W. RANDALL MAI-NOR ESQ. MAINOR & HARRIS Nevada Bar No. 001318 530 South Sixth Street Las Vegas..N et•ada 89101 (702)385-1400 and STEVEN J. KAREN, ESQ. Nevada Bar No. 004651 521 South Sixth Street Las Vegas. Nevada 89101 (702) 382-9307 Attorneys for Plaintiff DISTRICT COURT CLARK COUNTY, NEVADA ..... LLOYD GLASS vs. Plaintiff. Case No. /-52 Dept. No. /~ Docket No. PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC.. R. J. REYNOLDS TOBACCO COMPANY: BROWN & WZLLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD. INC, as successor by merger to P. LORILLARD and/or LORII.LARD TOBACCO COMPANY: BROWN & WILLIAMSON TOBACCO CORPORATION; DNA PLANT TECKNOLOGY CORPORATIOIv': BATUS HOLDINGS. INC.; B.A.T. INDUSTRIES, P.L.C.: BRITISH AMERICAN TOBACCO COMPANY. L.T.D.; THE AMERICAN TOBACCO COMPANY: REBEL OIL COMPANY. INCORPORATED, JOHN DOES 1-300. NOTICE! YOU HAVE BEEN SUED, THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD UNLESS YOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW. 27
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their misrepresentations and concealment to keep secret research and other conduct related to the true health dangers of smokin g." sufficient to show that th_ attorneys were used to perpetuate the fraud. American Tobacco Co. v. State of Florida. 697 Sc. d. 1249, 1257(Fla. App.1997). 100. Over the nea: 40 years, the tobacco indusr:~- continued this conspiracy to suppress the accumulating scientific and medical evidence of the health hazards of smoking by claiming to "help" science determine the true facts concerning smoking and disease and continuing to manipulate the nicotine Ievei of cigarettes to keep smokea addicted and to lure and hook younger smokers. 101. Building on the efforts they launched in 1934 with the public announcement of TIRC, which became CTR CIGARETTE DEFENDANTS through TIRC and the Tobacco Institute continued to state publicly in 1970 and thereaftrn up through testimony to Congress in 1994, that they recognized a special responsibility to the psblic to help scientists determine the facts about tobacco use and health, and they supported CTR for independent research to that end. 102. In furtherance of the conspiracy to conceal relevant information regarding smoking and health, CIG?.RETTE DEFENDANTS through CTR, The Tobacco Institute, and otherwise continued to insist uhroughout the 1970's, 1980's. and 1990's that there still was a question about smoking and health and that cigarette smoi;ing had not been established to cause chronic diseases such as cancer or emphysema and claimed that studies showing smoking causes disease were flawed. 103. The nicotine in cigarettes is addictive, due to the pharmacological effect of nicotine. CIGARETTE DEFENDANTS and co-conspirators have known this since at least the early 1960's. As stated by defendant Philip Morris in a 1969 research report to the Philip Morris board of directors: [... smoking a cigarette for a beginner is a s}mbolic act... "I am no longer mv mother's oluld. I'm Tough, I'm an adventurer, I' m not square... As the force from the psychological synibolisms subsides, the pharmacological effect takes over to sustain the habit..." Nicotine is now reco_tatized as an addictive substance by such major medical organizations as the 2811 3s
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2 3 4 5 6 7 8 9 10 11 21 24 25 26 27 1: 6. Beainning at : time unknown exactl}-to plaintiff. but prior to his first cigarette at the age o' 16 in or about 196- and continuing thereafter due to his addiction, plaintiff saw, believed, and relied on the CIG.4RETTE DEFE\AANTS' representations, including those placed in and around the retaL facilities of co-conspirator retail entities. In reliance on thent, he purchasec various cigarettes :ncluding, but not limited to the brands listed'nerein, MARLBORO, MARLBORO LIGHT, LUCKY STRIKES, CHESTERFIELD, P.4RLL4MENT, CA~L -NON FILTERED. V.wLNTAGE, AN-D WINSTON cigarettes. 1?'. At the time th: CIGARETTE DEFE?VDA'TS negligently made these misrepresentations as herein -alle¢ed and co-conspirator retail entities assisted, aided in, and enabled these representations and sold plaintiff cigarettes, the defendants and each of them had no reasonabl e gounds for be:ieving the representations to be true. 178. -ks a proxima:e result of the CIGARETTE DEFENDANTS' and co-conspirator retail entities' negligent misrepresentations, plaintiff continued to smoke despite numeroas attempts to ouit and thereby developed terminal, inoperable lung cancer from which he will likely die in th: near future. R't.-IEP.EFORE, plair.tiff prays for relief as hereinafter set forth. ~1o co V ~ \I V'TI,* CAUSE OF ACTION - O 0 LNTENTIONAI. FALSE AND MISLEADL*1G ADVERTISLNG o ~ (CIGARETTE DEFENDANTS) 139. Plaintiff realleges each of the foregoing paragraphs as if full~' stated herein. 140. At the time of the CIGARETTE DEFENDANTS made point of sale targeting using the repr,sentations herein alleged, they knew the representations were false. 141. Beginning at some time unknown to plaintiff, co-conspirator retail entities knew the revresentanons herein alleged were false. 2811 45
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23 24 26 27 28 alternative could be readihF:oduced, undercutting the industry position to the contrarr•. Cigarette defendant conspira:ars also intemally recognized the validinof non-industry research efforts, such as animal smoke-inhaling and skin-painting with smoke ingredients, but publicly downplayed the significance of that research. In fact, in furtherance of the conspiracy- to conceal adverse scientific informatioL there was a longstanding "gentleman's agreement" among the conspirator defendants and ce-conspirators to not conduct, i.e., to supnress, independent research on the issue of smoking and h_alth, as referenced in a 1968 internal Philip Morris draft memo which stated, " We have reason to believe that in spite of gentlemen's [sic] agreement from the tobacco industry in previous years that at least some of the major companies have been increasing biological studies .%ithin their own facilities." 98. The gentlemat:'s agreement described above notwithstanding, defendant R.J. Reynolds conducted research i.n the 1960's to study the mechanism whereby smoking causes emphysema. This research was described as important because it came close to determining the underlying pathobiology of emphysema. In 1970 R.J. Reynolds closed down the project and fired the scientists working oc it. None of the work done on the project has been disclosed to the public. 99. Publicly, the CIGARETTE DEFENDANTS took another stance. They used counsel-sponsored studies. among others, to attempt to show pockets of high cancer incidence without relation to smoking, to find instances of cancer in nonsmokers, and to show that duration and amount of smoking have no relation to the age of peak incidence of lung cancer. Documents suggest as well tha: in 1984 the in-house lawyers for CIGARETTE DEFENDe1NTS. which formed a "Committee of Counsel," thwarted industry scientists' desires to assure the safety of the product by testing ingredients adequately. The appellate court in Florida in July, 1997 refused to overturn fmdings that there was evidence "that the defendants hid from and misrepresented to the public the health risks of smoking and that their conduct constituted fraud on the public," and "that the defendants utilized their attorneys in carrying out 34
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1 ciaarettes to satisfi- thei: nicotine addiction. thus negating, because of the dose dependent nature 2 of the health risk of smo ing. any health advantage CIGARETTE DEFENDANTS and co- 3 conspirator wholesale and retsil entities touted in low-tar cigarettes, including Marlboro Light 4 100's. 5 6 7 8 9 10 11 118. As a provmate cause of the breach of express tvarranty on the cigarettes, including but not limited to the brands listed above, by co-conspirator wholesale and retail entities and CIGARETTE DEFENDANTS, plaintiff has suff red, and will suffer until he likely dies therefrom, development of terminal, inoperable lung cancer. WFEREFORE. piaintiff prays for all consequential damages from CIGARETTE DEFENDANTS as her.:aafter set forth. SEVEN-TH CAUSE OF ACTION - UVF s.IIt COi1"PETITION/UNLAWFUL BUSI1iESS PRACTIL'ES (CIGARETTE DEFENDANTS & REBEL OIL COMPANY, LNCORPORATED) 119. Plaintiff realleges each of the foregoing paragraphs above as if fully set forth herein. 120. Plaintiff a- all times relevant herein, is a resident of the State of?vevada and a member of the consumin_ public at whom CIGARETTE DEFENDANTS and REBEL OIL COMPANY. LVCORPORATED, aimed their advertisements and communications. 121. At all times relevant herein, the CIG-4RETTE DEFENDANTS engaged in an ongoing, sophisticated campaign of explicit and implied misrepresentation, conr_alment, and distortion, described abo,:: more fully in above, of the true state of the scientific research showine ci_earene smokin_ causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, often youth, smokers to purchase 2811 40
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.-, TOBACCO COMPANY z MEMORANDUM July 20, 1999 VIA FEDERAL EXPRESS To: David K. Hardy Shook Hardy & Bacon FELOlYM: Jeannie Price Assistant to James A. Wilson Rs: NEW SERVICE Lloyd Glass v. Philip Morris, et al. Service Date: 7/ 19/99 Service Upon: Lorillard Tobacco Company Type of Service: Personal (on CSC as registered agent) .JP Enclosure
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herein. 1: i. At all times re:evant herein, co-conspirator wholesale and retail entities enabled and encot:.-aged the CIGARETTE DEFENDANTS to pursue a more than 40-year campaign of advertisi: g and communications, directed at government and the public, including plaintiff, designed to communicate to the consumer, including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexy, and in all wavs desirable, by alloxcmg prominen: placement of the advertisements and communications by CIG 4RETTE DEFEND ANTS in and around its retail facilities where consumers, including plaintiff, saw, read, and relied on the representations made therein. Hundreds or even thousands of advertisements and communications were published by the CIG ARETTE DEFENDANTS in the various media including in and around co-conspirator retail facilities, so many that it would be neither economically feasibie nor practicable for plaintiff to idenen- each and every one of them herein. 11 -2. From the time plaintiff was a minor, he read, heard, and saw the aforementioned advertisements and communications. Beginning at the age of 16 when he purchased for his consumption his first of the hundreds of packages of cigarettes he purchased and smoked, includine but not limited to the brands known as MARLBORO, IvL4RLBORO LIGHT, LUCKY STRIKES. CHESTERFIELD. PARLL4ME?v'T, C.A.ivIEL-?vOti FILTERED. V.kNTAGE, A-N-D WL~'STO\„ the aforementioned advertisements and communications were the basis of the bargain. and plaiatiff relied upon the published advertisements and communications to his detriment. 113. Beginning at a ume relevant herein, and continuing up into the present, CIG ARETTE DEFENDANTS, warranted to government and the public, including plaintiff, that the~ had ituther "improved" the safety, taste, enjoyment, and relaxation consumets, including plaintiff, would derive from smoking low-tar cigarettes, including Marlboro cisarettes by developing Marlboro Light 100's. 27 =8 {1 38
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1 due to the conduct of the CIGARETTE DEFENDAN"fS and REBEL OIL C04M4LY. INCOR.POR4TED. as descr.*ned above. plaintiff has availed, and will continue to avai.. himself of inedic--' and other benefirs extended to him and other former youth smokers under public assistance progiams. Such financial and other assistance will cause the State of Nevada and other pub:ic entities to seek reimbursement for the value of all services and benefits he received, the full nature and extent of which are not yet known to plaintiff, and leave is requested to amend this Comnlaint to conform to nroof at the time of trial to establish the amount of reimbu.sement. 130. As a result of the continuing course of conduct of the defendants, and each of them, as outlined above, the CIGARETTE DEFENDANTS have been unjustly enriched from the years-long illegal sale of addictive cigarettes, first to minors and youths, including plainti$ to addict them and ensure to the said defendants, and each of thetn, and ongoing flow of profits throughout the years, as the addicted smokers continued to purchase cigarettes. The exa: amount of this unjust enrichment gained from the ongoing and continuing purchase of cigarettes by addicted smokers who began smoking as minors is as yet unknown to plaintiff, who requests leave to amend this Complaint to conform to proof at the time of trial. Vi'herefore. plaintiff prays for injunctive and other relief from the CIGARETTE DEFE\'D _-1LNTS and REBEL OIL COMPANY, INCORPORATED according to proof, as 20 21 ,-, 23 24 '5 26 27 hereinafter set forth. %10 00 EIGHTH CAUSE OF ACTION - V W ~ ~ NEGLIGENT FALSE AND MISLEADING ADI'ERTISING ~ ~ (CIGARETTE DEFENDANTS) i=1. Plaintiff realleges each of the foregoing paragraphs as if fully stated hereiL. 28 11 43
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®AVERY" . RECYCLEUPAPEPMADEFRCM2D9:POSTCCMUMERCQNiEM 8100VGBb .A f
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1?'_. CIGARETTE DEFENDANTS breached their duties of care as heretofore set out above by thei: ongoing campaign and conspiracy to deceive and mislead government and the public, including plaintif : and to conceal and/or distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine, and the CIGARETTE DEFE-N-DA-NTS' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and communications directed at the consuming public in the State of Nevada. including plaintiff. 1:=. Co-conspirator retail entities, at times material had the following legal duties: a. a legal duty to refrain from selling cigarettes to minors; b. a duty to warn previous users, users, and foreseeable users of the cigarettes it sold of the dangers listed above; c. a dutv to disclose to consumers of cigarettes the results of their own, if any, and other scientific research known to them which indicated that use of cigarettes caused users a g<eat risk of harm (as listed above). ''3 24 25 26 27 '?8 134. ihese co-conspirator retail entities breached their duties of care above by its vears-long cou:se of conduct aiding, assisting, and enabling the CIGARETTE DEFE'•TDA'VTS' ongoing campaiffi and conspiracy to deceive and mislead government and the public, including plaintiff, and to conceal andior distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine. and the CIGARETTE DEFE:vDMNTS' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and conununications directed at the consuming public in the State of.Nevada, including plaintiff, in that said defendants sold cigarettes to minors, including plaintiff and allowed minors easy access to cigarettes. 135. The statements and communications the CIGARETTE DEFEPIDAKTS presented to the public, including plaintiff, and which the co-conspirator retail entities placed and allowed to be placed in and around their various retail facilities, were made with the intention of inducing the public, with youths and minors as the particular targets, to purchase the cigarettes, including but not limited to the brands listed herein. 44
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n~G. U. I 7Y" 1 2 3 4 5 10 11 12 13 14 15 16 25 26 27 Philip Morris IncrSrporated, Corporation Trust Co. of Nevada Onc: East First Straet, Rano, NV 89501 TO THE DEFETdDANT: A civil Complaint h`s been filed by the plaintiff against you for the relie.f set forth in the Complaint. 1. if you intend to defend this lawsuit, within 20 days after this 5 unanons is served on you exclusive of the day of service, you must do the foqowing: e. File with the Clerk of this Court, whose address is shown below, a fomial writtan response to the Complaint in accordance with the rules of the Court_ 2. Unless you respond, you default will be entered upon application ofthe plainbliand this Court may enter e j udgemettt against you for the relief demanded In the Complaint, which could tesult in the taking of money or ptoperty or other teiief requested in the complaint. 3. If you intend to seek the advice of an afromey in this matter, you shouid do so promptly so that your response may be filed on time. Issued at the direction oE SIEVEN J. KAiREN, ESQ. Nevada Bar No. 004651 521 South Sixth Smeet Las Vegas,NV 89101 Attorney for Plaintiff SHIRLEY B. PARRAGIIBtRE, CLERK OF THE COURT 1 DEPUTY/C DATE County Courthouse PEM WILI.QX 200 South Tbird strxt J U L 1 5 1999 Las Vegas, Nevada 09155 I
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1 2 3 9 10 11 12 13 14 PLEASE TAKE NOTICE that on August 6, 1999, Defendants, Philip Morris Incorporated; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company); and Lorillard Tobacco Company filed a Notice of Removal, a copy of which is attached hereto, of the above- entitled action to the United States District Court for the District of Nevada. You are also advised that Defendants, Philip Morris Incorporated; R.J. Reynolds Tobacco Company; Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company); and Loril(ard Tobacco Company, on filing suchNotice of Removal in the Office of the Clerk of the United States District for the District of Nevada, also filed thereof with the Clerk of the Clark County, Nevada District Court to effect removal pursuant to 28 U.S.C. § 1446(d). DATED this 6" day of August, 1999. LIONEL SAWYER & COLLINS By: ~ DENNIS L. KENNEDY, ESQ. DAVID J. MERRILL, ESQ. 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Attorneys for R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company), and, for the purposes of this Notice of Filing Notice of Removal only, the other joining defendants. 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW 1]O] BANK OFAMERICA 1*(„Ik 300 SOUTH FOURTH 5T_ LAS VEG46. NEVADA 89101 1702 1 383-8888 removal.not -2
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Dennis L. Kennedy, Esq. Nevada Bar No. 1462 David J. Merrilt, Esq. Nevada Bar No. 6060 LIONEL, SAWYER & COLLINS 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, NV 89101 (702) 383-8888 Attorneys for R.J. Reynolds Company and Brown & Williamson Tobacco Corporation (individually and as successor by merger to The American Tobacco Company) DISTRICT COURT CLARK COUNTY, NEVADA LLOYD GLASS, Plaintiff, vs. PHILIP MORRIS INCORPORATED; LIGGETT & MYERS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD, INC., as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; DNA PLANT TECHNOLOGY CORPORATION; BATUS HOLDINGS, INC.; B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED; and JOHN DOES 1-300. Defendants. LIONEL SAWYER & COLLINS ATORNEYS AT LAW I lC0 9MYK OF AMERICG F(AE~~ 3005OUTNFOURT lAS vecAs. NEVnuA 89101 (1021 383-8988 f R(IIDVCLn01 -I- Case No. A405885 Dept. No. IX NOTICE OF FILING NOTICE OF REMOVAL
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^ I , 3 8 9 10 '1, 23 24 25 26 "' 7 28 and smoi: their cigarettes. 1__. At all times relevant herein, defendant REBEL OIL CO1vIPANI-. INCORPORyTED, participated in, encouraged, and thereby allowed to flourish, the ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully in above, of the true state of the scientific research showing cigarette smoking causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, of[en youth, smokers to purchase and smoke their ci¢arettes. 1_.. Defendant REBEL OIL COMPANY, NCORPORATED, had a legal duty to refrain from s-Jiing, promoting, targeting, participating in the above ongoing campaign and conspiracy. and including the sale of cigarettes to minors. 1_4. Defendant REBEL OIL COMPANY, NCORPOR4TED, at times material had the following legal duties: a. a legal duty to refrain from selling cigarettes to minors; b. a duty to woarn previous users, users and foreseeable users of the ci¢arettes it sold of the dangers listed in the preceding paragraphs; c. a dutv to disclose to consumers of ci¢arettes the results of their own. if anx. and otaer scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above): and d. a legal duty to refrain from contributing to the delinquency of a minor. 12:. Defendant REBEL OIL COMPANY, NCORPOR4TED, assisted and enabled the CIGARETTE DEFENDANTS to engage in the ongoing, sophisticated campaign of explicit and implied misrepresentations, concealment, and distortion, described above more fullc above by placing, and allowing defendants to place and publish, in and around its various retail facilities, the misrepresentations, distortions, falsehoods and concealment targeting underaae, minor smokers. and thereby impliedly warranted and represented to members of the general public. including that purchasers, users and bystanders of cigarettes, including the plainff herein. that cikar_ttes and other tobacco products were of merchantable quality, and safe for the 41
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1 1) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 R.J. Reynolds Tobacco Company, The Prentice-Hall Ccrp. System, NV, 502 E. John Street #E, CarsonCity TO THE DEFENDANT: A civil Complaint has been filed by the plaintiffagainst,vou for the relief set forth in the Complaint. 1. If you intend to defend this lawsuit. within 20 days after this Summons is served on you exclusive of the day of service. you must do the following: a File with the Clerk of this Court, whose address is shown beloµ. a formal written response to the Complaint in accordance with the rules of the Court. 2. Unless you respond, you default will be entered upon application of the plaintiff and this Court may enter a iudcement against you for the relief demanded in the Complaint which could result in the takin_s of money or property or other relief requested in the complaint. 3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be filed on time. Issued at the direction of: STEVEN J. K-4REN, ESQ. Nevada Bar No. 004651 521 South Sixth Street Las Vegas, N\' 89101 Attorney for Plaintiff SHIRLEY B. PARRAGUIRRE, CLERK OF THE COLRT . DEPUTY CL R! y jj*3~ t. County Courthouse 200 South Third Street J Ui'S1999 Las Vegas, Nevada 89155
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I 2 „ 23 For plaintiff's general damages according to proof: For plaintiff Lloyd Glass' loss of income, wages and earning potential according For plaintiffLloyd Glass' medical and related expenses according to proof; For plaintiffs prejudgment interest according to proof. ~ w V ~ Q 48 CD O -tb. 119. The CIGARETTE DEFENDANTS did and continue to conspire with one another and with other, kno%- and unknown conspirators in order to continue to control the market fo_ cigarettes and tobacco products, mislead and deceive the public and the government as to tae health hazards of smoking and the addictive nature of tobacco products, and prevent injured pe: sons and governments form raaking claims or litigating against them. 150. The acts and conduct of the CIGARET"fE DEFENDANTS, as summarized above and described in detail in the foregoing paragraphs inclusive. were motivated by the financial interests of the CIGARETTE DEFENDANTS in the continuing uninterrupted distribution and marketing of ciearettes and tobacco products and the acquisition of new, youthful consumers. In pursuance of said financial motivation, the CIGARETTE DEFE\'D?iNTS consciously disregarded the safety of the users of and persons exposed to the smoke o£ cigareues and othe_ tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiff. 151. The conduct oi the CIGARETfE DEFENDANTS as described herein was and is willful, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiff. For the sake of example, and by way of punishing the CIGARETTE DEFENDANTS, plaintiff seeks punitive damage according to proof. PRAYER 'WHEREFORE, Plaintit3'Lloyd Glass prays jud¢ement against cigarette defendants, and DNA Plan-, Technology Corporation and each of them, as follows:
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A G::U b. 19y'9 i:['0 A-~' /1 1~.i. 6uc9 r. 4. ; ' SUnrn, 1 A W. RANDALL MAINOR, ESQ. MANOR & HARRIS 2/ Nevade Bar No. 0013I8 530 South Sixth Sneet 3' Las Vegas, Nevada 89101 (702) 385-1400 49a1d STEVEN J. KAREN, F,SQ. 51 Nevada Bar No. 004651 521 South Sixt6 Street 6, Les Vegss, Nevada 89101 (702)382-9307 7 N Attomeys for Plaintiff DISTRICT COURT CLARK COUNTY, NEVADA 0'Mt *F Plaintiff, PHILIP MORRIS INCORPORATED, LIOGETT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPOIiATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecassors in interest; IARILLA.RD, INC, as successor by merger to P, LORILLARD and/or LORILLARD TOBACCO COMPANY; BRO WN & WILLIAMSON TOBACCO CORPORATION; DNA PLANT TECHNOLOGY CORPORATION; BATUS HOLDINGS, INC.; B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERiC?.N TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED, JOHN DOES ]-300. Case No Dept. No. ~ ~ Docket No ~`-. NOTICE! YOU HAVE BEEN SUED, THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING HEARD UNLESS YOU RESPOND WITHIN 20 DAYS READTEIE INFORMATION BELOW.
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21 ?J 24 25 26 27 28 merger to P. LORILLARD an3•or LORILLARD TOBACCO COMPA.\'Y, BROWN8•. wI[,LL4MSO?: TOBACCO CORPORATION. BATL'S HOLDINGS. NC.. BATUS, LNC.. B.A.T. INDUSTRIES, P.L.C.: BRTPISH AMERICA TOBACCO CO\•IPA1'F, L.T.D.: THE AMERIC AIV TOBACCO CO.NIPANY AND THREE HUNDRED FIRST DOE THROt GH THItEE HUNDRED FIFTY-FIRST, INCLUSIVE, and each of them, as described in the preceding paragraphs and causes of action detailed above manufactured, disaibuted,testec. designed, promoted, marketed. packaged, sold, and/or placed into the stream of commerce in and into the State of Nevada numerous brands of defective, unreasonably dangerous and hazardous cigarettes, or other tobacco products, without informing and/or warnin2 the public, consumers, the government or plaintiff in order to continue to amass millions of dollars in profits from the sale and consumption of these dangerous tobacco products. I 147. Further, the CIGARETTE DEFEPIDA.'~TS manufactured, distributed, tested, designed, marketed, packaged, sold, and/or placed into the stream of commerce in and into the State of!devada numerous brands of defective, unreasonably dangerous and hazardous cigarettes, I or other products, whose nicotine content they had manipulated in order to increase the addictive I effect on consumers in order to ensure that the public, consumers, and plaintiff remained i addicted to cigarettes and other tobacco products and unable to stop purchasing and using them. i - I Prior to 1969, these same CIGARETTE DEFE.NDANTS also used aeeressive campaign: of i advertisements and promotional activities to further ensure that the public, consumers, inciudine i plaintiff. would purchase their cigarettes, become addicted, and become unable to stop ! purchasing and using them. 148. After 1969. these same CIG ARETTE DEFEND.ktiTS continued to use aggressive campaigns of public statements and communications, and underwtiting of sports and i musical events, and giveaways of free coupons redeemable for gifts, to further ensure that tne ~ i public. consumers, including plaintiff would purchase their cigarettes, become addicted, and ~ i I become unable to stop purchasing and using them. I 47 I C W
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1 CERTIFICATE OF MAILING 2 Ty I hereby certify that on the day of August, 1999, I caused to be deposited a true 3 and correct copy of the above and foregoing NOTICE OF REMOVAL in the United States Mails, 4 postage prepaid at Las Vegas Nevada addressed to the following at their last known address: 5 , , 6 W. Randall Mainor, Esq. Mainor & Harris Steven J. Karen, Esq. 521 South Sixth Street 7 530 South Sixth Street Las Vegas, Nevada 89101 8 Las Vegas, Nevada 89101 Attorneys for Plaintiff Attorneys for Plaintiff 9 Gary Long, Esq. Steve Morris, Esq. 10 John K. Sherk, III, Esq. Shook Hardy & Bacon L.L.P. Schreck Morris 1200 Bank of America Plaza 11 , , One Kansas City Place 300 South Fourth Street 12 Kansas City, Missouri 64105 Attorneys for Philip Morris Incorporated and Las Vegas, Nevada 89101 Attorneys for Philip Morris Incorporated 13 Lorillard, Inc. 4 14 John K. Gallagher, Esq. Guild Russell Gallagher & Fuller Ltd. H. Joseph Escher, III Howard Rice Nemerovski Canady Falk & 15 , 100 West Liberty Street, #800 Rabkin 16 Reno, Nevada 89501 Attorneys for Liggett & Myers, Inc. Three Embarcadero Center Seventh Floor 17 San Francisco, CA 94 1 1 1-4065 Attorneys for R.J. Reynolds Tobacco Co 18 Bruce Wold, Esq. . Phillip W. Bartlett Esq. 19 Sedgwick Detert Moran & Arnold , Burton Bartlett & Glogovac 20 One Embarcadero Center 16' Floor 50 West Liberty Street, Suite 650 \0 Reno, Nevada 89501 co v 21 San Francisco, CA 94111-3628 Attorneys for Brown & Williamson Tobacco Attorneys for Lorillard, Inc. 4~, C) 22 Corporation (individually and as successor by O 23 merger to The American Tobacco Company) and BATUS Holdings, Inc. V 24 Mark A. Hutchison, Esq. James Silvestri, Esq. 25 Hutchison & Steffen 8831 West Sahara Avenue Pyatt & Silvestri, Chtd. 201 Las Vegas Boulevard South #300 26 Las Vegas, Nevada 89117 , Las Vegas, Nevada 89101 27 Attorneys for British American Tobacco Attorneys for Rebel Oil Company, Ltd. / 28 LIONEL SAWYER d COLLINS ATTORNEYS AT LAW I)M 91NK OF ANERICA FlA]A An Employee of Lionel Sawyer & Collins ]OO SOOTN FOURTH ST. LAS VEGAS. NEVAOA 891U1 17021 383-8588
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DP F DRN AI] T 1E ETITIONS AND SERVICE PAPERS TO BE FORWARDED TO SHOOK HARDY & BACON ADDRBSS$a Fex No. TstEPHONM No. Jeffrey S. Nelson 816-421-2708 816-391-6493 Christine L. McDaniel 816-391-5536 Tim Willis 816-391-6428 Becky Lucas Shook Hardy & Bacon One Kansas City Place 1200 Main Street Kansas City, MO 64105 Please fill in the following information and place this form on top of the complaint/petition and service papers: 1. Company sending this form (circle one): PM RJR B&W ® 2. Jurisdiction (state and court): District Court, Clark County, Nevada 3. Case number: A405885 4. First named plaintiff: Lloyd Glass 5. Named defendants (circle): ® 6. Date complaint/petition filed: 7. Dated served: 7/ 19/99 ® 7/15/99 rillar ' et the 8. Entity served: Lorillard Tobacco Company 9. If SHB has questions regarding this fax/overnight mail, please contact: %10 Jeannie Price (Legal Department) Assistant to James A. Wilson (336-335-7702) co v ~ Lorillard Tobacco Company Telephone: 336-335-7706 P 0 Fax: 336-335-7722 n) 0 Date this sheet and attachment overnighted to SHB: July 20, 1999
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' 1
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23 24 25 26 "' 7 '' 8 9e¢irtning at a time relevant herein, and continuing up into the present, co- conspirat.- «_olesale and re_il entities impliedly warranted to govemment and the public, including pia=sff, the truth o'the aforementioned representations by the CIG-4RETTE DEFENAANTS that they ha_ further "improved" the safen', taste, enioyment, and relaxation consume:_. in:iuding plaintif-F. would derive from smoking low-tar cigarettes, including Marlboro :iga-ettes by developing Marlboro Light 100's by allowing the placement of infotmationa_ :ommunicatio=-. etc., in and around its retai'l facilities, where plaintiff purchased his cigare-es. 115. Plaintiff heard_ read, and saw the aforementioned advertisements and communications concerning the "improved" low-tar cigarettes, including Marlboro Light 100's cigarettes. wh:s became the ': asis of the bargain when he purchased for his consumption the first and each onsecutive of'--undreds of packages of Marlboro Light 100's after careful considerauon o`the lower risk these co-conspirator wholesale and retail entities and the . CIGARETTE DEFENDANTS warranted Marlboro Light 100's and other low-tar cigarettes presented. and in reliance upon the aforementioned advertisements and communications. 116. THE CIG-ARETTE DEFEIVDANTS and the co-conspirator wholesale and retail entities at all tmes pertinent herein failed to disclose to government and the consuming public, includins nlaiatiff. that Marlboro cigarettes were addictive. that CIGARETTE DEFE-N-DAN'TS knew from the:: own secret research that they were addictive, and that they knew from their own secret researcc that the carcinogens contained in them would place plaintiff at increased risk for the diseases and conditions d--scribed at paral3aphs 32 and 34 above. 11-. CIGARETTE DEFENDANTS and co-conspirator wholesale and retail entities at all times perinent herein failed to disclose to government and the consuming public, including plaintiff, that although the tar and nicotine content were lower in low-tar cigarettes. Marlboro Light I 00's, than in the full-tar cigarettes plaintiff previously smoked. the lower nicotine delivery in these cisare:tes would cause plaintiff and other cigarette consumers to smoke more such 39
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v.C_G4 ~, ~ l1OG. ~j. ;yiY lL1~f ~~ '~l 1 W. RANDALL MAQ+iOR, ESQ. 2 3 MAIINOR & HARRIS NevadaBvNo. 001318 530 Sowh Sixth Saeet Las voBas,Nesada 89101 (702) 385-1400 4 and STBVEN J. KAREN, ESQ. 5 Nevada Bar No. 004651 521 South Sixth SQ=et 6 1.as Ve(la, Nevada 89101 (702) 382-9307 7 S Attomeys for PWntiff DISTRICT COURT 9 CLARK COCIN7Y, NEVADA 10 •ss.• 11 LLOYD GLASS 12 Plainti$ 13 VS. Csse No. 14 PHILIP MORRIS INCORPORATED, Depc No, /~ Docket No. 15 LIGGEIT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; 16 BROWN & WILLIAMSON TOBACCO CORPORATiON as siwassor by metger to 17 THE AMERICAN TOBACCO COMPANY and iu pradeeeseozs in interasc; i8 LORrr r A Dn, p,1C, as ameanor by mayer to P. LORILLARD audJor LORILLARD w 19 TOBACCO COMPANY; BROWN & 11+II,IIAMSON TOBACCO co v 20 CORPORATION; DNA PLANT .A TECHNOLOGY CORPORATION; BATUS 0 21 INC.; B.A T. NDLTSTRIES HOLDINGS 0 , . , P : BRTi7SH AMF RICAN TOBACCO L C 0 22 . . . . COMPANY, L.T.D.; T}E AMERICAN TOBACCO CoWaNY; R®FZ. oIL ~ 23 COMP ANY, INCORPORATED, JOFIId DOES 1-300. 24 i,.w . 25 NO77CE! YOU HAVE BEEN SUED, TID; COURT MAY DECIDE AGAINST YOU WRHOUT YOUR B$IPIG 26 HEARD UNLESS YOU RESPOND WITSII4 20 DAYS. READ THE UVPORMATIOIY $iLOW. 27
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8e,iL By. REBEL OL- C0, 11 12 18 20 21 22 6714200, A~y-0-99 I.38?M, Pnye 315 P'r Rebel oil Company, INc., 1900 w. Sahara Avenue, Las Vegas, NV 89102 TO THE DEFENDANT: A civil Complaint has been filed by the plaintiff aQpinst you for thr Telief set forth in the Compleint 1. If you intend to defwd this lawsult, wiihin 20 days afoer this Sttrmoons is saved on you exelusive of the day of service, you mast do the following; a File with the Clerkofthis Court, whose address is sht'wm below, a formal written response to the Camplaint in accordance with the rules of the Court. 2. Unless you tespood. you default will be e>nered upon appiication of the plilintiff and this C:ourt may ewer a judganeat ajgaiust you for the relief domsoded in the Complsint, whieh could result in the taking of money or propetty or other nelief'tequeatzd in the complaint. 3. If you intend to soek the advice of an morney in this matter, you should do so pu wnptty so that your resporee may be filed on time. ]ssued at the direction of: DEPUTY CLERK ~..rDA1E STEVEN J. KAEN, ESQ. County ConMlrouse Nevsia Bar No. 004651 200 5out6 Third Street 521 South Sixth Street Iais Vegas,Neviida89155 l,av Veaas, NV 89101 Attomey for Plein6ff 19
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dent By: REBEL J.L 'uG; 877420L-, Au[y-U-69 1:38FM; Faye c i^'1 ~ 1 SUMM W. RANDALL MAINOR, ESQ. 2 MAINOR & HARRIS Nevada BarNo. 001318 3 530 South Sixth Sireet Las Veges, Nevada 89101 (702) 385-1400 4 md 5 STEVEN J. KAREN. ESQ. Nevada Bar No. 004651 6 521 South Sixth Staxt Las Vegas, Nevada 89101 (702) 382-9307 7 Attacneys for Plaintiff 8 9 DISTRICf COURT 10 CLARK COUNTY, NEVADA R . . . . 11 12 LLOYD GLASS 13 Plaintff, 14 vs. Casc No. Dept. No /x. 15 PHILIP MORRIS INCORPORATED, LIOGETT & MYERS, INC., R. J. Docket No. 16 REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO 17 CORPORATION as sueeessor by meraer to THE AMERICAN TOBACCO COMPANY 18 and its predecessors in interest; INC as successor by merger to LORILLARD , , ~ 19 P. LORILLAR!) and/or LORILLARD TOBACCO COMPANY; BROWN & m ~ WII.LIAMSON TOBACCO ~ 20 CORPORATION; DNA PLANT 0 TECHNOLOGY CORPORATION;BATUS 0 2] HOLDINGS, INC.; B.A.T. INDUSTRIES, 22 P.L.C.; BRITISH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERICAN W 23 TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED, JOHN DOES 1-300. 24 leiu ~ 25 26 NOTSCE! YOU HAVE BEEN SUED, THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEiNG 27 HEARD UNLESS YOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW.
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Co1V8 W. RANDALL MAINOR, ESQ. rF- i L E D MAINOR & HARRIS Nevada Bar No. 001318 k 15 4 is Ph `S9 530 South Sixth Street Las Vegas, Nevada 89101 (a 0a ) 385-1400 STEVEN J. KAREN, ESQ. Nevada Bar No. 004651 521 South Sixth Street Las Vegas, Nevada 89101 CLERK (702) 382-9307 Attorneys for Plaintiff 9 DISTRICT COURT CLARK COUNTY, NEVADA 26 27 LLOYD GLASS vs. Plaintiff, Case No. /9''5"'OQ54P`~) PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to T.fM AMERICAN TOBACCO COMPANY and its predecessors in interest; LORiT .T .ARD, INC, as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; DNA PLANT TECHNOLOGY CORPORATION; BATUS HOLDINGS, INC.; B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED, JOHN DOES 1-300. Dept. No. ~ Docket No. COMPLAINT EXEMPT FROM ARBITRATION 28
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1 W. RANDALL MAINOR, ESQ. MAINOR & HARRIS 2 Nevada Bar No. 001318 530 South Sixth Street 3 Las Vegas, Nevada 89101 (702) 385-1400 4 and STEVEN J. KAREN, ESQ. 5 Nevada Bar No. 004651 521 South Sixth Street 6 Las Vegas, Nevada 89101 (702) 382-9307 7 Attorneys for Plaintiff 8 DISTRICT COURT CLARK COUNTY, NEVADA 10 ***** 11 LLOYD GLASS 12 Plaintiff 13 , vs. CaseNo. /g 14 PHILIP MORRIS INCORPORATED, Dept. No. /K Docket No. 15 LIGGETT & MYERS, INC., R J. REYNOLDS TOBACCO COMPANY; 16 BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to 17 THE AMERICAN TOBACCO COMPANY and its predecessors in interest; 18 LORILLARD, INC, as successor by merger to P. LORILLARD and/or LORILLARD ~ co v 19 TOBACCO COMPANY; BROWN & ~ WILLIAMSON TOBACCO 0 20 CORPORATION; DNA PLANT TECHNOLOGY CORPORATION; BATUS 0 21 HOLDINGS, INC.; B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICAN TOBACCO ~ 22 COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; REBEL OIL 23 COMPANY, INCORPORATED, JOHN DOES 1-300. 24 25 NOTICE! YOU HAVE BEEN SUED, THE COURT MAY DECIDE AGAINST YOU WITHOUT YOUR BEING 26 HEARD UNLESS YOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW. 27
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nU:.. D ]`!iY ):Li~V I 2 3 4 5 10 11 12 13 14 15 Lorillard Tobacco Company, CsC Services of Nevada, Inc. 502 E. rohn Street, Carson City, NV 89706 TO THE DEFENDANT: A civil Campl.mt bat been ftled by tlu plemtiff aaaiuet you for the eehef xt fnrth in the Complaint 1. Ifyou imeed to defaod this law.uc, wit6la 20 days afUsr this Sutamona is served on you ezokssive of the d1Y of savice, you matt do the t6lbwiV s: FOe with the Cla1c of rbis Comr, who+e address is shown belo.v, a Pocmal wcitnea raponse to the Complaint in scoordmtce with the rales of the Couee 2. Uel= you respond, you default will be enmtad upon applicatiae of the pleaotiif eod this Coua may eow a jtbdgemwm ap:nt you for the n[ief deaoasded in the Comphiat, wide6 coald teso$ in tha taking of sumey a pmpetty or othc relief requestsd m the compleuK. 3- If you intend to seek the advice of an somey in this meltw, you should do so promptly so that your respmsa ma,v be filed on time. Iswed at the direcdoa of S9IRLEY B. YARRAGC)IRAE, CLIiTtIC OF TEE COURT i ~~~~~ J. I FSQ. C CootthouaeP~ifs~' iA~~j GCj~ Nevade BaNa 004851 200 sau+a zb;ra suea JUL f 5 ig9g 521 South Sixth Suaet La VeOs, Nevada 89155 La V wae, NV 89101 Aftotney for Pleiacff I
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DNA Plant Technology developed a pollen-free male sterile derivative tobacco were stored in warehouses by Brown & Williamson, and this tobacco was put into cigarettes by Brown & Williamson that have been sold nationwide. One of the intended purposes of this practice was to manipulate nicotine delivery to the smoker, thereby increasing the likelihood of addiction and ensuring continued demand for its product. Over the course of more than a decade, Brown & Williamson conspired to falsely and fraudulently deny both the genetic manipulation of the nicotine content in tobacco plants and the commercialization of such a tobacco plant. 22. Each and every CIGARETTE DEFENDANT and TOBACCO DEFENDANT is alleged to have been a member of, or participant in, the conspiracy described herein, and each and every act of the conspiracy was directed toward, and accomplished in whole or in part in, the State of Nevada Each and every act of the conspiracy also had, and will continue to have, a substantial impact in the State of Nevada. The cigarettes and tobacco products manufactured by these defendant conspirators were intentionally placed in the stream of commerce whose destination have been, and continue to be, among others, defendant REBEL OIL COMPANY, INCORPORATED, and other premises in the City and County of Clark and other cities and counties in Nevada. One of the goals of the conspiracy described herein was to create a false controversy regarding the health hazards of tobacco use an the addictive properties of nicotine in order to protect the market for cigarette sales and the profits of the tobacco induslry, the CIGARETTE DEFENDANTS. 23. Plaintiff herein inhaled smoke from cigarettes manufactured by the CIGARETTE DEFENDANTS and purchased many of the cigarettes he smoked at REBEL OIL COMPANY, INCORPORATED. He began smoking as a minor, in 1967, having been influenced and induced to smoke, relying to his detriment upon the continuing aggressive campaign of advertisements, inducements, informational communications, and promotional items to hook youth smokers as hereinafter described in more detail. 24. Plaintiff was not aware that smoking increased his risk of developing, and did 7
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I 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Lorillard Tobacco Company, CSC Services of Nevada, Inc. 502 E. John Street, Carson City, NV 89706 TO THE DEFENDANT: A civil Complaint has been filed by the plaintiff against you for the relief set forth in the Complaint 1. If you intend to defend this lawsuit, within 20 days after this Summons is served on you exclusive of the day of service, you must do the following: a. File with the Clerk of this Court, whose address is shown below, a fomia] written response to the Complaint in accordance with the rules of the Court. 2. Unless you respond, you default will be entered upon application of the plaintiff and this Court may enter a judgement against you for the relief demanded in the Complaint, which could result in the taking of money or property or other relief requested in the complaint. 3. If you intend to seek the advice of an attorney in this matter, you should do so promptly so that your response may be filed on time. Issued at the direotion of: SHIRLEY B. PARRAGUIRRE, CLERK OF THE COURT DEPUTY .L C DAT$ S J. I , ESQ. County Courthouseft WX.= Nevada Bar No. 004651 200 South Third Street J U 6 1 5 1999 521 South Sixth Street Las Vegas, Nevada 89155 Las Vegas, NV 89101 Attorney for Plaintiff w co V ~ 0 0 N UM
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T'HE PARTIES 4. The true names and capacities, whether individual, corporate, associate, governmental or otherwise, of defendants FIRST DOE through THREE HUNDREDTH DOE, inclusive, are unknown to plaintiff at this time, who therefore sues said defendants by such fictitious names. When the true names and capacities of said defendants have been ascertained, plaintiff will amend this Complaint accordingly. Plaintiff is informed and believes and thereon alleges that each defendant designated herein as a Doe is responsible, negligently or in some other actionable manner, for the events and happenings hereinafter referred to, an caused injuries and damages proximately thereby to the plaintiff, as hereinafter alleged. 5. Plaintiffis informed and believes, and thereon alleges, that at all times herein mentioned, defendants PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD, INC, as successor by merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, BATUS HOLDINGS, INC.; BATUS, INC.; B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICAN TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY; (hereinafter "CIGARETTE DEFENDANTS"), DNA PLANT TECHNOLOGY CORPORATION (hereinafter "TOBACCO DEFENDANT") and defendant REBEL OIL COMPANY INCORPORATED, are corporations organize and existing under and by virtue of the laws of the State of Nevada, or the laws of some state or foreign jurisdiction as more specifically described below, and that said defendants were and are authorized to do and are doing business in the State of Nevada, and that said CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED, have regularly conducted business in, and have intentionally placed cigarette products in the steam of commerce whose destination have been 3
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CSC The United States Corporation Co~n pany 1013 C^re Road, Wilmington, DE, 19Y `-1297 (302) 636-5400 United States Corporation Company The Prentice-Hall Corporation System, Inc. NOTICE OF SERVICE OF PROCESS Date ProcesseA: 19-JUL-99 Transmittal B: NV0720608C ALL To: RON MILSTEIN LORn.l.Aun TOBACCO COMPANY Redirect sent to: 714 GREEN VALLEY ROAD (P.O. BOX 10529 - ZIP 27404-05 GREENSBORO NC 27408 TYPE OF REPRESENTATION: Statutory We enclose the jollowrng docanfencs which were sernd upon: CSC Services of Nevada, Inc. as registered agent in Nevada for LORfLLARD TOBACCO COMPANY (IDN: 0175250) ]bcaments war servad on l9JUL.99 via Personal Service IIkI': N/A Title of Action: LLOYD GLASS Case #: A405885 vc. PHILIP MORRIS INCORPORATED; ET AL Court: DISTRICT COURT/CLARK COUNTY/NEVADA Nature of Case: NEGLIGENCE; STRICT LIABILITY; FALSE REPRESENTATION; DECEIT; FRAUDLENT CONCEALMENT; CIVIL CONSPIRACY; BREACH OF EXPRESS WARANTY; UNFAIR COMPETITION/ UNLAWFUL BUSINESS PRACTICES; NEGLIGENT FALSE AND MISLEADING ADVERTISING; INTENTIONAL FALSE AND MISLEADING ADVERTISING; PUNTITIVE DAMAGES. X Summons Notice of Mechanic's Lien A self-addressed stamped X Complaint _ Notice of Attorney's Lien envelope enclosed Ca.++;chrrent Notice of Default Judgment _ Duplicate copies of the Notice _ Subpoena Other: _ and Acknowledgement enclosed Answer Due: Documents Se't: WITHIN 20 DAYS Federal Express IDA': 432235110559 Call Placed: Comments: No call placed N/A Spoke to: N/A Attorney for Claimant: W. RANDALL MAINOR, ESQ. MAINOR & HARRIS 530 SOUTH FOURTH STREET LAS VEGAS NV 89101 702-385-1400 ~ 98740021 Form Ptepazed By: Wood~ ; .II ~1 nsutess Please ac~i rfw ge recsfps o t~rie nodce e eec sares by ssgnut and returnut flus genu enpelope is eneJosed jor nr conpenience. DATE RECEIVED: 'TA61! CLIENT SIGNATURE: ?j!mcofi_ibr Acknowledgement Copy - to be returned to the ddress abo The mfonnation on this ttansmitul is ptovided for use in forwarding the amched documents. This information does not constitute a legal opinion as to 16e facts or details of this acdoe. These should be obtained from the documents t6emselves. T6e ¢aiver of this tnuumival is nxpomble for interpreting the documents and for taking apptopt'roe action. If you have received only a copy of the umsmitul, you should be awase that the documents have been sent to the original addressee. You should cotuazt that addressee for details or interpretations of the content of those duc•.n.ns.
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25 26 27 28 Plaintiff is further informed and believes and thereon alleges that THE AMERICAN TOBACCO COMPANY was purchased by BAT Industries. 16. Plaintiff is informed and believes and thereon alleges that Defendant R.J. REYNOLDS TOBACCO COMPANY is a New Jersey corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, offers for sale, distributes and sells Camel, Vantage, Now Dora, Winston, Sterling, Magna, More, Century, Bright Rite and Salem cigarettes throughout the United States, the world, and in the State of Nevada as more specifically described herein. 17. Plaintiff is informed and believes and thereon alleges that Defendant Lorillard Corporation is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, offers for sale, distributes and sells Old Gold, Kent, triumph, Satin, Max, Spring, Newport and True cigarettes throughout the Untied States, the world, and in the State of Nevada as more specifically described herein. 18. Plaintiff is informed and believes, and thereon alleges, that defendant PHILIP MORRIS, INC., LIGGETT & MYERS, INC., BROWN L& WILLIAMSON COMPANY, LORILLARD, INC., and each of the remaining CIGARETTE DEFENDANTS, and REBEL OIL COMPANY, INCORPORATED, was the agent, servant, employee and/or joint venturer of its co-defendants, and each of them, and at all said times, each defendant was acting in the full course and scope of said agency, service, employment and/or joint venture. 20. Plaintiff is informed and believes and thereon alleges that Defendant DNA PLANT TECHNOLOGY CORPORATION (DNA) is a Nevada Corporation. 21. CIGARETTE DEFENDANT Brown & Williamson commercially developed a tobacco plant with twice the nicotine content of standard tobacco code-named "Y-1." Defendant 6
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and continue to be the City of Las Vegas and County of Clark, and other cities and counties in the State of Nevada. 6. Plaintiff is informed and believes and thereon alleges that Defendant PHILIP MORRIS, INC., is a Virginia corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States, and in the State of Nevada as more specifically outlined above. Philip Morris manufactures, advertises and sells Philip Morris, Merit, Cambridge, Marlboro, Benson & Hedges, Virginia Slims, Alpine, Dunhill, English Ovals, Galaxy, Players, Saratoga and parliament cigarettes throughout the world and in the State of Nevada as more specifically described above. 7. Plaintiff is informed and believes and thereon alleges that defendant BRO WN & WILLIAMSON TOBACCO CORPORATION, successor by merger to the American Tobacco Company, is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the world, the United States, and in the State of Nevada as more specifically described above. 8. Plaintiff is informed and believes and thereon alleges that Defendant BATUS HOLDINGS, INC., (`Batus Holdings") is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and the world, and in the State of Nevada as more specifically described above. 9. Plaintiff is informed and believes and thereon alleges that defendant BATUS, INC., ("Batus") is a Kentucky corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, and in the State of Nevada as more specifically described above. 10. Plaintiff is informed and believes and thereon alleges that Defendant BAT INDUSTRIES, P.L.C. ("BAT Industries") is a British corporation. 11. Plaintiff is informed and believes and thereon alleges that defendant BAT Industries and British American Tobacco are either directly or indirectly the sole shareholder of 4
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cigarettes to warn of the likelihood, probability, and/or foreseeability that the barms listed above would or might occur if the products were used as intended. b. prior to 1969, a duty to foreseeable users to warn that the harms listed above would be more likely experienced if users did not restrict their intake of CIGARETTE DEFENDANTS' cigarettes and/or to provide some guidelines on reasonably safe dosage or amount of consumption, and a duty to warn that use of the cigarettes at an early age was most harmful; c. prior to 1969, a duty to warn foreseeable users that use of the cigarettes as intended was likely to lead to addiction, habituation and/or dependence; d. Prior to 1969, a duty to warn users that termination or limitation of use of cigarettes would be extremely difficult if consumption was initiated, particularly at an early age and that this difficulty would increase as cumulative consumption increased. e. a continuing duty to warn previous cigarette users of developing knowledge demonstrating that previous users are at great risk of harm (as listed above) and should seek medical monitoring; £ a duty to establish a reasonable dose for foreseeable users; g. a duty to design, manufacture, and sell cigarettes that when used as intended was reasonably safe for foreseeable users; h. a duty to make such feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable risk to users; i. a duty to disclose to consumers of cigarettes the results of their own and other scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above); j. a duty to warn previous users, users and foreseeable users of cigarettes through non-advertising pr promotional communications of the dangers listed above; Ic a continuing legal duty to refrain from manufacturing, selling, and/or promoting the sale of cigarettes to minors and youths. 43. The CIGARETTE DEFENDANTS had a legal duty to refrain from selling, promoting, targeting, and inducing the sale of cigarettes to minors. 44. CIGARETTE DEFENDANTS, and each of them, negligently breached one or more of their duties, to members of the general public, including cigarette users such as plaintiff, in one or more of the following ways: a. prior to 1969, in failing to warn or warn adequately of the likelihood, probability, or foreseeability that the harms listed above would or might occur if 28 11 12
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Defendant BROWN & WILLIAMSON. 12. Plaintiff is informed and believes and thereon alleges that defendants BAT Industries and British American Tobacco are either directly or indirectly the sole shareholder of Defendant BROWN & WILLIAMSON. 13. Plaintiff is informed and believes and thereon alleges that Defendants BROWN & WILLIAMSON, Batus Holdings, Batus, BAT Industries, and British American Tobacco, either directly or indirectly as part of the same overall organization and operation, manufacture, distribute, offer for sale, promote, and sell Kool, Barclay, BelAir, Capri, Raleigh, Richarland, Loredo, Eli Cutter and Viceroy cigarettes throughout the United States and in the state of Nevada as more specifically described above. 14. Plaintiff is informed and believes and thereon alleges that Defendant LIC,GETT & MYERS is a Delaware corporation engaged in the business of manufacturing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, distributes, offers for sale, and sells chesterfield, Decade, L&M, Pyramid, Dorado, Eve, Stride, generic and Lark cigarettes throughout the United States, the world, and the State of Nevada as more specifically described above. 15. Plaintiff is informed and believes and thereon alleges that Defendant(s) THE AMERICAN TOBACCO COMPANY and/or BROWN & WII.LIAMSON CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY is a Delaware corporation engaged in the business of manufactiuing cigarettes and tobacco products for sale and distribution in the United States and in the world, including the State of Nevada as more specifically described above. Said defendant manufactures, promotes, distributes, offers for sale, and sells Lucky Strike, Pall Mall, Tareyton, Malibu, American, Montclair, Newport, Misty, Barkeley, Iceberg, Silk Cut, Silva Thins, Sobrania, Bull Durham and Carlton cigarettes tbroughout the United States, the world, and Nevada as more specifically described above. 5
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CSC ^e United States Corporation P%4npany 1013 (.,,ntre Road, Wilmington, DE, 1yuJ5-1297 (302) 636-5400 United States Corporation Company The Prentice-Hall Co cporation S stem, Inc. NOTICE OF SERVICE OF PROCESS Date Processed: 19-JUL-99 Transmittal N: NV0720608C ALL To: RON MILSTEIN Redirect sent to: LORILLARD TOBACCO COMPANY 714 GREEN VALLEY ROAD (P.O. BOX 10529 - ZIP 27404-05 GREENSBORO NC 27408 TYPE OF REPRESENTATION: Statutory We enclose the following documents which were served rrpon: CSC Services of Nevada, Inc. as registered agent in Nevada for LORILLARD TOBACCO COMPANY (ID#: 0175250) Documents were served on 19-JUL-99 via Personal Service IDB: N/A Title of Action: LLOYD GLASS Case #: A405885 vs. PHILIP MORRIS INCORPORATED; ET AL Court: DISTRICT COURT/CLARK COUNTYJNEVADA Nature of Case: NEGLIGENCE; STRICT LIABILITY; FALSE REPRESENTATION; DECEIT; FRAUDLENT CONCEALMENT; CIVIL CONSPIRACY; BREACH OF EXPRESS WARANTY; UNFAIR COMPETITION/ UNLAWFUL BUSINESS PRACTICES; NEGLIGENT FALSE AND MISLEADING ADVERTISING; INTENTIONAL FALSE AND MISLEADING ADVERTISING; PUNTITIVE DAMAGES. X Summons _ Notice of Mechanic's Lien A self-addressed stamped X Complaint Notice of Attorney's Lien envelope enclosed Garnishment _ Notice of Default Judgment Duplicate copies of the Notice _ Subpoena and Acknowledgementenclosed Other: Answer Due: WITHIN 20 DAYS Documents Smt: Federal Express Call Placed: No call placed Comments: N/A Attorney for Claimant: W. RANDALL MAINOR, ESQ. MAINOR & HARRIS 530 SOUTH FOURTH STREET LAS VEGAS NV 89101 702-385-1400 ID#: 432235110559 Spoke to: N/A 98740022 Form Prepared By: Cyndy Woodgate Please acknowledge receipt of this notice and the enclosuras by signing and returning the acEnowledgement copy. jiW dlI~I e•Original Client Copy - for your records The mfonnation on this transmittal is provided for use in forwatding the attached documents. lbis information does not constitute a legal opinion as to the facts or details of this action. 7Lese should be obtained from the documems memselves. The receiver of this tnnsminal is responsible for interpreting the documents and for tahing approprMte action. If you have received only a copy of the transmittal, you should be aware that the documeucc have been seat to the original addressee. You should contact that addressee for details or interpretations of the content of those documents.
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STATE OF NEVADA ) ) ss: COUNTY OF CL.ARK ) AFFIDAVIT OF SERVICE ,'being first duly swom says: That at all times herein Affiant was and is a citi2en of the United States, over 18 years of age, not a party to or interested in the proceeding in which this Affidavit is made. That Affiant received copy(ies) of the Summons and Complaintt 5 6 7 8 9 on the day of , 1999, and served the same on the day of , 1999. (Affiant must complete the appropriate paragraph) 1. Delivering and leaving a copy with the Defendant at (state address) 10 2. Serving the Defendant by personally delivering and leaving a copy with , a person of suitable age and discretion residing 11 at the Defendant's usual place of abode located at (state address) 12 13 (Use paragraph 3 for service upon agent, completing A or B) 1 3. Serving the Defendant by personally delivering and 14 leaving a copy at (state address) 15 a with as an agent 16 lawfally designated by statute to accept service of process; b. with pursuant to NRS 14.020 as a person of suitable 17 age and discretion at the above address, which address is the address of the resident agent as shown on the current certificate of designation filed with the Secretary of State. 18 19 20 21 22 23 24 25 26 4. Personally depositing a copy in a mail box of the United States Post Office, enclosed in a sealed envelope postage prepaid. (Check appropriate method): _ ordinary mail _ certified mail, return receipt requested _ registered mail, return receipt requested Addressed to the Defendant at the Defendant's last known address which is (state address) ~10 co Signature of Person Making Service `-3 SUBSCRIBED AND SWORN to before me ~' this day of 1999 ~ , . © fV NOTARY PUBLIC in and for said County and State. pN 27 My commission expires:
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instrvcted in their use by defendants' advertising and promotion prior to 1969, and at all times material herein by CIGARETTE DEFENDANTS' marketing, public statements, "informational" communica.tions, sponsorship of athletic events, concerts, and other activities, and inducements such as coupon-for-gifts and other efforts. 41. At times material to this action, CIGARETTE DEFENDANTS actually knew, or in the discharge of ordinary care should have known of the following: a That the harms listed above would or might occur if the cigarettes were used as intended; b. that the harms listed above would more likely be experienced if users did not restrict their intake of defendants' cigarettes, or if they began to use the products at an early age. c. that use of the products as intended was likely to lead to addiction, habituation, andlor dependence, particularly if begun at an early age., d. that termination or limitation of use would be exceedingly difficult if consumption was initiated and that this difficulty would increase as cumulative consumption increased; e. that developing knowledge before and after 1970 demonstrated that previous users are at great risk of harm (as listed above) and should seek medical monitoring; £ that CIGARETTE DEFENDANTS could establish a reasonably safe dose for foreseeable users; g. that there were feasible improvements in design, composition, or manufacture of cigarettes such as to materially decrease the foreseeable nicotine levels by smoking more; h. that switching to the so-called "light" cigarette would not be less hazardous because the individual would compensate for the decreased nicotine levels by smoking more; i. that the FTC method of measuring "tar & nicotine" levels underestimated the levels of nicotine actually delivered; and j. that adding ammonia, or otherwise altering the PH of the tobacco, enhanced the delivery of mcotine, thereby increasing addiction and/or dependence. 42. The CIGARETTE DEFENDANTS at times material had the following legal duties to users who consumed their cigarettes: a. prior to 1969, duty to foreseeable users of CIGARETTE DEFENDANTS' 11
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g. Other types of injuries. So highly likely were the serious health consequences of defendants' cigarettes, that over one in three foreseeable users would be expected to suffer premature death or serious impairment. 34. At times material, the ordinary consumer, including the Plaintift did not in the exercise of ordinary diligence know of the likelihood of, the severity of, or the extent of the risks from CIGARET"I'E DEFENDANTS' cigarettes, which are outlined above. 35. The CIGARETTE DEFENDANTS' cigarettes, when used as intended, were highly likely to induce in foreseeable users a state of addiction, habituation, habit formation, and/or dependence, characterized by users' inability to terminate or restrict their chronic use. 36. The risks of harm to foreseeable users as listed above in paragraphs 33 and 35 would increase in any of the following circumstances. a. Greater cumulative consumption, including rate of consumption and length of time the product was consumed; and b. beginning use at an early age in life. 37. At times material, and specifically prior to 1969, the CIGARETTE DEFENDANTS conducted an aggressive marketing, promotional and advertising campaign intended to induce foreseeable users, particularly youths, to purchase their cigarettes. Such marketing and advertising occurred in printed media, on television, radio, on billboards and by other means. After 1969, the CIGARETTE DEFENDANTS issued informational literature and other writings, as well as coupons-for-gifts and inducements intended to induce foreseeable users, particularly youths, to purchase their cigarettes. 38. Plaintiff purchased and consumed defendants' cigarettes within the State of Nevada at times material to this complaint. 39. Plaintiff consumed the defendants' cigarettes in the intended manner and without significant change in their condition from purchase. 40. Plaintiff was induced to purchase the cigarettes and impliedly or expressly 28 11 10
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GENERAL ALLEGATIONS PLAINTIFF, LLOYD GLASS COMPLAINS OF DEFENDANTS, AND EACH OF THEM, AND ALLEGES: 1. The overwhelming scientific and medical evidence confirms that both tobacco additives and cigarette smoke contain many carcinogens and are toxic to the human system. Cigarette smoking is a substantial contributing force, if not the predominan2 factor, in the development of lung cancer, other cancers, heart disease, strokes, and other diseases. After years of study, it is uncontroverted that smoking-caused diseases are dose dependent; that is, each and every exposure to these carcinogens increases the risk of disease. 2. For years the defendant cigarette manufacturers, defined 'm~fr have known both about the carcinogenic and toxic properties of cigarettes. The cigarette defendants have known that tobacco products could cause lung cancer since at least 1946, and they have intentionally conspired to mislead, deceive and confuse the government, and the public, including plaintiff, concerning the harmful and debilitating effects smoking has on the health of individuals, that nicotine in cigarettes is a powerfully addictive substance, and that defendants intentionally manipulated levels of nicotine delivery in cigarettes to ensure that smokers remain addicted and continue to buy the products of the CIGARETTE DEFENDANTS. 3. Since the 1950's the CIGARETTE DEFENDANTS publicly promised to lead the effort to discover and disclose the truth about smoking and health. However, they systematically suppressed and concealed material information and waged an aggressive campaign of disinformation about the health consequences of smoking. They have known for years, based on their own secret research, that their product eventually injures or kills the consumer when used exactly as intended. Even now, these CIGARETTE DEFENDANTS continue to deny and conceal the facts that smoking cigarettes causes lung cancer and other diseases and that nicotine is addictive and purposefully manipulated. 2
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c. the cigarettes failed to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the plaintiff; d. the risk of danger from the design of defendants' cigarettes outweighed the benefits obtained with the use of the products, and, e. prior to 1969, defendants' cigarettes did not contain sufficient warnings as previously alleged, or alternatively, were labeled with inadequate warnings. 48. PlaintifF s illness is a direct and proximate result of the defects set forth above and the plaintiff has suffered damages more fully described above. WHEREFORE, plaintiff prays for judgment against the CIGARETTE DEFENDANT as hereinafter set forth. 24 25 26 27 THIRD CAUSE OF ACTION - FALSE REPRESENTATION CIGARETTE DEFENDANTS 49. Plaintiff repeats and realleges each of the foregoing paragraphs as if fully stated herein. 50. At the aforementioned time when the CIGARETTE DEFENDANTS manufactured and distributed, tested, designed, packaged, sold, and/or placed into manufachued and distributed, tested, designed packages, sold, and/or placed into the steam of commerce in and into the State of Nevada numerous brands of defective cigarettes, or other tobacco products, or, in the course of business, materially participated with, conspired with, and/or otherwise aided, abetted, and assisted others in so doing, the CIGARETTE DEFENDANTS, and each of them, expressly and impliedly represented to members of the general public, including the purchasers, users and bystanders of said product, and including the plaintiff herein that cigarettes and other tobacco products were of merchantable quality, and safe for the use for which they were intended. The CIGARETTE DEFENDANTS accomplished these representations and induced members of the public and government, including plaintiff, to rely thereon through, among other methods, an aggressive and continuing campaign up to 1969 of deceptive, erroneous, misleading and false advertisements in the print, cinema, radio and television media designed to conceal the 281 16
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the public conscience and allow present and futiue smokers to believe that, despite what they may have heard elsewhere, the hazards of cigarette smoking had not been proven. A. In 1962, the Tobacco Institute, Inc., an agent of the CIGARETTE DEFENDANTS, ("Tobacco Institute") issued a press release which stated, in pertinent part: We in the tobacco industry recognize a special responsibility to help science determine the facts and we believe we are fulfilling this responsibility through the Tobacco Industry Research Committee. B. In 1971, the tobacco Institute in a press release stated: Any organization in a position to apply resources in the search for those keys - and which fails to do so - will continue to be guilty of cruel neglect of those whom it pretends to serve. C. In a 1972 Wall Street Journal article, James Bowling, a Vice President of co- conspirator Philip Morris, Inc.,("PM") was quoted as saying: If our product is harmful. ..we'11 stop making it. We now know enough that we can take anything out of our product, but we don't know what ingredients to take out. . . D. In 1982, the tobacco Institute published a pamphlet in which it wrote: Since the first questions were raised about smoking as a possible health factor, the tobacco industry has believed that the American People deserve objective, scientific answers. The industry has committed itself to this task. E. In 1990, a public relations employee of Defendant R. J. Reynolds Tobacco Company ("RJR") wrote a letter to a person by the name of Rock in Minnesota, apparently in response to a letter from Rock. The public relations employee asserted in that letter that "... scientists do not know the cause or causes of the chronic diseases reported to be associated with smoking. "The letter went on: Our company intends, therefore, to continue to support [research] in a continuing search for answers. 59. On August 21, 1963, CIGARETTE DEFENDANTS and unnamed co-conspirators met to discuss their defense of the impending cancer litigation they expected in the wake of the Surgeon General's first report link;n_g smoking and lung cancer. The September 3, 1963, minutes 28 11 20
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1 2 not for the promotion of scientific goals, but for purposes of public relations, politics, and positioning for litigation. The TIRC and CTR were used to support an industry strategy of denying or creating doubt that smoking causes disease. When CTR- sponsored research produced results unfavorable to the industry strategy, the results were suppressed. 82. As recounted in recently revealed excerpts, lawyers, rather than scientists or researchers, handled the purported scientific research conducted by or for CIGARETTE DEFENDANTS: A. In 1978, Sheldon Sommers, M.D., who was then Chairman of the CTR Scientific Advisory Board, complained to William Gardner, who was then the Scientific Director for CTR, that he [Sommers] was unable to understand the legal counsel he was being given. The clear import of Sommers' letter was that the CTR lawyers were controlling tobacco research by CTR based upon legal considerations. B. In 1970, Helmut wakeham, Head of Research and Development of the Philip Morris Company wrote a memorandum to the president of Philip Morris, Joseph Cullman_ In this memorandum, Wakeham discussed the raison d'etre of the counsel for Tobacco Research-U.S.A., Inc, ("CTR"). Wakeham wrote: It has been stated that CTR is a program to find out the `truth about smoking health.' What is truth is one is false to another. CRT and the industry have publicly and frequently denied what others find as `truth.' Let's face it. We are interested in evidence which we believe denies the allegations that cigarette smoking causes disease. C. A hand-written memorandum dated April 21, 1978, produced from the files of Defendant Lorillard Tobacco Company ("Lorillard"), complains that: We have again abdicated the scientific research directional management of the industry to the 'Lawyers' with virtually no involvement of the part of the scientific or business management side of the business. 27
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23 24 25 26 27 28 Plaintiff prays leave to insert herein when finally ascertained. 30. As a further direct and proximate result of the said conduct of defendants, and each of them, Plaintiff has incurred, and will incur, loss of income, wages, profits and comrnissions, an diminishment of earning potential, and other pecuniary losses, the full nature and extent of which are not yet known to plaintiff, and leave is requested to amend this complaint to conform to proof at the time of trial. FIRST CAUSE OF ACTION - NEGLIGENCE (CIGARETTE DEFENDANTS) 31. Plaintiff repeats and realleges Paragraphs 1 through 30 as fally as if restated herein and complains of the CIGARETTE DEFENDANTS as follows: 32. The cigarettes designed, manufactured, advertised, marketed, and sold by the CIGP.RETTE DEFENDANTS were as follows: Marlboro and Marlboro Liehts. Benson & Hedges, Kent, Eve. More. Raleip,b, Vicerov. Virginia slims, and Winston. 33. The CIGARETTE DEFENDANTS' cigarettes, when used as intended, were highly likely to be a substantial contributing factor in causing the following human illnesses, injuries, and conditions: a. Bronchogenic carcinoma or lung cancer of all cell types; b. Chronic obstructive pulmonary disease of all types, including emphysema, chronic bronchitis, and reversible airway obstruction; c. Cardiovascular disease including atherosclerosis and its consequences, including myocardial infarction (heart attack), cerebrovascular accident (stroke), peripheral vascular disease, aneurysm, and other conditions; d Cancers of the mouth, throat, larynx, esophagus, kidney, bladder, and other organs; e. Genetic damage to cells of the airways, lungs, and other organs; f. Impairment of lung function; and, 9
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agreement to place cigarettes prominently in areas at eye-level designed to entice, tempt, and induce consumers, particularly minors, including plaintiff to purchase cigarettes at retail facilities. The profits from these sales, resulting from the targeting of minors to attract new smokers and repeat, already-addicted smokers, ranged to 15-20% to a high of 40-50% of overall profits gained by the co- conspirator point of sale retailers including, but not limited to REBEL OIL COMPANY, INCORPORATED. 25 26 27 28 Plaintiff is unable to allege in full the thousands of statements that defendants have prepared and released over the last almost 50 years both because they do not have access to this information, and because to allege each and every such advertisement or point-of-sale enticement here would entail hundreds or even thousands of pages of pleading; indeed, it is the CIGARETTE DEFENDANTS and the co-conspirators themselves which have this knowledge and information, and are in the best position to know the content of each and every such advertisement released in furtherance of their conspiracy, and to mislead the public and plaintiff, misrepresent the true hazards and addictive nature of smoking, and to conceal material facts from the public, the government, and plaintiff. 45. As a direct and proximate result thereof, Ulaintiff has suffered damages as more specifically set forth above. VVfEREFORE, plaintiff prays for judgment against the CIGARETTE DEFENDANTS as hereinafter set forfh SECOND CAUSE OF ACTION - STRICT LIABILITY (CIGARETTE DEFENDANTS) 46. Plaintiff repeats and realleges all foregoing paragraphs as if fully stated herein. 47. The CIGARETTE DEFENDANTS' cigarettes when used as intended and without substantial change from the time of manufacture, were defective for foreseeable users and bystanders for the following reasons: a the cigarettes when used as intended caused or contributed to the illnesses listed in paragraph 33 above; b. the cigarettes were addictive, habituating, habit-forming, and once used caused physical and psychological dependence; 15
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1 of that meeting reflect the fact that a Dr. Kotin, their own employee as the scientific adviser of 2 the TIRC, would soon become the associate director of the National Cancer Institute. 3 Additionally, the CIGP.RETTE DEFENDANTS and co-conspirators "unanimously agreed"...if 4 there was to be a statement after the Surgeon General's report, it should be an industry statement 5 rather than separate statements by one or more companies. This would obviate the possibility 6 that a statement by one company might be inconsistent with that made by another. The same 7 method of procedure was recommended as well in the event of a Federal Trade Commission 8 (FTC) or Congressional action." 9 60. CIGARETTE DEFENDANTS concealed their actual knowledge concerning their 10 manipulation and control of the nicotine content of their products to create and perpetuate 11 smokers' addiction to cigarettes, which was critical to the conspiracy as set forth below: 12 61. Defendant Brown & Williamson developed a genetically-engineered tobacco plant 13 which had a much higher nicotine content than other naturally-cured tobacco code-named "Y-1: " 14 62. The conspiracy between Defendants DNA Plant Technology and Brown & 15 Williamson led to development of a pollen-free male sterile derivative of the high-nicotine "Y-1" 16 tobacco plant, "PF Y-1" 17 63. The Food and Drug Administration first learned of the existence of"Y-1" in 18 Portugal with the discovery of a Brazilian patent for a new variety of flue-cured tobacco plant. 19 The English translation of the patent stated: "The nicotine content of the leaf of this variety is 20 usually higher than approximately 6% by weight. ..which is significantly higher than any normal 21 variety of tobacco grown commercially. 22 64. Prior to the discovery of the patent, a tobacco industry executive had told the food 23 and Drug Administration ("FDA") that "flue-cured tobacco naturally contains 2.5 to 3.5 percent 24 nicotine." Thus, this new specially bred plant contained approximately twice the nicotine that 25 naturally occurs in flue-cured tobacco. The holder of the Brazilian Y-1 patent was Defendant 26 Brown & Williamson Tobacco Corporation, maker of such cigarettes as Viceroy and Raleigh. 27 28 11 21
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I cause him to develop, lung cancer, when he was induced by the pre-1969 public advertising and representations by the CIGARETTE DEFENDANTS to smoke cigarettes as a minor, before any caution or warning labels were placed in cigarette packages by the CIGARETTE DEFENDANTS pursuant to federal law. 25. Plaintiff was diagnosed with lung cancer on or about April 18, 1999. 26. Had Plaintiff known the true facts concerning the magnitude of health risks of smoking, the addictive nature of nicotine, the intentional manipulation of nicotine levels in cigarettes, or the targeting of his and other youths like him to replace in the market those older cigarette smokers who were dying from smoking, he would never have started smoking. By the time plaintiff was aware that there were indeed deadly health risks associated with smoking, he was addicted, which addiction was maintained by the purposeful actions of the CIGARETTE DEFENDANTS as described in more detail below. 27. As a direct and proximate result of the aforesaid conduct of defendants, and each of them, Plaintiff is dying and has suffered, and continues to suffer permanent injuries to his person, body and health, including but not limited to lung cancer, shortness of breath, anatomical changes to his alveoli, and other lung damage. Plaintiff has further suffered, continues to suffer, and will suffer in the future pain, discomfort, fears, anxiety and other mental and emotional distress directly and proximately caused by the aforesaid conduct of defendants and each of them, all to his general damages in a sum in excess of the jurisdictional limits of the District Court. 28. As a direct and proximate result of the aforesaid conduct of the defendants, and each of them, plaintiff has incurred, is presently incurring and will incur in the future liability for physicians, surgeons, nurses, hospital care, medicine, hospitals, x-rays and other medical treatment, the trne and exact amount thereof being unknown to plaintiff at this time, and plaintiff prays leave to amend this Complaint accordingly when the true and exact cost thereof is ascertained. 29. Plaintiff Lloyd Glass has lost prejudgment interest, the exact amount of which 8
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D. A 1976 intemal memo by a tobacco scientist at BAT, S.J. Green, also discusses the extent to which "legal considerations" dominated scientific research: The public position of tobacco companies with respect to causal explanations of the association of cigarette smoking and diseases is dominated by legal considerations...by repudiation of a causal role for cigarette smoking in general they [the companies] hope to avoid liability in particular cases. This domination by legal consideration thus leads to the industry into a public rejection in total of any causal relationship between smoking and disease and puts the industry in a peculiar position with respect to product safety discussions, safety evaluations, collaborative research, etc. E. In November 1979, the corporate counsel for B&W's, Kendrick Wells, wrote a memorandum to Ernest Pepples, B&W's vice president of law. In this memorandum, Wells outlined a plan to wrap scientific information in attorney-client privilege. Iv1r. Wells' proposal specifically provided that"... In the operational context BAT would send documents without attempting to distinguish which were and which were not litigation documents." 83. When cigarette manufacturers were sued by persons claiming their or their deoedents' lung cancer was caused by smoking, to avoid liability CIGARETTE DEFENDANTS denied that cigarettes are addictive and claimed that smoking was a matter of free choice and the claimant (or his or her decedent) could quit smoking if they chose. 84. CIGARETTE DEFENDANTS claimed attomey-client privilege for, and refused to produce, or ordered destroyed, documents which were scientific in nature and specifically related to health issues. 85. CIGARETTE DEFENDANTS, when sued for smoking-related injuries, conducted the litigation in such a way as to cause the maximum expenditure of time and resources by the claimant CIGARETTE DEFENDANTS consistently adopted the strategy that 281 28
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1 2 73. Until December 13, 1991, export of tobacco seeds or live tobacco plants was prohibited under Federal law unless a Tobacco Seed Plant Export Permit (Form TB 3 7) was granted by the United States Department of Agriculture. Such a permit could be granted only after satisfactory proof was offered that the seeds or plants were to be used solely for experimental purposes and then only in amounts of a half a gram or less. 74. Brown & Williamson and DNA Plant Technology each informed the FDA that they believed the other may have been responsible for the shipment of "Y-1 " seeds outside the United States. Both companies were asked to furnish copies of any Tobacco Seed Plant Export permits for "Y-1." 75. Subsequently, TOBACCO DEFENDANT DNA Plant Technology falsely and fraudulently informed the FDA that, as far as DNA Plant Technology knew, "Y-1" was never commercialized. However, the FDA obtained two invoices filed with the U.S. Customs Service in 1992. The invoices were addressed to CTGARETTE DEFENDANT Brown & Williamson Tobacco Corporation, Louisville, Kentucky from Souza Cruz Overseas. They referred to "Your Order Proj ect "Y-1 " and revealed that more than one-half a million pounds of Y-1 tobacco were shipped to Brown & Williamson in 1992. Eventually, after discovery of these invoices, Brown & Williamson informed the FDA that, in fact, three and a half to four million pounda of "Y-1" tobacco has been stored in company warehouses in the United States. More significantly, Brown & Williamson revealed that "Y-1" had, in fact, been commercialized. 76. Brown & Williamson brands of cigarettes, including Viceroy and Raleigh, were manufactured and distributed nationally in 1993 with a tobacco blend that contained approximately 10 percent of this genetically-- bred high- nicotine tobacco called "Y-1." 77. It is uncontroverted that smoking-cause diseases, including lung cancer, are dose dependenr, that is, each and every exposure to these carcinogens increases the risk of disease. Thus, each and every cigarette, which contained the high-nicotine tobacco" Y-1," smoked by 24
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DATED this Ll~day of July, 1999. 50 ~ 530 South S' Street v~ Nevada Baz ~ .,6(11318 Iv1AINOR & I5 Las Vegas, Nevada 89101 (702) 8 -~ and By. ~ S J.I , /SeqQ. Nevada Bar No. 004651 521 South Sixth Street Las Vegas, Nevada 89101 (702) 382-9307
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(CIGARETTE DEFENDANTS & TOBACCO DEFENDANT 54. Plaintiff realleges and incorporates by reference each of the foregoing paragraphs and makes them a part hereof as though fully set forth herein. 55. Beginning at an exact time unknown to plaintiff, and continuing even today, the CIGARETTE DEFENDANTS have carried, and continue today to carry out a campaign designed to deceive the public, including plaintiff; the government, and others as to the health hazards of smoking, the addictive nature of smoking, to conceal their knowledge concerning these things, the results of their own research, and to misrepresent their actual role in manipulating the addictive properties of cigarettes via ammonia and other additives and/or via the engineering of higher nicotine tobaccos. 56. The CIGARETTE DEFENDANTS made literally hundreds of misrepresentations to plaintiff and others over the course of the last 40 years. Plaintiff is unable to allege in full the thousands of pre-1969 advertisements, and the continuing press releases, "frank Statements," testimony by tobacco manufacturers' officers and employees before Congress and other governmental entities, etc., that defendants and their co-conspirators, the Tobacco Institute and TIRC, have prepared, participated in, given, and released over the last almost 50 years both because they do not have access to this information, and because to allege each and every such misrepresentation, false statement, and concealment of material information here would entail hundreds or even thousands of pages of pleading; indeed, it is the CIGARETTE DEFENDANTS themselves which have this knowledge and information, and are in the best position to know the contents of each and every such misrepresentation, false statement, and concealment of material information. 57. The CIGARETTE DEFENDANTS caaied out their campaign of fraud, false statements, misrepresentations, and concealment of material information in three ways: First, they agreed falsely to represent to plaintiff and others that questions about smoking and health would be answered by a new, unbiased, and trustworthy source. Second, they misrepresented, 18
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65. The CIGARETTE DEFENDANTS have repeatedly stated for the public record that they do not manipulate nicotine levels in cigarettes. However, the plant described in this patent represents a dramatic attempt to manipulate nicotine. Moreover, when the FDA asked company officials whether tobacco plants were bred specifically for higher nicotine content, they were told that this was not feasible. The CIGARETTE DEFENDANTS asserted that tobacco growers and cigarette manufacturers had an agreement that the nicotine level of new varieties of tobacco grown in the United States would vary only slightly from the level of standard varieties. Supposedly, under this agreement, a new high-nicotine tobacco plant that varied more than slightly from the standard variety could not be commercially grown by farmers in the United States. 66. Nevertheless, the FDA learned that interest in developing a high-nicotine tobacco plant dated back to at least the mid-1970's. In 1977, Dr James F. Chaplin stated: °` manufacturers have means of reducing tars but most of the methods reduce nicotine and other constituents at the same time. Therefore it may be desirable to develop levels constant or to develop lines higher in nicotine so that when the tar and nicotine are reduced there will still be enough nicotine left to satisfy the smoker." 67. In truth, Dr. Chaplin had been working on genetically breeding tobacco plants with varying nicotine levels. In a 1977 paper, Dr. Chaplin indicated that tobacco could be bred to incaease nicotine levels, specifically by cross-breeding commercial varieties of tobacco with Nicotiana rustica. which is a wild variety, very high in nicotine, but not used commercially in cigarettes because it is considered too harsh. However, Dr. Chaplin told the FDA that his specially bred plants were not commercially viable because they did not grow well and literally did not stand up in the field. Furthermore, he indicated that he was surprised that he could not get the nicotine levels as high as he anticipated. In fact, in his 1977 paper, the highest nicotine level he reported in these specially bred lines was 3.4 percent total nicotine within the normal range for flue-cured tobacco. 22
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1 2 3 4 5 6 alternative could be readily produced, undercutting the industry position to the contrary. Cigarette defendant conspirators also internally recognized the validity of non-industry research efforts, such as animal smoke-inhaling and skin-painting with smoke ingredients, but publicly downplayed the significance of that research. In fact, in furtherance of the conspiracy to conceal adverse scientific information, there was a longstanding "gentleman's agreement" among the conspirator defendants and co-conspirators to not conduct, i.e., to suppress, independent research on the issue of smoking and health, as referenced in a 1968 internal Philip Morris draft memo which stated, " We have reason to believe that in spite of gentlemen's [sic] agreement from the tobacco industry in previous years that at least some of the major companies have been increasing biological studies within their own facilities." 98. The gentleman's agreement described above notwithstanding, defendant RJ. Reynolds conducted research in the 1960's to study the mechanism whereby smoking causes emphysema. This research was described as important because it came close to determining the underlying pathobiology of emphysema. In 1970 R.J. Reynolds closed down the project and fired the scientists working on it. None of the work done on the project has been disclosed to the public. 99. Publicly, the CIGARETTE DEFENDANTS took another stance. They used counsel-sponsored studies, among others, to attempt to show pockets of high cancer incidence without relation to smoking, to find instances of cancer in nonsmokers, and to show that duration and amount of smoking have no relation to the age of peak incidence of lung cancer. Documents suggest as well that in 1984 the in-house lawyers for CIGA.RETTE DEFENDANTS, which formed a "Committee of Counsel," thwarted industry scientists' desires to assure the safety of the product by testing ingredients adequately. The appellate court in Florida in July, 1997 refused to overturn findings that there was evidence "that the defendants hid from and misrepresented to the public the health risks of smoking and that their conduct constituted fraud on the public," and "that the defendants utilized their attorneys in carrying out 34
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such controversy existed so as to encourage the public to start or to continue smoking cigarettes. These cigarette defendant co-conspiraiors and others have pursued a conspiracy deceit and misrepresentation designed to amass enormous profits through the continued sales of cigarettes and tobacco products. 89. CIGARETI'E DEFENDANTS Liggett Group, Inc., and Philip Morris, Inc., R.J. Reynolds, Brown & Williams, as successor by merger to The American Tobacco Company and its predecessors in interest, Brown & Williamson, and Lorillard have together controlled almost 100% of the cigarette market in the United States. These defendants, their trade associations, their attorneys, and other conspirators agreed and undertook the conspiracy described herein, which existed at all times material to this lawsuit, and continues to exist at the present time. They have agreed to carry out the purposes of the conspiracy, as listed above, and have participated in and cooperated with each other in the conspiracy. Each act of the conspiracy was ratified by the other co-conspirators, who acted as each other's agents. 90. The CIGARETTE DEFENDANTS carried out their conspiracy in three ways: First, they agreed falsely to represent to plaintiff and others that questions about smoking and health would be answered by a new, unbiased, and trustworthy source. Second, they misrepresented, suppressed and confused the facts about the extent of the health dangers of smoking, including addiction and their manipulation of nicotine levels. Concealment of their actual knowledge concerning their own negative health and addiction research results and their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addition to cigarettes were critical to the conspiracy. Defendants claimed, falsely, that there is insufficient "objective" research to determine if cigarette smoking causes disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers, for otherwise the revelation by one company of what it knew about the health consequences of smoking and the addictive nature of the manufacturers' 31 I
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they would defend every claim, no matter what the cost, and spare no cost in exhausting their adversaries' resources. As set forth in the published opinion in Haines v. Liggett Group, Inc., 814 F. Supp. 414(DNJ. 1993), the attitude of CIGARETTE DEFENDANTS is exemplified by a statement attributed to counsel for RJR in reference to cases filed in Northern California just prior to the 1988 statute, California Code S1714.45: The aggressive posture we have taken regarding depositions and discovery in general continues to make these cases extremely burdensome and expensive for plaintiffs' lawyers, particularly sole practitioners. To paraphrase General Patton, the way we won these cases was not by spending all of [RJR's] money, but by maldng the other son of a bitch spend all of his. 86. The aforementioned intentional acts by the CIGARETTE DEFENDANTS and their co-conspirators, as described more fiilly below, resulted in plaintiff being unaware the extent to which smoking presented a serious hazard to his health, that the nicotine therein would addict him to smoking, or that CIGARETTE DEFENDANTS had manipulated the delivery of nicotine in such a way as to increase the likelihood of addiction of which would cause him to develop, and indeed he has developed, lung cancer, from which he will in all probability die in the near future. Had plaintiff known the true dangers of smoking, the extent of the health risk smoking posed, that he as a minor was being targeted by the CIGARETTE DEFENDANTS to replace older, dying smokers, or the addictive nature of nicotine, or the deliberate manipulation of nicotine levels, he would not have smoked. These actions proximately and legally caused the injuries he has sustained and the damages plaintiff claims herein. WHEREFORE, plaintiff prays for judgment as hereinafter set forth. FIFTH CAUSE OF ACTION-CIVIL CONSPIRACY (CIGARETTE DEFENDANTS & TOBACCO DEFENDANT) 87. Plaintiffincorporates by reference Paragraph 1 through 86 inclusive, and make 29
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suppressed and confused the facts about the health dangers of smoking, including addiction. They concealed their actual knowledge concerning their own negative health and addiction research results an their manipulation and control of the nicotine content of their products to create and perpetuate smokers' addiction to cigarettes were critical to the conspiracy. CIGARETTE DEFENDANTS claimed, falsely, that there is insufficient "objective" research to determine if cigarette smoking causes disease and that cigarettes are not addictive. The success of the conspiracy depended upon the concerted action of the cigarette manufacturers [in a so- called "gentlemen's agreement"], for otherwise the revelation by one company of what it knew about the health consequences of smoking andlor the availability of a "safe(r)" cigarette and/or the addictive nature of the manufacturers' cigarettes would have thwarted the conspiracy. Third, CIGARETTE DEFENDANTS used lawyers to misdirect what purported to be objective scientific research to create favorable, and to suppress and/or destroy unfavorable findings regarding the health consequences of smoking to discourage meritorious litigation by plaintiffs injured due to tobacco, they engaged in "scorched earth" litigation tactics in combination with suppressing and distorting evidence in order to protect the CIGARETTE DEFENDANTS' existence and profits. 58_ The following allegations are a representative sample: In January, 1954, when the CIGARETTE DEFENDANTS announced they were establishing a joint industry group known as the tobacco Industry research Committee, TIRC, they simultaneously pledged, through TIRC, aid and assistance to the research efforts into all phases of tobacco use and health, expressly undertaking an interest in health as their basic responsibility paramount to every other consideration. At the same time, CIGARETTE DEFENDANTS represented that there was no proof that cigarette smoking is one of the causes of lung cancer. When they made these representations, CIGARETTE DEFENDANTS intended that the public, including plaintiff, would both believe in and rely upon this public announcement, and they knew or should have known that these pronouncements would permeate 19
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them part hereof as though fully set forth herein. 88. This action arises of an ongoing conspiracy by the CIGARETTE DEFENDANTS herein, and their trade associations, their lawyers, TOBACCO DEFENDANT and persons and/or entities unknown to plaintiff at the present time which together control the cigarette industry for the following purposes: a To intentionally suppress and/or conceal knowledge of the extent of the harmful effects of cigarette smoking from the public, the press, the government, including from plaintiff; b. To intentionally frustrate the flow of information from the medical and scientific community to the general public on the health risks and addictive nature of cigarettes; c. To purposefully create an illusion of conducing scientific research on cigarettes so as to mislead the public into believing that cigarettes were safe to smoke, when in reality no such bona fide research was ever conducted; d; To knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national government in order to avoid and/or control regulation of the sale of cigarettes to the consumer, including plaintiff; e. To knowingly and intentionally lie to, deceive and improperly influence law and policy makers in local, state and national government in order to "immunize" defendant from claims of false and misleading advertising and promotion; f. To knowingly and intentionally sell cigarettes to minors to ensure a future lucrative market for cigarettes as older smokers died; g. To induce and entice minors to smoke so as to hook another generation of smokers who by the age of majority were addicted or dependent and against whom defendants could now assert "adult free choice" defenses; and h. To purposefully create the illusion that a medical and scientific " controversy" existed as to whether or not cigarettes were harmful to human health when in tnrth and fact no 30
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Willinmson Tobacco corporation. In his letter, Todd observed: The only real difficulties that we encountered arose out of the unavoidable paradox at the center of out operations- namely that, on the one had the manufacturers control TRC's operations and do not accept that smoking has been proved to cause lung cancer while, on the other hand, TRC's research pro~ is based on the working hypothesis that this had been sufficiently proved for resear ch purposes. In addition, the Council semor scientists accept that causation theory...We have not yet found the best way of handling this paradox. D. In 1979, P.N. Lee of BAT expressed his impressions of a 1979 Surgeon General's 8 report dated January 11, 1979. In this memorandum, Lee considered at length the 9 Tobacco Institute publication entitled " The Continuing Controversy," also identified as 10 TA73. Lee characterized that report as "misleading." He wrote that the report did not I 1 appear to understand what causation is. Lee wrote: 12 Discussion of the role of other factors can be particularly misleading when no discussion is made of relative magnitudes 13 of effects. For example, heavy smokers are observed to have 20 or more times the lung caner rates of non-smokers. Sure, 14 this does not prove smoking causes lung cancer, but what is does mean, and TA 73 never considers this, is that for any other 15 factor to explain this association, It must have at least as strong an association with lung cancer as the observed association for 16 smoking (and be highly correlated with the smoking habit). TA 73 seems ready to accept evidence implicating factors other 17 than smokinp in the aetiology of smoking associated disease without requuzng the same stringent standards of proof that is 18 requires to accept evidence implicating smoking. This is blatantly unscientific. 19 20 E. In 1984, a paper written by Colin Grieg for BAT describes a cigarette as "...a 21 'drug' administration system for public use..." It further went on to state: 22 Within 10 seconds of starting to smoke, nicotine is available in the brain. 23 Before this, impact is available giving an instantaneous catch or hit, signifying to the user that the cigarette is 'active.' Flavor, also, is 24 immediately perceivable to add to the sensation. 25 26 27 28 81. Joint industry research efforts undertaken by TIRC and CTR were neither disinterested nor objective. Industry documents, recently revealed, show that CTR functioned 26
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1 true health hazards and addictive nature of cigarettes and to lure new, especially youthfiil, users 2 to replace the older ones who died. After 1969, the aforesaid CIGARETTE DEFENDANTS 3 continued to disseminate deceptive, erroneous, misleading, and false statements concerning the 4 state of the medical research concerning cigarettes and the diseases they cause as sell as the 5 exteat of health hazards and the addictive nature of cigarettes and continued to lure new, 6 especially youthful smokers to replace the older one who died via "informational" 7 communications, the dissemination of coupons and gifts, the underwriting of sports, concerts, 8 and other such events, and the "underwriting" of purportedly scientific research and studies. 9 51. Plaintiff relied, to his detriment, upon the representations of the CIGARETTE 10 DEFENDANTS and co-conspirator wholesalers and retailers in many of the literally thousands 11 ofpre-1969 advertisements and promotional activities, and pre-and post 1969 dissemination of 12 free cigarettes, and informational communications aimed at members of the public and the 13 Nevada and federal government, and consumers, including plaintiff. 14 52. Said representations by CIGARETTE DEFENDANTS and co-conspirator 15 wholesaler and retailer entities, and each of them, were false and untrue, in that cigarettes and 16 other tobacco products were not safe for their intended use, nor were they of merchantable 17 quality as represented by defendants, and each of them in that cigarettes and tobacco products 18 have very dangerous properties and defect whereby said products cause lung cancer and other 19 lung disabilities, heart disease and have other defects that cause injury and damage to the users of 20 said products and bystanders to those users, including plaintiff herein, thereby threatening the 21 health and life of plaintiff. 22 53. As a direct and proximate result of said false representations by defendants and 23 each of them, the plaintiff sustained the injuries and damages hereinabove set forth. 24 WHEREFORE, Plaintiff prays judgment against the CIGARETTE DEFENDANTS, and 25 each of them, as hereinafter set forth. 26 FOURTH CAUSE OF ACTION - DECEIT. FRAUDULENT CONCEALMENT 27 28 17
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.R authorized to use, and to continue to use: I. Beg' nina in 1952 and continuing for many years up to 1969, defendant Liggett Myers promised in their Chesterfield pre-1969 advertisements and post- 1969 statements: ...[P]roved by over 40 years of continuous use... as entirely safe for use in the mouth - chemically pure, far more costly glycerol and pure sugars which are natural to tobacco - nothing else. [bold emphasis added] A medical specialist is making regular bi-monthly examinations of a group of people from various walks of life. 45 percent of this group have smoked Chesterfield for an average of over ten years. After eight months, the medical specialist reports that he observed no adverse effects On the nose, throat and sinuses of the group from smoking Chesterfield. 2. Beginning in 1951 and continuing for many years up to 1969, defendant RJ. Reynolds advertised, and after 1969 stated, that its camel cigarettes were "tested" by "noted throat specialists." Not one single case of throat irritation due to smoking camels! More doctors smoke Camels than any other cigarette. 3. In 1962, the Tobacco Institute issued a press release promising: We in the tobacco industry recognize a special responsibility to help science determine the facts. 4. In 1972, James Bowling, a Vice President of co-conspirator Philip Morris, Inc., was quoted as saying: If our product is harmful... we'll stop making it We now know enough that we can take anything out of our product, but we don't know what ingredients to take out.. . 5. In 1978, a Tobacco Institute information pamphlet stated: The flat assertion that smoking causes lung cancer and heart disease and that the case is prove dis not supported by many of the world's leading scientists. 6. In 1983, RJR represented: It has been stated so often that smoking cause cancer, it's no wonder most people believe this is an established fact. But, in fact, it is nothing of the kind. The truth is that almost three decades of research have failed to produced scientific proof for this claim ... in our opinion, the issue of smoking and lung cancer is not a closed case. It's an open controversy. k. In furtherance of the conspiracy detailed above and below, the CIGARETTE DEFENDANTS carried out an ongoing campaign of financial and other inducements and rebates offered to, and accepted by, co-conspirator supermarkets, convenience stores, and other point of sale retailers including but not limited to REBEL OIL COMPANY, INCORPORATED, in return for said co-conspirators' 289 14
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LORILLARD TOBACCO COMPANY CSC Services of Nevada, Inc. 502 East John Street Carson Cfty, Nevada 89706 LL001,L8b
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1 cigarettes to satisfy their nicotine addiction, thus negating, because of the dose dependent nature of the health risk of smoking, any health advantage CIGARETTE DEFENDANTS and co- conspirator wholesale and retail entities touted in low-tar cigarettes, including Marlboro Light 100's. 118. As a proximate cause of the breach of express warranty on the cigarettes, including but:not limited to the brands listed above, by co-conspirator wholesale and retail entities and CIGARETTE DEFENDANTS, plaintiff has suffered, and will suffer until he likely dies therefrom, development of terminal, inoperable lung cancer. WHEREFORE, plaintiff prays for all consequential damages from CIGARETTE DEFENDANTS as hereinafter set forth. SEVENTH CAUSE OF ACTION - UNFAIR COMPETITION/[1NLAWFUL BUSINESS PRACTICES (CIGARETTE DEFENDANTS & REBEL OIL COMPANY, INCORPORATED) 119. Plaintiff realleges each of the foregoing paragraphs above as if fully set forth herein. 120. Plaintiff at all times relevant herein, is a resident of the State of Nevada and a member of the consuming public at whom CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED, aimed their advertisements and communications. 121. At all times relevant herein, the CIGA.RETTE DEFENDANTS engaged in an ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully in above, of the true state of the scientific research showing cigarette smoking causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, often youth, smokers to purchase 40
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5. For plaintiff's costs of suit herein; 6. As to those cigarette defendants named for punitive damages alleged, for exemplary or punitive damages according to proof; and As to cigarette defendants and Rebel Oil Company Incorporated: 7. For redress and restitution for past and continuing acts of unfair competition and illegal conduct; 8. For permanent injunction enjoining the cigarette defendants, and each of them from selling any more cigarettes containing carcinogenic substances or other additives; 9. For a permanent injunction enjoining the cigarette defendants, and each of them from selling any more cigarettes to minors and youths; 10. For disgorgement of all profits unjustly gained from the illegal sale of cigarettes to minors; 11. For disgorgement of all profits unjustly gained from the continuing and ongoing sale of cigarettes to those consumers, including plaintiff, whom the defendants addicted to cigarettes as minors, and who, including plaintiff, continued to purchase them because of their addiction; 12. For reimbursement to the State of Nevada and all other public and other entities from which plaintiff received or will receive benefits and services for cigarette-related illnesses and conditions; 13. For reasonable attorney's fees; and 14. For such other and further relief as this Court deems just and proper. 27 28 11 49
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cigarettes would have thwarted the conspiracy. Third, defendants used lawyers to misdirect what purported to be objective scientific research to create favorable, and to suppress or destroy unfavorable, findings regarding the health consequences of smoking. To discourage meritorious litigation by plaiutiffs injured due to tobacco, they engaged in "scorched eatih" litigation tactics in combination with suppressing, destroying and distorting evidence. 91. The conspiracy began at a time unknown to plaintiff, but at or about the time of the first scientific research by the CIGARETTE DEFENDANTS and cigarette manufacturers. Over the years the conspirators, acting in concert, performed numerous overt acts to fnrther the purposes of the conspiracy. Because many of these acts were concealed, plaintiff is not able to state all overt acts, but allege the following representative acts as examples. Beginning as early as 1946, cigarette industry researches reported a link between use of tobacco and cancer development The CIGARETTE DEFENDANTS knew and acknowledged internally these and other health hazards of smoking. Internal industry documents reveal knowledge of carcinogens in tobacco smoke, contribution of smoking to lung cancer, and that the irritation caused by smoking leads to chronic bronchitis and emphysema, among other health hazards caused by smoking. 92. In the ensuing years, CIGARETTE DEFENDANTS knew and acknowledged internally the health hazards of smoking. Internal industry documents reveal knowledge of carcinogens in tobacco smoke, contribution of smoking to lung cancer, and irritation caused by smoking leading to chronic bronchitis and emphysema, among other health hazards presented by smoking. 93. In 1952, a British researcher, Dr. Richard Doll, published a statistical analysis showing that lung cancer was more common among people who smoked than among non- smokers, and that the risk of lung cancer was directly proportional to the number of cigarettes smoked. In December, 1953, Dr. Ernst L. Wynder of the Sloan-Kettering institute published the results of a study definitively linking cigarette smoking and cancer. The widespread reporting of 32
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Office of the U.S. Surgeon General, the World Health Organization, and the American Medical Association. Each of these organizations now acknowledges tobacco use as a form of drug dependence or addiction with severe adverse health consequences. CIGARETTE DEIENDANTS continue to dispute this fact 104. In furtherance of the conspiracy, defendants have controlled, and continue now to control nicotine content of their cigarettes, including by developing high-nicotine tobacco and blending of tobacco, and engineer their cigarettes to control nicotine delivery to the smoker, through adding ammonia, and through the use of reconstituted tobacco.. They then concealed their knowledge of the addictive nature of nicotine and of their manipulation of nicotine levels and delivery. They have denied, and continue to deny publicly that nicotine is addictive, or that they attempt to or do achieve levels of nicotine in their products to create or sustain addiction. 105. Defendants have squelched and kept secret information they had about the hazards of smoking to health, and about the addictive nature of nicotine and their manipulation of nicotine levels and delivery. The March 1997 defection of Liggett from the conspiracy affirms its existence, for the cigarette manufacturers sought to suppress all Liggett documents relating to the conspiracy from the public. 106. In furtherance of the conspiracy, CIGARETTE DEFENDANTS deliberately abused the litigation process, as described more fiilly in the Eighth Cause of Action above. They conspired to resist all discovery aimed at them, to force litigating plaintiffs to obtain a court hearing, and then demanded confidentiality orders once court rulings were obtained to prevent the rulings from becoming public knowledge. They have demanded extensive expert and plaintiffs depositions, and have at every juncture tried to force seriously ill plaintiffs to incur massive costs associated with litigation while the co-conspirators pooled the costs of defense. 107. The combination of litigation tactics adopted by defendants and their suppression of the information available to them regarding the health hazards of tobacco, the addictive nature of nicotine, and their manipulation of nicotine levels and delivery, operated to discourage 36
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1 Plaintiff was a substantial factor contributing to Plaintiff"s illness described herein and Plaintiff 2 has suffered damages therefore as more fully described herein. 3 78. In January of 1998, DNA was indicted for illegally exporting tobacco seeds and 4 pled guilty. 5 79. DNA and Brown & Williamson were interested in controlling and manipulating 6 nicotine in cigarettes because senior industry officials were well aware that nicotine is the critical 7 ingredient in cigarettes and the one ingredient that guarantees continued usages by consumers. 8 80. The addictive effect of nicotine has long been known and concealed by the 9 CIGARETTE DEFENDANTS. The intentional concealment of facts concerning nicotine, as 10 well as the CIGARETTE DEFENDANTS' manipulation of both the nicotine content in 11 cigarettes and the use of other chemicals to further enhance the addictive qualities of nicotine is 12 shown by the following representative examples. The CIGARETTE DEFENDANTS' efforts 13 included Brown & Williamson' rejection of its own general counsel's advice in 1963 to disclose 14 to the U. S. Surgeon General what the company knew about the adverse effects of smoking on 15 health and the addictiveness of nicotine. They included advice by another Brown & Williamson 16 general counsel in 1985 to remove documents and files and to ship documents out of the United 17 States. CIGARETTE DEFENDANTS became aware that cigarette smoking is probably 18 hazardous to the smoker, as reflected in excerpts from industry documents: 19 A. In 1959, and RJR scientist, Alan Rodgman, concluded that there is a "distinct 20 possibility" that substances in cigarette smoke could have a carcinogenic effect. 21 22 B. In 1962, Rodgman wrote: 23 The amount of evidence accumulated to indict cigarette smoke as a health hazard is overwhelming, [while] the evidence challenging 24 the indictment is scant. 25 C. In 1967, G. F. Todd of the Tobacco Research Council wrote a letter to Mr. 26 Addison Yeaman. Yeaman was the Vice President and general counsel of Brown & 27 28 25
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CYIN' WmGiE . SNIP OAIE: 19R199 CSC SA2 E JpN 51f€EI RIDN E , GWSOM CIII NY 597B6--JW ACRNL MCI: I l85 MW-Mf _a9. MY MWEW_. . kie6)P6-7BW LORILLARO IOBACCO CQPARY 71/ N@ll YAUEY W71D U.O. 8011 1&79 - ZIP 27/B1-Pu NEMM IC 271B8 /371 351100 Pff: SOP 289517 W, iB10587 19JOL99 Fee[k8ILL 7XIfU PNIIY STANDARD DYERHIGHT T oelfvar oy: d IN, 4322 3511 0559 ~~ 20JUL99~ GSO "~ 21408 -"C-°s XM GSXA ~ 1111111111111111111111 The ..World v.n 1 aiw I
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136. Beginaing at a time unknown exactly to plainti$ but prior to his first cigarette at the age of 16 in or about 1967 and continuing thereafter due to his addiction, plaintiff saw, believed, and relied on the CIGARETTE DEFENDANTS' representations, including those placed in and around the retail facilities of co-conspirator retail entities. In reliance on them, he purchased various cigarettes including, but not limited to the brands listed herein, MARLBORO, MARLBORO LIGHT, LUCKY STRIKES, CHESTERFIELD, PARLIAMENT, CAMEL -NON FILTERED, VANTAGE, AND WINSTON cigarettes. 137. At the time the CIGARETTE DEFENDANTS negligently made these misrepresentations as herein alleged and co-conspirator retail entities assisted, aided in, and enabled these representations and sold plaintiff cigarettes, the defendants and each of them had no reasonable grounds for believing the representations to be true. 138. As a proximate result of the CIGARETTE DEFENDANTS' and co-conspirator retail entities' negligent misrepresentations, plaintiff continued to smoke despite numerous attempts to quit and thereby developed terminal, inoperable lung cancer from which he will likely die in the near future. WHEREFORE, plaintiff prays for relief as hereinafter set forth. 23 24 25 26 27 NINTH CAUSE OF ACTION - INTENTIONAL FALSE AND MISLEADING ADVERTISING (CIGARETTE DEFENDANTS) 139. Plaintiff realleges each of the foregoing paragraphs as if fully stated herein. 140. At the time of the CIGARETTE DEFENDANTS made point of sale targeting using the representations herein alleged, they knew the representations were false. 141. Beginning at some time unknown to plaintiff, co-conspirator retail entities knew the representations herein alleged were false. 2811 45
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0 the CIGARETTE DEFENDANTS' cigarettes were used as intended b. prior to 1969, in failing to warn or warn adequately that the harms listed above would be more likely experienced if users did not restrict their intake of defendants' cigarettes, and/or in failing to provide some guidelines on reasonably safe dosage or amount of cigarette consumption, andlor in failing to warn that use of their cigarettes at an early age was exceedingly harmful; c. prior to 1969 in failing to warn or wam adequately that use of cigarettes as intended was likely to lead to addiction, habituation or dependence, particularly if begun at an early age; d. prior to 1969, in failing to warn or warn adequately that termination or limitation of cigarette use would be exceedingly difficult if cigarette consumption was initiated and that this difficulty would increase as cumulative consumption increased. e. prior to 1969, in failing to warn or warn adequately of developing knowledge demonstrating that previous users of cigarettes are at great risk of harm (as listed above) and should seek medical monitoring; f. in failing to establish a reasonably safe dose for foreseeable users, of their cigarettes, if any such safe dose exists; g. in designing, manufacturing, selling, and promoting the sale cigarettes that when used as intended were not reasonably safe for foreseeable users; h. in failing to make such feasible improvements in design, composition or manufacture, of their cigarettes such as to materially decrease the foreseeable risk to users; i. prior to 1969, in failing to disclose to plaintiff and other foreseeable users of their cigarettes of the defendants' own scientific and other scientific research known to them which disclosed that use of cigarettes as intended caused a great risk of harm as described above; and, j. in furtherance of the ongoing conspiracy described below, and to deceive, conceal material information, while simultaneously affirmatively misrepresenting to plaintiff and other members of the public, through continuing advertising campaigns in the print, radio, cinema and television media until 1969, and prior and after 1969 in"informational" communicating, sponsorship of sports activities, concerts, and other events, testimony and public statements by officers agents and employees of the CIGt1RETTE DEFENDANTS that the cigarettes manufactured sold, or distributed by defendants were safe in their ordinary and foreseeable use, which induced plaintiff to unknowingly expose himself to the hazards of cigarettes. Further, plaintiff was induced to begin smoking because these defendants targeted, and continue to target, youths as young as under 10 to hook them early on their cigarettes to replace older, dying smokers. The following are but a representative sample of the literally thousands of advertisements and promotions prior to 1969, and deceptive and fraudulent "informational" communications and authorized public statements thereafter, the defendants used defendant REBEL OIL COMPANY, INCORPORATED impliedly endorsed and 28 11 13
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their misrepresentations and concealment to keep secret research and other conduct related to the true health dangers of smoking," sufficient to show that the attorneys were used to perpetuate the fraud. American Tobacco Co. v. State ofFlorida. 697 So. d. 1249, 1257(Fla App.1997). 100. Over the next 40 years, the tobacco industry continued this conspiracy to suppress the accumulating scientific and medical evidence of the health hazards of smoking by claiming to "help" science determine the true facts concerning smoking and disease and continuing to manipulate the nicotine level of cigarettes to keep smokers addicted and to lure and hook younger smokers. 101. Building on the efforts they launched in 1954 with the public announcement of TIRC, which became CTR, CIGARETTE DEFENDANTS through TIRC and the Tobacco Institute continued to state publicly in 1970 and thereafter, up through testimony to Congress in 1994, that they recognized a special responsibility to the public to help scientists determine the facts about tobacco use and health, and they supported CTR for independent research to that end. 102. In furtherance of the conspiracy to conceal relevant information regarding smoking and health, CIGARETTE DEFENDANTS through CTR, The Tobacco Institute, and otherwise continued to insist throughout the 1970's, 1980's, and 1990's that there still was a question about smoking and health and that cigarette smoking had not been established to cause chronic diseases such as cancer or emphysema and claimed that studies showing smoking causes disease were flawed. 103. The nicotine in cigarettes is addictive, due to the pharmacological effect of nicotine. CIGARETTE DEFENDANTS and co-conspirators have known this since at least the early 1960's. As stated by defendant Philip Morris in a 1969 research report to the Philip Morris board of directors: [... smoking a cigarette for a beginner is a symbolic act... "I am no longer my mother's child, I'm tough, I'm an adventurer, I'm not square... As the force from the psychological symbolisms subsides, the pharmacological effect takes over to sustain the habit..." Nicotine is now recognized as an addictive substance by such major medical organizations as the 35
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5 149. The CIGARETTE DEFENDANTS did and continue to conspire with one another and with other, known and unknown conspirators in order to continue to control the market for cigarettes and tobacco products, mislead and deceive the public and the government as to the health hazards of smoking and the addictive nature of tobacco products, and prevent injured persons and governments form making claims or litigating against them. 150. The acts and conduct of the CIGARETTE DEFENDANTS, as summarized above and described in detail in the foregoing paragraphs inclusive, were motivated by the financial interests of the CIGARETTE DEFENDANTS in the continuing uninterrupted distribution and marketing of cigarettes and tobacco products and the acquisition of new, youthful consumers. In pursuance of said financial motivation, the CIGARETTE DEFENDANTS consciously disregarded the safety of the users of and persons exposed to the smoke of, cigarettes and other tobacco products, and were in fact, consciously willing to permit cigarettes and tobacco products to cause injury to smokers and bystanders exposed to the smoke, including plaintiff: 151. The conduct of the CIGARETTE DEFENDANTS as described herein was and is willful, malicious, outrageous, and in conscious disregard and indifference to the safety and health of the public, including plaintiff. For the sake of example, and by way of punishing the CIGARETTE DEFENDANTS, plaintiff seeks punitive damage according to proof. PRAYER WHEREFORE, Plaintiff Lloyd Glass prays judgement against cigarette defendants, and DNA Plant Tecbnology Corporation and each of them, as follows: 1. For plaintiffl s general damages according to proof; 2. For plaintiff Lloyd Glass' loss of income, wages and earning potential according to proof; 3. For plaintiff Lloyd Glass' medical and related expenses according to proof; 4. For plaintiffs prejudgment interest according to proof. 28 11 48
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due to the conduct of the CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED, as described above, plaintiff has availed, and will continue to avail, himself of medical and other benefits extended to him and other former youth smokers under public assistance programs. Such financial and other assistance will cause the State of Nevada and other public entities to seek reimbursement for the value of all services and benefits he received, the full nature and extent of which are not yet known to plaintifL and leave is requested to amend this Complaint to conform to proof at the time of trial to establish the amount of reimbursement. 130. As a result of the continuing course of conduct of the defendants, and each of them, as outlined above, the CIGARETTE DEFENDANTS have been unjustly enriched from the years-long illegal sale of addictive cigarettes, first to minors and youths, including plaintif~ to addict them and ensure to the said defendants, and each of them, and ongoing flow of profits throughout the years, as the addicted smokers continued to purchase cigarettes. The exact amount of this nnjust enrichment gained from the ongoing and continuing purchase of cigarettes by addicted smokers who began smoking as minors is as yet unknown to plaintit who requests leave to amend this Complaint to conform to proof at the time of trial. Wherefore, plaintiff prays for injunctive and other relief from the CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED according to proof, as hereinafter set forth. EIGHTH CAUSE OF ACTION - NEGLIGENT FALSE AND MISLEADING ADVERTISING (CIGARETTE DEFENDANTS) 131. Plaintiff realleges each of the foregoing paragraphs as if fally stated herein. 43
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.-~ 16 17 18 19 20 21 22 23 24 25 26 27 these studies caused what cigarette company officials later called the "Big Scare." 94. In response to Dr. Wynder's definitive study in 1953, the chief executive officer of the leading cigarette manufacturers met and conspired to deal with the "health scare" presented by smoking. Acting in concert at an industry strategy meeting on December 15, 1953, at the Plaza Hotel in New York, the participants, except defendant Liggett, agreed to orchestrate a public relations program to promote cigarettes and prot.ect themselves from the perceived threat posed by these and other expected attacks. Participants agreed to have the public relations firm of Hill Knowlton, which attended the meeting, serve as operating agency for all the companies. 95. Nine days after the December 15, 1953, meeting described above, Hill & Knowlton presented a detailed memorandum to the cigarette manufacturers. The memorandum characterized the grave nature of recent reports on the health effect of cigarette smol'ing as a serious public relations problem, a situation of extensive delicacy, and recommended that the industry avoid appearing callous to health or to be belittling negative medical research. 96. Five of the six cigarette companies attending the December 15, 1953, meeting agreed to form the Tobacco Industry Research Committee ("TIRC"). Defendant Liggett, which initially did not participate in the public relations effort, joined TIRC in 1964, the same year the surgeon General issued his first report on smoking, in which he concluded that cigarette smoking was a cause of lung cancer. TIRC changed its name this same year to the council for Tobacco Research ("CTR"). A second trade group, the Tobacco Institute, was formed in 1958 by cigarette manufacturers. The cigarette defendant conspirators and other co-conspirators were members and directors, with the purpose of providing a`voice to speak on behalf of the industry on all matters" and to provide disinformation to media and others on the dangers of cigarette use. 97. CIGARETTE DEFENDANTS and others developed safer cigarettes by determining which parts of cigarette smoke caused disease. They did not market those cigarettes and they did not release the research that led to development of the safer cigarettes, because either move would be an admission that the existing cigarettes were not safe and that a safer 28 11 33
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1 use for which they were intended. 2 126. Although the content of the statements and communications changed regularly, 3 they retained these consistent themes and misrepresentations, concealment, and distortions. Due 4 to the sheer number and volume of the thousands of such advertisements and communications 5 through the years, plaintiff is unable to recount specifically herein each and every one. Indeed, it 6 is the defendants herein which have superior knowledge concerning the thousands of 7 advertisements and communications. The statements and communications were misleading and 8 deceptive, and induced the consuming smokers, including plaintiff, to rely to their detriment 9 upon them. As a proximate cause of such misleading and deceptive statements and 10 communications, plaintiff has developed, and will likely die therefrom, inoperable, terminal lung 11 canoer. 12 127. As a result of the point of sale targeting of youth and minor smokers, at least 90% 13 of adult smokers began purchasing the cigarettes to which they became addicted while under the 14 age of 18. In reliance upon the representations and inducements of the point of sale targeting of 15 minor smokers by the CIGARETTE DEFENDANTS, as described above, plaintiff, and 16 countless other smokers like him, purchased cigarettes at retail facilities and became addicted to 17 cigarettes, which he continued to smoke until developing lung cancer from which he now suffers 18 and from which he in all likelihood will die from in the near future. 19 128. The purchase by minors throughout the years relevant herein, including plainti$ of 20 cigarettes sold by the CIGARETTE DEFENDANTS, and each of them, and the development of 21 the addiction of these smokers, including plaintiff, resulted in the defendants', and each of them , 22 profiteering unjustly and unfairly from the illegal sale of cigarettes to the minors, including 23 plaintiff in an amount presently unknown to plaintiff, who requests leave to amend this 24 Complaint to conform to proof at trial when the true amount of illegal profit made by these sales 25 of cigarette to minors becomes known. 26 129. As a proximate cause of plaintiff's addiction to cigarettes and injuries therefrom, 27 281 42
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142. The CIGARETTE DEFENDANTS herein, and each of them, made the representations herein with the intention of depriving the public who smoked, including plaintiff, of their health in order to maintain and/or increase their profits and induce new, often youth smokers, to buy their cigarettes. 143. As a proximate result of CIGARETTE DEFENDANTS' intentional misrepresentations as heretofore described, plaintiff was initially induced, and then forced by his ongoing addiction to spend total sum currently unknown to him on cigarettes manufactured by the CIGARETTE DEFENDANTS and sold by, among others, co-conspirator retail entities. Plaintiff requests leave to amend this Complaint at trial when the exact amount becomes Imown. 144. As a fnrther proximate result of CIGARETTE DEFENDANTS' intentional misrepresentations, plaintiff developed terminal, inoperable lung cancer from which he will likely die in the near future. Plaintiff availed, and continues to avail, himself of public benefits and services valued in an amount at present unknown to him. Plainti8'seeks leave to amend this Complaint to conform to proof at trial. WHEREFORE, plaintiff prays for relief as hereinafter set forth. TENTH CAUSE OF ACTION - PUNITIVE DAMAGES (CIGARETTE DEFENDANTS) 26 27 145. Plaintiff repeats and realleges each and every of the foregoing paragraphs in this Complaint as if fully stated herein. 146. The CIGARETTE DEFENDANTS, PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R. J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY and its predecessors in interest; LORILLARD, INC., as successor by 28 11 46
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132. CIGAItE1"I'E DEFENDANTS breached their duties of care as heretofore set out above by their ongoing campaign and conspiracy to deceive and mislead government and the public, including plaintiff, and to conceal and/or distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine, and the CIGARETTE DEFENDANTS' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and communications directed at the consuming public in the State of Nevada, including plaintiff. 133. Co-conspirator retail entities, at times material had the following legal duties: a. a legal duty to refrain from selling cigarettes to minors; b. a duty to warn previous users, users, and foreseeable users of the cigarettes it sold of the dangers listed above; c. a duty to disclose to consumers of cigarettes the results of their own, if any, and other scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above). 134. These co-conspirator retail entities breached their duties of care above by its years-long course of conduct aiding, assisting, and enabling the CIGARETTE DEFENDANTS' ongoing campaign and conspiracy to deceive and mislead government and the public, including plaintiff, and to conceal andlor distort the true facts concerning the health hazards of smoking, the addictive nature of nicotine, and the CIGARETTE DEFENDANTS' manipulation of the levels of nicotine in cigarettes to keep addicted smokers hooked on cigarettes via deceptive and false statements and communications directed at the consuming public in the State of Nevada, including plaintiff, in that said defendants sold cigarettes to minors, including plaintiff and allowed minors easy access to cigarettes. 135. The statements and communications the CIGARETTE DEFENDANTS presented to the public, including plaintiff, and which the co-conspirator retail entities placed and allowed to be placed in and around their various retail facilities, were made with the intention of inducing the public, with youths and minors as the particular targets, to purchase the cigarettes, including but not limited to the brands listed herein. 44
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8 merger to P. LORILLARD and/or LORILLARD TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, BATUS HOLDINGS, INC., BATUS, INC., B.A.T. INDUSTRIES, P.L.C.; BRITISH AMERICA TOBACCO COMPANY, L.T.D.; THE AMERICAN TOBACCO COMPANY AND THREE HUNDRED FIRST DOE THROUGH THREE HUNDRED FIFTY-FIRST, INCLUSIVE, and each of them, as described in the preceding paragraphs and causes of action detailed above manufactured, distributed, tested, designed, promoted, marketed, packaged, sold, and/or placed into the stream of commerce in and into the State of Nevada numerous brands of defective, unreasonably dangerous and hazsrdous cigarettes, or other tobacco products, without informing and/or warning the public, consumers, the government, or plaintiff in order to continue to amass millions of dollars in profits from the sale and consumption of these dangerous tobacco products. 147. Further, the CIGAREI"PE DEFENDANTS manufactured, distributed, tested, designed, marketed, packaged, sold, and/or placed into the stream of commerce in and into the State of Nevada numerous brands of defective, unreasonably dangerous and hazardous cigarettes, or other products, whose nicotine content they had manipulated in order to increase the addictive effect on consumers in order to ensure that the public, consumers, and plaintiff remained addicted to cigarettes and other tobacco products and unable to stop purchasing and using them. Prior to 1969, these same CIGARETI'E DEFENDANTS also used aggressive campaigns of advertisements and promotional activities to further ensure that the public, consumers, including plaintiff, would purchase their cigarettes, become addicted, and become unable to stop purchasing and using them. 148. After 1969, these same CIGARETTE DEFENDANTS continued to use aggressive campaigns of public statements and communications, and underwriting of sports and musical events, and giveaways of free coupons redeemable for gifts, to further ensure that the public, consumers, including plaintiff would purchase their cigarettes, become addicted, and become unable to stop purchasing and using them. 47
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not incorporated in the State of Nevada. See Certificate of Non-Existence (certified by Dean Heller, 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW Nevada Secretary of State, July 27, 1999) (attached hereto as Exhibit B). Indeed, DNA has never been incorporated in the State of Nevada. Furthermore, DNA's principal place of business is not, and never has been, in Nevada. Thus, defendant DNA is diverse from plaintiff, and its presence in this lawsuit does not defeat this Court's diversity jurisdiction. 3. The Complaint in this case only addresses the purported wrongdoing of the national cigarette manufacturers, not Rebel Oil. Rebel Oil does not now, nor has it ever tested, designed, researched or manufactured cigarettes. Rebel Oil has never advertised or promoted cigarettes to the public except to deliver manufacturer-supplied point of sale advertising. Moreover, Rebel Oil has never made any representations or statements concerning smoking and health, other than selling cigarette packages with pre-printed warnings required by law. See Affidavit of Jack E. Cason ("Cason Aff."), ¶¶ 4, 6-15 (attached hereto as Exhibit C). 4. Recent experiences in other smoking and health cases in the United States District Court for the District of Nevada clearly demonstrate that Rebel Oil has been fraudulently joined here. In a Nevada cigarette class action brought on behalf of all Nevada residents who allegedly purchased, smoked and became "addicted" to cigarettes, a class in which plaintiff in this case is a putative member, plaintiffs filed a complaint in state court naming one Nevada distributor as a defendant. Defendants removed the case to federal court and, after briefing on the removal issue was completed, plaintiffs filed an amended complaint in federal court dropping the Nevada defendant from the lawsuit. See Selcer, et al. v. R.J. Reynolds Tobacco Company. et al., Case No. CV-S-97-00334-PMP (RLH) (D. Nev. filed Mar. 7, 1997). In addition, in another smoking and health class action, plaintiffs filed a complaint in state court naming one Nevada distributor as a defendant. See DiEnno. et al. v. Liggett Group, Inc., et al., Case No. CV-S-98-1764-PMP (RLH) (Base File) (D. Nev. filed Dec. 22. 1997). Defendants also removed this case to federal court and, -3- 98739873 1)D7 BANN OI AMERICA RW/u,jl 30p SOUTN FOVRT u~~N nal LAS VEGAG. NEVnw. 89101 (>021 393-8898
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f
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FEB 3 2000 1 W. RANDALL MAINOR, ESQ. MAINOR & HARRIS 2 Nevada Bar No. 001318 3 530 South Sixth Street Las Vegas, Nevada 89101 (702)385-1400 4 and' 5 STEVEN J. KAREN, ESQ. Nevada Bar No. 004651 6 521 South Sixth Street Las Vegas, Nevada 89101 (702) 382-9307 7 Attorneys for Plaintiff 8 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 ss.+. 12 LLOYD GLASS, 13 Plaintiff, 14 vs. Case No. CV-S-99-999-HDM (RLH) 15 PHILIP MORRIS INCORPORATED, LIGGETT & MYERS, INC., R J. 16 REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO PLAINTIFF'S NOTICE OF VOLUNTARY 17 CORPORATION as successor by merger to THE AMERICAN TOBACCO COMPANY DISMISSAL OF COMPLAINT 18 and its predecessors in interest; LORILLARD, INC, as successor by merger to 19 P. LORILLARD and/or LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO ~ 20 CORPORATION; DNA PLANT co TECHNOLOGY CORPORATION; BATUS 1~j 21 HOLDINGS, INC.; B.A.T. INDUSTRIES, w P.L.C.; BRITISH AMERICAN TOBACCO ~ 22 COMPANY, L.T.D.; THE AMERICAN 23 TOBACCO COMPANY; REBEL OIL COMPANY, INCORPORATED, JOHN v. DOES 1-300. 24 25 TO: ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: 26 27
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GERALD COBB, ESQ. 2200 S. Highland Las Vegas, NV 89102 Phone: (702) 382-5866 Fax: (702) 671-4206 10 11 12 13 14 15 16 24 25 26 27 28 Attorney for Defendant Rebel Oil Company, Incorporated UNITED STATES DISTRICT COURT DISTRICT OF NEVADA LLOYD GLASS, ) ) Plaintift; ) ) v. ) ) PHILLIP MORRIS INCORPORATED, ) et al., ) ) Defendants. ) ) Case No.: CONSENT TO'REMOVAL Defendant, Rebel Oil Company', Incorporated, hereby consents to the removal of the above-captioned action from the District Court, Clark County, Nevada, i Defendant, Rebel Oil Company, Incorporated, reserves all rights, including but not limited to, defenses and objections as to venue, and / or subject matter jurisdiction, and service of process, and the execution of this consent to subject to, and without waiver of, any such defenses and objections.
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advertising "in the beginning" but does recalls them "towards the end, right before they pulled them [off of television]". D3 10-11 LIG remembers when he heard that cigarette advertising was going to be taken off of the air. He recalls hearing that this was occurring because of the hazards of smoking. He does not everrecall seeing any advertisements that discussed any health benefits of smoking. D3 18 LIG does not recall taking any classes in science or health the year he attended Orange County Community College. D2 21 Later in his deposition, LIG states that he learned about nicotine in the "middle 1970's", that there was "talk of nicotine and tar being in cigarettes, and that's why filters help eliminate it. But I didn't know what they caused or even what they did. I just know that if you look at the filter it would be black, so it must do something". D2 9 LIG states that he tried to cut down on smoking after he got out of the service in the D4 97 mid to late 70's. He goes on to say that "during the service I wasn't afraid of anything, but after that I started to realize". He later states that he realized smoking was harmful right after he got out of the service in 1973. D2 28-29 LIG states that in the mid-1970's, when he first became aware of warning labels on 31-32 cigarettes, he felt "Scared...Tried to cut down". When asked what he was afraid of, LIG states "the hazards of smoking cigarettes...it wasn't a disease. I remember what scared me is if this is such a big business and they are putting something on there telling you not to smoke it must be dangerous". He goes on to say that in spite of having this feeling, he did not take any action to quit because "I remember in my 20's nothing was going to hurt me...and at that point, like I told you earlier, I couldn't stop". D 142-43 LIG became aware of the dangers of smoking through his ex-wife, who was a nurse. D2 9 He then states that between her, television advertisements and "everything else at that D4 43 time", he became aware that smoking was dangerous, and switched to Vantage 82 because "it was a lighter brand and supposedly it had less tar and nicotine to it". LIG understood the risks of smoking to be "lung cancer, heart disease", at that time. He later states that he "started knowing it was very unsafe at the time I met my ex-wife". [Note: Prior to this statement, he says that he knew he was addicted before he met his ex-wife, and given LIG's feelings about "addictions", this probably falls under the category of 'selective memory']. Dl 56 LIG states that he first tried to quit smoking back in the late 1970's, because he "found out cigarettes were dangerous. I believed it, and I believed it at that time...I knew it before, but...... 0281676.01 - 8 -
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Dl 9 LIG states that he suffers from "post-traumatic stress syndrome", is depressed constantly, doesn't leave his bedroom, and doesn't work. D l 23 LIG goes on to state that he "started to, but stopped" taldng medication for depression D2 73 during the 1995-1999 time period. He states that he took Zoloft for "about two or 74 three weeks", [Contra: Later states that he took Zoloft for "three or four weeks'] and had a prescription for Xanax, which LIG "stopped taking because I heard it's addictive and I don't like addictive medications". Later in his deposition, LIG states that he took Xanax "as needed", if he was having a panic attack or severe depression. He states that he would try not to take it too often, but that he and his wife both took it, and they would "share it". He recalls at this time that he took Xanax three or four times per month, whereas his wife took it "almost daily". D2 74 Currently, LIG takes Xanax once or twice per week. D3 51-52 LIG admits that this lawsuit has been a great source of stress in his life. He believes it is stressful because "I don't want to be doin' this. I don't sue people. I'm not looking to make a fast buck. I want my health back. And I'm going to die. I'm going to die real soon. I have no life insurance and nothing to take care of my family. And I want to see these people accept some responsibility for taking my life from me...I don't want to be here. I'd rather be working". D3 71 LIG states that his illness has "destroyed my family...my wife's got MS. She can't take care of herself, she has to take care of me. I can't work. I can't support myself. I'm a vegetable. I just go from one bedroom to the other. And bless my wife's soul I have her. So if she yells at me and gets mad at me I got to sit there and take it because what would I do without her, it's just destroyed me. I'm just a shell of a person. There's nothing left inside. To be perfectly honest with you, I wish God would just take me. I just don't know what to do as far as supporting them anymore...It's like walking between life and death. You don't know where you are sometimes, which part you're in...The kids have been great, my wife's been an angel. They stood by me when other people wouldn't. She's not my wife anymore, she's my servant. It's miserable". D4 70 LIG states that he doesn't have a life now, that he "doesn't work. I'm totally non- productive. I have no muscle tone in my body anymore...I've lost everything. Lost my life". D4 75-76 In addition, LIG's relationship with his wife and children has been affected by his cancer diagnosis. he states that he and his wife fight, because "I push her away, so we fight more often. She's very edgy. It's hard on us both. She tries to be sympathetic because both ofher parents died of cancer. But she doesn't have cancer. She doesn't know what I'm goingthrough". He also fights with his children, because he is "not as tolerant as I used to be". He believes that the cancer is hard on his 0281676.01 - 4 -
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5 22 23 24 25 26 27 28 LIONEL SAWYER & COLLINS ATTORNEYS AT LAW /lW BANR OF AMERICA PLaLA 30o sOUTN P ST. LAS vecAS. NEYADA 89101 'JO2~ 383-8888 for the District of Nevada, Southern Division. DA TED this 54 _ day of August, 1999. LIONEL SAWYER & COLLINS By: '?t_~ __ DENMS L. KENNEDY, ESQ. DAVID J. MERRILL, ESQ. 1700 Bank of America Plaza 300 South Fourth Street Las Vegas, Nevada 89101 Attorneys for Defendant BATUS HOLDINGS, INC. G%USERIUAI%GI:DCOITbams holEiwa rzmmtl au
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to the United States District Court for the District of Nevada, Southern Division. DATED this ." day of August, 1999. 2200 S. Highland Las Vegas, NV 89102 Phone: (702) 382-5866 Fax: (702) 671-4206 ERALD COBB, ESQ. Attorneys for Defendant, Rebel Oil Company, Incorporated 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-
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CERTIFICATE OF NON-EXISTENCE I, DEAN HELLER, the duly elected and qualified Nevada Secretary of State, do hereby certify that I am, by the laws of said State, the custodian of the records relating to filings by corporations, limited-liability companies, limited partnerships, and limited-liability partnerships pursuant to Title 7 of the Nevada Revised Statutes which are either presently in a status of good standing or were in good standing for a time period subsequent of 1976 and am the proper officer to execute this certificate. I further certify that the records in the office of the Nevada Secretary of State, at the date of this certificate, evidence no entity organized, incorporated, registered or qualified in this state under the name of DNA PLANT TECHNOLOGY CORPORATION as a domestic or foreign corporation, limited partnership, limited-liability company, or limited-liability partnership. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Great Seal of State, at my office, in Carson City, Nevada, on July 27, 1999.
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ads made him switch to Camel. Later LIG states that he saw these ads sometime after 1973, and that this was the time that he tried Camel non-filtered cigarettes, because he was looking for "something a little stronger and different". He believes that the Joe Camel ads "helped" him switch to Camel. He later recalls that advertising was why he "strictly picked Camels" to smoke. D3 8 LIG also states that in addition to switching to Camel because Joe Camel seemed like a cool guy, a cool image, he also switched because he was "curious about experimenting with a non-filter cigarette". He states that he wanted to try a non-filter cigarette because he felt it would be stronger, and have more taste to it. D3 8 LIG did not switch to Camel cigarettes for any perceived health benefit. Dl 32-33 LIG believes that the second brand he smoked on a regular basis was Lark. He 35 believes it to be Lark because"that's when the commercials were coming out 'Show D2 37-38 us your pack of Lark', and I thought that was really cool because it had a charcoal filter on it and it tasted good. So I switched to that". LIG believes that he smoked Lark for "somewhere between a week and a month". Later, LIG recalls this advertising campaign as being one that influenced his smoking behavior. He states that he switched to Lark from what he was smoking because "it was just a fun ad. I said, well, if everybody else is trying it, I should". D2 38 LIG did not switch to Lark cigarettes for any perceived health benefit. D1 34 LIG later states that the second brand that he smoked "may have" been Lark. Dl 32 LIG smoked Marlboro while he was in the service, because he can recall buying 37 them at the PX for 25 cents per pack, or $2.25 per carton, which was cheaper than other D4 36 brands of cigarettes. He later states that he can recall smoking Marlboro right before he went into the service, around 1970. D4 36 LIG describes Marlboro as being a "great tasting cigarette", and that he and all of his friends "loved them". D2 39-40 LIG states that the Marlboro ads, depicting "some really good looking cool guy, D3 14-15 cowboy, living in the outdoors with the cigarettes, just enjoying life" influenced him D4 36 not only to switch brands to Marlboro, but "possibly" also to smoke more. He later clarifies this by saying that "It was cool to smoke Marlboros. So once I started smoking Marlboros, the advertisement sucked me into smoking. And I felt it was good- okay to smoke more". During his final deposition, LIG recalls that he started smoking Marlboro "strictly" because of advertising. D2 78-79 LIG agrees that there was nothing in the Marlboro advertisements that suggested that Marlboro was safer to smoke, or demonstrated that there were health benefits to 0281676.01 - 26 -
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switching to Marlboro. He goes on to say that there was more of a "personality benefit than a health benefit" to smoking Marlboro. D I 41 LIG recalls that he "loved" smoking Marlboros, "that was my brand of choice. They D3 73 were strong but not too strong". LIG goes on to state that he smoked the "regular red boxofMarlboros". HesmokedMarlborosunti11979-1980,whenhebegansmoking Vantage. D 14243 LIG began smoking Vantage in 1979-1980 because he became aware of the dangers of smoking through his ex-wife, who was a nurse. He then states that between her, television advertisements and "everything else at that time", he became aware that smoking was dangerous, and switched to Vantage because "it was a lighter brand and supposedly it had less tar and nicotine to it". LIG understood the risks of smoking to be "lung cancer, heart disease", at that time. Dl 43-44 LIG smoked Vantage regular for around "seven or eight years", then switched to D4 43 Marlboro Light. He states that he switched to Marlboro Light because "I had heard that there was less tar and nicotine and they were a milder cigarette. I felt they would cut the risk down a little bit". He later states that he switched to Vantage because it was "less addictive and less harmful". D3 53-54 When LIG and his current wife met, they both smoked Marlboro Light. He smoked Marlboro Light until he quit smoking when he had his heart attack in July, 1995. ADDICTION D4 90 LIG states that at age 15 in 1966 when he began smoking, he did not know how addictive cigarettes were. He did not know how difficult it would be to quit smoking cigarettes. D2 19-21 LIG states that he heard of the terms "cancer stick" or "nicotine fit" when he was "19 or 20". He states that he did not understand what the tenn "nicotine fit" meant when he heard it with his friends, only that "I knew I wanted a cigarette". He states that he knew in his late teens that cigarettes contained nicotine, but that he did not know anything about nicotine. D2 21 LIG recalls that he first learned about nicotine after he was in the service, in the middle 1970's, that nicotine and tar were in cigarettes, and filters filtered them out. D2 8 LIG states that he decided to cut down on smoking instead of quitting all together 11 before his first quit attempt in 1979-1980. He tried to cut down because "it was just not a good habit. It became an addiction. And I'm very afraid of addictions. I lost friends to addictions". He later goes on to state that he tried to cut down at this time because "I didn't like the addiction anymore. I didn't like being dependent on it. It was getting expensive. I didn't want to smoke anymore". He then goes on to say that 0261676.01 -27-
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children because "they have to look at me every day. I don't like lookin' at me. It's hard seein' your daddy die". AWARENESS D3 16 LIG does not recall hearing anything in elementary school about smoking. D2 12-14 As a teenager, between the ages of 12 and 16, LIG states that he did not read 17-18 magazines of any kind, he was too busy playing "football all day long". He does not D4 28 recall that his parents subscribed to any newspapers or magazines during this time period. LIG did not read any newspapers during this time, and only followed sports on television. He does recall watching a few other television programs, such as Walt Disney, the Untouchables, Jerry Lewis movies, cartoons, Ed Sullivan and the Honeymooners. He recalls on the Untouchables and in the Jerry Lewis movies "they always had a cigarette in their hands". He does not recall seeing anything in magazines, on television, or in newspapers during this time about smoking, other than advertisements. He does not recall seeing anything in these media that influenced him to start smoking. D2 15-16 LIG later recalls that the thing he most remembers about smoking from when he was D4 28 young are movies, such as James Bond and Jerry Lewis movies. He states that "they always had a drink and a cigarette in their hand. And that always stuck in my head...as I got older that was like the thing to do back, I guess in the 50's and 60's- the Rat Pack and stuff. And that made an impression on me". LIG later states that he can not recall any movies in the 1960's that didn't have somebody smoking, a celebrity or a movie star. When asked if these movies made him drink, LIG states "No, no. I'm not saying they had a positive or a negative effect. I'm just saying that was the only cigarette-related impact that I had on TV...I'm not a psychiatrist. No, I wouldn't do that". D2 43-45 During his teenage years LIG never read Consumer Reports or the New York Times. He has never read the New York World Telegram and Sun, in fact, has never heard of it. He did not read the New York Daily News as a teenager. He also did not read Time, Life, Newsweek, Reader's Digest, Sports Illustrated or Good Housekeeping as a teenager, or at any time in his life. D2 14-15 The only news related program that LIG can recall watching during this time period was when John F. Kennedy died. He did not ever discuss current events with his parents during this time period, but says "I'm sure we did" discuss them at school. He does not recall any discussions at school regarding smoking and health. D2 17 LIG did listen to the radio during this time period age 12-16, but only listened to rock and roll stations. He remembers the disc jockey of the station that he used to listen to was Wolfinan Jack. He did not listen to any news-related stations. 0281676.01 - 5 -
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Depo4 83:17] He believes that "if they [tobacco companies] are going to take responsibility and put a label on it, then why sell them? It's admitting guilt right there on the package". D2 28-29 LIG states that when he did learn in the mid-1970's that there were warnings on D4 83-84 cigarettes packages, [Contra: LIG states that he first recalled seeing printed labels on packages of cigarettes "around the time I went into the service, `70" Depo4 83:13-14] he looked at his package to see what the warning said. He recalls the warning label said "Cigarette smoking is dangerous and it shouldn't be used by pregnant women". He states that his reaction to seeing this warning was to think "What an idiot I've been. Scared". In response to this warning, LIG states that he did "Nothing. Tried to cut down". Later, LIG states that he doesn't "know if I said what an idiot I've been...I can't say, you know, whether I felt that way...I believed I shouldn't have smoked. I took the wrong path". D2 29-30 LIG states that he is not saying that after seeing the warning label he would have quit smoking if he could have. He states that the warning "scared me, and I shouldn't have done it...I can't say my state of mind back in the 1970's and what I was going through then". D2 31-32 When asked what it was he was afraid of, LIG states "the hazards of smoking D4 83-84 cigarettes...it wasn't a disease. I remember what scared me is if this is such a big business and they are putting something on there telling you not to smoke it must be dangerous". He goes on to say that in spite of having this feeling, he did not take any action to quit because "I remember in my 20's nothing was going to hurt me...and at that point, like I told you earlier, I couldn't stop". Later in his deposition, LIG states that when he saw the warning on the package he realized there were dangers and risks to smoking, that cigarettes "caused hazards to your health", but that the hazards were not specified at the time. D2 32 LIG believes that if he had seen warning labels on cigarette packs before he started D4 90 smoking that he never would have started. He also states that if he had known that smoking cigarettes caused lung cancer and heart disease, he never would have started smoking. D2 32-33 LIG does not recall seeing the warning labels that state "The Surgeon General says smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy". He also does not recall seeing the warning that states "Surgeon General's Warning: Quitting smoking now greatly reduces serious risks to your health". PERSONALITY D3 55 LIG recalls that he looks back on the 1960's and thinks of it as "a real great time in my life...I had a pretty normal childhood". 0281676.01 - 53 -
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D2 82 The most recent quit attempt LIG can recall before he quit for good was a couple of weeks before his heart attack. He does not recall that much about it, except for the fact that it "didn't work", didn't last very long, and that his wife joined him on this attempt. He states that this attempt was supervised by Dr. Rosenberg, and he "believes" it was an attempt where he used the patch. D 1 66 LIG quit smoking in July, 1995, the day he had his heart attack. He has not smoked 71-72 at all since that day, and did not use any type of aid to quit. When asked if it was D3 54 "simply willpower" that allowed him to quit, LIG states "I wasn't going to kill myself'. LIG's wife quit smoking at the same time he did. She quit for about a week or so, and started smoking again. LIG asked her "Please don't smoke because I'll start again", so she also quit for good. D3 39 Whenaskedwhatthedifferencewasbetweenhimselfandotherpeoplewhowere able to quit smoking, LIG states "Willpower- that was what I thought ... either that or the patch worked better for them". EXERCISE D2 12 LIG recalls that he was a "sports-oriented child. I played football all day long". 15 He goes on to state that after he came home from school, his father would talk about how his day was at work, the family would have dinner together, and then LIG would go outside and play ball. Dl 69 In high school, LIG played sports, mainly football and baseball. He also played D3 17 basketball and "all sports". He does relate that the only sport he never played was D4 14 "hockey, never crazy enough". He was a member of the football and baseball teams in high school. D1 18-20 During the period after his heart attack until April, 1999, [Contra: February or March, D3 77-78 1999 Depo 4 61:10] LIG exercised regularly. He states that he went to the gym D4 61 "almost daily for about an hour and a half'. The gym that he attended was Gold's Gym and Family Fitness in Las Vegas. LIG would do 45 minutes of cardio training including the Stairmaster, treadmill and running. He would then do weight lifting. LIG bought a treadmill for home so that he would use it every day. He goes on to say that people at the gym would comment that he was "in great shape for a guy who had a quadruple bypass". Dl 19 LIG considered himself in "great shape" during the time period after his heart surgery, both cardio-vascularly as well as stamina. Dl 20 LIG states that he was in such great shape that he could "do things that some people that didn't have the bypass could do. I was blessed. I was strong". He was able to run the treadmill at higher settings than most people. 028167e.01 - 33 -
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1 2 due to the conduct of the CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED, as described above, plaintiff has availed, and will continue to avail, himself of medical and other benefits extended to him and other former youth smokers under public assistance programs. Such financial and other assistance will cause the State of Nevada and other public entities to seek reimbursement for the value of all services and benefits he received, the fiill nature and extent of which are not yet known to plaintiff, and leave is requested to amend this Complaint to conform to proof at the time of trial to establish the amount of reimbursement. 130. As a result of the continuing course of conduct of the defendants, and each of them, as outlined above, the CIGARETTE DEFENDANTS have been unjustly enriched from the years-long illegal sale of addictive cigarettes, first to minors and youths, including plaintiff, to addict them and ensure to the said defendants, and each of them, and ongoing flow of profits throughout the years, as the addicted smokers continued to purchase cigarettes. The exact amount of this unjust enrichment gained from the ongoing and continuing purchase of cigarettes by addicted smokers who began smoking as minors is as yet unknown to plaintiff, who requests leave to amend this Complaint to conform to proof at the time of trial. Wherefore, plaintiff prays for injunctive and other relief from the CIGARETTE DEFENDANTS and REBEL OIL COMPANY, INCORPORATED according to proof, as hereinafter set forth. EIGIiTH CAUSE OF ACTION - NEGLIGENT FALSE AND MISLEADING ADVERTISING (CIGARETTE DEFENDANTS) 131. Plaintiff realleges each of the foregoing paragraphs as if fully stated herein. 43
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that are involved in the addiction that it causes and how bad it is to be addicted to anything". He later states that he tells his kids "Look at Dad. Do you want to look like this? This what you want out of life? Don't smoke". Dl 68 LIG states that he was even willing to give up his promotion at the Glendale Police Department if he couldn't smoke, because he couldn't quit, the "cravings were too strong". D4 56 LIG believes that he was unable to quit smoking during his quit attempts in the 1990's because "I was addicted. Had to be around them". D 1 61 LIG states that when he wanted to quit smoking in 1993-1994, he told Dr. Rosenberg that he needed help; "I begged him to help me. I told him I wasn't able to do it on my own". D3 46-47 LIG states that lately he has been hearing how tobacco companies have "reconstituted nicotine back in the cigarettes after drawing it out to make it more addictive. And I know for a fact that they target younger people because they have a longer living clientele and they are not as educated as older people". LIG states that he heard this information after he contracted his illness. D3 47 In addition, LIG has recently heard that the tobacco companies have put in "additives to make it more addictive...Al Pacino's movie's coming out tomorrow about it". He goes on to state "the tobacco companies I truly believe knew the risks that they were doing to the American public and didn't care. Somebody is getting very rich off of people's deaths". QUIT ATTEMPTS D l 71 LIG recalls on a number of occasions, he did attempt to substantially cut down on the D2 7-8 amount he smoked without actually quitting. He states that these attempts would last for varied amounts of time, depending on "the stressfulness of the job at the time. Sometimes I could go for a couple of days, couple of weeks, other times overnight it was back smokin'. You know, the ups and downs with stress is what made me smoke more". LIG does not recall the first time he tried to cut down as opposed to quitting, but it "would be before" the first quit attempt in 1979-1980. D2 9-10 Later, LIG identifies his first "cut down" attempt as occurring after the service, D4 50 "sometime in the middle to late 70's would be my best guess. Middle 70's maybe". He states that he made more than one effort to cut down, and believes between the mid to late '70's and his first quit attempt with Pat in 1979-1980, that he made "between 10 and 20" attempts to cut down. He explains that he would "space it" when he was trying to cut down, "I'm not going to have one until lunchtime, and I'm not going to have one until a certain time during the day so I can gauge myself. But I couldn't hold out". Later, LIG describes this "spacing it" as him having a "schedule 0281676.01 - 29 -
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he knew he was addicted at this time because "I needed it all the time. I'd have to smoke even when I really didn't want a cigarette. I'd find one in my hand". He concluded that he was addicted sometime in the mid 1970's, and it was at this time that he became concerned that he would not be able to quit totally if he wanted to. D2 11-12 Before the mid-1970's, LIG states that he never "gave it a thought" about quitting smoking, because "I enjoyed smoking". D2 31-32 LIG recalls feeling "scared" when he read the warning label on cigarettes. He goes on to say that in spite ofhaving this feeling, he did not take any action to quit because "I remember in my 20's nothing was going to hurt me...and at that point, like I told you earlier, I couldn't stop". D2 8-9 LIG goes on to state that his definition of addiction is a "drug, or a chemical or some kind of agent goes into your body that you can't stop. Your body craves and needs it...I guess there are other addictions too, physical addictions and psychological addictions". He states that he has not experienced any other addictions in his life other than smoking. D2 35-36 LIG states that he could "possibly" be co-dependent on another person, but not any substance, because, "other than cigarettes, I wasn't addicted to anything". D 146 LIG recalls during the time period that he smoked Vantage (beginning in 1979-1980), that he couldn't recall anything he liked or disliked about that brand, only that "I just had to smoke. I didn't like or dislike it...I couldn't quit...at that point, I just smoked". D 1 57-58 LIG also recalls during this quit attempt with his ex-wife that quitting smoking made D2 9 them both irritable, and they both started smoking again. He goes on to state that "it was an addiction at that time", and that he believes he was addicted then because he "couldn't quit". He believes that he did try to quit, but that he couldn't because he "couldn't sleep, I couldn't function. I felt physically ill". LIG later states that this addiction "changed" his personality. D2 9 LIG later states that prior to this quit attempt with his first wife, "I knew before that I was addicted to it. That's why I tried cutting down. But I wasn't very strong willed at the time". D l 58 LIG has "heard" that the reason he was unable to quit smoking was "nicotine", and goes on to say "but I'm not a doctor". He believes that the reason he was addicted to cigarettes was the nicotine in them, and states that at the time, in 1979-1980, he had heard of the term "nicotine fit", and believed that he was going through nicotine withdrawal. D 1 78-79 LIG states that he has told all of his children "since they were old enough to D3 49 understand me" in the "80's maybe" that they should not smoke because of "the risks 0281676.01 - 2$ -
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nicotine in cigarettes, the alleged regulation of nicotine yields in cigarettes, or nicotine "addiction." 14. Rebel Oil has never had access to any information from any source concerning the claimed health risks of smoking cigarettes, the nicotine yields in cigarettes, the alleged regulation of nicotine yields in cigarettes, or nicotine "addiction," except information reported in the news media and available to the general public. 15. Rebel Oil has never made any representations or statements to any member of the public, including named plaintiff in this action, regarding the claimed health risks of smoking cigarettes, the research conducted by any other entity, including any of the other defendants herein, regarding the yields of nicotine in cigarettes, the alleged regulation of nicotine yields in cigarettes, or nicotine "addiction." 16. At no time has Rebel Oil ever received a notice of breach of any warranty from the named plaintiff or any of the purported class members. 17. At no time has Rebel Oil entered into any agreement with anyone, including any manufacturer, trade association or tobacco research entity, for the concealment or suppression of information regarding the claimed health risks of smoking cigarettes, the nicotine yields in cigarettes, the alleged regulation of 4
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D3 25-26 LIG later recalls having conversations with his doctors about his ideal weight. He states that he was told that he was "a little heavy. But they kept saying it was muscles, so don't worry about it". He goes on to say that occasionally a doctor "Swill ask- tell me to try and lose some weight". He would do this "to the best I can", pointing out that he used to weigh 220, but now weighs 185. ETS EXPOSURE D3 35 LIG has always lived with at least one person who smoked. D3 22 LIG says that he would try not to smoke in front of infants or children, that he would "go out to the patio or something". He states that he would try not to smoke around children because "it's unhealthy, second hand smoke". D3 22 LIG can first recall hearing about the hazards of second hand smoke in the 1970's- 1980's. D3 36 LIG later states that second hand smoke is "everywhere". He often went places where people were smoking. He went out to eat two or three times per month, and would occasionally go to clubs or bars with his friends, or to other places where people were smoking. WARNING LABELS D2 24-25 LIG states that even though he started smoking after January 1, 1966, he has "no D4 83 idea" whether there were warnings on packages of cigarettes. The first time LIG was aware that there were warning labels on cigarettes was when he saw a television show in his early 20's'~vhere they said that they are changing the warning label on the cigarettes, which I didn't even know there was one in the beginning". LIG goes on to state that this change in labels was being made because "they said they are changing it because now they know for a fact that it's dangerous. And that's what I remember reading, actually reading it on the package". LIG believes this may have "possibly" occurred in the mid-1970's sometime. Later, LIG recalls that this event would have happened sometime after 1973. [Contra: LIG states that he first recalled seeing printed labels on packages of cigarettes "around the time I went into the service,'70" Depo4 83:13-141 D2 26-28 LIG does not know of any reason that he would not have seen the warning labels on D4 83 cigarette packages from the time he started smoking in 1966 to sometime after 1973. [Contra: LIG states that he first recalled seeing printed labels on packages of cigarettes "around the time I went into the service, `70" Depo4 83:13-141 He states that "I didn't read a cigarette pack, I just bought them and smoked them". D3 50-51 LIG does not take responsibility for not reading the warning labels on packages D4 83 of cigarettes for the first 7 or 8 years that he smoked. [Contra: 4 or 5 years 0251676.01 - 52 -
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again at about the same time, that after a "couple of days", he and his wife went to the store and bought more cigarettes. D2 33 LIG states that he "believe I did, yes" know in 1979-1980 when trying to quit smoking with his first wife, Pat, that quitting would reduce the chances of serious risk to his health. Dl 59 He states that he doesn't recall how many times he tried to quit smoking, saying "I D2 81 tried so many times I can't give you dates", but goes on to say that his next attempt D4 51 was in "a couple of years maybe". Later, LIG states that as an estimate, he believes that he tried to quit smoking "maybe ten times". [Contra: He later states he tried to quit 10 or 12 times.] These quit attempts occurred throughout the time period from 1979-1980 to his heart attack in 1995. D1 59-60 LIG then recalls it was 1983 when he tried to quit smoking again. He states that he tried to quit because he was on the police force and finding himself "winded, exhausted. So I tried to quit. Couldn't do it". LIG believes that the reason he was exhausted and winded was the result ofsmoking, and so he triedto quit "cold turkey". He recalls that he was still married to his first wife Pat at the time, but does not recall if she tried to quit at this time as well. He recalls on this attempt that he was only able to quit "again, maybe a day or two". D4 52 LIG believes that he tried to quit smoking with his first wife Pat three times, and that during every attempt the same thing occurred, "put on weight, got irritable...got irritable with my employees, got irritable with my clients". He would see someone come in with a cigarette, or go out for a drink at night, and "I'd have to have one. And if I just had one, that was it. I was back on it again. I tried. I really did". D2 83-84 LIG recalls another quit attempt while he was working for the Glendale Police D4 91-92 Department. He recalls that this attempt "went pretty good", and lasted for about three weeks. "I came out to Las Vegas, and that's when I started again. Right here, a vacation. That's what gambling will do for you". He goes on to relate that he was between marriages at the time, and what made him more successful at this attempt was that he had "lower stress. I was on vacation. It was just a very low stress level in my life...I wasn't married". Later, LIG describes himself during this quit attempt as feeling "miserable. I wanted a cigarette", and that he had cravings "all the time". He goes on to say that "I had to have it. It's like when you want something it's there but you just don't touch it. You got to have it". D2 83-84 He began smoking again because during his trip to Las Vegas, one of his buddies was D4 87 smoking, and LIG asked if he could try one. His buddy said "No, don't", but LIG stated that he was' just gonna have one. Just one". He later states that this friend said "Don't start". 0281676.01 - 31 -
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D 1 37-39 LIG recalls that he received his information that smoking non-filtered cigarettes was dangerous from television, specifically "commercials, advertisements". He recalls that "they said that filters filtered out like 99 percent of all the toxins and that it wasn't safe to smoke non-filters because of that". He goes on to state that he believed this, because "I used to see how black the filters would get". LIG got this information from television, specifically "commercials, advertisements". He believes this would have been sometime "towards the end" of the 1966-1970 time period. He believes that he saw more than one advertisement claiming this. D4 35 LIG recalls the Lark commercials showing the charcoal filter, which made cigarettes taste sweeter, and "filtered out some of the bad things about cigarettes". Dl 39-40 LIG goes on to state that he didn't even "know there were risks to smoking. I just D3 8-9 found out that there was a risk to [smoking] non-filters". He did not recall thinking D4 27 at the time that this meant there were risks to smoking in general, just to smoking 32 non-filtered cigarettes. [Contra: LIG later states that when he and his friends 90 began smoking at age 15 %z, "we knew at the time that smoking was harmful, but none of us knew how harmful or what it was harmful about...the general word was it's not good for you, but who cared. At 15'/z I could care less, I was never gonna die". Depo4 27:3-8] He then states that at age 15, he had "no idea of the dangers. I just knew that I didn't like the smell, I didn't like they way it tasted, and it was just general knowledge that cigarettes are not healthy. But I really didn't know what they meant by not healthy". At the end of his last deposition, LIG recounts that at age 15 he did not know that cigarettes caused heart disease or lung cancer, but if he had known this information, he never would have started smoking. LIG later recalls that he decided to give up smoking Camel non-filters about a month after beginning to smoke them because he "started realizing the risk of non-filtered smoke at that point and the dangers of no filters". D4 46 LIG believed that filters were "reducing tar and nicotine to a safe level". He believed this because "that's what they said...thousands of studies". D2 19-20 LIG states that he heard of the terms "cancer stick" or "nicotine fit" when he was 22 "19 or 20". He states that he did not understand what the term "nicotine fit" meant D4 81-82 when he heard it with his friends, only that "I knew I wanted a cigarette". He states that he knew in his late teens that cigarettes contained nicotine. Although he had heard ofthe term "cancer stick", LIG states that his response to this phrase was "Why would they call it a cancer stick?", and that hearing cigarettes called that did not make him inquire as to why they were called that phrase. Later in his deposition, LIG states that he knew upon hearing the term "cancer sticks" that cigarettes probably caused cancer, but did not think about it much at the time. He did not hear the term "cancer stick" used frequently. D3 10 LIG recalls "the disclaimers" that appeared in cigarette advertising concerning the possible hazards to health. He states that these disclaimers were not in cigarette 0281676.01 -7-
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D3 86 In addition, he says that police officers receive "very poor" counseling in conjunction with their work from their employee assistance program. He states that the officers would instead "pretty much talk it out with ourselves. The shift would talk it out before we went home". Dl 71 LIG recalls that the stress on his job had a lot to do with how much he smoked. LIG would attempt to cut down on smoking, without actually quitting. These attempts would last for varied amounts of time, depending on "the stressfulness of the job at the time. Sometimes I could go for a couple of days, couple ofweeks, other times overnight it was back smokin'. You know, the ups and downs with stress is what made me smoke more". D2 83-84 LIG was able to quit smoking on a trip to Las V egas for a longer time than his other quit attempts because "I was between marriages at the time...lower stress. I was on vacation...It was a very low stress level in my life...I wasn't married". D3 23-24 LIG thought that smoking helped him to relax, and that it helped him as a "stress reliever", with anxiety and nervousness. He does not recall that smoking helped him concentrate. D2 104 LIG says that during the 1980's in addition to the stressors that he had as a police D3 56-58 officer, the other significant stressor he had was the "skeleton in my closet", his wife's drug bust. He did not see a mental health professional during this incident, but did see a police psychiatrist, Dr. Nicoletti during the time he was breaking up with his first wife. He goes on to state that this incident was the biggest stressor that occurred in his life, that it "changed my life", and was a stressful issue for two or three months. LIG states that he "took responsibility for it. That's why I said I tried to take responsibility for actions that myself and my family take. But I also have to be realistic and realize that I can't control the world". LIG goes on to say that he felt responsible for the cocaine incident with his wife because "I should have had my eyes wider open. I should have seen it comin' and I didn't. I didn't see anything". This occurred in 1991, and LIG states "It's amazing. We're still married, we got past it". D3 57 As far as he knows, LIG was never under investigation during his wife's drug bust. D3 56 LIG states that he has "always struggled with money, I'm not a good budgeter", and that he declared a bankruptcy in 1990. He calls it "strictly a credit card bankruptcy. Woke up one morning and we owed all ofthis money on credit cards". He agrees that the bankruptcy was stressful, but states that'~ve were able to deal with it.". D3 58 LIG says that he only needed to start taking medication for stress "right after the heart 60 attack. I fell apart after that". He states that he was never treated for depression before this, and was told that during heart surgery, the blood is stopped and run outside the body, which causes depression. 0281676.01 - 3 -
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1 2 27 and smoke their cigarettes. 122. At all times relevant herein, defendant REBEL OIL COMPANY, INCORPORATED, participated in, encouraged, and thereby allowed to flourish, the ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully in above, of the true state of the scientific research showing cigarette smoking causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, often youth, smokers to purchase and smoke their cigarettes. 123. Defendant REBEL OIL COMPANY, INCORPORATED, had a legal duty to refrain from selling, promoting, targeting, participating in the above ongoing campaign and conspiracy, and including the sale of cigarettes to minors. 124. Defendant REBEL OIL COMPANY, INCORPORATED, at times material had the following legal duties: a. a legal duty to refrain from selling cigarettes to minors; b. a duty to warn previous users, users and foreseeable users of the cigarettes it sold of the dangers listed in the preceding paragraphs; c. a duty to disclose to consumers of cigarettes the results of their own, if any, and other scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above); and d. a legal duty to refrain from contributing to the delinquency of a minor. 125. Defendant REBEL OIL COMPANY, INCORPORATED, assisted and enabled the CIGARET"fE DEFENDANTS to engage in the ongoing, sophisticated campaign of explicit and implied misrepresentations, concealment, and distortion, described above more fully above by placing, and allowing defendants to place and publish, in and around its various retail facilities, the misrepresentations, distortions, falsehoods and concealment targeting underage, minor smokers, and thereby impliedly warranted and represented to members of the general public, including that purchasers, users and bystanders of cigarettes, including the plaintiff herein, that cigarettes and other tobacco products were of merchantable quality, and safe for the 281 41
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D3 54-55 LIG recalls that he and his current wife made "lots ofthem, yes" attempts to quit, and in addition, "talked about quitting all the time". He states that they tried "Buspar and patches and Nicorette Gum and cold turkey several times". D4 53 LIG describes trying to quit cold turkey as feeling "like a wreck. I felt bad. I'd wake up tired and wantin' a cigarette. I'd want a cigarette all day long. I'd go places where I could be around cigarettes...it was terrible. Missed them". Dl 60-61 LIG recalls another quit attempt in 1993-1994 after he and his present wife had 63 moved to Las Vegas. He states that with the help of Dr. Rosenberg, he and his wife D4 54 were given the patch and Buspar twice, and were able to quit for "maybe a week or two". LIG states that this quit attempt was on "his suggestion (Dr. Rosenberg) and mine". LIG recalls that Dr. Rosenberg prescribed the antidepressant Buspar because people "get so depressed they start smokin' again". D1 61 LIG goes on to explain that the idea of quitting smoking was suggested by Dr. D4 52 Rosenberg after LIG had complained to him of fatigue and being tired. LIG recalled that he "begged him to help me. I told him I wasn't able to do it on my own". Later in his deposition, LIG recalls that when he would quit smoking with his present wi fe Teresa, he did not have a problem with overeating, but with a lack of energy, " I didn't go work out anymore. I lost lack of energy. I just didn't feel the same. Just like something was missing in my life. We started again before we'd fight too much". Dl 63-64 During these two quit attempts in 1993-1994, LIG's wife tried to quit at the same time. LIG states that during these attempts he "felt better physically. Not mentally, physically". When asked how he felt mentally, LIG replied that he craved cigarettes all of the time and was having a problem with irritability. In addition, his wife was also having problems with irritability and cravings, and, as LIG states "one thing sets you off and you get a stressful day and you light one cigarette. I'm just gonna have one. I'm smoking again". D1 64-65 During LIG's second quit attempt in 1993-1994, which he states occurred "six D4 55 months to a year" after the first attempt, LIG and his wife tried using Nicorette gum, which did not work at all for LIG. He states that he was "smokin' with it", so he went back to the patch and the Buspar, which lasted for about a week. LIG later states that the patch helped him with nicotine withdrawal, but didn't help him enough ~ to allow him to quit. He also recalled when he tried to quit with Nicorette gum that po it was supposed to cut down on the craving for cigarettes, but that it did not do that ---3 for him. Ul ~10 D 165 LIG agrees that he wanted to quit smoking in 1993-1994 because he was fatigued and ~ didn't have any endurance because of smoking. In addition, he had been aware since oo 1980 of the health hazards such as lung cancer and heart disease. He wanted to quit smoking to prevent either one of these things from happening to him. 0291676.01 - 32 -
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herein. 111. At all times relevant herein, co-conspirator wholesale and retail entities enabled and encouraged the CIGARETTE DEFENDANTS to pursue a more than 40-year campaign of advertising and communications, directed at government and the public, including plaintiff, designed to communicate to the consumer, including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexy, and in all ways desirable, by allowing prominent placement of the advertisements and communications by CIGARETTE DEFENDANTS in and around its retail facilities where consumers, including plaintiff, saw, read, and relied on the representations made therein. Hundreds or even thousands of adverdsements and communications were published by the CIGARETTE DEFENDANTS in the various media including in and around co-conspirator retail facilities, so many that it would be neither economically feasible nor practicable for plaintiff to identify each and every one of them herein. 112. From the time plaintiff was a minor, he read, heard, and saw the aforementioned advertisements and communications. Beginning at the age of 16 when he purchased for his consumption his first of the hundreds of packages of cigarettes he purchased and smoked, including but not limited to the brands known as IvIARLBORO,1v1ARLBORO LIGHT, LUCKY STRIKES, CHESTERFIELD, PARLLkMENT, CAMEL -NON FILTERED, VANTAGE, AND WAISTON„ the aforementioned advertisements and communications were the basis of the bargain, and plaintiff relied upon the published advertisements and communications to his detriment. 113. Beginning at a time relevant herein, and continuing up into the present, CIGARETTE DEFENDANTS, warranted to govemment and the public, including plaintiff, that they had further "improved" the safety, taste, enjoyment, and relaxation consumers, including plaintiff, would derive from smoking low-tar cigarettes, including Marlboro cigarettes by developing Marlboro Light 100's. 5 6 38
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0 68. Over the next several years Dr. Chaplin continued his efforts to breed a tobacco plant with a higher nicotine level. During that time, an employee of a Brown & Williamson- affiliated company asked Dr. Chaplin for some of his seeds. Some of Dr. Chaplin's original plant varieties were used as a basis for Brown & Williamson's work. In the early 1980's, Brown & Williamson grew a number of different plant lines, selecting those that had the best agronomic characteristics. 69. In 1983, CIGARETTE DEFENDANT Brown & Williamson contracted with TOBACCO DEFENDANT DNA plant technology to work on tobacco breeding. Much of the developmental work on "Y-1" took place in the laboratories, greenhouses, and fields owned by DNA plant technology. After he retired from the USDA, in 1986, Brown & Williamson also hired Dr. Chaplin as a consultant to work on "Y-1" and other projects. 70. The high-nicotine tobacco variety "Y-1" was developed by a combination of conventional and advanced genetic breeding techniques. The value of "Y-1" to Brown & Williamson is reflected in the fact that Brown & Williamson had DNA Plant Technology make "Y-1" into a male sterile plant This procedure ensures that when a plant is grown it will not produce seeds that can be appropriated by others. 71. Brown & Williamson characterized its achievement in a patent filing as follows: " by the present invention or discovery, applicants have succeeded in developing a tobacco plant that is agronomically and morphologically suitable for commercial tobacco production, i.e. it closely resembles SC 58, and provides a pleasant taste and aroma when included in smoking tobacco products, vet it is possessed of the N. Rustica hi2h-nicotine attribute. So far as we know, this has not been accomplished before..." What was accomplished was the development of a tobacco plant with a lrigh-nicotine content - about 6 percent -- that grew well and could be used commercially. 72. Defendant DNA plant technology and Dr. Chaplin both told the FDA that they saw "Y-1 " growing in Rio Grande Du Sul, Brazil in the 1980's. These farms were under contract to Souza Cruz Overseas, a sister company of Brown & Williamson. 9 23
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i personal injury litigation against them, to the point where defendants could and did assert that they never paid a cent to a personal injury claimant on account of smoking. 108. The aforementioned conspiracy by the cigarette defendant conspirators and their co-conspirators resulted in plaintiff being unaware of the extent to which smoking was a hazard to his health, that the nicotine therein would addict him to smoking, or that defendants manipulated nicotine levels and targeted youth so as to hook youth before majority and then assert adult free choice as a defense once so hooked. This conspiracy proximately and legally caused the injuries he has sustained and the damages plaintiff claims herein. As a result, plaintiff has now developed and will die in the future from cancer caused by plaintiff's addiction to smoking. WHEREFORE plaintiff prays judgment against the CIGAREITE DEFENDANTS and DNA Plant Technology as hereinafter set forth. SIXTH CAUSE OF ACTION - BREACH OF EXPRESS WARRANTY (CIGARETTE DEFENDANTS) 109. Plaintiff repeats and realleges Paragraphs 1 through 109, inclusive, in their entirety as if fully stated herein. 110. At all times relevant herein, the CIGARETTE DEFENDANTS pursued a more than 40-year campaign of advertising and communications, directed at government and the public, including plaintiff, designed to communicate to the consumer, including plaintiff, that smoking their brands of cigarettes was relaxing, healthy, satisfying, romantic, sexy, and' in all was desirable. Hundreds or even thousands of advertisements and communications were published by the CIGARETTE DEFENDANTS in the various media, so many that it would be neither economically feasible nor practicable for plaintiff to identify each and every one of them 37
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11 12 23 24 25 26 27 114. Beginning at a time relevant herein, and continuing up into the present, co- conspirator wholesale and retail entities impliedly watranted to government and the public, including plaintiff, the truth of the aforementioned representations by the CIGARETTE DEFENDANTS that they had further "improved" the safety, taste, enjoyment, and relaxation consumers, including plaintiff, would derive from smoking low-tar cigarettes, including Marlboro cigarettes by developing Marlboro Light 100's by allowing the placement of informational communications, etc., in and around its retail facilities, where plaintiff purchased his cigarettes. 115. Plaintiff heard, read, and saw the aforementioned advertisements and communications concerning the "improved" low-tar cigarettes, including Marlboro Light 100's cigarettes, which became the basis of the bargain when he purchased for his consumption the first and each consecutive of hundreds of packages of Marlboro Light 100's after carefal consideration of the lower risk these co-conspirator wholesale and retail entities and the CIGARETTE DEFENDANTS warranted Marlboro Light 100's and other low-tar cigarettes presented, and in reliance upon the aforementioned advertisements and communications. 116. THE CIGARETTE DEFENDANTS and the co-conspirator wholesale and retail entities at all times pertinent herein failed to disclose to government and the consuming public, including plaintiff, that Marlboro cigarettes were addictive, that CIGARETTE DEFENDANTS knew from their own secret research that they were addictive, and that they knew from their own secret research that the carcinogens contained in them would place plaintiff at increased risk for the diseases and conditions described at paragraphs 32 and 34 above. 117. CIGARETTE DEFENDANTS and co-conspirator wholesale and retail entities at all times pertinent herein failed to disclose to government and the consuming public, including plaintiff, that although the tar and nicotine content were lower in low-tar cigarettes, Marlboro Light 100's, than in the full-tar cigarettes plaintiff previously smoked, the lower nicotine delivery in these cigarettes would cause plaintiff and other cigarette consumers to smoke more such 2811 39
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and smoke their cigarettes. 122. At all times relevant herein, defendant REBEL OIL COMPANY, INCORPORATED, participated in, encouraged, and thereby allowed to flourish, the ongoing, sophisticated campaign of explicit and implied misrepresentation, concealment, and distortion, described above more fully in above, of the true state of the scientific research showing cigarette smoidng causes cancer, the addictive nature of nicotine, and their manipulation of the nicotine levels to keep the smoking public addicted to cigarettes for the purpose of keeping addicted smokers hooked on their cigarettes, and inducing new, often youth, smokers to purchase and smoke their cigarettes. 123. Defendant REBEL OIL COMPANY, INCORPORATED, had a legal duty to refrain from selling, promoting, targeting, participating in the above ongoing campaign and conspiracy, and including the sale of cigarettes to minors. 124. Defendant REBEL OIL COMPANY, INCORPORATED, at times material had the following legal duties: a. a legal duty to refrain from selling cigarettes to minors; b. a duty to warn previous users, users and foreseeable users of the cigarettes it sold of the dangers listed in the preceding paragraphs; c. a duty to disclose to consumers of cigarettes the results of their own, if any, and other scientific research known to them which indicated that use of cigarettes caused users a great risk of harm (as listed above); and d. a legal duty to refrain from contributing to the delinquency of a minor. 125. Defendant REBEL OIL COMPANY, INCORPORATED, assisted and enabled the CIGARETTE DEFENDANTS to engage in the ongoing, sophisticated campaign of explicit and implied misrepresentations, concealment, and distortion, described above more fully above by placing, and allowing defendants to place and publish, in and around its various retail facilities, the misrepresentations, distortions, falsehoods and concealment targeting underage, minor smokers, and thereby impliedly warranted and represented to members of the general public, including that purchasers, users and bystanders of cigarettes, including the plaintiff herein, that cigarettes and other tobacco products were of merchantable quality, and safe for the 41
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IOMN MRR 31 '98 16:42 ,(1NG & SPiiLDING 0404 572 51d2 7 17n09050n1633a P.07i11 uates in relevant part, "[i]n aU avertmats of ffaud or mistake, the circumstances constituting fraud or miWke sAail be stated with particularity." O.C.O.A. § 9•11-9(b); Fed. R. Civ. P. 9(b). Here, PlaiotiRha done aotlties mon tiue Muap aQ of the defeodamf tog.tha, aud then state that they all Eave knowingly aad w7lWly miwpraeaud ml concealed tnal.riaF hCta so as to deoeive the pnrporpd plauqi![ elss wieh respea to the riska assoaiand .Mit6 mwlong' (See Compiaint, t§ 51-54.) Sneh broad and generd agqatiaec are cwrtlai.ot to satisfy the fequirptltai of Rule 9! Sa, aS., QpQer v. Blue Cron and Bkie Sliatd nfFlerid• . 19 F.3d 562, 568 (11e Cir. 1994) (complaint "rra+st aUege the details of the defafdatns allegedly Eaudutent acts, when they occurred, and who engaged 'm them") (oning Qnham v. Busineas $47 F.2d 1l0S (11e Ck. 19gik L v. 77e Aerrinn Tobareo Co-- CivH Action No. 96-0i51-SH-S, p. 11(S.D. Ala., Sept 30, 1997) ('7fplaieti& were unable at the time they foinadnad their complaint to set forth any specific factual allegations a6ainst the distnbuior defetdann tqatt w" oould Ee based any eJaua of 6aitld ..., there ean be no bottar ' Each of the distnbution Defeodants have averred that they Mve neithar eoauntmican.d with nor received iAtmation from any cigarette marwfacturar or - research entiry ragard'otg the alleged health rislrs associated with smoiring, or bad aecas to aey ieforrtation frora my source regardiag thas risks exoept as reported and avaifa6le to the gerAal pobGc. (Su fxs. A-C. In 15-21.) Joluwn has also su6mitted aa affidavit in which he avers that Ae has eeit6er.nWuUy nor {awwingly misrepresented or concealed material facts Eom the purpotted plaiatiCdass regarding the health risks associated with smohing. (Sa Fx D, 1" 4-7.) PlaintiC' 4pa,qAt_ X14ip~tl,ad any alHdavits that eoatradia the a6davita submietad by ... ` PlaiatiRdoes not seriously eontest defendaircs' asurtiou that his Baud elaim does not meet the requirements of Rule 9. Instead, Plaintiff dairas that be has an abaokae tight to amaad his Cm"laint to ootlForm with the pWrdinp requiratxta. Remaad deteROioations, laweNC, are made at the tiaos ofremovat, not after a removal notice has bea B4d AW Plaintilf ins had a ehance to amend his Compiaint. Seee QM 113 F.3d at 1538. 5 , ~ AO 7=A IRtv. &H21 ~ W
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MAR 31 '98 18:43 KING 8 SPALDING il "~N 8484 572 5142 ;17n@5053a16734 P.Wi11 ~ admission of fraudulent joinder of these defendants"); see also, Cobb Cmmev v Jones Group F.L.C.. 211 Ga. App. 149, ! 54-55, 460 S.E.2d 516 (1995) (eompta;at did not aadsfq Rule 9(b) wbere it did not contain ep.ci$e alkgations of mitueepreaentations of'material fact). Simftdy,PlaieWaaWmt uodertheQeor*RICOxamtefait»ameFlaimiEdoeanot speci/y N'6at roIR if aeY, each of the readent Dd.adama play.d in the a!lpted Rattera of nckatnrioS apiaty. Iadeed PlaieriKhaa 81Nd to w. aay apeoi8a det~ls.mit6 re:petx to the apeg.dly aiaina{ atxioro ar4a{ed in by the reaideK Defadatra so as to mte a daim yainat t6em uodert6e RICO suottc Such fiilure to a0e;e peediate aas witb spaci6aty precludea any reoovery against the resideat Defeadaots under RICO. See Sreoln v. Blue Crosa and Shte Shidd of Fle.. ine.. 19951VL 931702 (S.D. Fltt., Sept. 22, 1995), qrd osd rrprbuad in,116 F.3d 1]64 (1 f`Cfr.1997); 732 F. Supp.1340.1546 (D. Cdo. 1990) (o m action afiso* a civil RICO violatioq maely coifeetivianS aU dafendants in an aOeQed pattata of ndaeteaing activity will oot su$os).' In the absenee of either a viabh fraud or RICO elaim apiott the resident Ddaadaaa, P1aintiR's dxi aooap'saey claim alao fiSa 6eauam undr Georpa lor, a6net as undaiyieS civil wronb, t6ae ia tq eaure of atxion for dN7 ooropieaey in and of iwdt Ammmitn!•t Co ld. A, v. V~= $49 F. Supp. 1001, 1007 (N.D. Ga.1994), erd'd in pmt. nv d in pm t an other graurrLs, 73 F.3d 1SS3 (l1` Cir. 1996); see mBn, Savannah Cnlleee efArt & Deson Ina= v. School of Ysud Arts 9[Savannah_ lnc.. 2!9 Ga. App. 296, 297, 464 S.E.2d $95 (1995). Funher, here "Geeerally, Georgia courts foUow fedatal dedsimq ieterptt~lg RICO." SmW conmuh6wInc v S.rdav. Batdc PLC 227 Ga. App. 6N1, 654, 490 S.E3d. 194 (1997) (ptY1S 622 F. Supp. ~ 293 (N.D. Ga. 19i5)). co 6
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rIRR 31 '98 18=43 KING & 8?qLDING u ~ 0404 572 5142 ' ~1700905®a16334 F.b5i11 a;a+n, w{th respeet to the rasideet Defendsnts, Plsintiffoontands only Urt "[t)heeo-conapiruors ... have acted on their own or in coneart with the trunufieturing defandaats to conoat the true Aazsrds of amoldag aed to sall eigsretta ootwithstanding thar laowledp of those haa.ards." (Complaint, 139.) Sueh a brad aikption is itmut5deat to mat the pladiog requirements oeaawy to Iwl these deHmdanrs iato ooort bued upon an alleged aompiraay. Ste Cartson v. Amm=ng World lndusttia` Ine.. 693 F. Supp. 1073, 1078 (S.D. Fla. 1997) ("it is neeessary to plead f auduleat conspiracy with sufSdatt paRiat4rity to infatm the multiple dafendaots of the bets lorming the basis of the eanpitacr) (citing (WIman v Gradd'idc 739 F.2d 553 (111 Cir. 19i4). rv corlCLUSioTI In swn, given the hiaory of the tobuao litigation in this oounay, and the loog-stanft involvae,att of PlainWs attonrys io taid Gtigatio4 it is dar 20 Ihb Coat tbat F7aRIAW hw joiesd the residaa Ddaodaoot In as mempt to 44m tA's Com's dFwrsky prisdiaion. The Leaet, indeed the wry assmoce ofPkbdffs Camplaine. eoaaras ehsagiigsd aron,doing on the part of the maatficturing and rnde aaoeision Dekadams in rnmAcuming aod prornaiog dgaretta, despite t4esa defeodaots' agesad lmowladgs of ths Mardous aod addiaive tff.ea of r7aoking.. (See Counplaiia, IN 29-3d.) The afildwhs submiKSd by defendants clearly d~DOldtiN that tba distribution Dlhndants have rlotbl0g to do with the 01flN7faCtWO or adv.rtisip` of dgaretns, or the toouaimart of the products' aU.gadly Avardous ellxpt. As sua4 PlaintiRlrs inply fa7sd to usert a valid eJaim agairot the diarberdon Defaidants. With respect to lohnaoq Plaintiffs eenaal aUegatioas of fraud and RICO violuions are wholly insuffieimt to satisly the pleading requirements of either the fodva! (or Gaorgia) niles or the A0 72A /Rw. aWl f 7
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Parents D1 47-48 LIG's father smoked Parliament, and was by LIG's account, a "heavy smoker". His 49 father smoked "three to four packs per day", and was a "chain smoker". LIG recalls 52 that his father quit smoking when LIG was around 16 years old, and that he quit D3 88-89 because "he developed very bad stomach ulcers", and that his father stated the ulcers were due to cigarettes. LIG believes that his ulcer was'Yelated strictly to smoking". His father quit smoking cold turkey. Later, LIG states that at the time his father quit smoking, he did not say anything to LIG about smoking being bad for you. LIG does not recall either of his parents having breathing problems related to smoking. D 1 49-50 LIG's mother was also a smoker, she smoked True cigarettes, under a pack per day. LIG was older when his mother quit smoking, and had already moved out of the house. He does not know for certain when she quit smoking. Dl 50 LIG's parents are both still living, still married, and reside in Mount Vernon, NY. D3 44 The only people LIG talked to prior to filing this lawsuit were his parents, because "I talk to my parents about everything. I'm close with them". C 'd en D 176-77 LIG has one natural child, Katelyn Glass, who was born 6/10/88. Charles, Sarah and D4 13 Shane Winters are his wife's children from her first marriage, and Christopher and Meghan Glass are LIG's adopted children from his first marriage. Shane Winters currently resides in the Georgia State Correctional Facility. The birth order from oldest to youngest of LIG's children is Michael Shane Winters, Charles Winters, Christopher Glass, Meghan Glass, Sarah Winters and Katelyn Glass. D3 69-70 Currently three of LIG's children live at home, Charles Winters age 18, Sarah Winters age 16 and Katelyn Glass age 11. Charles is going into the Marines as soon as he graduates from high school. D4 23 LIG's son Christopher Glass is deaf. Dl 79 LIG does not know if any of his children smoke because "they would hide it from me...you know, they are as bad as I was". D3 71-72 When asked about the effect of his illness on his children, LIG states that they "hold it internally ... they just don't recognize me sometimes. All my hair is gone, everything they knew, their strong dad, discipline dad. Daddy used to teach them right from wrong...They love me I guess...but it's not the same". 0281676.01 - 35 -
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