The Estate of Vicent v. Phillip Morris, Inc. ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2624
THE ESTATE OF VICENTE MOLINA-VELEZ, ET AL.,
Plaintiffs, Appellants,
v.
PHILLIP MORRIS, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Francisco A. Padilla on brief for appellants.
Salvador Antonetti Zequeira, Luis A. Oliver, Rosalie Irizarry
Silvestrini, and Fiddler, González & Rodríguez, P.S.C., Robert H.
Klonoff, James R. Johnson, L. Christine Buchanan and Jones Day,
William A. Graffam and Jiménez, Graffam & Lausell, William E.
Hoffman, Jr., William L. Durham, II, Jacob E. Daly and King &
Spalding, LLP, Francisco Besosa and Adsuar, Muñiz, Goyco & Besosa,
P.S.C., Kenneth J. Reilly, Stacey A. Koch and Shook, Hardy & Bacon,
L.L.P., on brief for appellees.
June 30, 2004
Per curiam. Plaintiff-appellants are family members of
the decedent, Vicente Molina-Velez, who died of cigarette-related
illnesses. They appeal from the district court's statute of
limitation-based dismissal of their complaint against defendant-
appellee cigarette manufacturers. We affirm the dismissal.
I. BACKGROUND
Plaintiffs alleged the following facts in their
complaint. In 1987, Molina died at the age of 89 from cigarette-
related illnesses.1 In 1981, he began to experience persistent
coughing, shortness of breath, and bronchitis; in 1986 he was
hospitalized with these symptoms and diagnosed with a lung abscess;
later he was diagnosed with emphysema. Plaintiffs allege that they
did not become aware of any cause of action against the defendants
until November 2001, fourteen years after Molina's death. On
August 8, 2002, they filed a complaint in the United States
District Court for the District of Puerto Rico alleging that the
defendants engaged in conspiracy and fraud.
On September 30, 2003, in a published opinion, the
district court dismissed the plaintiffs' claims on timeliness
grounds. In re Molina-Velez v. R.J. Reynolds Tobacco Co., 286 F.
Supp.2d 185, 190 (D.P.R. 2003). It held that that plaintiffs had
1
In the complaint, plaintiffs first allege that Molina had
smoked cigarettes for about twenty years before his death; later
they contend that he had been a smoker "since a young age." As
Molina died at age 89, these two statements are factually
contradictory.
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failed to allege the requisite diligence in attempting to ascertain
the cause of Molina's illness, hence they were not entitled to
tolling of the applicable one-year statute of limitations on their
claims. Id. On November 21, 2003, the district court denied
plaintiffs' motion for reconsideration. This appeal followed.
II. DISCUSSION
After careful review of the record, we hold that the
district court correctly concluded that plaintiffs' claims were
untimely under Puerto Rico law because of their failure to exercise
the requisite diligence in discovering their cause of action. We
need not repeat the district court's able reasoning.
Only one issue bears elaboration. In their appellate
brief, plaintiffs contend that "because of the effects of the
conspiracy perpetrated by Defendants, Plaintiffs were ignorant as
to the cause of decedent's illness and their damages." They assert
that the statute of limitation was tolled by defendants'
dissemination of "false information to contradict the true facts of
the dangers related to cigarette smoking."
It is true that under Puerto Rico law, the applicable
statute of limitation can be tolled "if a plaintiff's suspicions
that she may have been the victim of a tort are assuaged by the
person who caused the injury." Espada v. Lugo, 312 F.3d 1, 3 (1st
Cir. 2002) (quoting Rodriguez-Suris v. Montesinos, 123 F.3d 10, 16
(1st Cir. 1997)(internal quotation marks omitted)). Such reliance
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must be reasonable, however. Rodriguez-Suris, 123 F.3d at 16.
Indeed, "such tolling may be halted by further information that
renders plaintiff's reliance on those assurances no longer
reasonable, so that plaintiff then has an obligation of diligent
investigation." Espada, 312 F.3d at 4 (citing Rodriguez-Suris, 123
F.3d at 17).
Nowhere in their filings do plaintiffs offer specific
facts as to defendants' conduct after Molina's death that assured
them that they did not have a cause of action. Hence, there is no
foundation for their contention that defendants effectively
nullified the common knowledge about the dangers of smoking and
prevented plaintiffs from perceiving the link between smoking and
Molina's illnesses. See Estate of Alicano Ayala v. Phillip Morris,
Inc., 263 F. Supp.2d 311, 319 (D.P.R. 2003).
Even if Plaintiffs were legitimately confused
. . ., the easy access to public sources of
information confirming the health hazards of
smoking--including government reports, warning
labels, and the health care industry--imposed
on the Plaintiffs an obligation to at least
investigate further. . . . Inertia,
passiveness, and indifference in the face of
confusing or contradictory information is
inconsistent with the due diligence standard.
Id. (internal citations omitted.) In sum, the allegations in
plaintiffs' complaint do not support the diligence or reasonable
reliance necessary to toll the applicable statute of limitation.
Accordingly, we affirm the dismissal.
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Two motions also are before us: (1) defendants' motion to
file a pamphlet containing the complaint filed in United States v.
Philip Morris USA, Inc., No. 99-CV-02496 (D.D.C.), and (2)
plaintiffs' motion for sanctions on the ground that defendants
engaged in excessive designation with respect to the contents of
the appendix. As to defendants' motion, because we affirm the
decision below without reliance on the pamphlet, we see no need to
determine the admissibility of this evidence.
Plaintiffs' motion for sanctions is based on the
contention that defendants required them to file an amended
appendix that included both the original complaint and an amended
complaint filed in this case. See Fed. R. App. P. 30(b); L.R.
30(e).2 They maintain that the inclusion of these documents was
"unnecessary," but offer no explanation or support for this
statement. Moreover, it appears that defendants agreed to pay the
costs of including the requested documents, as required by Rule
30(b)(2). Accordingly, we discern no reason to impose sanctions on
defendants, and deny plaintiffs' motion.
2
Fed. R. App. P. 30(b)(2) provides that "if any party causes
unnecessary parts of the record to be included in the appendix, the
court may impose the cost of those parts on that party.". In
addition, Rule 30(b)(2) states, "Each circuit must, by local rule,
provide for sanctions against attorneys who unreasonably and
vexatiously increase litigation costs by including unnecessary
material in the appendix." Our Local Rule 30(e) so provides.
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For the reasons set forth supra, we affirm the district
court's dismissal of the complaint and deny plaintiffs' motion for
sanctions.
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