Tuttle Ex Rel. Tuttle v. Lorillard Tobacco Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-1865
___________
Gloria Tuttle, as Trustee for the *
next-of-kin of Bill Tuttle a.k.a. *
William R. Tuttle, deceased, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Lorillard Tobacco Company; * District of Minnesota.
National Tobacco Company, L.P.; *
The Pinkerton Tobacco Company; *
Smokeless Tobacco Council, *
*
Appellees, *
_______________________ *
*
Minnesota Trial Lawyers Association, *
*
Amicus on Behalf of *
Appellant. *
___________
Submitted: February 11, 2004
Filed: July 30, 2004
___________
Before MORRIS SHEPPARD ARNOLD, HANSEN, and RILEY, Circuit Judges.
___________
RILEY, Circuit Judge.
As a young professional baseball player Bill Tuttle (Tuttle) began chewing
smokeless tobacco in 1955, and continued chewing regularly until 1993. His product
of choice was Beech-Nut, which was manufactured by Lorillard Tobacco Company
and later acquired in 1988 by National Tobacco Company. In October 1993, Tuttle
was diagnosed with oral cancer, and he later died in July 1998 from related
complications. On September 21, 1999, Tuttle’s widow, Gloria Tuttle1 (Mrs. Tuttle)
filed a lawsuit against several smokeless tobacco manufacturers and their trade
association, alleging both common law claims of negligence, fraud, and civil
conspiracy, as well as statutory claims alleging violations of several Minnesota
consumer protection statutes. Following extensive discovery, the defendants moved
for summary judgment on all claims. The district court granted summary judgment
on the claims and entered judgment in favor of the defendants. Mrs. Tuttle appeals.
We reverse the district court’s ruling on the statute of limitations, but conclude Mrs.
Tuttle’s claims are legally insufficient, because her claims fail for want of admissible
proof of causation and reliance. We, therefore, affirm the district court’s judgment.
I. BACKGROUND
A. Factual Summary
After experiencing difficulty swallowing, Tuttle scheduled an appointment
with his physician, Dr. Timothy Regan (Dr. Regan), on October 6, 1993. Tuttle
presented complaining of an oral lump or mass that had been growing in his right
cheek for ten days. Tuttle told Dr. Regan he had had a small lesion in his cheek for
a long time but the lump had recently gotten bigger. Dr. Regan observed a 3 by 4
centimeter indurated mass in Tuttle’s right cheek, and a 2 by 2 centimeter mass inside
Tuttle’s mouth near his parotid duct. Tuttle told Dr. Regan he wore dentures and he
chewed tobacco, predominantly on the left side of his mouth. Based on his
observations and Tuttle’s patient history, Dr. Regan diagnosed Tuttle’s right cheek
1
Since filing the lawsuit, Mrs. Tuttle has remarried and is now named Gloria
Tuttle Fisher.
2
mass as parotitis2 and prescribed an antibiotic and Advil for discomfort. Dr. Regan
also referred Tuttle to Dr. Steven Koutroupas (Dr. Koutroupas), an ear, nose, and
throat specialist. (otolaryngologist).
Dr. Koutroupas examined Tuttle on October 8, 1993, and observed a 2.5
centimeter fungating mass in the right buccal mucosa. Dr. Koutroupas’s notes reflect
that Tuttle noticed the right cheek mass “about 10 days ago and it suddenly increased
in size.” After Dr. Regan started Tuttle on an antibiotic, his right cheek mass
decreased markedly in size. Dr. Koutroupas also noted Tuttle was a “long time
tobacco chewer from his baseball days.” Having the impression that the right cheek
mass looked like “an infected tumor,” Dr. Koutroupas took a biopsy of the mass.
Three days later, on October 11, 1993, the biopsy revealed an advanced squamous
cell buccal carcinoma, and Dr. Koutroupas informed Tuttle he had oral cancer. Dr.
Koutroupas referred Tuttle to Dr. George Adams (Dr. Adams), a reputed head and
neck surgeon at the University of Minnesota Hospital and Clinic.
Dr. Adams examined Tuttle on October 23, 1993, and observed “a large buccal
carcinoma that has now reached golf ball size and showing a massive protrusion of
the right upper cheek.” On November 11, 1993, Dr. Adams performed surgery on
Tuttle and excised from his right oral cavity an 8 by 8 centimeter right buccal
carcinoma. In his discharge summary dated November 23, 1993, Dr. Adams noted,
upon physical examination, Tuttle’s right cheek mass measured approximately 11 by
12 centimeters.
Following surgery, Tuttle underwent radiation therapy, which ended in March
1994. Thereafter, Tuttle experienced a reoccurrence of the right buccal carcinoma,
which Dr. Adams surgically excised. Tuttle underwent additional radiation therapy,
2
Inflamation of the parotid gland, the largest of the salivary glands in humans
located in front of or below the ear.
3
and was referred by Dr. Adams to an oncologist, Dr. Dorothy Uhlman (Dr. Uhlman).
In a follow-up letter to Dr. Adams, Dr. Uhlman noted:
[Tuttle’s] head and neck cancer dates back to October 1993 when he
first noticed a lesion on the right buccal mucosa. He had a small lesion
which he had ignored for several months. When it became infected, he
sought medical attention and it was biopsied. [Tuttle] then states that
over a period of 5 weeks the lesion grew very rapidly to the point that
when it was finally resected it was a large penetrating tumor growing out
through the skin.
Tuttle survived oral cancer for nearly five years. However, he eventually
succumbed to complications related to his cancer and died on July 27, 1998.
B. Procedural Summary
On September 21, 1999, Mrs. Tuttle filed this lawsuit. After extensive
pleadings and amendments thereto, Mrs. Tuttle filed a Second Amended Complaint
against Lorillard Tobacco Company (Lorillard), National Tobacco Company
(National), Pinkerton Tobacco Company3 (Pinkerton), and the Smokeless Tobacco
Council (STC), a trade association whose members are smokeless tobacco
manufacturers, including Pinkerton and National. Lorillard was not a member of the
STC, but did make several monetary contributions to the STC. Mrs. Tuttle alleged
both common law tort claims (negligence, fraud, and conspiracy), as well as statutory
violations of Minnesota’s Unlawful Trade Practices Act, Deceptive Trade Practices
Act, Consumer Fraud Act, and False Advertising Act.
During his deposition, Dr. Adams testified he wrote “5½ years” on Tuttle’s
death certificate as the time period for the interval between the onset of Tuttle’s
disease and his death. Dr. Adams testified he understood the death certificate inquiry
3
Pinkerton manufactures a smokeless tobacco called “Red Man,” which Tuttle
occasionally chewed when he could not obtain Beech-Nut.
4
to mean “from the time of the diagnosis to the time he died,” and confirmed that 5½
years from July 1998, when Tuttle died, would correspond to the beginning of 1993.
In the same deposition Dr. Adams also testified:
I think the problem is that Mr. Tuttle, for whatever reason, was
convinced that this whole thing was an infection, it was on the opposite
side and therefore it was an infection, and even the first doctor, the first
doctor he saw, must have thought it was an infection, so that there was
a delay in the recognition of the problem, delay in diagnosis there that
we wished we had not had.
Following extensive discovery, the defendant smokeless tobacco manufacturers
and the STC moved for summary judgment on all claims.4 The district court granted
summary judgment and dismissed with prejudice all of Mrs. Tuttle’s claims. Upon
review of all the evidence, the district court succinctly concluded:
Pinkerton’s separate Motion is granted in its entirety because
there is no evidence that Pinkerton’s product was a substantial cause of
Mr. Tuttle’s injuries. Likewise, Lorillard’s separate Motion is granted
because there is no evidence that the allegedly fraudulent statements
made by STC can be attributed to Lorillard. STC’s separate Motion is
granted in part because there is no evidence that STC had a duty to Mr.
Tuttle. National’s separate Motion is denied to the extent that National
challenges whether its product caused Mr. Tuttle’s injury.
Plaintiff’s negligence, common-law fraud, conspiracy, and
Unlawful Trade Practices Act claims were brought outside the statute of
limitations and must be dismissed. Plaintiff’s Consumer Fraud Act and
False Advertising Act claims fail because Plaintiff’s lawsuit will not
benefit the public. Alternatively, all of Plaintiff’s fraud claims, both
4
The district court dismissed Mrs. Tuttle’s Deceptive Trade Practices Act claim
before the defendants moved for summary judgment. Mrs. Tuttle does not appeal the
dismissal of this claim.
5
common-law and statutory, fail because Plaintiff cannot show the
essential element of reliance, and because her conspiracy claim depends
on her fraud claim, the conspiracy claim likewise fails. The Court
therefore dismisses all of Plaintiff’s claims with prejudice.
Mrs. Tuttle raises five issues on appeal, contending the district court erred in
concluding: (1) the statute of limitations had expired on certain counts; (2) her
Consumer Fraud Act and False Advertising Act claims served no public purpose; (3)
the STC did not assume a duty to Tuttle and other smokeless tobacco users; (4) the
record lacked proof of reliance to substantiate her fraud and conspiracy claims; and
(5) the STC neither spoke nor acted on Lorillard’s behalf.
II. DISCUSSION
A. Statute of Limitations
All parties agree the applicable statute of limitations for the common law
negligence, fraud and conspiracy claims is governed by Minn. Stat. section 541.05,
subd. 1(5)-(6), providing that actions for personal injury and fraud must be brought
within six years from the date of accrual. Before a cause of action can accrue in cases
involving injury caused by defective products, the Minnesota discovery rule requires
a showing of two elements: “(1) a cognizable physical manifestation of the disease
or injury, and (2) evidence of a causal connection between the injury or disease and
the defendant’s product, act, or omission.” Hildebrandt v. Allied Corp., 839 F.2d
396, 398 (8th Cir. 1987) (interpreting Minnesota law). Concluding the evidence
compels the conclusion that Tuttle was aware of the lump in his cheek before
September 21, 1993, the district court held the plaintiff’s negligence, common law
fraud, conspiracy, and Unlawful Trade Practices Act claims were not timely filed and
must be dismissed.
In Hildebrandt, we reversed a district court’s limitations ruling, concluding
genuine issues of material fact existed whether the “plaintiffs had knowledge of the
6
cause of their medical problems at the time found by the district court.” Id. at 399.
The court declared:
We do not believe Minnesota’s applicable statutes of limitation were
intended to provoke the premature commencement of claims for
temporary sickness or discomfort. Rather the plaintiffs are entitled to
wait until the cause has been rationally identified.
Id. (emphasis added). Five years later, in Klempka v. G.D. Searle & Co., 963 F.2d
168 (8th Cir. 1992), we affirmed summary judgment where the undisputed evidence
established the plaintiff clearly knew she had pelvic inflamation disease and “the
injuries were, in her physician’s opinion, caused by the [intrauterine device].” Id. at
170 (emphasis added).
In this case, Mrs. Tuttle presented evidence that both Tuttle and Dr. Regan, the
first physician to examine Tuttle, believed the lesion inside Tuttle’s mouth was
caused by oral infection and was treatable with antibiotics. The second treating
physician, Dr. Koutroupas, noted his first impression was “an infected tumor.” Dr.
Adams’ deposition testimony further substantiates their beliefs. We, therefore,
cannot say the evidence of “causal connection” before September 21, 1993, is so
clear that the limitations’ determination can be made as a matter of law. Mindful that
we must view all evidence in the light most favorable to the nonmovant and draw all
reasonable inferences in her favor, we conclude the limitations issue is for the jury
to determine. See Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155, 160-61 (8th
Cir. 1975).
B. Common Law Claims
1. Negligence Claims
Having concluded the statute of limitations issue cannot be decided as a matter
of law, we proceed to review the legal sufficiency of the common law claims. The
7
district court noted in its Memorandum and Order that Mrs. Tuttle had conceded to
the dismissal of her negligent manufacture claim, including her claims of failure to
properly package, maintain, prepare for use, and compound. Thus, the remaining
claims against the smokeless tobacco manufacturers and the STC in Count I of the
Second Amended Complaint allege negligent misrepresentation and negligent failure
to warn.
a. Negligent Misrepresentation
Mrs. Tuttle alleges Lorillard and thirteen other tobacco manufacturers
negligently misrepresented their so-called “Frank Statement,” which was published
in more than 300 newspapers in January 1954. The “Frank Statement,” in part,
declared:
We accept an interest in people’s health as a basic responsibility,
paramount to every other consideration in our business. We believe the
products we make are not injurious to health. We always have and
always will cooperate closely with those whose task it is to safeguard
the public health . . . . We are pledging aid and assistance to the research
effort into all phases of tobacco use and health. This joint financial aid
will of course be in addition to what is already being contributed by
individual companies. . . . This statement is being issued because we
believe the people are entitled to know where we stand on this matter
and what we intend to do about it.
Mrs. Tuttle also alleges the STC, as the agent of the smokeless tobacco industry,
negligently misrepresented the addictive and injurious effects of using smokeless
tobacco.
In Smith v. Brutger Cos., 569 N.W.2d 408, 413 (Minn. 1997), the Minnesota
Supreme Court identified the elements of the tort of negligent misrepresentation
involving the risk of physical harm as being: “(1) a duty of reasonable care in
conveying information; (2) breach of that duty by negligently giving false
8
information; (3) reasonable reliance on the misrepresentations, which reliance is the
proximate cause of physical injury; and (4) damages.” Without foreclosing the future
possibility of recognizing the tort of negligent misrepresentation involving risk of
physical harm, the Minnesota Supreme Court in Smith declined to recognize the tort
based on the facts of the case, concluding the plaintiffs could not prove a causal
connection between the alleged misrepresentations and the injury sustained, nor could
the plaintiffs prove reasonable reliance on the alleged misrepresentations. Id. at 414.
Mrs. Tuttle’s negligent misrepresentation claims against the smokeless tobacco
manufacturers and the STC fail as a matter of law because Mrs. Tuttle similarly
cannot prove Tuttle read and relied upon the alleged misrepresentations. Assuming
the smokeless tobacco manufacturers’ “Frank Statement” and the STC’s statements
contain material misrepresentations, the fact that these statements were widely
published in the media during the nearly forty years Tuttle used smokeless tobacco
does not prove Tuttle actually read the alleged misrepresentations and relied upon the
misrepresentations in continuing to use smokeless tobacco.
Mrs. Tuttle filed this lawsuit after Tuttle died. The record on appeal contains
no admissible evidence identifying what statements attributable to any of the
defendants Tuttle actually read and actually relied upon to support his belief that
using smokeless tobacco did not endanger his health. In her affidavit prepared in
opposition to summary judgment, Mrs. Tuttle attests that, before his cancer diagnosis
and death, Tuttle told her (1) “they say in the papers that chewing is safe,” (2) “he
thought smoking was dangerous but had read that smokeless tobacco wasn’t,” (3)“he
felt he had been deceived by the tobacco companies’ claims that spit tobacco doesn’t
do anybody any harm and that it was a safe thing to do instead of smoking” and (4)
“if somebody would have told me in the early years what could happen I wouldn’t
have ever started chewing and I would have tried to stop.”
Mrs. Tuttle cannot rely on hearsay to avoid summary judgment. See Mays v.
Rhodes, 255 F.3d 644, 648 (8th Cir. 2001) (finding the unsworn statements in
9
question were hearsay, and not cognizable on summary judgment motion);
Rademacher v. FMC Corp., 431 N.W.2d 879, 881 (Minn. Ct. App. 1988). In ruling
on a motion for summary judgment, “[t]he district court must base its determination
regarding the presence or absence of a material issue of factual dispute on evidence
that will be admissible at trial.” Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310
(8th Cir. 1993); Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 788 (Minn. Ct.
App. 1998) (declaring“[a] district court must disregard inadmissible hearsay evidence
on a motion for summary judgment”).
Aside from being inadmissible hearsay, Tuttle’s purported statements are
exceptionally vague and conclusory. Tuttle’s statements fail to identify any
misrepresentation he actually read and relied upon in using smokeless tobacco.
Tuttle’s unsworn statements also fail to identify any party or parties responsible for
making the misrepresentation on which he allegedly relied. In her attempt to defeat
summary judgment, Mrs. Tuttle fails to lay the most basic foundation blocks for
establishing any reasonable reliance, and her affidavit fails to raise a genuine issue
of material fact on the crucial issue of reasonable reliance. Therefore, Mrs. Tuttle’s
claims for negligent misrepresentation resulting in physical harm must be dismissed.
See Smith, 569 N.W.2d at 414.
b. Negligent Failure to Warn
Count I of the Second Amended Complaint also alleges the smokeless tobacco
manufacturers and the STC failed to warn Tuttle and the public of the dangerous
properties and addictive nature of smokeless tobacco. Based on the record before us,
Mrs. Tuttle does not appear to have conceded the dismissal of her negligent failure
to warn claims, which are neither barred by the statute of limitations, nor are they
preempted by the Comprehensive Smokeless Tobacco Health Education Act of 1986
(Smokeless Tobacco Act), 15 U.S.C. §§ 4401-4408 (2000). The Act’s savings clause
expressly preserves state tort liability by providing,“[n]othing in this chapter shall
10
relieve any person from liability at common law or under State statutory law to any
other person.” Id. § 4406(c).
To establish a negligent failure to warn claim under Minnesota law, a plaintiff
must show: (1) the defendants had reason to know of the dangers of using the
product; (2) “the warnings fell short of those reasonably required,” breaching the duty
of care; and (3) the lack of an adequate warning caused the plaintiff’s injuries.
Erickson v. Am. Honda Motor Co., 455 N.W.2d 74, 77-78 (Minn. Ct. App. 1990).
Whether a duty to warn exists is a question of law. Germann v. F. L. Smithe Mach.
Co., 395 N.W.2d 922, 924 (Minn. 1986). Assuming, without deciding, the
defendants had reason to know of the dangerous properties and addictive nature of
smokeless tobacco, had a legal duty to warn Tuttle and consumers at large, and
breached their duty by failing to provide adequate product warnings, the record on
appeal fails to establish a direct causal nexus between a failure to warn and the injury
sustained. Where the undisputed facts demonstrate a lack of causation between the
failure to warn and the injury sustained, the Minnesota Supreme Court has held that
the issue of causation may be decided as a matter of law. Balder v. Haley, 399
N.W.2d 77, 81 (Minn. 1987).
Proximate cause focuses on the individual product user and requires some
admissible evidence the product user would have acted differently had the
manufacturers provided adequate warnings. See Erickson, 455 N.W.2d at 78 (ruling
product users’ testimony that “if they had been made aware of the dangers of
improper ATV use, they would not have allowed [ ] children to operate the vehicle
or to be passengers” is sufficient evidence that failure to warn caused injury); Krein
v. Raudabough, 406 N.W.2d 315, 320 (Minn. Ct. App. 1987) (declaring “the . . .
failure to warn must be the proximate cause of the plaintiff’s injury,” and affirming
refusal to instruct jury on failure to warn, because the product user presented“no
evidence at trial that he would have acted differently had GMC provided a warning”
and adduced “no evidence which would reasonably tend to prove that GMC’s failure
11
to warn . . . proximately caused [product users’] injuries”). To establish the prima
facie element of proximate cause, Mrs. Tuttle must present some affirmative evidence
Tuttle would have refrained from using smokeless tobacco had the defendants
provided adequate product warnings. The record on appeal contains a Reader’s
Digest article published in October 1996 that records Tuttle telling baseball players,
“When I started [using smokeless tobacco], no one told me it was harmful . . . I
thought [smokeless tobacco] was a safe substance for the 38 years I used it.” In her
affidavit, Mrs. Tuttle attests that after his oral cancer diagnosis Tuttle told her, “if
somebody would have told me in the early years what could happen I wouldn’t have
ever started chewing and I would have tried to stop.” As discussed above, Tuttle’s
unsworn, out-of-court statements are inadmissible hearsay and cannot be considered
as evidence of proximate cause.
Importantly, the Minnesota state courts have not adopted the so-called
“heeding presumption”5 within the context of a failure to warn claim. See Kallio v.
Ford Motor Co., 407 N.W.2d 92, 99-100 (Minn. 1987) (sustaining failure to warn
verdict “[w]ithout deciding whether a rebuttable presumption exists that a warning
would have been heeded”). We recognize application of the heeding presumption
would be particularly beneficial in this case, where Tuttle died before testifying under
oath that he would have read and heeded warnings had they been provided by the
5
In products liability law, a majority of jurisdictions recognize a rebuttable
presumption that if a product comes with a warning, the user will read and heed the
warning. See Boerner v. Brown & Williamson Tobacco Corp., 260 F.3d 837, 842-
845 (8th Cir. 2001) (discussing presumption as applied under Arkansas, Louisiana,
New York, Iowa and New Jersey common law). When applied, the presumption
operates to the benefit of the manufacturer where adequate warnings are provided
because the manufacturer receives the benefit of the doubt that the warning provided
is effective in alerting the user of the product’s potential danger. Where no warning
is given, the presumption operates in favor of the user by presuming the user would
have read, understood, and heeded the warning. Id. at 842. The practical effect of
the presumption is to relieve a plaintiff of the burden of proving proximate cause.
12
smokeless tobacco manufacturers and their trade association. However, based on the
evidentiary record submitted and the status of the law in Minnesota, we do not
believe the Minnesota state courts would adopt the rebuttable presumption in this
case. Accordingly, we must conclude Mrs. Tuttle’s negligent failure to warn claims
fail for want of admissible proof of proximate causation.6
2. Fraud and Conspiracy Claims
In Counts Two and Eight of the Second Amended Complaint, Mrs. Tuttle
alleges the smokeless tobacco manufacturers and the STC committed fraud and civil
conspiracy. While the district court dismissed these claims as being barred by the
statute of limitations, the court ruled alternatively that Mrs. Tuttle had failed to
establish the prima facie element of reliance. Our review of the record convinces us
no proof of reliance was presented, and reliance cannot be presumed in this case. See
Berg v. Berg, 275 N.W. 836, 840 (Minn. 1937) (declaring “fraud and undue influence
must be proved. Neither is presumed.”); Norwest Bank Midland v. Shinnick, 402
N.W.2d 818, 825 (Minn. App. 1987) (ruling “presumption of reliance is limited to
cases involving primarily omissions”); see also Austin v. Loftsgaarden, 675 F.2d 168,
178 n.21 (8th Cir. 1982) (explaining “this circuit’s view [is] that the presumption of
reliance is limited to cases involving primarily omissions”). Because the common
law fraud claim is legally insufficient for want of proof that Tuttle relied on the
smokeless tobacco manufacturers’ and the STC’s representations, we agree with the
district court’s ruling that the civil conspiracy claim, which depends on a viable
underlying tort, must fail as well. Harding v. Ohio Cas. Ins. Co., 41 N.W.2d 818, 824
(Minn. 1950) (declaring “[t]he gist of the action is not the conspiracy charged, but the
tort working damage to the plaintiff”) (citation omitted); D.A.B. v. Brown, 570
6
By February 1987, the Smokeless Tobacco Act required smokeless tobacco
warnings in advertising and on packaging. 15 U.S.C. § 4402(a). Tuttle continued to
use smokeless tobacco until 1993, which undercuts any “heeding presumption” and
any reasonable reliance arguments.
13
N.W.2d 168, 172 (Minn. Ct. App. 1997) (holding “conspiracy count fails because it
is not supported by an underlying tort”).
C. Statutory Claims
Mrs. Tuttle further alleges in the Second Amended Complaint violations of the
Minnesota Prevention of Consumer Fraud Act, Minn. Stat. § 325F.68-70 (2000)
(Count III), Minnesota Unlawful Trade Practices Act, Minn. Stat. § 325D.09-16
(2000) (Count IV); and Minnesota False Statement in Advertising Act, Minn. Stat.
§ 325F.67 (2000) (Count VII). These statutory claims are governed by the same six-
year statute of limitations discussed above in Section IIA. See Minn. Stat. § 541.05,
subd. 1(2). However, “[t]his provision does not include a discovery allowance as
does the statute of limitations applicable to fraud claims.” Klehr v. A.O. Smith Corp.,
875 F. Supp. 1342, 1352 (D. Minn. 1995) (citing Minn. Stat. § 541.05 subd. 1(2)),
aff’d, 87 F.3d 231 (8th Cir. 1996), aff’d, 521 U.S. 179 (1997). Therefore, the six-year
limitations period commenced on the dates of sale, when the alleged violations of
these consumer statutes occurred. See id. at 1352-53. We agree with the district
court that the consumer protection claims depend on the purchase of a product within
the applicable six-year limitations period, and Mrs. Tuttle’s statutory claims are
untimely.
Even if the claims were timely filed and Mrs. Tuttle had standing to recover
damages under Minn. Stat. § 8.31, subd. 3a (private attorney general statute) in a
wrongful death action, we conclude her statutory claims fail for want of proof of a
causal nexus between the defendants’ conduct and Tuttle’s injuries. In Group Health
Plan, Inc. v. Philip Morris Inc., 621 N.W.2d 2, 11(Minn. 2001), the Minnesota
Supreme Court addressed the certified question “whether a plaintiff must plead and
prove reliance on the defendants’ alleged misrepresentations in order to recover
damages under Minn. Stat. § 8.31, subd. 3a, for violation of Minn. Stat. §§ 325F.67,
325F.69, subd. 1, or 325D.13.” The court concluded“to prove their claims for
damages under the misrepresentation in sales statutes, the [plaintiffs] must establish
14
a causal nexus between their alleged damages and the conduct of the defendants
alleged to violate the statutes.” Id. at 15. In explaining the causal requirement, the
court stated the plaintiffs (Health Maintenance Organizations) “must demonstrate the
defendants’ conduct had some impact on their members’ use of tobacco products that
caused their damages.” Id. at 14. The court further explained:
[I]n cases such as this, where the plaintiffs’ damages are alleged to be
caused by a lengthy course of prohibited conduct that affected a large
number of consumers, the showing of reliance that must be made to
prove a causal nexus need not include direct evidence of reliance by
individual consumers of defendants’ products. Rather, the causal nexus
and its reliance component may be established by other direct or
circumstantial evidence that the district court determines is relevant and
probative as to the relationship between the claimed damages and the
alleged prohibited conduct.
Id.
While the court declined to answer in detail what manner of proof would
suffice to establish the causal nexus between the claimed damages and defendants’
conduct, id. at 15, the court suggested the Lanham Act, 15 U.S.C. § 1125(a), may
provide some guidance on the nature of proof required, and cited, as examples,
consumer testimony and circumstantial evidence, including consumer surveys,
consumer reaction tests, and market research. Id. at 14 n.9 & 15 n.11. Causation may
also be established by expert testimony. See Group Health Plan, Inc. v. Philip Morris
USA, Inc., 344 F.3d 753, 757-58 (8th Cir. 2003). Although Mrs. Tuttle need not
present direct evidence of Tuttle’s individual reliance, Mrs. Tuttle must establish
some proof that the conduct of the smokeless tobacco manufacturers and the STC in
failing to warn caused consumers to continue using smokeless tobacco and to sustain
physical injury in reliance on the defendants’ conduct. The Minnesota Court of
Appeals has ruled for a plaintiff “to prove causation, a necessary element of her
statutory consumer fraud claims, she must at least present circumstantial evidence of
15
some reliance on [defendants’]alleged misrepresentations.” Flynn v. Am. Home
Prods. Corp., 627 N.W.2d 342, 351 (Minn. Ct. App. 2001). Because Mrs. Tuttle
failed to present any admissible evidence of reliance, we affirm the district court’s
dismissal of the consumer protection claims.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment in favor of
the defendants.
______________________________
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