United States Court of Appeals
For the First Circuit
No. 04-2578
MARIBEL ARTURET-VÉLEZ,
Plaintiff, Appellant,
v.
R.J. REYNOLDS TOBACCO COMPANY, LIGGETT GROUP, INC.,
BROWN & WILLIAMSON TOBACCO CO., THE AMERICAN TOBACCO COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Lipez, Circuit Judge,
and Schwarzer,* Senior District Judge.
Amarilys Arocho-Maldonado and Herbert Muriel on brief for
appellant.
Salvador Antonetti-Zequeira, Rosalie Irizarry-Silvestrini,
Clotilde Rexach-Benítez, Fiddler, González & Rodríguez, P.S.C.,
Robert H. Klonoff, James R. Johnson, L. Christine Buchanan, Ryan E.
Harden, Jones Day, William E. Hoffman, Jr., William L. Durham II,
Evan Glover, King & Spalding LLP, Javier López-Pérez and Goldman,
Antonetti & Córdova, P.S.C. on brief for appellees.
November 14, 2005
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Chief Judge. This is an appeal by Maribel
Arturet Vélez ("Maribel"), plaintiff in the district court, from
the dismissal of her complaint in a wrongful death case. The
defendants in the district court were four major tobacco companies
("the companies"): R.J. Reynolds Tobacco Company, Liggett Group,
Inc., Brown & Williamson Tobacco Co., and The American Tobacco
Company. The dismissal was on the ground that the statute of
limitations barred the suit.
Maribel is the daughter of Angel Luis Arturet Concepción
("Angel"), who died in March 1999. On September 26, 2003, Maribel
brought the present suit in the federal district court in Puerto
Rico against the companies for the wrongful death of her father.
The complaint alleged that Angel, born in the mid-1930s, had been
a smoker for more than 56 years prior to his death at age 65, and
that he had sought repeatedly to stop smoking but had been unable
to do so even after doctors warned him that he should.
The suit, brought primarily in diversity,1 is concededly
governed by the law of Puerto Rico. Puerto Rico has a one-year
statute of limitations for tort claims. P.R. Laws Ann. tit. 31, §
5298 (1990). Obviously anticipating a challenge on this ground,
the drafter of the complaint did not emphasize the capacity of
1
The original complaint included one count alleging violations
of federal cigarette labeling laws, see 15 U.S.C. §§ 1331 et seq.
(2000), but no separate argument premised on this count has been
made on this appeal.
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cigarettes to kill--in fact, the cause of Angel's death is not
explicitly stated--but rather the capacity of tobacco to addict the
smoker. Conformably, the complaint alleged that Maribel "did not
learn that addiction was a substantial factor relative to [her]
father's death until January 9, 2003 after consulting a lawyer who
had experience with cigarette cases."
The complaint went on to charge that the companies had
knowledge of the dangers of their product (including the product's
addictiveness), did not disclose these dangers, marketed their
product to youth for whom smoking was especially dangerous, and
increased the addictive character of their cigarettes by various
means while denying that cigarettes were addictive. Successive
counts charged strict liability, negligence, failure to warn
measured by both state and federal standards, defective product and
defective design. The complaint sought $6 million in compensatory
damages and $5 million in punitive damages.
The companies moved to dismiss the complaint for failure
to state a claim, Fed. R. Civ. P. 12(b)(6), on the ground that the
complaint showed on its face that the suit was barred by the
statute of limitations. Addressing the tolling defense implicit in
the complaint's "addiction" allegations, the companies argued that
the alleged implied cause of death was disease (e.g., cancer)--not
addiction--and in any event Maribel knew or should have known
enough at the time of her father's death about the link between
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smoking and her father's addiction, illness, and death to require
her to file her suit within one year. The motion pointed to
numerous cases holding that by the 1990s, knowledge of the dangers
of smoking was so widespread that judicial notice could be taken of
it.
Maribel responded that the "common knowledge" defense had
not been accepted by all courts and that her knowledge and
diligence were questions for the jury. Maribel contended that
until she encountered a newspaper article on September 27, 2002,
she did not realize that cigarettes were addictive. Even now, she
said, the cigarette industry continued to deny the addictive
effects of nicotine.
The district judge granted the motion to dismiss in an
opinion and order filed on September 30, 2004. The court said that
a number of like cases had been dismissed by other judges of the
same district court. It agreed with the defendants that at best
the complaint implied that Angel had died from a cigarette-induced
illness like cancer or heart disease, and it held that any of these
medical conditions, together with Maribel's knowledge of her
father's smoking, put her "on notice of her potential cause of
action against Defendants" no later than March 1999 when her father
died. This appeal followed.
The case is complicated by the reinforcing effects of two
legal tactics: the decision by Maribel's counsel to leave obscure
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some arguably pertinent information (e.g., the immediate cause of
death) and the decision of the companies' counsel to use Rule
12(b)(6) rather than a motion for summary judgment to present the
statute of limitations issue. It was somewhat risky for the
district court to employ Rule 12(b)(6) as the vehicle for
disposition of the statute of limitations issue.
Nevertheless, the district court's result is correct. In
framing the issues, we accept that the allegations of the complaint
are generally to be taken as true for purposes of a motion to
dismiss, and a complaint should not be dismissed if a claim can
plausibly be embraced by those allegations. Rodi v. S. New England
Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004).2 Although the statute
of limitations is formally a defense, it was effectively
anticipated by the complaint (inasmuch as the complaint clearly
laid the groundwork for a tolling argument) and can be disposed of
fairly on the present briefs. See id. at 12.
In our view, as in the district court's, Maribel must be
claiming that her father's death was proximately caused by one or
more of the familiar diseases linked with tobacco use and recited
2
Like almost all general statements, there are qualifications.
The court can consider, for instance, facts subject to judicial
notice, implications from documents incorporated into the
complaint, and concessions in the complainant's response to the
motion to dismiss. See Rodi, 389 F.3d at 12; Soto-Negron v. Taber
Partners I, 339 F.3d 35, 38 (1st Cir. 2003); Beddall v. State
Street Bank & Trust Co., 137 F.3d 12, 16-17 (1st Cir. 1998).
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in the complaint itself. Doubtless, addiction can cause harms
independent of death--e.g., the cost and discomfort suffered by any
addict who weans himself from a drug through medical means like
methadone--but the $6 million compensatory damages which Maribel's
complaint seeks can only be from losses resulting from Angel's
death. Nowhere does Maribel dispute the district court's inference
to this effect.
Yet it is playing word games to say, as the companies
suggest, that therefore Angel allegedly died from a tobacco-related
disease like cancer rather than from addiction. It could well be
that both were proximate causes: the addiction by making it
impossible for Angel to quit and the continued smoking by finally
killing him. See generally Harper, James & Gray, The Law of Torts
§ 20.3, at 114 (2d ed. 1986). Just how Maribel could show that
"but for" the addiction her father would have quit in time to save
his life is a different question; but arguably the complaint would
permit her to try to make such a showing.
We also think it fair to infer that Maribel knew at the
time of her father's death that cigarettes were capable of causing
the deadly diseases recited in her complaint. Nowhere does she
deny this inference--indeed, some of her statements tend to confirm
it--while throughout her papers she has consistently alleged that
she did not know that cigarettes were addictive until within a year
before the complaint was filed. The latter claim, that she only
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then learned that cigarettes were highly addictive in the medical
sense, we will accept as true for purposes of this appeal. Compare
Soliman v. Philip Morris Inc., 311 F.3d 966, 971-75 (9th Cir.
2002), cert. denied, 540 U.S. 814 (2003), with Grisham v. Philip
Morris U.S.A., 403 F.3d 631, 633, 636-39 (9th Cir. 2005).
A cause of action for wrongful death arises at the time
of death, but Puerto Rico, like many other jurisdictions, tolls the
running of the statute until the claimant is on notice of her
claim--that is, "'notice of the injury, plus notice of the person
who caused it.'" Rodriguez-Suris v. Montesino, 123 F.3d 10, 13
(1st Cir. 1997) (quoting Colon Prieto v. Geigel, 115 P.R. Dec. 232,
---, 15 P.R. Offic. Trans. 313, 330 (1984)). This does not require
actual knowledge; it is enough that the would-be plaintiff had
notice that would have led a reasonable person to investigate and
so uncover the needed information. Rodriguez-Suris, 123 F.3d at
14-17; Villarini-Garcia v. Hospital del Maestro, Inc., 8 F.3d 81,
84 (1st Cir. 1993).
The companies in this case say that the "injury" that
should have put Maribel on notice is Angel's death, if not his
earlier medical conditions of which she evidently had knowledge.
Yet, while some decisions talk in terms of "injury," others
recognize explicitly--and we think correctly--that there can be
injuries that do not raise even a suspicion of liability, and that
the statute is to be tolled until the time when a reasonable
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plaintiff would begin an investigation. E.g., Espada v. Lugo, 312
F.3d 1, 3-4 (1st Cir. 2002). This is likely not a true conflict in
case law but rather different emphases in phrasing due to different
patterns of fact.
Even so, once Maribel's father died from a disease that
could easily have been caused by cigarette smoking, she had notice
that she might well have a claim based on the companies' furnishing
of a dangerous product; and, if she had diligently pursued such a
claim with a competent lawyer, the reinforcing arguments based on
addiction could have been unearthed. Like one who suspects that an
operation had gone wrong but does not know why, she had a duty to
investigate and is charged with knowledge that consulting with a
competent lawyer would have brought forth. See Villarini-Garcia,
8 F.3d at 85.
In her complaint, Maribel says that only when she knew of
the addictive properties of tobacco did she conclude that her
father's continued smoking was involuntary. If a law suit based on
"voluntary" use of cigarettes were everywhere forbidden and
everyone knew this to be so, perhaps the result here would be
different; but such law suits against tobacco companies have been
common for years, generating vast publicity and at least
intermittent success. A reasonable person who, like the plaintiff,
wanted to recover for wrongful death based in large part on the
dangerousness of cigarettes had adequate grounds to consult a
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lawyer. Cf. Marrapese v. Rhode Island, 749 F.2d 934, 943 (1st Cir.
1984), cert. denied, 474 U.S. 921 (1985).
The complaint (albeit without factual detail) charges
that the tobacco industry has long concealed or denied evidence
that tobacco is addictive. If there were no potential claim
against the companies for wrongful death absent addiction, then
concealment of tobacco's addictiveness might toll the statute--just
as a doctor's false but credible denial that there was any problem
with an operation might do so. But the plaintiff's complaint
includes allegations (wrongful death; dangerous product) that are
not dependent on the addictive nature of cigarettes. This case is
about wrongful death for which addiction can only be an aggravating
cause. The statute was triggered by the fact that a wrongful death
claim was reasonably possible even if the aggravating circumstance
of addiction was not yet known.
Maribel says briefly in her complaint that she made
"numerous attempts to retain lawyers" but that they "all professed
lack of qualification to handle a cigarette case." Tantalizingly,
the complaint does not clearly say whether she made these efforts
before or after she read the article in September 2002. If it was
before, then this would only confirm that Maribel herself
recognized the possibility of suit prior to reading the article,
undermining her tolling defense. If only afterwards, the failure
to act within a year after the death was a lack of due diligence.
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Tolling doctrine is a compromise of competing interests.
Villarini-Garcia, 8 F.3d at 85. In some cases, it permits suit to
be brought well after the injury itself, sometimes marring the
defendant's ability to defend (e.g., because evidence is lost).
But it requires inquiry by the claimant, and usually commencement
of the suit itself, well before all of the pertinent information to
reinforce the claim is necessarily available. If this compromise
seems an imperfect solution, it shares its imperfection with most
legal doctrine--and much else that human beings can contrive.
In the present case--not necessarily in all such cases--
the addiction claim is merely a part of the larger claim for
wrongful death based upon the well known dangers of tobacco and
does not escape the consequences of Maribel's delay in bringing
suit. Thus, the statute of limitations bars the present claim.
Maribel's further argument on appeal that leave to amend should
have been granted fails, inter alia, because Maribel's brief offers
no explanation of what could have been said in an amended complaint
to defeat a new dismissal.
The judgment is affirmed. Each side shall bear its own
costs on this appeal.
It is so ordered.
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