Walgreens
CHICAGO — Retail pharmacy giant Walgreens has failed again to persuade a judge that it was improperly added to a man's lawsuit against tobacco companies over cigarette-caused illness as a litigation tactic to ensure the case remains in Cook County's courts.
On Oct. 13, U.S. District Judge Sunil Harjani sent a lawsuit back to Cook County Circuit Court after finding the plaintiff was justified in adding Walgreens as a defendant in his claims against tobacco companies stemming from his health issues after a lifetime of smoking cigarettes.
Illinois resident Vincent Mugnolo, who started smoking at 12 and developed chronic obstructive pulmonary disease in 2024, sued Philip Morris, R.J. Reynolds Tobacco Company and Liggett Group in Cook County Circuit Court.
Mugnolo is represented in the case by attorney Jonathan P. Mincieli, of the firm of Meyers & Flowers, of St. Charles and Chicago.
He later added claims of negligence and strict liability against Walgreens, the retail pharmacy giant headquartered in Deerfield.
The companies sought to remove the complaint to federal court.
Businesses sued in Cook County and other Illinois state courts routinely seek to take those cases to federal court, where more stringent standards governing evidence and testimony can often allow businesses better odds at fending off the risk of the bigger court-ordered payouts.
Illinois state courts, and Cook County, in particular, are perennially regarded as some of the most plaintiff-friendly jurisdictions in the U.S.
However, under federal rules, cases filed in state court can only be removed to federal court if the parties enjoy complete "diversity," meaning only one party is from the state in which the lawsuit is filed.
And in many Illinois cases, defendants have accused plaintiffs of getting around the diversity removal by simply adding another Illinois-based defendant.
In Mugnolo's case, as well as several other tobacco-related lawsuits, that Illinois-based defendant has turned out to be Walgreens.
In response, Walgreens and tobacco companies have argued the decision to join Walgreens to the list of defendants should be rejected by courts as fraud.
However, to this point, those efforts have regularly been rejected by federal judges in Chicago.
In deciding the Mugnolo case, Harjani noted the tobacco companies – who he referred to as the “manufacturer defendants" – have also contended Mugnolo committed fraud when adding Walgreens as a defendant.
Those parties also separately moved for dismissal.
In Mugnolo’s motion to have the case remanded, he also requested legal fees and sanctions, arguing the companies couldn’t show fraud.
“According to Mugnolo, Walgreens enjoyed a close, multi-decade relationship with the tobacco industry," Harjani wrote. “As evidence of the strength of that relationship, Walgreens offered to use its position as a ‘health center’ to gain public support for tobacco companies amidst the controversy surrounding smoking in 1977. Walgreens gave joint presentations with tobacco companies that identified its drug stores as an ‘efficient outlet’ for targeting customers, and it received exclusive distribution rights for certain cigarette brands. Walgreens also conducted joint promotions with manufacturers, worked with tobacco advocacy groups and opposed FDA regulations over cigarettes.”
Mugnolo further cited Walgreens’ 1993 request that cigarette makers provide indemnity for future liability for selling their products and claimed that in 2008 Reynolds told the company “no tobacco product has been shown to be safe and without risks.” He said the company’s website contained information about the dangers of smoking as of 2018, cautioning it harms multiple body systems, but continues to market the products.
Harjani said the deciding factor for a remand is whether Mugnolo had a reasonable possibility to prevail on either of his claims against Walgreens. Regarding negligence, he said the companies failed to challenge the allegations in large part by going “beyond what the fraudulent joinder standard requires.” In addition to details about Walgreens’ relationship with tobacco companies, Harjani noted, he adequately alleged he bought cigarettes from Walgreens, was addicted to smoking and developed COPD “and that, had Walgreens not sold cigarettes that were defective and dangerous, he would have smoked fewer cigarettes or quit altogether. This, quite simply, is sufficient to show a reasonable chance of success on proximate cause.”
He further rejected the argument that Federal Cigarette Labeling and Advertising Act provisions preempt Mugnolo’s complaint because it rises to the level of alleging failure to warn. Harjani first noted it’s unclear how that law affects retailers. And he added the law doesn’t preempt general negligence claims, which he said Mugnolo plausibly asserted.
“The court’s conclusion should not come as a surprise to manufacturer defendants — at least eight other courts in this district have sent these exact defendants and claims back to state court because there was no fraudulent joinder,” Harjani wrote. “The facts and law in this case lead to the same conclusion.”
However, Harjani declined to impose sanctions or award Mugnolo compensation for legal expenses. He said a fee award is proper when a “party lacked an objectively reasonable basis” for taking a state complaint to federal court and, despite the spate of remand rulings in similar cases, there isn’t yet an indication “clearly established law mandates” the remand and although “defendants’ arguments failed, they had some basis in existing law.”
Finally, Harjani addressed Mugnolo’s argument that the manufacturers’ “snap removal” alone should justify sending the complaint back to state court.
“Mugnolo’s arguments are mistaken for several reasons,” Harjani wrote. “Most importantly, the Seventh Circuit has neither adopted nor rejected snap removal as a practice, so there is no ‘controlling authority’ for this court to defer to. … Even so, Manufacturer Defendants’ snap removal would require remand based on the parties’ citizenship, not on the snap removal itself. Walgreens and (Mugnolo) are both citizens of Illinois, and, without fraudulent joinder, the case lacks federal diversity jurisdiction from the start.”
Harjani also denied as moot the defendants’ motions to dismiss.
Walgreens and R.J. Reynolds are represented by attorneys from the firm of Jones Day, of Chicago.
Jonathan Bilyk contributed to this report.
