Walgreens
CHICAGO — A couple will be allowed to continue suing tobacco companies and Walgreens in Cook County court after a federal judge found they did not fraudulently add Walgreens as a defendant in the lawsuit merely as a legal tactic to keep their lawsuit out of federal court and in Cook County's famously plaintiff-friendly courtrooms.
U.S. District Judge Sara Ellis sided with Deborah and John Sarno against Walgreens in the dispute over the Sarnos’ decision to add Walgreens as a defendant in the Sarnos' lawsuit aimed primarily at cigarette makers Philip Morris, RJ Reynolds Tobacco and the Liggett Group.
Deborah Sarno said she started smoking Marlboro cigarettes in the 1970s, and although she quit in 2014, she now has lung cancer that metastasized in her brain.
So, the Sarnos are demanding the tobacco companies pay for allegedly misleading her into smoking. The lawsuit is similar to many thousands of others that have been lodged against the tobacco companies in the past four decades.
However, the couple also added a state law negligence claim in their lawsuit against Walgreens, alleging the pharmacy retailer “had superior knowledge to the public about the unreasonably dangerous nature of cigarette smoke."
“Specifically, Walgreens had a close relationship with the tobacco industry, reaching out in 1977 to offer its support for the tobacco industry with respect to the health controversy surrounding tobacco products," Ellis wrote in her opinion.
The Sarnos also noted that in 1993, Walgreens asked cigarette makers to provide indemnification for future lawsuits about defective products; said the chain continued selling cigarettes after other nationwide retailers stopped carrying such products; and, Ellis wrote, chose “to sell cigarettes alongside smoking cessation devices to maximize profits.”
If the claims against Walgreens aren’t viable, Ellis explained, then the other defendants would be able to remove the complaint to federal court.
Businesses sued in Illinois state courts, like the Cook County Circuit Court, often seek to have the case heard in federal court instead. Illinois state courts, and Cook County, in particular, are perennially regarded as some of the most plaintiff-friendly jurisdictions in the U.S.
Further, Illinois state courts operate under different court rules, such as the standards governing which evidence and testimony are considered admissible in court. Those standards and rules are generally considered more favorable to plaintiffs than those used in federal courts, enabling plaintiffs to typically extract bigger payouts from defendants.
In her ruling, however, Ellis noted at least seven Illinois federal judges have already “declined to find that a plaintiff has no chance of succeeding on a negligence claim stemming from cigarette sales against Walgreens,” while several state court judges “have allowed similar negligence claims against Walgreens to proceed past the motion to dismiss stage, suggesting that a claim against Walgreens does have some reasonable probability of success here too.”
Still, she addressed the specific arguments in the Sarno case, such as the contention Walgreens didn’t design or make the Marlboros in question. That is irrelevant, Ellis said, because the liability theory is premised on the allegations Walgreens had a duty to not sell unsafe products. Even if the companies might prevail at trial, they can’t prove the Sarnos fraudulently sued Walgreens when there is a reasonable argument on either side of the underlying state law.
“Along these same lines, the court does not find the manufacturer defendants’ arguments about proximate cause persuasive,” Ellis wrote. “Proximate cause typically is a question for the jury.”
Further, Ellis wrote, it’s likely a jury could agree with the Sarnos' claim she wouldn’t have bought the cigarettes if retailers like Walgreens had provided adequate safety warnings.
Finally, she rejected an argument the Sarnos’ claim isn’t allowed because the Federal Cigarette Labeling and Advertising Act preempts a negligence claim. The complaint doesn’t allege Walgreens failed to warn based on advertising or promotions, Ellis explained, but specifically claims “Walgreens breached an independent duty by continuing to sell cigarettes despite knowing of the harmful consequences that accompanied their sale.”
Because Walgreens is a proper defendant, Ellis concluded, she doesn’t have diversity jurisdiction over the case, so it has to go back to state court. However, she refused to grant the Sarnos’ request to be awarded legal fees and to have sanctions imposed on the defendants’ attorneys. She said the Sarnos didn’t serve the defendants with a “safe harbor letter” — as is required under federal court rules so defendants have a chance to correct alleged filing errors — nor was it proper to include a sanctions request with a remand motion. Further, she said, the defendants weren’t objectively unreasonable in attempting to have the complaint removed to federal court.
Ellis also denied as moot the defendants’ motion to dismiss the claim outright.
The Sarnos are represented in the action by attorneys with the firm of Meyers & Flowers, of St. Charles and Chicago; and The Alvarez Law Firm, of Coral Gables, Florida.
R.J. Reynolds was represented by attorneys with the firm of Jones Day, of Chicago; Philip Morris USA, by attorneys with the firm of Arnold & Porter Kaye Scholer, of Washington, D.C.; and Liggett Group, by the firm of Scharf Banks Marmor, of Chicago.
Walgreens was also represented by attorneys from Jones Day, of Chicago.
Jonathan Bilyk contributed to this report.
