Benjamin G. Francis

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This article is part of the Tobacco portal on Sourcewatch funded from 2006 - 2009 by the American Legacy Foundation.

The estate of Benjamin G. Francis, and his survivor, Dolores Hunter (his common law wife), are plaintiffs in a 2009 wrongful death suit against Philip Morris and its parent company, Altria Group.

Background of wrongful death lawsuit

Alaska resident and citizen Benjamin Francis died at the age of 52 from lung cancer. Dolores Hunter, as Francis' survivor, brought a wrongful death suit on behalf of his estate in Alaska state court against Philip Morris USA, which is based in Virginia and produces, markets, and distributes cigarettes. The suit also named the Altria Group, the parent company of Philip Morris USA; and the Alaska Commercial Company ("ACC"), an Alaska corporation that sells merchandise, including cigarettes manufactured by Philip Morris, in stores throughout Alaska.

Hunter alleged that Francis' death resulted from defective products sold by PM and the Alaska Commercial Company. Hunter's complaint included claims of fraud and misrepresentation, products liability, failure to warn, deceptive advertising, breach of warranty, conspiracy, and defectiveness due to addiction.

Philip Morris and Altria removed the case to the United States District Court for the District of Alaska, where they argued that Hunter's state law said claims against ACC were preempted by congressional policy not to remove tobacco from the market and that ACC therefore was fraudulently joined, to the suit. Altria then filed a motion to dismiss Hunter's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Hunter filed a motion to remand, asserting that her complaint adequately pleaded a strict products liability claim against ACC under Alaska state law. She argued that ACC was not fraudulently joined and, consequently, that total diversity between plaintiff and all defendants did not exist.

The court agreed Altria that Hunter's state product liability claim against ACC was preempted because it would result in an effective ban on cigarettes, which was against congressional policy. The district court denied Hunter's motion to remand and found that ACC was fraudulently joined.

The district court then granted the a motion to dismiss, reasoning that Hunter had failed to identify the specific products Francis used and the alleged defects in the products, and that any product liability claims were preempted by the congressional intent not to ban the sale of cigarettes. The district court entered final judgment in favor of Appellees. Hunter appealed.

Hunter contended that the district court erred in denying her motion to remand the case to state court and that the court lacked jurisdiction to grant the Altria defendants' motion to dismiss.

On September 29, 2009, the Ninth Circuit Court of Appeals agreed, and reinstated the wrongful death suit against Philip Morris and Altria.[1]