Summary
noting that Ly did not set forth a standard to answer the question
Summary of this case from Buetow v. A.L.S. Enters., Inc.Opinion
Civil File No. 99-1550 (PAM/JGL)
March 3, 2003
MEMORANDUM AND ORDER
This matter is before the Court on seven separate Motions for Summary Judgment filed by Defendants. For the reasons that follow, the Court finds that no genuine issues of material fact remain to be resolved and that Defendants are entitled to summary judgment as a matter of law.
BACKGROUND
On September 21, 1999, Plaintiff Gloria Tuttle, Trustee for the next-of-kin of William R. Tuttle, brought suit in Anoka County under the Minnesota wrongful death statute alleging negligence, strict liability, breach of warranty, common law fraud, consumer fraud, unlawful trade practices, deceptive trade practices, and false advertising by all named Defendants. Defendants include Lorillard Tobacco Company ("Lorillard"); National Tobacco Company ("National"); The Pinkerton Tobacco Company ("Pinkerton"); and the Smokeless Tobacco Council ("STC"). Defendants removed the case to this Court on October 13, 1999. Plaintiff alleges that Mr. Tuttle wrongfully died of cancer because of Defendants' negligent, misleading, and fraudulent conduct with respect to the manufacture and marketing of smokeless tobacco. The case has been before the Court twice on Motions to Dismiss. The Court initially dismissed Plaintiff's fraud claims, but allowed Plaintiff to replead those claims.
Mrs. Tuttle has remarried and is now known as Gloria Tuttle Fischer.
On December 19, 2000, Plaintiff filed her Second Amended Complaint. She raises seven claims:
Count I: negligent design, "compound[ing]," testing, inspecting, packaging, labeling, warning, distributing, marketing, examining, maintaining and preparing for use, and selling smokeless tobacco;
Count II: common law fraud in representing the health effects and addictive nature of smokeless tobacco;
Count III: Prevention of Consumer Fraud Act;
Count IV: Unlawful Trade Practices Act;
Count VI [there is no Count V]: Deceptive Trade Practices Act;
Count VII: False Advertising Act;
Count VIII: common law conspiracy.
Defendants again moved to dismiss the fraud claims. The Court denied the motion as to the fraud claims, but dismissed Plaintiff's claim under the Minnesota Deceptive Trade Practices Act, Minn. Stat. §§ 325D.43 (2d Am. Compl. Count VI). Defendants now seek summary judgment on the six remaining counts in the Second Amended Complaint.
Plaintiff filed a consolidated opposition memoranda as to three of the instant Motions. This memoranda contained 96 pages of facts and 40 pages of argument. The Local Rules allow each party only 35 pages total for summary judgment memoranda. Plaintiff did not seek leave of Court to exceed the page limits. The Court will not strike the offending memoranda, but did limit Plaintiff's presentation at the hearing on this matter because of her egregious violation of the Local Rules.
DISCUSSION
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). However, as the United States Supreme Court has stated, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at 747. A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik v. Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
A. Pinkerton's Motion
Pinkerton seeks summary judgment on all of Plaintiff's claims because Pinkerton contends that Plaintiff has failed to show that Pinkerton's product was a substantial factor in Mr. Tuttle's injury. Pinkerton manufactures Red Man chewing tobacco. It is not disputed that Mr. Tuttle's "brand" of tobacco was Beech-Nut. According to Pinkerton, because the experts agree that cancer may be caused only by extended and prolonged use of chewing tobacco and because the evidence is that Mr. Tuttle used Red Man sporadically, Red Man cannot be a substantial cause of Mr. Tuttle's cancer.
As discussed more fully below with respect to National's Motion, Beech-Nut was manufactured by Lorillard until April 1988 and by National thereafter.
Under Minnesota law, Pinkerton may be liable for Mr. Tuttle's injuries only if Plaintiff can prove that Pinkerton's product "was a substantial factor in bringing about the injury." Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980). Thus, Pinkerton may prevail on its Motion if it can show that, viewing the evidence in the light most favorable to Plaintiff, no reasonable jury would conclude that Pinkerton's product was a substantial cause of Mr. Tuttle's injuries.
The evidence is overwhelming that the brand of tobacco Mr. Tuttle preferred was Beech-Nut. Mr. Tuttle himself never mentioned Red Man. Mr. Tuttle's son testified that Mr. Tuttle occasionally chewed Red Man when he wasn't able to buy Beech-Nut, but the only specific instances he recalled were on hunting trips when Mr. Tuttle would sometimes chew his son's Red Man. Plaintiff did not ever see Mr. Tuttle chew Red Man, but claimed that he told her that he chewed Red Man when he couldn't get Beech-Nut.
Given the evidence, a jury could not conclude that Mr. Tuttle's occasional uses of Red Man were a substantial cause of the oral cancer that led to his death. At the most, the evidence shows that Mr. Tuttle used Red Man a few times over the almost 40 years that he chewed tobacco. This evidence is insufficient as a matter of law to establish that Red Man was a substantial cause in bringing about Mr. Tuttle's death. Plaintiff's claims against Pinkerton are dismissed.
B. Lorillard's Motion
Lorillard separately seeks summary judgment on Plaintiff's common law and statutory fraud claims. According to Lorillard, the statements which form the basis for Plaintiff's fraud claims were made by STC, not Lorillard. Because Lorillard was not a member of STC it cannot be held liable based on STC's statements. Plaintiff's three-sentence response to Lorillard's Motion contends that Lorillard has conceded that STC spoke on its behalf. (Pl.'s Opp'n Mem. at 40.) The testimony cited, however, does not support Plaintiff's argument. Because the only statements that could give rise to a fraud claim against Lorillard were made by STC, and because Plaintiff has offered no evidence that STC spoke for Lorillard or that STC was Lorillard's agent for any purpose, Plaintiff's fraud claims against Lorillard fail.
C. National's Motion
National raises several grounds for dismissal of Plaintiff's claims against it. Only one of those grounds merits discussion here. National's remaining contentions are subsumed in the analysis of the other Motion discussed below.
As with Pinkerton's Motion, National contends that summary judgment is appropriate because Plaintiff has failed to show that a product manufactured by National substantially caused Mr. Tuttle's cancer and subsequent death. The evidence shows that Mr. Tuttle used almost exclusively Beech-Nut brand tobacco. Beech-Nut was manufactured by Lorillard until 1988, when National purchased Lorillard's smokeless tobacco unit. Mr. Tuttle quit chewing tobacco after learning of his cancer in October 1993. According to National, the Court should find as a matter of law that Mr. Tuttle's use of National's product for five years cannot have caused the cancer that led to his death.
National relies in large part on the testimony of Plaintiff's expert witnesses. These witnesses all state that cancer strikes only long-term users of smokeless tobacco in general. One witness specifies that, in his opinion, a smokeless tobacco user would have to chew tobacco for more than 20 years before mouth cancer would occur. National asserts that Plaintiff's evidence therefore is insufficient to establish that National's product caused Mr. Tuttle's cancer.
Unlike the situation described above with reference to Pinkerton's Motion, here there is ample evidence that Mr. Tuttle used National's product on an ongoing basis. The Court cannot say as a matter of law that using chewing tobacco for five years is not a substantial cause of mouth cancer. Plaintiff's expert witnesses testified that long-term use of smokeless tobacco may lead to mouth cancer. None of these experts stated that five years of chewing tobacco would be insufficient in every case to cause cancer. National's arguments go to its fault in Mr. Tuttle's death compared to the other Defendants' fault. It has not shown that it is entitled to summary judgment on this point.
D. STC's Motion
STC contends that Plaintiff's negligence claim against STC fails because there is no evidence that STC assumed a duty to Mr. Tuttle. There is no dispute that the existence of a duty is an essential element of a negligence claim. Tuttle v. Lorillard Tobacco Co., 118 F. Supp.2d 954, 964 (D.Minn. 2000) ("Tuttle I"). Plaintiff argues that STC voluntarily assumed a duty to speak to the purchasing public about the health effects of smokeless tobacco, and it is the alleged breach of this duty that gives rise to her negligence claim. However, Plaintiff cites no cases in support of her theory that a trade association that does not manufacture a product or promulgate standards for the use of a product has assumed a duty with regard to statements about that product. It appears that Plaintiff bases the existence of the required duty on her fraud claims. (See Pl.'s Mem. in Opp'n at 13.) In other words, because STC could be liable for fraud if it made material misrepresentations, it has some "duty" not to make those misrepresentations. She offers no support for this theory.
As noted in Tuttle I, the usual rule is that:
[t]rade associations are not ordinarily found to have assumed a duty to the purchasing public unless they have some measure of control over their manufacturing members or some direct involvement in the development or marketing the product. See Evenson v. Osmose Wood Preserving, Inc., 760 F. Supp. 1345, 1349 (S.D.Ind. 1990) (holding that the defendant trade association, which did not manufacture, sell, distribute, design, test, conduct safety research on, or set standards for the product, could not be held to have owed a duty to the plaintiff); Harmon v. National Automotive Parts Ass'n, 720 F. Supp. 79, 82 (N.D.Miss. 1989) (finding that absent direct involvement in the development and marketing of a product, a trade association does not have a duty to the purchasers of that product).
Tuttle I, 118 F. Supp.2d at 964. Plaintiff does not argue that, under the rule set forth in Tuttle I, STC can be liable in negligence. Rather, she contends that the sheer volume of alleged misstatements about the health effects of smokeless tobacco made by STC itself gives rise to a duty. Absent proof that STC was responsible for manufacturing, selling, designing, setting standards, or the like, however, regardless of the number of alleged misstatements, STC did not have a duty to Mr. Tuttle. Without such a duty, STC cannot be liable to Plaintiff in negligence. Plaintiff's negligence claim against STC fails.
STC also contends that summary judgment is appropriate on Plaintiff's statutory fraud claims. As discussed below, however, the Court determines that these claims fail and thus will not address this portion of STC's Motion.
E. Statute of Limitations
All Defendants seek summary judgment on Plaintiff's claims for negligence, common-law fraud, and conspiracy (2d Am. Compl. Counts I, II, VII). There is no dispute that a six-year statute of limitations applies to these claims. Defendants contend that Mr. Tuttle knew of his injury prior to September 22, 1993, or more than six years before this lawsuit was filed, and thus that these claims are untimely.
Plaintiff concedes to the dismissal of her negligent manufacture claim, including her claims of failure to properly package, maintain, prepare for use, and compound.
Mr. Tuttle was diagnosed with cancer on October 11, 1993. He first visited his physician on October 6, 1993, complaining of a lump the size of a golf ball in his cheek, protruding into his mouth. According to Defendants, Mr. Tuttle told his physicians that he had noticed the growth in his mouth at least five months before he sought medical assistance.
Indeed, one physician stated that it would have been impossible for Mr. Tuttle not to have noticed the tumor many months prior to the cancer diagnosis. Mr. Tuttle's treating physician believed that the tumor first manifested itself in early 1993.
Plaintiff argues that there is little evidence that Mr. Tuttle knew that there was anything wrong with him until immediately before he sought treatment. According to Plaintiff, unless a jury could conclude as a matter of law that Mr. Tuttle knew he had cancer prior to September 1993, there is no statute of limitations problem with the claims.
The triggering event for statute of limitations purposes is not necessarily the cancer diagnosis. See Klempka v. G.D. Searle Co., 963 F.2d 168, 170 (8th Cir. 1992). The statute of limitations begins to run when a plaintiff is aware of an injury and the likely cause of that injury. Id. The mere fact that Tuttle may not have known earlier than October 1993 that he had cancer is not determinative. What matters is whether he knew that something was wrong, i.e., there was a "cognizable physical manifestation of the disease or injury," and that smokeless tobacco was the likely culprit. Hildebrandt v. Allied Corp., 839 F.2d 396, 398 (8th Cir. 1987) (citing Karjala v. Johns-Manville Prods. Corp., 523 F.2d 155, 160-61 (8th Cir. 1975)).
There is little dispute that, if Mr. Tuttle was aware that something was wrong in his mouth, he was also aware that chewing tobacco was the likely cause. Since 1987, the Food Drug Administration ("FDA") has required smokeless tobacco manufacturers to include warnings on all packages of smokeless tobacco. These warnings included statements that smokeless tobacco may cause mouth cancer. The difficulty lies in determining what Mr. Tuttle knew and when he knew it.
Because Mr. Tuttle is deceased, he cannot testify as to his knowledge. Thus, the Court must rely on the contemporaneous observations of Mr. Tuttle's physicians and others who knew Mr. Tuttle. The evidence compels the conclusion that Mr. Tuttle was aware of the lump in his cheek before September 21, 1993. Thus, Plaintiff's negligence, common law fraud, and conspiracy claims are not timely and must be dismissed.
F. Minnesota Consumer Protection Statutes
Defendants seek summary judgment on Plaintiffs' claims under the Minnesota Prevention of Consumer Fraud Act, Minn. Stat. § 325F.69 (2d Am. Compl. Count III), Unlawful Trade Practices Act, Minn. Stat. § 325D.13 (Count IV), and False Advertising Act, Minn. Stat. § 325F.67 (Count VII). According to Defendants, Plaintiff has not brought this lawsuit to benefit the public and these claims must be dismissed.
Neither the Consumer Fraud Act nor the False Advertising Act provides for a private right of action. Thus, an individual may bring claims under these statutes only through the Private Attorney General Statute. Minn. Stat. § 8.31. The Minnesota Supreme Court recently addressed the requirements for an individual bringing claims under the Private Attorney General Statute. Ly v. Nystrom, 615 N.W.2d 302 (Minn. 2000). In Ly, the court held that the Private Attorney General Statute applies only to those who can demonstrate that their claims benefit the public. Id. at 314. As the court stated, "the legislature could not have intended to sweep every private dispute based on fraud, and falling within the Consumer Fraud Act, into a statute where attorney fees and additional costs and expenses would be awarded." Id. The Ly court did not, however, set forth any standard for determining when a cause of action benefits the public. See Nancy E. Brasel, Ad Hoc Deceptions in Private Disputes: When Does a Private Plaintiff Confer a Public Benefit Under Minnesota's Private Attorney General Statute?, 29 Wm. Mitchell L. Rev. 321, 329 (2002).
Two cases from this District have addressed the impact of Ly. In both of those cases, the court held that the plaintiff could not maintain claims under the Consumer Fraud Act or False Advertising Act because the cause of action did not benefit the public. Pecarina v. Tokai Corp., No. 01-1655, 2002 WL 1023153 (D.Minn. May 20, 2002) (Montgomery, J.); Behrens v. United Vaccines, Inc., 228 F. Supp.2d 965 (D.Minn. 2002) (Erickson, M.J.). In Pecarina, Judge Montgomery noted that the Ly court's holding rested on the determination that the Private Attorney General Statute could not confer a broader cause of action than that given to the attorney general. Because the role of the attorney general in enforcing consumer protection laws is limited to situations where the interests of the state require bringing suit, an individual suing under the Private Attorney General statute must likewise show that the lawsuit is in the interest of the public. Pecarina, 2002 WL 1023153, at *5 (citing Ly, 615 N.W.2d at 313). Although the claims in Pecarina centered on an allegedly defective lighter that was mass-produced and mass-marketed, the lawsuit was a personal injury lawsuit and the plaintiffs sought only compensation for medical expenses, pain and suffering, and similar damages. Judge Montgomery found that the "such damages do not benefit the public" and that therefore the lawsuit conferred no benefit on the public. Id. She thus dismissed the Consumer Fraud Act and False Advertising Act Claims. Id.
As in Pecarina, Plaintiff's damages here are limited to those under the Wrongful Death Act, namely damages "in reference to the pecuniary loss resulting from the death." Minn. Stat. § 573.02, subd. 1. Moreover, the statute specifies that any damages recovered "shall be for the exclusive benefit of the surviving spouse and next of kin." Id. Plaintiff argues that the lawsuit will benefit the public because the allegedly deceitful and fraudulent misrepresentations about smokeless tobacco were made to every Minnesota consumer of smokeless tobacco, not just to Mr. Tuttle. (Pl.'s Opp'n Mem. at 6.) Moreover, she contends that a finding that a lawsuit seeking only compensatory damages is by definition not a benefit to the public will preclude any plaintiff in a wrongful death action from attempting enforcement of Minnesota's consumer protection statutes. According to Plaintiff, because a wrongful death plaintiff may only seek compensatory damages and may not request injunctive or other forms of relief, under Pecarina's reasoning, such lawsuits can never be for the public benefit. See Minn. Stat. § 573.02.
Plaintiff's contention that her lawsuit has a public benefit because of the mass marketing of Defendants' smokeless tobacco is unavailing. There is no dispute that the statements about which Plaintiff complains were made at the latest in the 1970s and 1980s. In 1987, as noted above, the FDA required Defendants to include warning on all packages of smokeless tobacco and, since that time, packages have stated, among other things, that using smokeless tobacco may cause mouth cancer. To the extent that Plaintiff wants to warn the public of the dangers of smokeless tobacco, the FDA-required warnings already accomplish that purpose. As Magistrate Judge Erickson noted, this sort of "metaphysical potential" of benefit to the public from success in a consumer protection action is not sufficient to satisfy Ly's public benefit requirement. Behrens, 228 F. Supp.2d at 971.
The Court is similarly unpersuaded by Plaintiff's argument that, under Defendants' reading of Ly and Pecarina, no wrongful death plaintiff will be able to enforce the consumer protection laws. The Ly court made clear that the legislature only intended to create private consumer protection actions that benefitted the public. A finding that wrongful death actions cannot confer that public benefit does not eviscerate the consumer protection laws, nor does it deprive Plaintiff of any available cause of action. Minnesota's consumer protection statutes may be enforced in any case seeking not only personal benefit, but also benefit to the public. Plaintiff has other causes of action to recover the compensation she seeks for the alleged wrongful death of her husband. In this case, as in Pecarina, there is no public benefit and Plaintiff's claims under the Consumer Fraud Act and False Advertising Act must be dismissed. At the hearing, Plaintiff presented the Court with a recent decision of the Minnesota Supreme Court, Collins v. Minnesota School of Business, Inc., 655 N.W.2d 320 (Minn. 2003), that she contends shows that Pecarina was wrongly decided. According to Plaintiff, Collins stands for the proposition that claims brought under the consumer protection statutes against misrepresentations made to the public at large are by definition for the benefit of the public. The holding of Collins is not as broad as Plaintiff contends, nor is the decision particularly on point. Collins involved a lawsuit by students against misrepresentations made by their school in advertising to the public. That lawsuit was not brought under the wrongful death or other limiting statute. Unlike in Collins, the authority that gives rise to Plaintiff's lawsuit in this case specifically provides that any recovery is for the exclusive benefit of the surviving spouse and heirs. Minn. Stat. § 573.02, subd. 1. Thus, although there is no doubt that the misrepresentations at issue here were made to the public at large, that fact is beside the point.
Plaintiff's claims are not for the public benefit because the Minnesota legislature has determined that wrongful death claims are not for the public benefit. Under the holding of Ly, Plaintiff's Consumer Fraud Act and False Advertising Act claims fail.
In addition, Plaintiff's claim under the Unlawful Trade Practices Act fails because it is not timely. The Court previously noted that Plaintiff's consumer protection claims depend on the purchase of the product within the limitations period. (July 5, 2001, Order at 8.) In that Order, the Court refused to dismiss Plaintiff's consumer protection claims because the parties had not yet engaged in discovery on the issue of Mr. Tuttle's tobacco purchases. However, even assuming that Plaintiff can prove that Mr. Tuttle purchased smokeless tobacco between September 21, 1993, and October 11, 1993, she has no cause of action under the Unlawful Trade Practices Act unless those purchases were a substantial cause of Mr. Tuttle's injury. See Minn. Stat. § 325D.15 ("Any person damaged . . . by reason of a violation of [the Unlawful Trade Practices Act] shall be entitled to sue. . . ."); Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980) (requiring that the alleged tort be a "substantial cause" in bringing about the injury). Regardless of whether "Defendants' allegedly misleading statements could have contributed to [Mr.] Tuttle's decision to continue purchasing and using smokeless tobacco within [the limitations] period," (July 5, 2001, Order at 8), those statements are not actionable unless the purchases within the limitations period caused Mr. Tuttle's injury. As discussed above, the evidence shows that Mr. Tuttle had a cognizable manifestation of his injury long before Sept. 21, 1993. Any purchases of smokeless tobacco after that time did not substantially cause his injury. Plaintiff's Unlawful Trade Practices Act claim is untimely.
G. Common Law Fraud and Conspiracy
Although the Court has determined that Plaintiff's common law fraud and conspiracy claims are untimely, for the sake of comprehensiveness the Court will address Defendants' alternative contention that those claims fail on their merits. In particular, Defendants assert that Plaintiff has failed to show that Mr. Tuttle heard any of the allegedly fraudulent statements or that he acted in reliance on those statements. If Plaintiff's common law fraud claim is dismissed, Defendants assert that her conspiracy claim also fails.
In the most recent Order in this case, the Court noted that Plaintiff's fraud claim would depend on her ability to prove that Mr. Tuttle relied on any of the allegedly fraudulent statements made by Defendants. Despite Plaintiff's recent affidavit, the "evidence" to which Plaintiff points does not support her burden to establish the reliance required by Minnesota law. In order to show reliance, Plaintiff must show "that [Mr.] Tuttle was aware of the allegedly fraudulent statements and that he relied on those statements to his detriment by continuing to use smokeless tobacco." (July 5, 2001, Order at 5.) In Plaintiff's deposition, she testified that she did not discuss any statements about the health risks of smokeless tobacco with Mr. Tuttle. She now claims that the Court should infer that Mr. Tuttle saw or read Defendants' statements about the health risks of smokeless tobacco because: (1) Mr. Tuttle tried to get Plaintiff to stop smoking based on information about the health risks of smoking; and (2) Mr. Tuttle continued to use smokeless tobacco. This inferential leap is too great.
In addition, Plaintiff now claims that Mr. Tuttle wanted to spread the word about smokeless tobacco because he was "deceived by the tobacco companies." (Pl. Aff. ¶ 6.) The implication of this statement is that Mr. Tuttle read or heard Defendants' alleged misrepresentations and continued to use smokeless tobacco in reliance on those misrepresentations. There is no evidence of this in the record aside from Plaintiff's affidavit statement quoted above. While the Court must view the evidence in the light most favorable to Plaintiff, it is not required to adopt Plaintiff's characterizations of that evidence nor is it required to make illogical inferences from the evidence. The record is devoid of evidence of reliance. Plaintiff's common law fraud claim fails.
Plaintiff's fraud claim is the only intentional tort on which her claim of conspiracy can rest. Because the fraud claim fails, the conspiracy claim likewise fails. Senart v. Mobay Chem. Corp., 597 F. Supp. 502, 505 (D.Minn. 1984) (MacLaughlin, J.) (noting that civil conspiracy cannot stand alone but must be based on criminal act or intentional tort).
CONCLUSION
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 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.
Accordingly, for the foregoing reasons, and upon all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant The Pinkerton Tobacco Company's Motion for Summary Judgment (Clerk Doc. No. 147) is GRANTED;
2. Defendant Lorillard Tobacco Company's Motion for Summary Judgment on Plaintiff's Common Law Fraud and Statutory Fraud Claims (Clerk Doc. No. 154) is GRANTED; and
3. Defendant National Tobacco Company's Motion for Summary Judgment (Clerk Doc. No. 156) is DENIED AS MOOT.
4. Defendant Smokeless Tobacco Council's Motion for Summary Judgment on Plaintiff's Negligence and Statutory Fraud Claims (Clerk Doc. No. 152) is GRANTED in part and DENIED AS MOOT in part;
5. All Defendants' Motion for Summary Judgment on Counts I, II, and VIII Based on Statute of Limitations (Clerk Doc. No. 143) is GRANTED;
6. All Defendants' Motion for Summary Judgment on Plaintiffs' Claims under Minnesota Consumer Protection Statutes (Clerk Doc. No. 145) is GRANTED;
7. All Defendants' Motion for Summary Judgment on Plaintiff's Common Law Fraud and Conspiracy Claims (Clerk Doc. No. 149) is GRANTED;
LET JUDGMENT BE ENTERED ACCORDINGLY.