Shaw v. Brown & Williamson Tobacco Corp.

Presently pending before the Court are a Motion to Dismiss (Paper 4) and a Motion to Dismiss Counts IX and X of Amended Complaint (Paper 12), both filed on behalf of defendant Brown & Williamson Tobacco Corporation (“Brown & Williamson”). On Octo *542 ber 31, 1995, plaintiffs Robert T. Shaw (“Shaw”) and Beatrice Shaw, who are husband and wife, filed a products liability lawsuit against Brown & Williamson. Their eight-count complaint alleges battery (Count I); products liability/defective design (Count II); products liability/defective design inherently unreasonable risk (Count III); products hability/manufacturing defect (Count IV); strict liability/abnormally dangerous activity (Count V); negligent misrepresentation (Count VI); breach of warranty (Count VII); and loss of consortium (Count VIII). Plaintiffs had filed an identical action in the Circuit Court for Allegany County, Maryland on October 30, 1995, the day before filing the instant action. On February 20, 1996, plaintiffs filed an amended complaint, alleging the additional counts of negligence (Count IX) and intentional misrepresentation (Count X).

In these motions, defendant contends that dismissal is appropriate as to plaintiffs’ claims for battery, manufacturing misrepresentation, breach of warranty, negligent failure to warn, negligent manufacture, and intentional misrepresentation. Defendant asserts that the battery claim is time barred, and further maintains that plaintiffs cannot establish that defendant had the requisite intent to commit a battery. Defendant submits that plaintiffs’ manufacturing defect fails to state a claim upon which relief can be granted in strict liability or negligence, because it contains no more than a “bald statement” of a manufacturing defect. As to plaintiffs’ abnormally dangerous activity claim, defendant asserts that the design, manufacture, marketing, and distribution of cigarettes is not an abnormally dangerous activity under Maryland law. Alternatively, defendant contends that this claim is defective because plaintiffs have failed to allege that the manufacture or- marketing of cigarettes is abnormally dangerous in relation to where it occurs and because defendant did not own or control the land where Shaw was injured. Defendant maintains that plaintiffs’ breach of implied warranty claim is statutorily time-barred.

Defendant submits that plaintiffs’ claims for negligent misrepresentation, negligent failure to warn, and intentional misrepresentation are preempted by the Public Health Cigarette Smoking Act of 1969, Pub.L. 91-222 (1970), as amended, 15 U.S.C. §§ 1331-1340 (hereinafter the “1969 Act”). Further, defendant asserts that the negligent misrepresentation claim must fail because plaintiffs have not alleged that defendant made an affirmative misrepresentation as required under Maryland law, and that the intentional misrepresentation claim both fails to state the circumstances of the alleged fraud with particularity as required by Rule 9(b) of the Federal Rules of Civil Procedure, and fails to state a claim for intentional misrepresentation either by affirmative statement or by concealment.

Opposing the motions, plaintiffs maintain that they have stated claims upon which relief can be granted as to each count in their complaint. The Court will address plaintiffs’ specific contentions below. 1

I.

Plaintiffs allege the following facts. Robert T. Shaw was employed as a long distance truck driver with the Kelly-Springfield Tire Company from 1968 to 1991. From May 1, 1973 to November 14, 1984, Shaw routinely traveled in an enclosed truck with a coworker who smoked Raleigh cigarettes, which are manufactured, produced, and distributed by Brown & Williamson. Shaw did not smoke cigarettes at any time during his employment with Kelly-Springfield. Nevertheless, Shaw was diagnosed with lung cancer in 1992. Shaw and his wife allege that he developed lung cancer as a result of his exposure to second-hand or environmental tobacco smoke (hereinafter “ETS”) emitted from the Raleigh cigarettes.

II.

Since the Court has not considered any materials outside of the pleadings, this motion will be addressed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The rule provides for dismissal of a complaint for *543 failure to state a claim upon which relief can be granted.

Due to the severe impact of dismissals, the Court will grant Rule 12(b)(6) motions “only in very limited circumstances.” Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989); De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir.1991). The Fourth Circuit has long held “that a motion to dismiss for failure to state a claim for relief should not be granted unless it appears to a certainty that the plaintiff would he entitled to no relief under any state of facts which could be proved in support of his claim.” Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969) (citation omitted); Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 n. 4 (4th Cir.1993), cert. denied sub nom., American Home Products Corp. v. Mylan Lab., Inc., 510 U.S. 1197, 114 S.Ct. 1307, 127 L.Ed.2d 658 (1994); Brooks v. City of Winston-Salem, North Carolina, 85 F.3d 178, 182 (4th Cir.1996). In reviewing the pleadings, the Court must accept all of the plaintiffs well-pleaded allegations as true, and must construe them in the light most favorable to the plaintiff. Custer v. Sweeney, 89 F.3d 1156, 1163 (4th Cir.1996) (citing Mylan Lab., Inc., 7 F.3d at 1134).

III.

Preemption

The Court will first consider defendant’s contention that plaintiffs’ claims for negligent misrepresentation, negligent failure to warn, and intentional misrepresentation are preempted by the 1969 Act.

The Supremacy Clause provides that the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Thus, state law that conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981) (citing M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819)). A preemption analysis “start[s] with the assumption that the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Accordingly, “‘the purpose of Congress is the ultimate touchstone’ ” of a preemption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks Intern. Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222-23, 11 L.Ed.2d 179 (1963)).

The Supreme Court has explained that congressional intent “may be ‘explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)). “In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law, or if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.” Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (internal quotations and citations omitted).

On the other hand, when Congress enacts a provision defining the preemptive reach of a statute, “ ‘there is no need to infer congressional intent to pre-empt state laws from the substantive provisions’ of the legislation,” id. at 517, 112 S.Ct. at 2618 (quoting California Federal Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987)), so long as the “provision provides a ‘reliable indicium of congressional intent with respect to state authority.’ ” Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618 (quoting Malone, 435 U.S. at 505, 98 S.Ct. at 1190). Matters beyond the preemptive reach of such a provision are not preempted. Cipollone, 505 U.S. at 517, 112 S.Ct. at 2617-18. Thus, when an act contains a section that explicitly addresses preemption, the Court’s task is to “identify the domain expressly preempted by” the section. Id.

In 1964, an advisory committee convened by the Surgeon General issued a report stating that “[c]igarette smoking is a health hazard of sufficient importance in the United *544 States to warrant appropriate remedial action.” H.R.Rep. 98-805, 98th Cong., 2d. Sess. 7 (May 23, 1984), 1984 U.S.C.C.A.N. 3718, 3720. In response to this report and to an effort by the Federal Trade Commission (FTC) to regulate the advertising and labeling of cigarettes, Congress enacted the Federal Cigarette Labeling and Advertising Act in July 1965. Pub.L. 89-92 (1965), as amended, 15 U.S.C. §§ 1331-1340 (hereinafter the “1965 Act”). Section 2 of the 1965 Act established the policy of Congress and the purpose of the Act “with respect to any relationship between smoking and health” and declared the competing dual purposes that have, in some form, remained a part of the labeling act for the past thirty-two years: (1) adequately informing the public that cigarette smoking may be hazardous to your health; and (2) protecting the national economy from the burden imposed by diverse, nonuniform and confusing cigarette labeling and advertising regulations. Pub.L. 89-92, § 2 (1965). In accordance with its first purpose, the 1965 Act required that each cigarette package be labeled with the warning statement “Caution: Cigarette Smoking May Be Hazardous to Your Health.” Id. at § 4. The 1965 Act recognized its second purpose by including a preemption clause: “No statement relating to smoking and health, other than the statement required by section 4 of this Act, shall be required on any cigarette package.” Id. at § 5.

The 1969 Act strengthened the warning by changing the required label to “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health.” In addition, Congress changed the statute’s preemption clause to its present form: “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.” 15 U.S.C. § 1334(b). The 1969 Act also prohibited cigarette advertising on television and radio.

The labeling act was again amended in 1984 with the enactment of the Comprehensive Smoking Education Act, Pub.L. 98-474 (1984), codified at 15 U.S.C. §§ 1331-1341 (hereinafter the “1984 Act”). The 1984 Act extended the warning requirement to cigarette advertisements, and required a rotation of the following four warning messages:

Surgeon General’s Warning: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.

Surgeon General’s Warning: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.

Surgeon General’s Warning: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.

Surgeon General’s Warning: Cigarette Smoke Contains Carbon Monoxide.

15 U.S.C. § 1333.

In Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), the Supreme Court considered the preemptive scope of the 1965 and 1969 Acts. There, the son of a woman who died of lung cancer after smoking for 42 years maintained an action on his mother’s behalf against several cigarette manufacturers, alleging breach of express warranty, failure to warn, fraudulent misrepresentation, and conspiracy. A plurality of the Court found that the labeling acts preempted the claims based on a failure to warn.

Writing for the plurality, Justice Stevens began his analysis by noting that the preemptive reach of the 1965 and 1969 Acts “is governed entirely by the express language in § 5 of each Act.” Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618. He thus set out to “identify the domain expressly preempted by ... those sections.” Id. Justice Stevens explained that the Court “must fairly but — in light of the strong presumption against pre-emption — narrowly construe the precise language of § 5(b) and ... must look to each of petitioner’s common law claims to determine whether it is in fact pre-empted.” Id. at 523, 112 S.Ct. at 2621. Thus, in considering whether a common law claim is preempted, courts must determine

whether the legal duty that is the predicate of the common law damage action constitutes a “requirement or prohibition based on smoking and health ... imposed *545 under State law with respect to .... advertising or promotion,” giving that clause a fair but narrow reading.... [E]ach phrase within that clause limits the universe of common law claims pre-empted by the statute.

Id. at 524, 112 S.Ct. at 2621-22.

In applying these principles to the case at bar, the central inquiry is whether the failure to warn claims of a non-smoker constitute claims “based on smoking and health,” giving that provision a fair but narrow reading. If the Court finds that such claims are “based on smoking and health,” then they are preempted. If, on the other hand, the Court determines that such claims are not “based on smoking and health,” then they are impliedly not preempted.

Plaintiffs argue that § 5 is addressed only to consumers of cigarettes, and that it therefore does not preempt the claims of persons affected by second-hand smoke. In other words, plaintiffs read the phrase “based on smoking and health” to mean “based on one’s own smoking and one’s own health,” rather than to mean “based on one’s own or another’s smoking and one’s own or another’s health.” The Court finds that either of these meanings can reasonably and plausibly attach to the language of the provision. Thus, the Court concludes that the statutory language of this provision is ambiguous on the point at issue and does not provide a “reliable indicium of congressional intent.” Ci pollone, 505 U.S. at 517, 112 S.Ct. at 2618. In an effort to ascertain congressional intent as to the meaning of this provision, the Court will now turn to other sources, such as additional language from the Labeling Acts and the legislative history of the Acts.

The language of the 1984 Act lends support to plaintiffs’ position, stating that the purpose of the Act is “to provide a new strategy for making Americans more aware of any adverse health effects of smoking, to assure the timely and widespread dissemination of research findings and to enable individuals to make informed decisions about smoking.” Pub.L. 98-474, 98th Cong. § 2 (1984). In addition, the House Report that accompanied the 1984 Act lists seven findings by the Surgeon General regarding the adverse health effects of cigarette smoking:

1. Cigarette smoking is the largest preventable cause of illness and premature death in the United States and is associated with the unnecessary deaths of over three hundred thousand Americans annually.

2. Cigarette smoking in the United States is a major cause of cancer of the lung, larynx, oral cavity, and esophagus and is a contributory factor in cancer of the urinary bladder, kidney and pancreas.

3. Cigarette smoking is a major cause of chronic bronchitis and emphysema in the United States.

4. Cardiovascular disease accounts for nearly one-half of the deaths in the United States and it is estimated that one-third of the deaths of the deaths attributed to cardiovascular disease are associated with smoking.

5. Pregnant women who smoke have an elevated risk of miscarriages, stillbirths, and premature births, and giving birth to infants with low birth weight.

6. Quitting or never starting cigarette smoking will reduce an individual’s risk of illness or premature death.

7. Federal, State and private initiatives should be encouraged to convey to the American people information on any adverse health effects of smoking.

H.R.Rep. No. 98-805, at 13-14 (1984), 1984 U.S.C.C.A.N. at 3726, 3727. While this list is replete with references to “smoking” and to “cigarette smoking,” and also--includes a reference to “women who smoke,” it does not include any language broad enough to warn of the dangers associated with the inhalation of ETS. Moreover, the sixth finding encompasses no more than that individuals quit or never start smoking. Thus, this list of risks clearly does not indicate an intent to dissuade the public from breathing second-hand smoke. Indeed, it becomes apparent upon reading the list that the references to “smoking” allude only to one’s own smoking, not to the smoking of others.

Plaintiffs’ position also finds support in the language of the required warnings. The *546 1969 Act referred specifically to the Surgeon General’s determination that “cigarette smoking is dangerous to your health” (emphasis added). Similarly, the four rotating messages required by the 1984 Act include warnings about the specific dangers of “Smoking” and of “Smoking By Pregnant Women,” and a notice about the benefits of “Quitting Smoking.” None of these warnings refer in any way to the risks associated with ETS. Further, the legislative histories of the Acts support plaintiffs’ position that a nonsmoker’s failure to warn claims are not preempted by § 5. The House Report for the 1965 Act states that “[t]he principal purpose of the bill is to provide adequate warning to the public of the potential hazards of cigarette smoking.” H.R.Rep. No. 89^149 (1965), reprinted in 1965 U.S.C.C.A.N. 2350, 2350 (emphasis added). The Senate Report for the 1969 Act compares the life expectancies of smokers and nonsmokers:

The danger of normal smoking is revealed quite clearly in the 1968 report of the Secretary of Health, Education, and Welfare. That report states, “That life expectancy for a two-paek-a-day, or more, smoker at age 25 is 8.3 years less than that for the corresponding nonsmoker. Even ‘light’ smokers, those who smoke less than 10 cigarettes per day, have from 2.8 to 4.6 fewer years of life expectancy than corresponding nonsmokers.”

S.Rep. No. 91-566 (1970), reprinted in 1970 U.S.C.C.A.N. 2652, 2668. A senator noted at the time that “all of these risks literally can be wiped out by the simple expedient of giving up smoking.” Statement of Senator Moss, printed in 1970 U.S.C.C.A.N. 2668, 2670. In these references to the legislative history of the Labeling Acts, it is again plain that the word “smoking” is intended to refer only to one’s own smoking.

The Court should not affix to the term “smoking” a broader meaning in the preemption provision of § 5 than it has in the remaining provisions of the labeling Acts or in the legislative history of the Acts. See United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 630, 98 L.Ed.2d 740 (1988) (“A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ... because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law....”). Restraint in this regard is particularly important where, as here, the Court is obligated to give the term a fair but narrow interpretation. The Court is persuaded, therefore, that the “based on smoking and health” language in § 5 encompasses only claims that concern one’s own smoking. Accordingly, the claims of a non-smoker such as Shaw do not constitute claims “based on smoking and health” under § 5(b), and are impliedly not preempted.

Despite the extensive evidence that Congress had no intention of warning the public about the dangers of second-hand smoke, defendant nevertheless contends that the language of § 5 preempts challenges brought by non-smokers regarding the sufficiency of the warning label. Relying on the provision in § 2 concerning protection of the national economy from diverse, nonuniform, and confusing cigarette labeling regulations, defendant asserts that any claim requiring cigarette manufacturers to state warnings in addition to those dictated by the Labeling Acts is preempted. This argument clearly lacks merit, however, as it ignores the explicit restriction on the preemption provision, set forth in § 5 and echoed by the Cipollone court, that a claim is preempted only if it is “based on smoking and health.”

Defendant also cites a multitude of cases following Cipollone that have interpreted § 5 broadly. This reliance is misplaced. Only one of the cases cited by defendant — Gries enbeck v. American Tobacco Co., 897 F.Supp. 815, 823 (D.N.J.1995) — addresses the meaning of the “based on smoking and health” language in a case involving a plaintiff who was not a smoker, and that case is distinguishable from the case at bar. This case involved a five year old child who was severely injured and disfigured as a result of her mother, a smoker, setting fire to the family residence when she accidentally left a burning cigarette on a piece of furniture. The Griesenbeck court held that under New Jersey law, a cigarette manufacturer had no legal duty to warn a smoker of the dangers *547 associated with burning cigarettes, the risk being inherently obvious. Id. at 821. On this ground alone, the defendants’ Rule 12(b)(6) Motion to Dismiss was granted. Thereafter, in dicta, the Griesenbeck court held that § 5(b) of the 1969 Act preempts a claim that a cigarette manufacturer failed to warn of the risk of self-immolation arising from a cigarette user’s negligent care of her own cigarette. In so finding, the court determined that the mass notification sought by plaintiff related to smoking and health: “The threat of self-immolation arising from the negligent care of one’s cigarette is a ‘health risk’ under any common sense construction of the phrase.” Id. at 823. However, Griesenbeck concerned whether the mandatory warning adequately informed a smoker of the risks associated with cigarettes. While the smoker had not been warned of the particular risk at issue — the risk of self-immolation — she had, as a smoker, been privy to a warning pursuant to the 1965 and 1969 Acts. Such is not the case here. The Court further notes that the dicta in Griesenbeck is not, in any event, binding on this Court.

In the remaining cases cited by defendant, the relationship between smoking and health was not in dispute, as the plaintiffs were current or former smokers and their injuries were traditional, smoking-related illnesses. See, e.g., Cantley v. Lorillard Tobacco Co., Inc., 681 So.2d 1057 (Ala.1996) (smoker who died from cancer of the hypopharynx and larynx); Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168 (5th Cir.1996) (lifetime smoker who died from complications relating to throat cancer), cert. denied, — U.S. -, 117 S.Ct. 300, 136 L.Ed.2d 218 (1996); Sonnenreich v. Philip Morris Inc., 929 F.Supp. 416 (S.D.Fla.1996) (injuries suffered as a result of smoking cigarettes).

For all of the aforementioned reasons, the Court holds that plaintiffs’ negligent misrepresentation, negligent failure to warn, and intentional misrepresentation claims are not preempted by § 5. The Court will now consider defendant’s remaining grounds for dismissal.

Battery (Count I)

Defendant challenges plaintiffs’ ability to establish that Brown & Williamson had the intent necessary to commit a battery. Under Maryland law, “[a] battery is the ‘unpermitted application- of trauma by one person upon the body of another person.’” Janelsins v. Button, 102 Md.App. 30, 35, 648 A.2d 1039 (1994) (quoting McQuiggan v. Boy Scouts of America, 73 Md.App. 705, 714, 536 A.2d 137 (1988)); accord Watson v. Peoples Sec. Life Ins. Co., 322 Md. 467, 481, 588 A.2d 760 (1991) (“An assault is any unlawful attempt to cause a harmful or offensive contact with the person of another or to cause an apprehension of such a contact. A battery is its consummation.”) (quoting Continental Cas. Co. v. Mirabile, 52 Md.App. 387, 398, 449 A.2d 1176 (1982)).

“[T]he tort of battery requires intent by the actor ‘to bring about a harmful or offensive contact.... [It is] confined to intentional invasions of the interests in freedom from harmful or offensive contact.’ ” Janelsins, 102 Md.App. at 35, 648 A.2d 1039 (quoting Fowler V. Harper, 1 The Law of Torts § 3.3, at 272-73, 276 (2d ed.1986)) (emphasis in original). Accidental contact does not constitute a battery because “[w]here an accident occurs, ... the actor would not have intended to invade the other’s interest.” Janelsins, 102 Md.App. at 35 n. 5, 648 A.2d 1039 (emphasis in original) (citation omitted). A defendant in a battery action need not have intended to do harm, however, as the crux of a battery claim is an absence of consent on the part of the plaintiff. Ghassemieh v. Schafer, 52 Md.App. 31, 38, 447 A.2d 84 (1982). Nevertheless, he must have done some affirmative act and must have known that an unpermitted contact was substantially certain to follow from that act. Indeed, it is this intent that separates battery from mere negligence:

“In negligence, the actor does not desire to bring about the consequences that follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable man in his position to anticipate them, and to guard against them. If an automobile driver runs down a man in the street before him, with the desire to hit *548 him, or with the belief that he is certain to do so, it is an intentional battery; but if he has no such desire or belief, but' merely acts unreasonably in failing to guard against a risk which he should appreciate, it is negligence.”

Id. at 41, 447 A.2d 84 (quoting Prosser, Law of Torts § 31, at 145 (4th ed.1971)).

Plaintiffs argue that the intent requirement is satisfied by Brown & Williamson’s intentional manufacture, marketing, and distribution of Raleigh cigarettes, on the basis that such acts “set[ ] in motion the inevitable series of events leading to plaintiff Robert Shaw’s injuries.” The Court disagrees.

In Pechan v. DynaPro, Inc., 251 Ill.App.3d 1072, 190 Ill.Dec. 698, 622 N.E.2d 108 (1993), a plaintiff alleged that her former employer was liable for her exposure to second-hand cigarette smoke in the workplace. Id. 190 Ill.Dec. at 701, 622 N.E.2d at 111. The appellate court affirmed the dismissal of plaintiffs battery count, finding that the employer could not, as a matter of law, have had the intent necessary to commit a battery. Id. at 708, 622 N.E.2d at 118. The Pechan court reasoned that “[sjmoking is a legal activity and not an act of battery because, generally, smokers do not smoke cigarettes with the intent to touch nonsmokers with secondhand smoke.” Id. at 708, 622 N.E.2d at 118. Similarly, Brown & Williamson does not manufacture, market, or distribute cigarettes for the purpose of touching nonsmokers with second-hand smoke. Furthermore, Brown & Williamson did not know with a substantial degree of certainty that second-hand smoke would touch any particular non-smoker. While it may have had knowledge that second-hand smoke would reach some non-smokers, the Court finds that such generalized knowledge is insufficient to satisfy the intent requirement for battery. Indeed, as defendant points out, a finding that Brown & Williamson has committed a battery by manufacturing cigarettes would be tantamount to holding manufacturers of handguns liable in battery for exposing third parties to gunfire. Such a finding would expose the courts to a flood of farfetched and nebulous litigation concerning the tort of battery. It is unsurprising that neither plaintiffs nor the Court have been able to unearth any case where a manufacturer of cigarettes or handguns was found to have committed a battery against those allegedly injured by its products.

Accordingly, dismissal is appropriate with respect to Count I. Because the Court dismisses Count I based on defendant’s lack of intent, it need not consider whether this count is also time barred.

Manufacturing Defect (Count IV)

Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the requirements for pleading a claim in federal court, requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” While this is a liberal standard, it often requires “more detail ... than [a] bald statement by plaintiff that he has a valid claim of some type against defendant.” 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1357, at 318 (2d ed.1990).

In Count IV, plaintiffs allege only that defendant is liable for placing into the stream of commerce cigarettes that contain a “manufacturing flaw.” This allegation amounts to no more than just such a bald statement. Plaintiffs acknowledge that they are aware of no specific facts to support this claim at this time, but nevertheless request that the count not be dismissed because “the exact nature of Defendant’s manufacturing defect is an issue to be resolved through the processes of discovery.” The