Pappas v. Philip Morris, Inc.

          Submitted: November 5, 2018

         Hazel B. Pappas, pro se, seeks to pursue several Connecticut state-law liability claims against Philip Morris, Inc., on behalf of the estate of her late husband, who died of respiratory and heart diseases after years of smoking Marlboro cigarettes. The district court dismissed certain of Pappas's claims, holding that Connecticut law would not allow her to represent the estate pro se, and dismissed her other claims on the ground that they were barred by the statute of limitations. The order of the district court is AFFIRMED in part and VACATED in part, and the case is REMANDED for further proceedings.

          Hazel B. Pappas, pro se, Cassandra Pappas, pro se, New Haven, CT; Markos Pappas, pro se, Berlin, NH, for Plaintiffs-Appellants.

          Keri L. Arnold, Arnold & Porter Kaye Scholer LLP, New York, NY; Paul W. Rodney, Arnold & Porter Kaye Scholer LLP, Denver, CO, for Defendant-Appellee.

          Before: Lynch and Hall, Circuit Judges, and Engelmayer, District Judge. ^[*]

          Gerard E. Lynch, Circuit Judge

         Plaintiff-Appellant Hazel B. Pappas ("Pappas") seeks to bring several Connecticut law claims, pro se, against Defendant-Appellee Philip Morris, Inc. ("Philip Morris"), on behalf of the estate of her late husband, who died of respiratory and heart diseases after years of smoking Marlboro cigarettes, manufactured by Philip Morris. The United States District Court for the District of Connecticut (Alvin W. Thompson, J.) dismissed Pappas's complaint, holding that certain of her claims were barred by the statute of limitations and that she could not bring the remaining claims pro se, since with respect to those claims she was representing not herself, but the estate of her late husband. Pappas appealed. For the reasons that follow, we VACATE the dismissal of Pappas's claim under the Connecticut Product Liability Act ("CPLA"), her derivative claim for loss of spousal consortium, and the claim of Plaintiffs-Appellants Cassandra and Markos Pappas for loss of parental consortium, and REMAND for further proceedings. We AFFIRM the district court's order in all other respects.

         BACKGROUND

         Acting pro se, Pappas filed a products liability suit against Philip Morris in the district court pursuant to its diversity jurisdiction, asserting claims both on her own behalf and on behalf of her late husband's estate, of which she is Administratix. She alleges that in or about the late 1950s, her late husband, James Pappas, was lured into cigarette smoking by a marketing strategy and conspiracy among tobacco companies to glamorize smoking and portray it as a normal and non-dangerous part of American culture. For over five decades, James Pappas smoked Marlboro cigarettes manufactured by Philip Morris. As a result of smoking cigarettes, James Pappas contracted respiratory and heart diseases that led to his death on June 19, 2013, at the age of 79. In or about March 2016, a medical professional informed Pappas that James Pappas's smoking Marlboro cigarettes caused and aggravated the respiratory and heart disease that killed him.

         On June 15, 2016, Pappas, and her two children with James, Cassandra and Markos Pappas, filed a complaint stating claims against Philip Morris for (1) violating the CPLA, Conn. Gen. Stat. § 52-572m, et seq., and Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110a, et seq., ("CUTPA"); (2) loss of spousal consortium; (3) loss of parental consortium; and (4) negligent infliction of emotional distress ("NIED"). In support of Pappas's ability to litigate the action pro se, Cassandra and Markos Pappas filed disclaimers of interest in their father's estate, and Pappas filed an affidavit stating that to her knowledge James Pappas has no known creditors or debtors. As a result, Pappas contends that she is the sole beneficiary of James Pappas's estate.

         The district court held a hearing to determine, among other things, whether Pappas could represent the estate pro se. After briefing by the parties, the district court dismissed Pappas's, Cassandra's, and Markos's complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Pappas v. Philip Morris USA Inc., No. 3:16-cv-932(AWT), 2017 WL 6629298 (D. Conn. June 21, 2017).

         The district court dismissed Pappas's CPLA claim, which belongs to James Pappas's estate, on the ground that Pappas could not bring that claim pro se. The court held that because it was sitting in diversity jurisdiction, it had to apply Connecticut law to the question of whether Pappas could represent the estate pro se, and under Ellis v. Cohen, 982 A.2d 1130 (Conn. App. Ct. 2009), she could not do so. Ellis explains that under Connecticut law, a litigant may appear pro se only to represent her own cause, and that individuals may not appear pro se when they are suing in a representative capacity. Id. at 1133. The district court rejected the applicability of a Second Circuit case, Guest v. Hansen, 603 F.3d 15 (2d Cir. 2010), in which this Court held that the administrator of an estate could represent the estate pro se under certain conditions, on the grounds that Guest was decided under New York law. The district court also dismissed Pappas's loss of spousal consortium claim, and Cassandra's and Markos's loss of parental consortium claims, on the ground that those claims were derivative of the dismissed CPLA claim.

         The district court also dismissed the CUTPA claims and NIED claims as time-barred by their respective three- and two-year statutes of limitations. The district court further ruled that, even if the CUTPA claims were not time-barred, Pappas's CUTPA claims would still fail because the CPLA, not CUTPA, provides the exclusive remedy under Connecticut law for a party seeking recompense for injuries caused by a product defect.

         Having thus dismissed all the claims in the complaint, the district court ordered the case closed. Pappas and her children moved to amend the judgment under Fed.R.Civ.P. 59(e), asserting numerous arguments. The district ...