Full opinion text
ORDER DUFFY, District Judge. This matter is before the court upon Defendant R.J. Reynolds Tobacco Company’s (“Reynolds”) and Defendant Brown & Williamson Tobacco Company’s (“B & W”) motions for summary judgment on Plaintiff Suzanne Little’s claims to recover for the alleged smoking-related injuries of her late husband, Samuel Martin Little. I. BACKGROUND Viewed in the light most favorable to Plaintiff Suzanne Little (“Plaintiff’), the facts of this case are as follows: Martin Little smoked his first cigarette in approximately 1956 at the age of eleven, and began smoking cigarettes regularly in approximately 1961 at the age of sixteen. M. Little 10/26/98 Dep. at 116-20; M. Little 3/22/99 Dep. at 10-11. From about the age of sixteen until sometime in the 1970’s, Mr. Little regularly smoked Reynolds’ Winston cigarettes, a higher tar, higher nicotine brand. M. Little 10/26/98 Dep. at 114-16 (stating that, being “pretty much brand-loyal,” he smoked Winston for fifteen years or longer). At some point in the 1970’s, Mr. Little began trying several different low-tar brands in an attempt to switch to a “healthier” cigarette, with his ultimate goal being to use low-tar, low-nicotine cigarettes as a “stepping stone” to quitting smoking altogether. Id. at 128; M. Little 2/24/99 Dep. at 50-51. In the course of switching down, Mr. Little tinkered with several different low-tar brands, including Carlton, Barclay, Winston Lights, and what he recalls as “Ultra.” M. Little 2/24/99 Dep. at 64, 66-67; M. Little 3/22/99 Dep. at 88-89. Though Mr. Little could not recall the exact order in which he experimented with the various brands, he eventually settled on Carlton as his regular low-tar brand. Id.; M. Little 2/24/99 Dep. at 50-51, 60-61. However, despite numerous attempts to quit, Mr. Little was unsuccessful, and he continued to smoke Carlton regularly until doctors diagnosed him with lung cancer in late 1995. M. Little 10/27/98 Dep. at 264-66. Shortly thereafter, in December 1995, Mr. Little was finally able to quit smoking altogether. Id. Mr. Little originally brought this action on May 26, 1998 in state court. Defendants removed the case to this court on June 26, 1998. On May 1, 1999, Mr. Little passed away. Plaintiff filed a Second Amended Complaint on July 9,1999. On June 9, 2000, Reynolds filed the instant motion for summary judgment, accompanied by a supporting memorandum. Brown & Williamson did likewise on the same date, followed by an amended memorandum on June 14. Plaintiff filed separate response memoranda to both motions on June 30, and Reynolds and B & W replied separately on July 24. II. SUMMARY JUDGMENT STANDARD To grant a motion for summary judgment, this court must find that “there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All evidence should be viewed in the light most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir.1990). “[W]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, disposition by summary judgment is appropriate.” Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir.1991). “[T]he plain language of Rule 56(e) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The “obligation of the nonmoving party is ‘particularly strong when the nonmoving party bears the burden of proof.’ ” Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir.1995) (quoting Pachaly v. City of Lynchburg, 897 F.2d 723, 725 (4th Cir.1990)). Summary judgment is not “a disfavored procedural shortcut,” but an important mechanism for weeding out “claims and defenses [that] have no factual bases.” Celotex, 477 U.S. at 327, 106 S.Ct. 2548. III. DISCUSSION A. Whether the Statute of Limitations Bars Plaintiffs Claims against Defendants Reynolds and B & W contend that while Mr. Little was not diagnosed with lung cancer until December 1995, discovery has revealed that Mr. Little had actual, or at least constructive, knowledge of an injury caused by his cigarette smoking as early as 1993. Since Mr. Little filed this lawsuit on May 26, 1998, Defendants maintain that the court should grant summary judgment on Plaintiffs claims because they are untimely under South Carolina’s three-year statute of limitations, S.C.Code Ann. §§ 15-3-530(5) & (7) (Law. Co-op.1976). “The burden of establishing the bar of the statute of limitations rests upon the one interposing it, ... and where the testimony is conflicting upon the question, it becomes an issue for the jury to decide.” Brown v. Finger, 240 S.C. 102, 124 S.E.2d 781, 786 (1962) (citations omitted). South Carolina’s three-year limitations period commences running “after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action.” S.C.Code Ann. § 15 — 3— 535. As stated by the South Carolina Supreme Court. [t]he exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist. The statute of limitations begins to run from this point and not when advice of counsel is sought or a full-blown theory of recovery developed. Wiggins v. Edwards, 314 S.C. 126, 442 S.E.2d 169, 170 (1994) (quoting Snell v. Columbia Gun Exchange, Inc., 276 S.C. 301, 278 S.E.2d 333, 334 (1981)). This is an objective determination in which courts must focus on the date of discovery of the injury, not the date of discovery of the wrongdoer: The important date under the discovery rule is the date that a plaintiff discovers the injury, not the date of the discovery of the identity of another alleged wrongdoer. If, on the date of injury, a plaintiff knows or should know that she had some claim against someone else, the statute of limitations begins to run for all claims based on that injury. Id. (quoting Tollison v. B & J Mach. Co., 812 F.Supp. 618, 620 (D.S.C.1993)). Thus, under South Carolina case law, after a plaintiff has discovered or should have discovered his injury, his claims arising out of that injury have accrued and the three-year statute of limitations begins running, even if he does not know the full extent of his injuries. In this case, on June 2, 1993, Mr. Little underwent a general physical examination, performed by his treating physician, Dr. John Dubois. During the examination, Mr. Little requested a chest x-ray. As stated in the Radiology Report, that x-ray revealed “a 1.5 cm nodular density overlying the left second anterior rib, which -likely represents a[sie] intraosseous process, but a pulmonary parenchymal nodule cannot be excluded.” Radiology Report 6/2/93, Def. Reynolds’ Ex. C. Defendants point out that several experts have testified that the nodular density discovered on Mr. Little’s June 1993 x-ray was the same cancer that was diagnosed two-and-a-half years later in December 1995. Defendants thus contend that Mr. Little knew, or should have known, about his cancer in 1993 for several reasons. First, Defendants maintain that Dr. Dubois reviewed the June 1993 x-ray and Radiology Report, concluded that it was “abnormal,” and informed Mr. Little of his conclusion. However, an examination of Dr. Dubois’ deposition testimony reveals otherwise: Q: All right. And your testimony is that you did, in fact, advise Mr. Little of the results of this 1993 chest x-ray, correct? A: Yeah. It’s my standard practice to notify patients of the results of their tests, because they want to know it. And we do that every day; we do that. But I don’t have the documentation that it was ever done, so I don’t know what I said or did. Q: Now, the radiologists had advised-the two radiologists who prepared the report had advised that Mr. Little needed a follow-up x-ray, correct? A: Correct. Q: Did you tell Mr. Little that he needed a follow-up x-ray? A: I have no documentation of that. Q: Do you know one way or another? A: Can’t remember. Q: In your original copy of the radiology report ... where you testified a few minutes ago is marked “Abnormal,” did you tell Mr. Little [about] the information there marked “Abnormal”? A: I have no documentation of that. Q: Do you remember one way or another? A: I don’t remember. Honestly, I don’t. I probably would have. The only fuss I would have on this is that-I believe I had reviewed the film at that point in time and had felt-had not felt that the findings-/ felt-have not felt that the findings were hugely significant, I’ll tell you that ... Q: It was your practice back in 1993, if a radiologist suggested follow-up x-rays, to advise the patient that they needed follow-up x-rays, correct? A: Yeah, usual life [sic], not all the time. Q: Well, if a radiologist says, “Here’s my report, this patient needs follow-up x-rays,” you wouldn’t just sit on that, would you? A: No. Sometimes I would say, “No, because, clinically, that doesn’t make sense; he doesn’t need a follow-up x-ray. It doesn’t make any sense to have it done,” so I might not have. Q: So with respect to Mr. Little, you have no recollection one way or the other? A: I can’t recommend [sic] either way. The only thing that I would think today, is that seeing what I had seen, getting-how can I say this? This isn’t an x-ray that lighted up my eyes and said, “Oh, my goodness, he needs a follow-up x-ray.” Q: That’s your view today. A: We think the radiologist was being over-cautious on this. Dubois Dep. at 36-38 (emphasis added). In light of the above-quoted testimony, Defendants’ assertions that “Dr. Dubois testified that ... he did, in fact, tell Mr. Little in 1993 that his x-ray was abnormal,” Def. Reynolds’ Mem. at 8-9, that he informed Mr. Little that “he needed to come in for further radiologic testing,” id. at 13, and that Mr. Little “ignored this advice despite his knowledge that something was obviously wrong,” id., are very misleading. The court also rejects the argument by Defendants that Mr. Little was put on notice by Dr. Dubois that an “abnormal” nodular density had been discovered in his lungs, and that follow-up x-rays were needed. Defendants further contend that even if Dubois did not inform Mr. Little of such information, a person with common knowledge exercising reasonable diligence would have known that he had a cause of action because Mr. Little’s nodular density was clearly noted in the June 1993 x-ray report. However, Dubois testified that the x-ray results did not cause him much alarm, or lead him to believe that follow-up x-rays were necessary. During Dubois’ deposition, he identified the word “bronchitis” in his handwriting on his copy of the radiology report, and testified that he would not have made this notation had he not viewed the original radiology first, and concluded that it signified that Mr. Little was in all likelihood suffering from bronchitis. Dubois Dep. at 32-33. Even if Mr. Little did view the x-ray reports, or if knowledge of the findings contained in those reports was to be imputed to Mr. Little, the court declines to charge Mr. Little with more knowledge than his treating physician. Knowledge of the radiology report’s contents would not have put a person of common knowledge and experience on notice that some right of his might have been invaded. Dr. Dubois still does not believe that Mr. Little exhibited any symptoms indicative of lung cancer in 1993, Dubois Dep. at 62-63, and he “wasn’t clinically ill to justify treatment for anything,” id. at 39. Dr. Dubois agreed that he “never treated Mr. Little for any type of respiratory problem” prior to November 1995. While Mr. Little may have been worried since the 1970’s that he might eventually develop lung cancer due to his cigarette smoking, in 1993 he had no reason to believe that his fears had been realized. In light of the foregoing, an issue of fact clearly exists regarding whether Mr. Little’s June 1993 chest x-ray would have put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist. Accordingly, the court rejects Defendants’ contention that as a matter of law, South Carolina’s three-year statute of limitations bars Plaintiffs claims. B. Whether Plaintiff May Maintain her Product Liability Claims Against Defendants Under South Carolina law a plaintiff may bring a product liability claim under several theories, including negligence and strict liability, as Plaintiff has done in this case. Talkington v. Atria Redamelucifers Fabrieken BV (Cricket BV), 152 F.3d 254, 261 (4th Cir.1998) (stating that South Carolina appellate courts have consistently recognized this) (citations omitted). In a product liability action brought under both negligence and strict liability theories, the plaintiff must show “(1) that he was injured by the product; (2) that the product, at the time of the accident, was in essentially the same condition as when it left the hands of the defendant; and (3) that the injury occurred because the product was in a defective condition unreasonably dangerous to the user.” Reynolds and B & W argue that they are entitled to summary judgment on Plaintiffs product liability claims, both in negligence and strict liability, for the following reasons: (1) [Defendants’] cigarettes are not defective as a matter of law; (2) [Defendants’] cigarettes are not unreasonably dangerous because the dangers of smoking have been commonly known throughout Mr. Little’s lifetime; and (3) Plaintiff cannot meet her burden to prove a safer and alternative design for [Defendants’] cigarettes. Def. Reynolds’ Mem. at 14. 1. Whether Defendants’ Cigarettes are Defective as a Matter of Law South Carolina law incorporates almost verbatim Restatement (Second) of Torts § 402A. See Barnwell v. Barber-Colman Co., 301 S.C. 534, 393 S.E.2d 162, 163 (1989); S.C.Code Ann. § 15-73-10 (Law. Co-op.1976); Vaughn v. Nissan Motor Corp. in U.S.A., Inc., 77 F.3d 736, 738 (4th Cir.1996) (stating that South. Carolina “adopts the formula of Restatement (Second) of Torts § 402A for imposing strict liability on the seller of a defective product”). Furthermore, S.C.Code Ann. § 15-73-30 provides that “[c]omments to § 402A of the Restatement of Torts, Second, are incorporated herein by reference thereto as the legislative intent of this chapter.” Comment i to Section 402A states that for a product to be “defective” or “unreasonably dangerous”: The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Restatement (Second) of Torts § 402A cmt. i (1965). Comment i also states: Many products cannot possibly be made safe for all consumption.... Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey containing a dangerous amount of fusel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful Id. Defendants argue that the statement in comment i regarding “good tobacco” illustrates that cigarettes cannot as a matter of law be held unreasonably dangerous or defective, as “this theory of products liability was never meant to be applied to cigarettes.” Def. Reynolds’ Mem. at 16. Defendants further point to several courts which have applied Section 402A and found that ordinary cigarettes are “not a defective or unreasonably dangerous product as a matter of law.” Def. Reynolds’ Mem. at 16 (citing Green v. American Tobacco Co., 409 F.2d 1166 (5th Cir.1969) (en banc); Adams v. Brown & Williamson Tobacco Corp., No. 93-1571-CIV-J-20 (M.D.Fla. Feb. 22,1995) (Ex. M); Herndon v. Brown & Williamson Tobacco Corp., 1993 WL 475530, at *2 (W.D.Mich. Apr.9, 1993) (Ex. N); Gunsalus v. Celotex Corp., 674 F.Supp. 1149, 1158 (E.D.Pa.1987); Hite v. R.J. Reynolds Tobacco Co., 396 Pa.Super. 82, 578 A.2d 417, 421 (1990)). These cases do not bind the court and the court declines to follow them. Rather, for the following reasons, the court adopts the approach of the numerous courts which have held that Section 402A does not bar a plaintiffs negligence and strict liability claims. See, e.g., Guilbeault v. R.J. Reynolds Tobacco Co., 84 F.Supp.2d 263, 272-73 (D.R.I.2000); Witherspoon v. Philip Morris, Inc., 964 F.Supp. 455, 466 (D.D.C.1997); Burton v. R.J, Reynolds Tobacco Co., 884 F.Supp. 1515, 1522 (D.Kan.1995); Semowich v. R.J. Reynolds Tobacco Co., 1988 WL 86313 (N.D.N.Y. Aug.18, 1988); Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1053 (Ind.Ct.App.1990). Initially, the court notes that because raw tobacco, unlike cigarettes, is not a manufactured product, “[i]t would have been inappropriate for the commentators to use the terms 'mismanufactured tobacco’ or ‘defectively designed tobacco’ in the context of [comment i’s] illustration.” Rogers, 557 N.E.2d at 1053 n. 8. Moreover, [although ‘good tobacco,’ without any additives or foreign substances, may not be unreasonably dangerous, that does not automatically mean that all tobacco-containing products are not unreasonably dangerous. The cigarettes sold by defendants are manufactured products and, as such, the court finds that they are subject to design, packaging, and manufacturing variations which may render them defective even if the tobacco used in their manufacture was initially unadulterated. Accord, Grinnell v. American Tobacco Co., Inc., 883 S.W.2d 791, 799 (Tex.App. Beaumont 1994); Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d 1045, 1053 (1990). Burton, 884 F.Supp. at 1522; see also Guilbeault, 84 F.Supp.2d at 272 (recognizing and adopting another court’s holding that design defect claims alleging the supplementing ■ of deleterious substances beyond those naturally occurring in tobacco “disqualify cigarettes as ‘good tobacco,’ and thus would allow a finding that they are defective and unreasonably dangerous”) (citing Thomas v. R.J. Reynolds Tobacco Co., 11 F.Supp.2d 850, 852-53 (S.D.Miss.1998)); Witherspoon, 964 F.Supp. at 466 (asserting that “[ajttitudes and knowledge about cigarettes have changed immensely since [comment i] was written,” and that the comment “appears to be on very shaky ground currently”); Rogers, 557 N.E.2d at 1053 n. 8 (maintaining that “a design defect which renders the product more addictive than it could be or addictive when it need not be at all may render the cigarette unreasonably dangerous in conjunction with its harmful qualities”). The court thus concludes that a manufactured cigarette is distinct from raw tobacco, and that Section 402A accordingly does not bar as a matter of law all claims alleging that cigarettes are defective and unreasonably dangerous. In this case, Plaintiff asserts that her expert Dr. William Farone will testify that a cigarette contains thousands of chemicals, and that the cigarette industry has conducted research to identify and catalogue these components and to learn “how to construct a cigarette and filter combination to minimize or maximize the delivery of these various components.” Farone Rule 26.09 Expert Disclosure at ¶ 9, Pl.’s Ex. 12. Plaintiff further points out that Reynolds’ website lists page-after-page of various ingredients and additives contained in their cigarettes. See e.g., Reynolds’ List of Ingredients, Pl.’s Ex. 14. Dr. Farone testified, “no cigarette manufacturer sells tobacco rolled in paper.” Farone Dep. at 474. Plaintiff will also introduce expert testimony showing that manufactured cigarettes utilize complex engineering technologies. As Reynolds’ own memorandum states the tobacco industry is “a specialized, highly ritualized and stylized ■ segment of the pharmaceutical industry,” and its product is “a vehicle for delivery of nicotine,” “a potent drug with a variety of physiological effects.” Reynolds Research Planning Memorandum on the Nature of the Tobacco Business and the Crucial Role of Nicotine Therein, PL’s Ex. 17. Thus Plaintiff has shown that an issue of fact exists as to whether Defendants’ manufactured cigarettes are distinct from raw tobacco. 2. Whether Defendants’ Cigarettes are not Unreasonably Dangerous Because the Dangers of Smoking Are and Always have been Commonly Known Defendants next argue that Plaintiffs products liability claims fail as a matter of law because the health risks of cigarettes have been commonly known by ordinary consumers throughout Mr. Little’s lifetime. The Fourth Circuit interpreting comment i to Section 402A has asserted that “whether the defect causes the product to be ‘unreasonably dangerous’ is measured by the ‘ordinary consumer’ for whom the product is designed.” Vaughn, 77 F.3d at 738. A product cannot be labeled either defective or unreasonably dangerous “if a danger associated with the product is one that the product’s users generally recognize.” Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d 708, 710 (1996) (citations omitted). Furthermore, the test for whether a product is unreasonably dangerous to an ordinary consumer is a “purely objective determination.” Vaughn, 77 F.3d at 738. Applying the common knowledge test in the context of tobacco litigation has been a challenge for many courts. However, the key to reaching the correct result is to properly frame the issue. The Sixth Circuit Court of Appeals in Tompkin v. American Brands, 219 F.3d 566 (6th Cir.2000), stated the following: The pertinent issue here is not whether the public knew that smoking was hazardous to health at some undifferentiated level, but whether it knew of the specific linkages between smoking and lung cancer. Public awareness of a broad-based and ambiguous risk that smoking might be tenuously connected to lung cancer does not suggest “common knowledge” of the known scientific fact that cigarette smoking is a strong precipitant of lung cancer. Id. at 572 (citing with approval Burton v. R.J. Reynolds Tobacco Co., 884 F.Supp. 1515, 1526 (D.Kan.1995)). The court agrees with the Sixth Circuit that “the ‘common knowledge’ requirement is emasculated if a defendant may show merely that the public was aware that a product presented health risks at some vague, unspecified, and undifferentiated level.” Id. With that focus the court will examine the issue as it pertains to the case at bar. The parties agree that whether a product is unreasonably dangerous to an ordinary consumer is purely an objective determination. The court concludes, therefore, that Mr. Little’s knowledge or lack of knowledge concerning the dangers of cigarettes is irrelevant for purposes of this analysis. It is the Plaintiffs position that the “ordinary consumer” did not at the times in question-and perhaps still-comprehend the extent of dangers posed by cigarettes, and more specifically the extent that these dangers will actually affect that person. Plaintiff points to the following sample of authorities: (1) Matthew L. Myers, et al., Staff Report on the Cigarette, Advertising Investigation (Public Version), May 1981; (2) Howard Leventhal, Ph.D., et al., Is the Smoking Decision an ‘Informed Choice’? Effect of Smoking Risk Factors on Smoking Beliefs; JAMA 1987; 257:3373-3376; (3) William M. London, Ed,D., M.P.H., et al., Cigarettes: What the Warning Label Doesn’t Tell You, The First Comprehensive Guide to the Health Consequences of Smoking, American Council on Science and Health (New York 1996); (4) Michael Schoenbaum, Ph.D., Do Smokers Understand the Mortality Effects of Smoking? Evidence from the Health and Retirement Survey; American Journal of Public Health, 1997, 87:755-759; (5) Lydia Saad, et al., The Tobacco Industry Summons Polls to the Witness Stand: A Review of Public Opinion on the Risks of Smoking, The Gallup Organization, May 15, 1998. See Pl.’s Mem. in Opp. at 23-25. Plaintiff claims that this evidence demonstrates that there are clearly jury questions as to (1) what was the ordinary, common knowledge of the community when Martin Little smoked the Defendants’ cigarettes, and (2) whether the cigarettes were dangerous to an extent beyond that which would be contemplated by the ordinary consumer. Plaintiff also argues that the Defendants are disingenuous in their position that the dangers of cigarette smoking were commonly known to the community when, during and after the time that Martin Little smoked cigarettes, the Defendants were vigorously proclaiming that the dangers had not been established. The Defendants on the other hand contend that throughout Mr. Little’s lifetime ordinary consumers in South Carolina and across the country, have been well aware of the perceived health risks associated with smoking-ineluding claims that smoking causes cancer and claims of its “addictive” nature. The Defendants claim all of these matters were well covered in the popular press, and specifically the release of the Surgeon General’s Report on Smoking and Health in 1964, which concluded that smoking causes lung cancer. Further, the Defendants rely on several cases which have concluded that the health risks of smoking have been commonly known. This case, perhaps more than others, presents a close call on the issue of “common knowledge” because Mr. Little’s smoking experience extended from 1961 through 1995. Undoubtedly, there is a point within that time frame wherein all of the health risks associated with cigarette smoking became common knowledge. On the other hand, there are strong arguments that during some portion of that time the same dangers and risks were not common knowledge. The existence of such arguments demonstrates why this court believes the determination is better left to the collective wisdom and experience of a jury. The court is buttressed in this view by the fact that the United States Congress may have implicitly recognized that the link between smoking and lung cancer was not “common knowledge” when it enacted the 1966 Labeling Act and its successive amendments in 1969 and 1984. The Labeling Act created a “comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health” and was explicitly designed to ensure that “the public may be adequately informed that cigarette smoking may be hazardous to your health.” Pub.L. 89-92, § 2, 79 Stat. 282 (codified at 15 U.S.C. § 1331). As the Sixth Circuit has noted: It was not until the 1984 amendments to the Labeling Act that Congress finally required cigarette packages to warn that smoking causes lung cancer, ... Given that the Labeling Act was expressly designed to “adequately inform” the public of the dangers of cigarette smoking, the Act implies that prior to its 1966 enactment a substantial portion of the public was underinformed as to the specific dangers posed by smoking. Tompkin, 219 F.3d at 573. Furthermore, it was not until 1988 that the Surgeon General published a report informing of the addictive nature of cigarettes. Yet on April 14, 1994, the chief executive officers of the major tobacco manufacturers testified before Congress that nicotine is not addictive. This again highlights the difficulty for the court in judicially noticing what the common knowledge of the ordinary cigarette smoker may have been at any given time. This court declines to set the bar but it will cap the height to which it may be raised. The court concludes that by 1988 all the risks associated with cigarette smoking were known to the ordinary consumer with ordinary knowledge common to the community. The jury in this case will be allowed through specific interrogatories to set the bar at any year before 1988. 3. Safe and Alternative Design Defendants further contend that South Carolina law in product liability cases requires proof of the existence of a safer and feasible alternative design. See Cohen v. Winnebago Indus., Inc., 210 F.3d 360, 2000 WL 299459, at *4 (4th Cir.2000) (citing Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (1995)). Defendants argue tliat Plaintiffs negligence and strict liability claims fail because she cannot meet her burden to prove a safer and feasible alternative design for cigarettes. Defendants point primarily to the deposition testimony of Plaintiffs expert Dr. William Farone regarding his conception of an inhalant product which would deliver a drug like nicotine as an alternative to cigarettes as constituting Plaintiffs proof concerning a safer alternative design. Defendants suggests that Dr. Farone’s hypothetical inhalant product clearly fails to qualify as a safer and feasible alternative to cigarettes. Plaintiff responds by first arguing that proof of a safer alternative design is not a per se element of her product liability case, but instead merely a factor to be considered in the risk-utility analysis. Plaintiff contends that Cohen overstates South Carolina law regarding the requirement of proof of a safer and feasible alternative design. Furthermore, Plaintiff argues that she will nonetheless introduce evidence establishing feasible design alternatives in addition to the testimony identified by Defendants above. South Carolina courts have not explicitly decided whether showing a safer alternative design is a per se element in a product liability case. Nonetheless, the Fourth Circuit in its unpublished decision in Cohen stated that “providing evidence of the existence of an alternative safer, feasible design is part of the plaintiffs products liability case under South Carolina law .210 F.3d 360, 2000 WL 299459, at *4 (citing Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (1995)). It is clear that in Bragg the South Carolina Court of Appeals did, in part, focus on the plaintiffs failure to introduce evidence of a feasible design alternative in upholding the trial court’s granting of summary judgment. 462 S.E.2d at 330. However, the court never stated that producing evidence of a feasible alternative was an element of the plaintiffs action. The plaintiffs failure to show an alternative design was coupled with his failure to show the product was defective at the time it was sold. Id. at 327-30. Nonetheless, while there is no explicit statement including proof of a safer alternative design as an element of a product liability case, clearly South Carolina courts have found that failure to provide such proof can doom a case as a matter of law. See Sunvillas Homeowners Assoc, v. Square D Co., 301 S.C. 330, 391 S.E.2d 868, 870 (1990) (noting, while upholding the trial court’s grant of summary judgment in favor of the defendant, that the plaintiff failed to offer any evidence of an alternative design); Gasque v. Heublein, Inc., 281 S.C. 278, 315 S.E.2d 556, 559 (1984) (holding that the issue of negligent design was properly submitted to the jury where plaintiff introduced expert testimony that a feasible, safer alternative design existed and two company reports of the defendant which stated that a safer alternative design existed). Thus, the existence of a safer alternative design is a crucial aspect of a product liability case in South Carolina. This conclusion is unaffected by Plaintiffs reliance on Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129 (1982), as support for her argument that a safer alternative design is merely a factor to be weighed in determining whether the product is in a defective condition and unreasonably dangerous. In Claytor, the South Carolina Supreme Court stated: Academically, it may be argued that all products are defective because they can be made more safe. However, it does not automatically follow that the products are deemed “unreasonably dangerous.” In the final analysis, we have another of the law’s balancing acts and numerous factors must be considered, including the usefulness and desirability of the product, the cost involved for added safety, the likelihood and potential seriousness of injury, and the obviousness of danger. Id. at 132; see also Reed v. Tiffin Motor Homes, Inc., 697 F.2d 1192, 1197 (4th Cir.1982) (stating “it is clear that South Carolina does balance the utility of the risk inherent in the design of the product with the magnitude of the risk” and recognizing the list of factors announced in Claytor). Even if this court were to find that the existence of a safer alternative design was merely one such factor, the court could not ignore the treatment by South Carolina courts of the failure to provide evidence of a safer alternative design as fatal to a product liability case. Thus, whether the requirement that evidence of a safer alternative design is characterized as an element of Plaintiffs products liability case or a factor to be weighed in the risk-utility analysis, it is clear the South Carolina law requires that Plaintiff provide such evidence in order to survive summary judgment. Plaintiff has clearly demonstrated that she will not solely rely, as Defendants have suggested, on Dr. Farone’s conception of an inhaler device as an alternative design for cigarettes. Instead, Plaintiff has provided an affidavit by Dr. Farone suggesting numerous technologies which in his opinion could have been utilized by Defendants to provide a safer cigarette since the early 1960’s at the latest. Farone Aff. at ¶¶ 4-7. These alternatives are in addition to the inhaler product suggested by Dr. Farone in his deposition testimony. This affidavit suggests that Plaintiff will introduce evidence of safer alternative designs and thus, Plaintiff has raised a question of fact sufficient to survive summary judgment. C. Whether Plaintiff May Maintain her Pre-1969 Failure to Warn Claims Against Reynolds Reynolds argues that Plaintiff cannot maintain her pre-1969 failure to warn claims because, as argued above, the hazards of smoking were commonly known throughout Mr. Little’s lifetime. Under South Carolina law, a manufacturer is not required to warn of a product’s dangers if those dangers are obvious and commonly known to consumers. See Claytor v. General Motors Corp., 277 S.C.' 259, 286 S.E.2d 129, 132 (1982); Anderson v. Green Bull, Inc., 322 S.C. 268, 471 S.E.2d 708, 710 (1996). However, as stated above, the court finds that what is commonly known about the hazards of smoking and when it became so are questions for the jury. Thus, the court cannot grant summary judgment in favor of Reynolds on this ground until the jury has determined when the hazards of smoking became commonly known. Reynolds further argues that Plaintiff cannot prove that Reynolds, by not warning of the hazards prior to 1969, caused Mr. Little’s cancer. Reynolds contends that Plaintiff must show that the eight years of smoking between 1961 and 1969 was the proximate cause of Mr. Little’s lung cancer. See Guilbeault v. R.J. Reynolds Tobacco Co., 84 F.Supp.2d 263, 275 (D.R.I.2000). Plaintiff responds by noting that she will offer expert opinions that cigarette smoke caused Mr. Little’s lung cancer. Further, the eight years Mr. Little smoked Reynolds’ cigarettes constituted approximately 25% of Mr. Little’s smoking history and that by starting at an early age, Mr. Little’s mortality rate was almost twice that of a man who began smoking at age twenty, Report of the Surgeon General 1982, p. 39, Table 7. Whether 25% of Mr. Little’s smoking history could constitute a proximate cause of his cancer is a question for the jury. However, Reynolds further argues the Plaintiff must show that a warning from Reynolds prior to 1969 would have caused Mr. Little to stop smoking. See Guübeault v. R.J. Reynolds Tobacco Co., 84 F.Supp.2d 263, 275 (D.R.I.2000). The South Carolina Court of Appeals has stated that “[t]he plaintiff has the burden of showing that a warning would have made a difference in the conduct of the person warned.” Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 505 S.E.2d 354, 359 (1998). The Plaintiff has offered no evidence that Mr. Little would never have begun smoking or stopped smoking had Reynolds provided a pre-1969 warning. Instead, Plaintiff merely asserts that such proof is not required under South Carolina law. However, Allen clearly contradicts the Plaintiffs assertion. Therefore, summary judgment is granted in favor of Reynolds as to the pre-1969 failure to warn claims. D. Whether B & W is Entitled to Summary Judgment, in its Individual Capacity, as the Manufacturer of Barclay Cigarettes As stated swpra, under Plaintiffs product liability claims, she must establish that the product defect proximately caused Mr. Little’s injuries. See Small v. Pioneer Machinery, Inc., 329 S.C. 448, 494 S.E.2d 835, 842 (1997). Under South Carolina law, “[pjroximate cause requires proof of (1) causation in fact and (2) legal cause.” Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 393 S.E.2d 914, 916 (1990) (citing W. Keeton, Prosser and Keeton on the Law of Torts, §§ 41-42 (5th ed.1984)); Accordini v. Security Central, Inc., 283 S.C. 16, 320 S.E.2d 713 (1984). Typically, a plaintiff may prove causation in fact by establishing that the injury would not have occurred “but for” the defendant’s negligence. Id. (citing Hanselmann v. McCardle, 275 S.C. 46, 267 S.E.2d 531 (1980); Hughes v. Children’s Clinic, P.A., 269 S.C. 389, 237 S.E.2d 753 (1977)). However, [wjhere several causes combine to produce injury, a person is not relieved from liability for negligence because he is responsible for only one of them. It is sufficient that his negligence is an efficient cause without which the injury would not have resulted to as great an extent and that any other efficient cause is not attributable to the person injured .... Consequently, if a person’s negligence is a proximate cause of an injury to another, the fact that the negligence of a third party concurred with his own negligence to produce the harm does not relieve him of liability.... In such cases, both tortfeasors are in breach of a duty of care owed to the plaintiff and, because the negligence of both concurred to produce the injury, both are liable to the full extent of the plaintiffs damages. South Carolina Ins. Co. v. James C. Greene and Co., 290 S.C. 171, 348 S.E.2d 617, 620 (1986) (citing Gray v. Barnes, 244 S.C. 454, 137 S.E.2d 594 (1964); Brown v. National Oil Company, 233 S.C. 345, 105 S.E.2d 81 (1958)); see also Small, 494 S.E.2d at 843 (asserting that “proximate cause does not mean the sole cause”); Def. B & W’s Mem. at 9 (quoting same as standard of causation where plaintiff alleges that multiple defendants caused injury). Alternatively, as stated in Prosser & Kee-ton on the Law of Torts: When the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event. W. Keeton, Prosser & Keeton on the Law of Torts § 41, at 268 (5th ed.1984). Thus, under South Carolina law, “the defendant’s conduct can be a proximate cause if it was at least one of the direct, concurring causes of the injury.” Small, 494 S.E.2d at 843. In addition, a plaintiff under this rule must show Fitzgerald v. Manning, 679 F.2d 341, 348 (4th Cir.1982); see also McCarty v. Kendall Co., 238 S.C. 493, 120 S.E.2d 860, 863 (1961) (rubng that causation was established where a doctor testified that immobilization was a “contributing factor to a large degree” to the plaintiffs development of kidney stones); Restatement (Second) of Torts § 431 (“The actor’s negligent conduct is a legal cause of harm to another if ... his conduct is a substantial factor in bringing about the harm.”). that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough, and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. In this case, B & W contends that, as a matter of law, Plaintiff cannot establish that Mr. Little’s smoking of B & W’s Barclay cigarettes substantially contributed to his lung cancer, as Mr. Little smoked Barclay for merely several months during his thirty-four-year smoking history. Indeed, Plaintiff concedes that Mr. Little admitted that he smoked Barclay regularly for a period of months as opposed to years, although he could not quantify the number of months. Plaintiffs Mem. in Opp. at 7 (citing M. Little Dep. 10/26/98 at 114,, 132). Plaintiff additionally notes, however, that Mr. Little testified that when he switched cigarette brands to the allegedly lower-tar and lower-nicotine Barclay cigarettes as part of his efforts to gradually quit smoking, he increased the number of cigarettes he smoked. Id. (citing M. Little Dep. 10/26/98 at 133-34; M. Little Dep. 2/24/99 at 53). Plaintiffs further point out that after becoming a regular Carlton smoker, for approximately fifteen to twenty years he continued to buy and smoke Barclay when he could not find Carlton at the store, until he finally quit smoking in 1995. Id. (citing M. Little Dep. 3/22/99 at 90; M. Little Dep. 2/24/99 at 48^19). According to Plaintiffs expert Dr. Burns, Barclay contributed less than one percent of the dosage of tobacco smoke to which Mr. Little was exposed over his thirty-four-year smoking history. Burns Dep. at 312 (“Q: So would it be fair to say then, that assuming he smoked Barclay for a matter of months ... [t]hen in terms of his the contribution to his clinical course the Barclays would have been less than one percent? A: In terms of the contribution to the dose of tobacco smoke he received, it would be less than one percent.”). Dr. Burns testified that this percentage of exposure “is unlikely to have influenced the occurrence of the lung cancer in a meaningful way .... That contribution is small and is in general not one that we would have felt to be substantive clinically.” Burns Dep. at 310. Plaintiffs expert Dr. Hammar testified that Mr. Little’s smoking of Barclay for a period of months did not substantially increase his risk of contracting lung cancer, and that he could not opine that it is more likely than not that smoking Barclay contributed to any of the cell mutations that caused Mr. Little’s cancer. Hammar Dep. at 208-09. Dr. Hammar testified that: [a]ll I’d say is that all carcinogens contribute to the development of cancer. When you’re talking about a multi-stage process of carcinogenesis, it’s that any exposure to that carcinogen I think potentially contributes. Now, how much it contributes is very difficult to say. Obviously, if you compare six months of Barclay versus the other cigarette smoking he had, it’s a very minimal exposure; but you never know, though, that maybe that was the key one that did the final mutations that made a cell change. Hammar Dep. at 209. It is therefore clear that, due to the cumulative multi-stage process of lung cancer, Mr. Little’s smoking of Barclay cigarettes contributed to his lung disease. However, none of Plaintiffs experts opined that such contribution was substantial, and the court finds that the one percent contribution was de minimis. See Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir.1986) (applying in the context of the lengthy asbestosis disease process, a de minimis rule requiring a plaintiff “to prove more than a casual or minimum contact with the product”); see also Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000, 1010 (1990) (in an action against a private school and food service, the court found that no reasonable juror could conclude by a preponderance of the evidence that the school, which served only one percent of students’ meals, was responsible for the student’s development of salmonella). This court holds that Mr. Little’s smoking of Barclay was not an efficient cause without which his injury would not have resulted to as great an extent. The court therefore grants B & W’s motion for summary judgment on Plaintiffs claims against it in its individual capacity, as the manufacturer of Barclay cigarettes. E. Whether B & W is Entitled to Summary Judgment, in its Individual Capacity, as the Manufacturer of Carlton Cigarettes B & W also contends that it is entitled to summary judgment in its individual capacity as the manufacturer of Carlton cigarettes. B & W points out that Mr. Little’s cancer has been identified on the June 2, 1993 x-ray, nearly two years before Carlton cigarettes, as manufactured by B & W, were available for purchase. Furthermore, B & W asserts that Mr. Little testified that he quit smoking in December 1995, only nine months after B & W’s merger with American, and that his exposure to B & W’s Carlton cigarettes was thus de minimis. ' Plaintiff did not respond to these arguments. In light of the foregoing, the court grants B & W summary judgment in its individual capacity as the manufacturer of Carlton cigarettes. F. Whether Plaintiff May Maintain her Breach of Implied Warranty Claims Against B & W Under South Carolina law, “a warranty of merchantability is implied in a contract for the sale of goods if the seller is a merchant with respect to goods of that kind.” Doty v. Parkway Homes, 295 S.C. 368, 368 S.E.2d 670, 671 (1988) (citing S.C.Code Ann. § 36-2-314(1) (Law.Coop.1976)). In order to prove a breach of such implied warranty, a plaintiff must prove that “the product was not reasonably fit or safe for its intended use.” Livingston v. Noland Corp., 293 S.C. 521, 362 S.E.2d 16, 18 (1987); Claytor v. General Motors Corp., 277 S.C. 259, 286 S.E.2d 129, 132 (1982) (same); Doty, 368 S.E.2d at 671 (asserting that “[g]oods to be merchantable must be fit for the ordinary purposes for which such goods are used.”) (citing S.C.Code Ann. § 36-2-314(2)(c) (1976)). “It is sufficient if the plaintiff presents evidence from which it can be reasonably inferred that the goods were defective at the time the sale was completed,” id., and that such defect “was the direct and efficient cause of plaintiffs injury,” Livingston, 362 S.E.2d at 18 (citing Benford v. Berkeley Heating Co., 258 S.C. 357, 188 S.E.2d 841 (S.C.1972); Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (1985)). Furthermore, a plaintiff may use circumstantial evidence to establish a breach of implied warranty. Doty, 368 S.E.2d at 671 (citing Cohen v. Allendale Coca-Cola Bottling Co., 291 S.C. 35, 351 S.E.2d 897 (1986)). Here, Plaintiff alleges in her Second Amended Complaint that “Defendants’ cigarettes were defective because when smoked by Martin Little as intended, they delivered higher and more dangerous levels of tar and nicotine than Defendants implied and Martin Little reasonably believed.” Second Am. Compl. at ¶ 37. Mr. Little’s intended use of Carlton cigarettes was to smoke a healthier cigarette and to use the lower tar and nicotine cigarettes as a stepping stone towards quitting. M. Little Dep. 10/26/98 at 124-25; see also M. Little Dep. 2/24/99 at 51; Def. B & W’s Mem. at 3. B & W maintains that since the ordinary use of cigarettes is to smoke them, Plaintiffs intended use of its cigarettes as a healthy alternative transforms the implied warranty of merchantability claim into a claim for breach of the implied warranty of fitness for a particular purpose. Regarding the latter claim, South Carolina Code Ann. § 36-2-315 (1976) states: [wjhere the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is ... an implied warranty that the goods shall be fit for such purpose. Id.; see Hite v. Ed Smith Lumber Mill, Inc., 309 S.C. 185, 420 S.E.2d 860, 862 (1992) (citing same). As South Carolina’s highest court has recognized, the Uniform Commercial Code “tends to overlap the warranty of merchantability with that of fitness for [a particular] purpose.” Soaper v. Hope Industries, Inc., 309 S.C. 438, 424 S.E.2d 493, 495 (1992) (citing Hawkland, A Transactional Guide to the Uniform Commercial Code, § 1.19020702 at 68 (1964)). At this stage, it is immaterial under which warranty claim Plaintiff is proceeding, as B & W was aware that its customers bought its as-advertised lower tar and nicotine cigarettes for the purpose of smoking a safer and healthier cigarette. Expert witness Eric Gesell testified as follows: Q: Do you think a reasonable person could reach that conclusion by looking at these [Carlton] ads that less tar means less risk, means less hazardous? A: Sure. Q: Do you believe that Carlton’s copy strategy in the mid 1970’s attempted to appeal to smokers who were concerned with the health hazards of cigarettes smoking? A: People who were interested in less tar, so, therefore, sure, they may have felt that this would be a better cigarette for them to smoke. Gesell Dep. at 141, 159. Plaintiff points out that B & W was not only aware of its consumers’ health concerns, it considered smoking cessation devices a threat to profits and sought to intervene in that market: In light of the recent smoke-cessation craze, we may want to consider a drug store specific sales initiative built around Carlton — a brand which may appeal to a potential patch user .... A recent USA Today article indicated $600 million in prescription patches will be filled in 1992. This amount is expected to reach $1 billion by 1995. This is obviously a threat to our customer base which we need to defend against. The American Tobacco Company, Field Sales Weekly Re-Cap, PL’s Ex. 17 (emphasis added). Under these facts, it is clear that B & W knew that customers who bought its lower tar and nicotine cigarettes were looking to smoke a healthier cigarette. Mr. Little, by purchasing such cigarettes, impliedly made known to B & W that his particular purpose for the cigarettes was to smoke a healthier cigarette, see Soaper, 424 S.E.2d at 495 (holding that the plaintiff, upon purchasing defendant’s film processor for use in his fast photo business, impliedly gave notice to the defendant that his particular purpose for the machine was fast film developing), and B & W’s conclusory argument to the contrary is unconvincing, as is any argument that B & W did not know that Mr. Little was relying on its skill or judgment to furnish a “healthier” cigarette. Viewing the evidence in the light most favorable to Plaintiff, Mr. Little used Carlton cigarettes as a safer alternative, and B & W was aware of this. Plaintiff further contends that B & W breached the implied warranty because its product did not deliver a less hazardous cigarette. While B & W points out that Carlton delivered lower tar and nicotine than other cigarettes, Plaintiff maintains that Carlton cigarettes were defective because their ventilation design made it easy for a user, by simply covering the ventilation holes while smoking, to alter the tar and nicotine delivery without knowing the health consequences. In support of this position, Plaintiff cites the testimony of her expert Jack Henningfield: And so the idea that ventilation, for example, can be a good thing does not hold true if the means of accomplishing the ventilation is done in a way that people can easily cover the ventilation and defeat it as Martin Little was able to do ... for it to work it means in practice it should work in people and not just in [FTC testing] machine[s]. Pl.’s Mem. in Opp. at 13 (citing Henning-field Dep. at 219). Plaintiff also cites the following testimony of Dr. Burns: Q: When Carlton cigarettes were invented and their designs were refined early on in the late-’60s through the mid-’70s, do you contend that the people who were designing those cigarettes were designing the cigarette with an intent to provide the smoker with a higher delivery than the FTC machine would record? A: It is my belief, from my review of tobacco industry documents, that the design characteristics of the cigarettes that were being sought were ones where the yield of the cigarette would change substantially with different characteristics of the smoking pattern, that that was set and was set by design such that when the machine smoking parameters were used, a very low level of tar would be generated, but that when the smoker smoked those cigarettes, they would derive from that cigarette, based on the elasticity of yield that had been designed into those cigarettes, the flavor sufficient for them to derive satisfaction from that cigarette, and that ... those were the goals that were expressed in the design characteristics. I don’t think that the engineers expressed a design goal to lie to anyone. What they expressed a design goal to do was to produce a cigarette that had a very low measurement under the circumstances used by the machine, but would have a very much higher delivery when used by people so that that cigarette would satisfy the craving or the needs of that individual. Pl.’s Mem. in Opp. at 14 (citing Burns Dep. at 188-89). B & W’s argument is that Mr. Little misused Carlton cigarettes by covering the ventilation holes and thus in part caused his lung cancer. Plaintiffs argument is that the design of Carlton cigarettes intentionally made it easy for users to alter the tar and nicotine delivery. Moreover, B & W’s expert testified that B & W knew that its customers were consciously blocking the filter’s ventilation holes, without knowledge of the corresponding health risks, in order to get a more full-flavored taste from the low-tar cigarette: Q: You think that people covered up the holes in the filter knew what they were doing and why they were doing it? A: They knew they were making the cigarette a stronger taste, sure. Q: Do you think they knew the health effects and consequences of what they were doing? A: Oh, I can’t answer that. I know that they knew they were making it a stronger cigarette. Gesell Dep. at 137. Mr. Little testified that he did not understand the health consequences to his ventilation blocking, but rather knew only that he was getting a fuller taste: Q: Now, the first time you smoked a Carlton did you see the holes and block it the very first time? A: No, I don’t think I did because I remember smoking them and getting nothing. Q: Okay, well, by nothing you mean very dilute[d] smoke? A: Yeah ... I guess that is the way. Q: Okay. So you understood then that if you blocked the holes you would get more smoke, correct? A: That’s correct. Q: And did you understand that if you blocked the holes you would get more nicotine? A: No, I didn’t. Q: When you — did you understand that when you blocked the holes you would get more tar? A: No. Q: Did it occur to you that if you blocked the ventilation holes on the cigarette that you would not achieve the benefit of the reduced tar and nicotine that that brand delivered? A: Not really. Q: Just didn’t think about it? A: No. I think the closing up [of] the holes would give you — you could taste the cigarette if you did that. If you didn’t close the holes up you wouldn’t taste the cigarette. Now, why that was the case, I don’t know. M. Little Dep. 2/24/99 at 44-46. It is clear that an issue of fact exists as to whether Mr. Little believed that his ventilation blocking was negating the cigarettes’ lower tar and nicotine delivery. Viewing the expert testimony and Mr. Little’s testimony in the light most favorable to Plaintiff, the record is clear that Mr. Little manipulated the cigarettes in order to get a better taste, and that he did not know that such manipulation was affecting the tar and nicotine delivery of Carlton cigarettes. Furthermore, the testimony, as stated above, establishes that it was foreseeable that smokers such as Mr. Little would instinctively take such unhealthy actions. Furthermore Lance Reynolds testifying on behalf of B & W individually and as successor to American, stated that the manufacturers of Carlton cigarettes did not have any scientific evidence that cigarettes with only one milligram of tar were a healthier alternative: Q: Are you aware of any health benefit a smoker may receive by switching to a 1 milligram tar cigarette? A: As I’ve said several times, if you take the common sense point of view that less is likely to be less hazardous, then yes, but that’s not being substantiated by [sic] if you like long-term epidemiological study. M. Lánce Reynolds Dep. at 60. An issue of facts exists as to whether B & W’s Carlton cigarettes were fit for their intended use as a safer and healthier cigarette. Accordingly, the court denies B & W’s motion for summary judgment on Plaintiffs breach of implied warranty claims. G. Whether Plaintiff May Maintain her Fraud Claim Against B & W Under South Carolina law, a plaintiff must prove by “clear, cogent, and convincing evidence” the following elements in order to establish a fraud claim: (1) a representation; (2) its falsity; (3) its materiality; (4) knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury. First State Sav. and Loan v. Phelps, 299 S.C. 441, 385 S.E.2d 821, 824 (1989); Charleston Lumber Co. v. Miller Housing Corp., 318 S.C. 471, 458 S.E.2d 431, 436 (1995). To the extent that Plaintiff alleges a fraud claim based on (1) the “Frank Statement to Cigarette Smokers,”(2) the “Cigarette Advertising Code,” and (3) tobacco company executives testimony before Congress, B & W contends that there is no evidence that Mr. Little was aware of, or relied on, any of these allegedly false statements. Plaintiff has not offered any argument to the contrary regarding these three grounds. As the court found in its May 8, 2000 Order granting and denying in part summary judgment to Reynolds, Plaintiff has not presented any evidence that Mr. Little witnessed any of the tobacco executive’s testimony. Order, May 8, 2000 at 11-12. As the court further found, Mr. Little conceded that he only viewed the “Frank Statement” in connection with this litigation. Id. at 21-22. Finally, the court concluded that Plaintiff has not presented any evidence that Mr. Little ever saw or relied on the Cigarette Advertising Code. Id. at 22-23. The same reasoning holds true here, and the court grants B & W summary judgment on any fraud claims based on the above three grounds. Plaintiff, however, further alleges that “[t]he marketing of low tar cigarettes was a deliberate attempt to give false reassurance to customers concerned about the health risks of smoking,” as Defendants “understood the role of nicotine addiction in making smokers such as Mr. Little compensate to achieve a satisfactory dose of nicotine,” and “designed products that registered as low tar when measured on smoking machines and reported on labels but that delivered high levels of tar to the smoker.” PL’s Sec. Am. Compl. at ¶¶ 27, 28. Plainti