For purposes of clarity and judicial economy, it is proper to narrow the pleadings to relevant matters. Irrelevant pleadings may be stricken or dismissed. Minn. R. Civ. P.12. A pleading is relevant if it is related to the controversy between the parties and if it presents an issue for trial. If a defense does not raise material issues of fact and the matter may be determined as a matter of law, a judgment on the pleadings is appropriate.

     Plaintiffs assert they "are not seeking in this motion a ruling establishing their direct causes of action." Plaintiffs' Memorandum, pg. 3. Defendants agree that "the court need not (and Defendants submit should not) decide the merits of Plaintiffs' independent claim now." Defendants' Memorandum, pg. 10. Nor does this court rule with respect to that issue. The denial of Plaintiffs' motion at this time, however, shall not be construed to sanction conversion of this case into one of subrogation. The court is not unmindful of the Plaintiffs' urgings to promote judicial efficiency and avoid unmanageable litigation. This court will aggressively assert necessary control over discovery to avoid expenditure of excessive time and expense.⁽²⁾ To paraphrase a paraphrase, it is not the intent of this court to allow either party to win by spending all of the court's money.

     Because the Plaintiffs' Motion for Judgment on the Pleadings is premature, it is denied. The court invites the parties to revisit this issue after discovery.

II.     Defendants' Motion to Dismiss Blue Cross and Blue Shield of Minnesota for Lack of Standing.

    Defendants seek to dismiss Plaintiff Blue Cross and Blue Shield of Minnesota ("BCBSM") for lack of standing, arguing that BCBSM has suffered no pecuniary harm because BCBSM has "passed through" its expenditures for health care costs to its subscriber groups in the form of increased premiums. Plaintiff BCBSM responds that not only has it been required to charge higher premiums to its subscriber groups for medical expenses, costs which it acknowledges were passed on to such groups, BCBSM also sustained injury in its own right pursuant to its statutory mandate to advance public health and to promote more economical health care services.

    A party lacks standing to maintain suit if its injury is speculative or abstract. Under Minnesota law, injury in fact" is the test. Snyder's Drug Stores. Inc. v. Minnesota St. Bd. of Pharmacy, 301 Minn. 28, 221 N.W.2d 162 (1974). If a party has only an abstract or tenuous connection to the matter at issue, it lacks standing.

    From a practical standpoint, BCBSM is the natural plaintiff best able to pursue the claim. It properly represents the many individual group subscribers in seeking recovery under applicable antitrust law and, pursuant to such law, if BCBSM prevails, any recovery would inure directly to the group subscribers BCBSM represents via pass through of the recovery. As a purchaser of health services, BCBSM has direct and first-hand knowledge of the matter at issue. Its knowledge and direct experiences over the past decades in purchasing health care services from numerous providers, including those services related to smoking-engendered diseases, serves to streamline the action as hundreds of group subscriber plaintiffs could not. As such, BCBSM is an appropriate party to this lawsuit. The relief it seeks will not provide a "windfall" to BCBSM, but instead will benefit the group subscribers, and ultimately the public, as statutorily mandated. The group subscribers would directly benefit by lower premiums made available by passing through any recovery obtained by BCBSM.

     It is undisputed that BCBSM's member groups purchased prepaid health services from BCBSM. Another undisputed fact is that BCBSM provided these health services via agreements it made directly with health care providers. As such, BCBSM is clearly a link in the chain of interacting parties. The costs for the health services related to smoking were allegedly increased due to Defendants' representations with respect to its product. Whether or not BCBSM, as a non-profit organization, fully recouped all its costs is a fact question, not a matter of law which can be determined at this stage of the proceedings. Accordingly, whether BCBSM passed through all or only a portion of the costs it bore due to Defendants' alleged actions is irrelevant. BCBSM is hardly "too remote" to complain of the harm allegedly caused by the Defendants.

     Also, the nature of BCBSM's position is such that any alleged conspiracy among the tobacco companies may have had direct negative impact upon it. For example, BCBSM may be able to demonstrate that its costs for health care services related to smoking-related diseases substantially increased and resulted in loss of its market share of the health care market.

     Finally, BCBSM is seeking relief independent from any that could be sought by smokers, not relief for smokers' pain and suffering. Defendants' analogies to workers' compensation law to argue that subrogation is BCBSM's exclusive remedy are inappropriate. While subrogation may be appropriate for certain matters, the law of workers' compensation in Minnesota is statutorily defined and limited and, thus, cannot be cited as precedent in the matters at issue.

     BCBSM does not lack standing; Defendants' motion to dismiss BCBSM for lack of standing is denied.

III..     Defendants' Motion to Dismiss Counts Two and Three of the Complaint for Failure to State a Claim.

    Defendants argue that Plaintiffs have not alleged the threshold requirement that the injuries allegedly sustained are "antitrust injuries." Defendants argue that increased health care costs do not flow from competitive harm in the tobacco product marketplace and are, therefore, personal injury rather than antitrust matters. Because Plaintiffs are not competitors in the tobacco industry, Defendants argue that antitrust claims must be dismissed. Plaintiffs respond that, based on Minnesota law, they have met the threshold requirements to plead antitrust claims; the statute encompasses those harmed directly and indirectly and does not preclude recovery for personal as well as economic injuries. Plaintiffs argue that their claim of conspiracy by the six major tobacco companies and the research groups to suppress research relating to tobacco products, a fact-intensive claim, brings this action squarely into the realm of antitrust law because the harm suffered by Plaintiffs is "inextricably intertwined" with that suffered by smokers, forging an unbroken causal chain.

    While the Defendants have raised valid concerns, the law of this jurisdiction cannot be ignored. Minnesota is one of the few states which has promulgated legislation more expansive than the federal antitrust measures. The Minnesota legislature has clearly and unambiguously stated the law in this jurisdiction:

Any person, any governmental body, or the state of Minnesota or any of its subdivisions or agencies, injured directly or indirectly by a violation of sections 325D.49 to 325D.66, shall recover three times the actual damages sustained, together with costs and disbursements, including reasonable attorneys' fees. In any subsequent action arising from the same conduct, the court may take any steps necessary to avoid duplicative recovery against a defendant.

Minn. Stat. sec. 325D.57.

     Although federal precedent is relevant in determining application of antitrust remedies, the Minnesota statute has broadened the scope of those who may seek recovery. Comments made by the legislature during the course of enactment of this statute are illustrative of the thought, concerns, and efforts put into creation of the law. The fact remains, however, that the statute as finally enacted is very broad; it does not reflect adoption of limitations on those who may recover. The Minnesota legislature clearly did not accept the restrictions under federal antitrust law. Had the legislature meant to limit antitrust remedies to those injured directly, it could have easily done so.

     The language of the statue is clear and unambiguous. It expressly allows those injured indirectly to present their claims under the statute. Because there is no specific language in the statute that can be declared ambiguous, legislative history need not be examined to clarify ambiguities. The statute expressly allows those indirectly injured to proceed. Plaintiffs and each of them complain of injuries due to the alleged conspiracy of the Defendants and their industry. The Plaintiffs are not outside the chain of injured parties. Accordingly, counts two and three of the complaint shall not be dismissed.

IV.     Defendants' Motion to Dismiss Count One of the Complaint for Failure to State a Claim.

    Defendants claim that count one is pled as a specific tort, the "Good Samaritan Rule" of Restatement (Second) of Torts sec. 324A, and accordingly it must be dismissed because Plaintiffs have alleged only economic, not physical, injury. Defendants argue further that count one of Plaintiffs' complaint should be dismissed because it fails to allege that Defendants conduct made an existing regulated product, cigarettes, any more dangerous or that Defendants in any way induced Plaintiffs to forego precautions they would otherwise have taken; again, factors enumerated in section 324A. Plaintiffs argue that Restatement of Torts Sec. 324A is not the sole basis for their claim. They state that they have pled all of the elements of a tort action under Minnesota law and argue that physical harm is not required for recovery under a tort action.

     The primary issue boils down to one of duty. Did the Defendants owe a duty to Plaintiffs? If not, there can be breach of that duty and thus no liability. A legal duty may be based on general tort law (i.e., defendants legally owe a duty of care directly to particular plaintiffs) or may be what is called a "special" or "assumed" duty (i.e., a duty, though not generally legally owed to these Plaintiffs, which is undertaken or assumed by Defendants). Defendants argue that they neither owed nor assumed any legal duty with respect to these Plaintiffs.

    Restatement (Second) of Torts sec. 324A or the factors enumerated in Cracraft need be considered where a legal duty does not generally exist. Both sides examine the four factors enumerated in Cracraft. As the Cracraft court notes, these factors are "similar" to those of Restatement (Second) of Torts section 324A. Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 807 (Minn. 1979). The court did not hold that section 324A was controlling, nor do we accept that premise here. Cracraft remains good law and this court approves its finding that "special duty" is "nothing more than convenient terminology . . . once a duty to act for the protection of others is voluntarily assumed, due care must be exercised." 279 N.W.2d at 807 n.9, 11. See. e.g. Restatement (Second) of Torts section 323.

    Had this claim been made solely on the basis of BCBSM's alleged reliance on representations made by Defendants, this court could seriously consider, under the Good Samaritan Rule, Restatement (Second) of Torts sec. 324A, that BCBSM may be in a different position than the State of Minnesota. The claim, however, is not thus based. Defendants admit they agreed to research the area of tobacco-related diseases and report findings. Whether Plaintiffs are in a position to demonstrate that the Defendants by their allegedly conspiratorial efforts suppressed information and stifled the development of a "safer cigarette" remains to be seen. Defendants do not argue that once they undertook to act, by publicly announcing their research and development efforts for the "paramount" importance of the public's health and safety, they could abandon their duty of reasonable care. Nor do Defendants explain how any legal duty they owed to the general public is distinguishable from any owed to Plaintiffs.

     The distinction between a special duty, or one voluntarily undertaken, and a general legal duty is important where negligence is alleged. In the instant case Plaintiffs claim Defendants willfully and knowingly suppressed information and conspired to prevent development and marketing of a "safer" cigarette. Because the claims are not based on negligence, the distinction between a special duty and general legal duty is a distinction without a difference. Accordingly, ignoring the issue of physical harm to the public, the fact that economic rather than physical harm has allegedly been suffered by these Plaintiffs is not dispositive.

    The public policy rationale behind tort law is one of allocation of losses arising out of human activities. W. Prosser, Handbook of the Law of Torts 6, (4th ed. 1971). When one has suffered a legal wrong, even if novel or unprecedented, a legal remedy shall be found. Plaintiffs have pled their case in a manner appropriate to such law. Whether the elements they have pled will be proven remains to be seen; however, at this point in the proceedings, the court will not place form before the substance of the matters at issue. The elements of a tort claim under the Laws of the state of Minnesota have been pled. Defendants' Motion to Dismiss Count One for Failure to State a Claim is denied.

K.J.F.

1. Defendant B.A.T. Industries, P.L.C., has filed a motion to dismiss for lack of personal jurisdiction, which motion has been stayed pending further discovery. See this court's order dated January 3, 1995. Said Defendant has not yet answered. Accordingly, this memorandum addresses the answers of the eight defendants who have answered the complaint.

2. This court will not permit, for example, depositions of thousands of smokers throughout the state. Subject to further argument, the court's position is that it proposes depositions be restricted to a limited number of individual smokers (absent agreement of counsel, that limit shall be court imposed) selected by some means of computerized random selection.