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Of course we are conscious, as everyone must be, of the irony in speaking of cigarettes' "utility." A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless. But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
I respectfully dissent. Plaintiffs met their burden of establishing that defendants were able to design a safer cigarette that maintained the functionality of a regular cigarette (see Voss v Black & Decker Mfg. Co., 59 NY2d 102, 109 [1983]). The majority concludes, however, that plaintiffs were required "to prove that smokers find light cigarettes as satisfying as regular cigarettes," and were further obligated to prove that cigarettes serve some function other than to provide pleasure (maj op at 3). In my view, this language improperly shifts the burden of proving consumer acceptability to plaintiffs.
At trial, defendants moved "to offer evidence tending to prove that the 'safer alternative design' suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e., not commercially viable)" (10 Misc3d 680, 696-697). The trial court denied that motion, concluding that evidence of commercial viability of the lighter cigarette was irrelevant to its feasibility or functionality (id. at 699).
That was error and, therefore, I would remit the matter to Supreme Court for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette.
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New York's highest court on Tuesday upheld a lower court's decision tossing out a product-liability claim over the sale of regular cigarettes with higher levels of tar and nicotine than so-called "light" cigarettes.
In a 6-1 decision, the New York State Court of Appeals found lawyers for late smoker Norma Rose failed to prove - and didn't try to prove - that smokers enjoy "light" cigarettes as well as regular cigarettes.
The court found that was a necessary element in determining whether cigarette companies were liable for not selling a "safer" product. Rose's lawyers had argued at trial that a jury could find that light cigarettes were safer than regular cigarettes, the court said.
"It is not necessary in every product liability case that the plaintiff show the safer product is as acceptable to consumers as the one the defendant sold; but such a showing is necessary where, as here, satisfying the consumer is the only function the product has," the court found. . . .
"A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless," the court found. "But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product."
In a major victory for tobacco companies, a Manhattan appellate court Thursday reversed a 73-year-old lung cancer victim's $3.4 million compensatory damage award against two industry giants and threw out $17.1 million in punitive damages against Philip Morris USA. . . .
But two dissenters sharply criticized the tobacco companies, finding that the test of consumer acceptability amounted to "nothing more than a cynical effort by the defendants to maintain the commercial advantages of continuing to sell unreasonably dangerous addictive products to addicts." . . .
Rose and her husband argued that the tobacco companies should have sold only "light" cigarettes, and that their failure to cease marketing regular cigarettes constituted a negligent design flaw. . . .
Rose and her husband maintained that they had satisfied this burden by showing that it was technically feasible to manufacture light cigarettes. But the majority held that they had failed to present evidence of "consumer acceptability." . . .
Justices James M. Catterson and Eugene Nardelli dissented in a 38-page opinion written by Catterson. . . .
Finz, citing what he characterized as the "extraordinarily strong dissents," said his clients would appeal the decision and expected the Court of Appeals to reverse the verdict, "consistent with the current state of the law in New York on products liability."
a Manhattan appellate court Thursday reversed a 73-year-old lung cancer victim's $3.4 million compensatory damage award against two industry giants and threw out $17.1 million in punitive damages against Philip Morris USA.
The Appellate Division, 1st Department, held in a 3-2 opinion that Norma Rose failed to prove that Brown & Williamson Holdings and Philip Morris negligently designed cigarettes by continuing to market a product with higher levels of tar and nicotine than so-called "light cigarettes."
The majority, in a decision by Justice David S. Friedman, ruled in Rose v. Brown & Williamson Tobacco Corp., 9994, that Rose failed to prove that low-tar, low-nicotine cigarettes would "have been acceptable to the consumers that constitute the market for the allegedly defective product," regular cigarettes.
Citing Voss v. Black & Decker Mfg. Co., 59 NY2d 102, 108 (1983), Friedman noted that a plaintiff in a negligent design case must prove that "the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner."
Rose and her husband maintained that they had satisfied this burden by showing that it was technically feasible to manufacture light cigarettes. But the majority held that they had failed to present evidence of "consumer acceptability."
A New York jury ordered Philip Morris USA to pay $17.1 million in punitive damages to a lung cancer patient, who claims the cigarette maker failed to warn her about the dangers of smoking.
The award Monday came one week after the same jury at the New York State Supreme Court in Manhattan ordered Altria Group Inc.'s (MO) Philip Morris USA unit and American Tobacco, which is now a unit of Reynolds American Inc. (RAI), to pay $3.42 million in compensatory damages to Norma Rose, a 72-year old woman who began smoking as a teenager, and her husband Leonard. The compensatory award was split equally between the two companies.
"Philip Morris USA will appeal this decision and believes the judgment should be overturned based on the facts presented at trial and the novel legal theory asserted in the case," said William Ohlemeyer, Philip Morris USA vice president and associated general counsel, in a written statement.
Altria Group Inc.'s Philip Morris USA, the nation's largest cigarette maker, was ordered to pay a lung-cancer patient and her husband $18.8 million in what would be the largest payment to an individual smoker.
A New York jury today awarded punitive damages of $17.1 million to Norma Rose, 72, and her husband Leonard. Those damages are added to an earlier $1.7 million compensatory award in New York State Supreme Court in Manhattan.
If approved on appeal, the payment would be the largest for an individual smoker, according to data compiled by Bloomberg. . . .
On March 18, the jury of four men and two women awarded the Roses $3.4 million in compensatory damages, to be paid equally by Philip Morris and American Tobacco Co., a company that no longer exists. Reynolds American Inc. is successor to the company and would pay any verdict if upheld.
A New York jury on Monday ordered Philip Morris to pay $17.1 million in punitive damages to a woman who accused the company of failing to warn her about the dangers of smoking, the woman's attorney said on Monday.
The award came one week after the same jury ordered Philip Morris and American Tobacco -- now a subsidiary of Reynolds American Inc. (RAI.N: Quote, Profile, Research) -- to pay $3.42 million to Norma Rose in compensatory damages, said her lawyer Stuart Finz.
"We just got a verdict this evening for punitive damages in the amount of $17.1 million," Finz said.
Under New York law, defendants do not have a duty to warn consumers of risks in their products that are well-known. At trial, defendants will show that Mrs. Rose was well aware of the risks associated with smoking, which are and have been common knowledge. Fully informed of such risks, Mrs. Rose assumed these risks for the approximately 40 years she continued to smoke. Additionally, Mrs. Rose has not offered and cannot offer any evidence that, at any time during her smoking history, there was any feasible, safer alternative cigarette design that she would have tried and that would have prevented her lung cancer.
In addition, defendants' medical experts will testify that Mrs. Rose's medical process is not consistent with small cell lung cancer. . . . Further, defendants' medical experts will testify that Mrs. Rose's neurological deficits could have been caused by an atypical carcinoid, her diet, alcohol use, and other non-paraneoplastic factors. . . .
Plaintiffs, Norma and Leonard Rose, filed this action on December 18, 1996 in the Supreme Court of New York, County of New York. As originally filed, plaintiffs alleged multiple claims against multiple defendants.
As a result of motions to dismiss, summary judgment motions and other pre-trial proceedings, the only claim remaining for trial is negligent defective design.
Rose Trial
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Court: Supreme Court of the State of New York, County of New York
Type of Case: Individual
Trial Start Date: February 8, 2005
Overview: On March 18, 2005, the jury returned a verdict against Philip Morris USA and American Tobacco Company, but not against R.J. Reynolds. The jury awarded $3,420,000 in compensatory damages, assigning 50% each to American Tobacco Company and Philip Morris USA. A separate phase to determine entitlement to punitive damages against American Tobacco Company and Philip Morris USA will begin next week. This is a New York City individual smoking and health case brought by Norma Rose, who claims that as a result of her smoking she developed cancer. R.J. Reynolds and American Tobacco Company are also defendants in this case.
Plaintiffs also allege that cigarettes are a defective product and are not reasonably safe when used as intended because they are addictive and carcinogenic. Plaintiffs further allege that defendants knew of the health hazards presented by cigarette smoking, yet concealed the extent of these hazards from the public during the decades Norma Rose smoked.
In the second amended verified complaint, plaintiffs assert causes of action against defendants for: failure to warn consumers of the dangers of cigarette smoking prior to 1969; fraud and deceit; negligent misrepresentation; negligent and defective design; strict products liability; breach of express warranty; breach of implied warranty of merchantability; breach of implied warranty of fitness for a particular purpose; and loss of consortium on behalf of plaintiff Leonard Rose.
A New York jury ordered Altria Group Inc.'s Philip Morris USA and Reynolds American Inc. to pay $3.4 million to a woman who said smoking caused her lung cancer.
Norma Rose, 72, and her husband, Leonard, sued Philip Morris, the biggest U.S. cigarette maker, and American Tobacco, said Stuart Finz, the couple's lawyer. . . .
The jury will consider a possible award of punitive damages.