Jump to full article: Law.com, 2008-04-11
Author: Noeleen G. Walder New York Law Journal
Intro: 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.
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." . . .
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."
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