Big Tobacco Handed Victory by Manhattan Appeals CourtApr 14, 2008 | Parker Waichman LLP
Tobacco giants Brown & Williamson Holdings and Philip Morris USA won a huge victory last week when a Manhattan appeals court reversed a ruling in favor of a lung cancer victim who had argued that the cigarette makers were negligent by failing to market only "light cigarettes". In a 3-2 decision the appellate division ruled that the plaintiff failed to prove that light cigarettes would "have been acceptable to the consumers that constitute the market for the allegedly defective product," regular cigarettes.
However, two dissenting judges 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."
The lawsuit in question was filed by Norma Rose, a 73-year-old woman diagnosed with lung cancer and other health problems caused by a smoking habit she began in the 1940s. In her lawsuit, Rose v. Brown & Williamson Tobacco Corp., she alleged that the cigarette makers' failure to sell only low-tar, low-nicotine products amounted to negligence. Rose said she briefly tried two low-tar brands, but found the taste unappealing.
According to the site Law.com, on March 18, 2005, in a case presided over by Acting Supreme Court Justice Karen S. Smith, a Manhattan jury handed down a $3.4 million compensatory award, to be split evenly against Philip Morris and Brown & Williamson. Rose also received a $17.1 punitive damages award against Philip Morris. The tobacco companies asked Judge Smith to overturn the jury's decision, but she refused.
Last Thursday, the Appellate Division reversed her decision and granted the dismissal the tobacco companies requested. The majority opinion, written by Justice David S. Friedman, noted that New York law does not allow a manufacturer to be held liable for declining to "adopt an alternative product design that has not been shown to retain the 'inherent usefulness' the product offers when manufactured according to the more risky (but otherwise lawful) design that was actually used."
Rose's lawyers maintained that her lawsuit had satisfied this burden by showing that it was technically feasible to manufacture light cigarettes. But the majority on the court held that Rose had failed to present evidence of "consumer acceptability" of light cigarettes, because supposedly, the majority of individuals smoke for the taste and psychological effects of tar and nicotine.