NY High Court Upholds Dismissal Of Cigarette Liability Claim..

December 17, 2008 - The New York (NY) Court of Appeals, upholding the reversal of a $20.5 million verdict, Monday, 12/15/2008 ruled that the estate of a smoker who died of lung cancer could not assert a negligent product design claim against two cigarette makers based on the availability of a safer "light" cigarette.

Writing for a 6-1 majority, Judge Robert S. Smith concluded that the smoker, Norma Rose, who died during the pendency of the appeal, had failed to prove an "essential element" of her products liability claim -- that light cigarettes, which have low tar and nicotine levels, have the same "utility" as regular cigarettes.

The only utility of a cigarette, Smith wrote, "is to gratify smokers" and Rose's lawyers "made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes -- indeed it is virtually uncontested that they do not." To have ruled that the availability of light cigarettes rendered regular cigarettes defective in design, he noted, "would amount to a judicial ban" on their sale.

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.

In April 2008 an Manhattan appellate court 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. (Tobacco Companies Win Upset of Damages Award, Noeleen G. Walder, New York Law Journal, April 11, 2008
The jury verdict returned in 2005 was divided into $3.4 million for compensatory damages and $17.1 million for punitive damages.

On Monday, the US Supreme Court ruled that consumers in Maine could sue the Altria Group’s Philip Morris USA under state unfair-trade laws for its advertising of ‘light’ cigarettes.

Reference: NY High Court Upholds Dismissal Of Cigarette Liability Claim by Chad Bray Of DOW JONES NEWSWIRES, 12/16/2008; N.Y. High Court Upholds Reversal of $20.5 Million Tobacco Verdict, Daniel Wise, New York Law Journal, December 17, 2008.