April 14, 2008 - Tobacco Giants Gain Victory in N.Y. Appeals Court

Tobacco giants Brown & Williamson Holdings and Philip Morris USA gained a victory last week when a Manhattan appeals court reversed a ruling in favor of Norma Rose, a 73-year-old woman with lung cancer, who had argued that the cigarette makers were negligent by failing to market only low-tar cigarettes. The appellate court ruled in a 3-2 decision that the plaintiff failed to prove that light cigarettes would have been an acceptable substitution for regular cigarettes to consumers.

The two dissenting judges criticized the tobacco giants, finding that the test of consumer acceptability was tantamount 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.”

Ms. Rose, a smoker since the 1940s, alleged that the tobacco companies’ failure to sell only low-tar, low-nicotine cigarettes amounted to negligence. Rose admitted, however, that she had tried two low-tar brands, but did not care for the taste.

On March 18, 2005, a Manhattan jury found the tobacco giants liable for $3.4 million in compensatory damages, to be split evenly between both Philip Morris and Brown & Williamson. It also found Philip Morris liable for another $17.1 million in punitive damages.

Last Thursday, the Manhattan appellate court overturned the decision. According to the appellate opinion, a manufacturer cannot be held liable for declining to manufacture only low-tar cigarettes under New York law. The opinion affirmed that the companies are not required 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 claimed that she had satisfied her burden of proof by showing that it was technically possible for the companies to manufacture light cigarettes. The appellate court held, however, that Rose had failed to demonstrate the “consumer acceptability” of light cigarettes.

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