N.Y. High Court Upholds Reversal of $20.5 Million Tobacco Verdict

Daniel Wise

New York Law Journal

December 17, 2008

The New York Court of Appeals, upholding the reversal of a $20.5 million verdict, Monday 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.

The court's ruling in Adamo v. Brown & Williamson, 205, affirmed a 3-2 decision of the Appellate Division, 1st Department, that reversed the $20.5 million verdict on the grounds that Rose failed to show "consumer acceptability" of light and ultra-light cigarettes.

The jury verdict, which was returned in 2005, was divided into $3.4 million for compensatory damages and $17.1 million for punitive damages.

The sole dissenter at the Court of Appeals, Judge Eugene F. Pigott Jr., wrote that the majority had improperly shifted the burden of proving consumer acceptability to Rose. He would have remanded the case for a new trial at which the two defendants, Brown & Williamson and Philip Morris USA, could present evidence on the issue.

Rose smoked more than a pack of cigarettes a day for more than 40 years before she quit in 1993, according to the majority opinion. Two years later she was diagnosed with lung cancer and an allegedly related neurological disorder.

Rose and her husband initially sued three cigarette manufacturers, but the trial judge, Acting Supreme Court Justice Karen Smith, allowed to go forward only the claim of negligent design against Brown & Williamson as the successor to American Tobacco Co. and Philip Morris.

After Rose died, the appeal at the Court of Appeals was pursued by her executor, Frank Adamo.

Smith relied on the court's 1983 ruling in Voss v. Black & Decker Mfg. Co., 59 NY2d 102, in concluding that the utility of light cigarettes is the linchpin to determining whether the continued sale of regular cigarettes constitutes purveying a product with a negligent design.

In Voss, the court concluded that to establish a negligent design claim a plaintiff must prove that "it was feasible to design the product in a safer manner."

Smith concluded that Rose had demonstrated that low-tar cigarettes are safer than regular cigarettes. It was on the question of utility, he wrote, that her negligent design claim fell short.

The only function of a cigarette is to give pleasure, he said, and "large numbers of consumers continue to prefer regular cigarettes."

Smith also noted that there is an irony in considering the "utility" of light cigarettes when a strong argument could be made that, "when measured against the harm they do, regular cigarettes are worse than useless."

But it is still legal to sell cigarettes, he said, and to require that "every sale of regular cigarettes exposes a manufacturer to tort liability would amount to a judicial ban on the product."

Philip Morris issued a statement that the Court of Appeals had applied "well-established law." Former Court of Appeals Judge Howard A. Levine, now a senior counsel at Whiteman Osterman & Hanna, who represented the Rose family, declined through a spokesman to comment.

Andrew H. Schapiro of Mayer Brown represented Philip Morris. Thomas E. Riley of Chadbourne & Parke represented Brown & Williamson.