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Judge Brieant http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=85357 PLAINTIFF’S HUSBAND began smoking defendant’s Marlboro cigarettes in 1961, and claimed to have become addicted in 1964. He died of lung cancer, in 2006, at 57. In 1997, New York sued the tobacco industry, under a parens patriae theory, as a predicate to its participation in the 1998 nationwide settlement. Despite ruling that plaintiff could proceed on claims of inadequate warning and fraudulent concealment extending to 1964, the court held that New York’s participation in the 1998 settlement between 46 states and the tobacco industry barred, as res judicata, subsequent claims for punitive damages in smoker’s damage actions in New York. The court found that plaintiff and her now-deceased husband and defendant tobacco company were “in privity” with the parties to the earlier action. The court also rejected plaintiff’s defective-design claims, noting that the “reduced carcinogen” and “non-addictive” cigarettes cited as safer alternatives by plaintiff’s expert were “indisputably rejected by consumers.”

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