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A Pennsylvania plaintiff’s argument that the health risks associated with Philip Morris’ cigarettes constituted a product defect did not stand up in a South Carolina court because the plaintiff did not show that there was a safer, alternative design. A South Carolina federal judge interpreted Pennsylvania law as requiring that evidence, even though the Pennsylvania Supreme Court has stated otherwise. “Pennsylvania law dictates that plaintiff’s ability to show a feasible alternative design is an indispensable factor when determining whether the product is unreasonably dangerous,” federal Judge Patrick Michael Duffy of the U.S. District Court for the District of South Carolina wrote in Labelle v. Philip Morris Inc. According to the opinion, Christine Labelle started smoking Marlboro cigarettes in 1970, when she was 14 years old. She switched to Marlboro Lights in 1984 and to Merits in 1985 or 1986. Philip Morris manufactures all three brands of cigarettes. In 1987, Labelle switched cigarette brands again, this time to Pyramids, manufactured by Liggett & Myers. Finally, at some point in the 1990s, Labelle switched to Basics, manufactured by Philip Morris. Labelle smoked Basics until she quit smoking in November 1996, the same month she was diagnosed with lung cancer. Labelle died in February 1997. Donald Labelle, Christine Labelle’s husband, filed suit against both Philip Morris and Liggett & Myers in November 1998, alleging products liability, violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, negligence and civil conspiracy. Labelle reached a settlement with Liggett & Myers. Philip Morris moved for summary judgment. Because Christine Labelle was a Pennsylvania resident at the time of her death, Duffy said there was no question that Pennsylvania law applied. Philip Morris argued that Donald Labelle did not support his claim of a design defect with evidence that there was a safer, alternative design for its cigarettes. Labelle countered that the state supreme court had stated in its Duchess v. Langston decision in 1997 that evidence of a feasible alternative design is not required of a plaintiff in a products liability case. But, Duffy pointed out, the Pennsylvania Superior Court, the 3rd U.S. Circuit Court of Appeals and the U.S. District Court for the Eastern District of Pennsylvania have all found that alternative-design evidence is necessary. He decided to follow the reasoning of those courts. “While the existence of a feasible, safer alternative design is often stated as one of the factors to consider during the court’s threshold determination of whether a product is unreasonably dangerous, [Labelle's] ability to establish a design defect is inextricably tied to whether he can demonstrate that cigarettes could have feasibly been made safer,” Duffy wrote. “If one cannot demonstrate that a product is capable of a safer design, then logically it should be viewed as inherently dangerous. Under Pennsylvania law, a product is not defective merely because it is inherently dangerous. Instead, [Labelle] must show a specific defect in the product.” Labelle planned to show that Philip Morris’ cigarettes were defective in how they deliver smoke to a smoker, Duffy said. Labelle alleged that the cigarettes exposed users to tar, nicotine, carbon monoxide and other ingredients that are known to cause health risks, including lung cancer. Duffy said such a showing would obviously require alternative-design evidence. “Otherwise, if [Labelle] is unable to show that the dangerous nature of a cigarette can be altered in a way so as to reduce the associated risks of smoking, then to allow a claim to go forward would be to allow an ‘inherently dangerous’ claim [to be] simply recast as a ‘design defect’ claim,” Duffy said. Duffy likened his conclusion to the 1988 Eastern District Court ruling in Miller v. Brown & Williamson Tobacco Corp. The Eastern District Court granted summary judgment against a plaintiff who failed to submit expert evidence as to how the defendant’s cigarettes could be made safer. Labelle had planned to introduce the deposition testimony of an expert who once did research for Philip Morris that there was technology the company could have used to decrease the dangers of its product. But Duffy said that was not enough proof. “Just as [Labelle] is required to show the defect caused Mrs. Labelle’s injuries, proving that a safer alternative existed necessarily requires a showing that the alternative design would in fact reduce the risks of the product,” Duffy said. Additionally, Duffy said Labelle’s expert did not know whether the alternative technologies had been tested, so he could not say with certainty that they would make the defendant’s cigarettes safer. Labelle had one more shot. He said he had evidence that Liggett had developed a safer cigarette — the palladium catalyst cigarette — which was ready to be released to the public in the late 1970s. Philip Morris argued that such “state of the art” evidence is inadmissible under Pennsylvania law in a strict liability design defect case. However, Duffy said the case law Philip Morris relied on did not address whether state-of-the-art evidence is inadmissible in a design defect case based on a negligence theory, so it was possible that Labelle’s evidence could be admitted. “For [Labelle's] strict liability claim, he must show that a feasible alternative design existed, and if he can show that the palladium catalyst technology demonstrates that fact, then its existence could conceivably be admissible against Philip Morris,” Duffy said. “As for a negligence claim, the same evidence could be relevant to establish due care, or the lack thereof.” In the end, however, Labelle still could not meet his burden of proof. Duffy said that even if the palladium catalyst cigarettes were made available by Philip Morris during the time Christine Labelle was smoking, it was nearly impossible to prove that she would have chosen to smoke them. Duffy said that if the alternative technology could have been incorporated into all brands of Philip Morris cigarettes, Donald Labelle would not have to show that his wife would have chosen the safer cigarettes. But that was not the argument Donald Labelle had made, Duffy said. “However, such is not the posture of this case, as it is unclear from the record whether it was feasible to incorporate the technology in all brands of cigarettes as well as what the ramifications of doing so would be,” Duffy said. Duffy also granted summary judgment in Philip Morris’ favor on all of Labelle’s remaining counts.

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