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The New York Appellate Division, 2nd Department, has reinstated claims against several tobacco companies asserting that they failed to warn consumers about the dangers of smoking prior to the 1969 federal law that required warnings on packaging. The court’s 3-1 reversal also upheld the plaintiff’s claims — asserted under a negligence theory — that the manufacturers acted in concert to conceal the risks of smoking. The unsigned decision in Miele v. American Tobacco Co., 7484-02, further reinstated the plaintiff’s cause of action for fraudulent concealment, which allegedly occurred after the 1969 warning law, and the plaintiff’s design defect claims. The decision addresses a lack of appellate guidance on the manufacturers’ duty to warn before the 1969 enactment of the Public Health Cigarette Act, which required manufacturers to include in their packaging “Cigarette Smoking is Hazardous to Your Health.” The law was amended in 1985 to include other “rotating” warnings regarding the health risks of heart disease, lung cancer, smoking while pregnant and more. The lower court judge in the case, Nassau County Acting Supreme Court Justice Daniel Martin, had noted an absence of appellant guidance on the pre-1969 duty to warn when he issued his decision in June 2001. The plaintiff, Daniel Miele, filed the lawsuit in 1997, asserting that his wife’s death from lung cancer in 1996 was the result of the manufacturers’ failure to warn of the hazards of smoking before the passage of the federal law. In addition, Miele’s suit alleged that the companies fraudulently and negligently concealed the risks of smoking after the law’s enactment. The Miele case is one of at least 10 other pending lawsuits in the metropolitan area asserting similar claims against cigarette manufacturers, said the attorney for the plaintiff, Stuart Finz of Finz & Finz in Jericho, N.Y. Thomas Quigley, who presented oral arguments for Philip Morris, said his client will seek leave to appeal. He practices with Winston & Strawn in Manhattan. The defendants are Philip Morris, R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Brown & Williamson Tobacco Corp., the American Tobacco Co., the Council for Tobacco Research and the Tobacco Institute. Justices in the majority were Myriam J. Altman, Sondra Miller and Daniel Luciano. Justice Leo F. McGinity wrote a dissent and concurrence. In the lower court decision, Justice Martin had determined that Miele could not proceed with the pre-1969 failure to warn claim since the manufacturers established as a matter of law that the risks of smoking were common knowledge before the 1969 legislation, when the decedent began smoking. Particularly persuasive to the lower court was the defendants’ expert testimony showing that numerous articles on the hazards of smoking had appeared in Time, Life, Newsweek and Reader’s Digest as early as 1964, which should have alerted the decedent to the risks. But the appeals court found that conflicting evidence precluded summary judgment. “We find … that the plaintiff, in opposition to the motion, raised issues of fact as to whether consumers were fully aware of the health hazards posed by smoking cigarettes when the decedent began smoking, particularly considering that the respondents disseminated information, at the relevant time, disputing the validity of the scientific evidence linking cigarette smoking to cancer and other diseases,” the decision stated. The panel also wrote that the lower court improperly disregarded evidence presented by the plaintiff’s expert, which indicated that consumers were uncertain about smoking’s health hazards. In addition to its ruling on the pre-1969 alleged failure to warn claim, the panel reinstated the plaintiff’s concerted action claim based on a negligence theory. Counsel for Miele had argued that not only could the plaintiff assert a claim for concerted action as an intentional tort, but he could also pursue such a claim under a theory of negligence. Justice Martin, however, had found that a concerted action claim could stand only with an intentional tort. The Appellate Division disagreed, citing the Restatement Second of Torts. “The concerted action theory of liability for injury to a third party will attach when one knows that another’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other, and ‘this is true both when the act done is an intended trespass … and when it is merely a negligent act,’” the decision stated. Allowing a concerted act claim under a negligence theory is significant to the plaintiff since it lowers the burden of proof to proceed, Finz said. However, Quigley said the 2nd Department failed to address the defense’s key argument: that concerted action, whether intentional or negligent, does not apply in the case. Quigley said that the cause of action pertains to cases in which the specific identity of the defendant is unknown, which is not the situation in the Miele matter. The appeals panel also reinstated Miele’s cause of action to recover for the manufacturers’ alleged post-1969 fraudulent concealment of the hazards of smoking. Specifically, the plaintiff had asserted that the companies disregarded test results not favorable to the industry, and failed to disclose the dangerous and addictive nature of cigarettes. But Justice Martin in June 2001 dismissed the cause of action for fraudulent concealment, finding that the 1969 law pre-empted, in general, claims of fraudulent misrepresentation. The Appellate Division, however, relied upon a U.S. Supreme Court decision, Cipollone v. Liggett Group, 505 U.S. 504 (1992), which the court said held that a claim specifically alleging fraudulent concealment was not pre-empted if it relied on a state law duty to disclose the facts in question. And since New York law recognizes such a claim when the defendant has superior knowledge that would make transactions with consumers unfair, the panel determined that the claim could move forward. Finally, the panel reinstated the plaintiff’s claim for post-1969 strict liability for design defects. The lower court had determined that the condition of cigarettes after the law was enacted was one “reasonably contemplated by the ultimate consumer.” But the appellate court reasoned that the trial court could not use such a “consumer expectations” standard in dismissing the claim. Citing the Restatement Third of Torts, the panel observed that disappointment of consumer expectations may not serve as an independent basis for allowing recovering under design defect; likewise, conformance with consumer expectations may not serve as an independent basis for denying recovery. DISSENTING OPINION It was on the lone issue of concerted action under a negligence claim that the dissent, written by Justice McGinity, agreed with the majority. On the pre-1969 failure to warn claim, he found that the dangers of smoking were common knowledge at the time the plaintiff’s wife began smoking in the mid-1960s. As for the fraudulent concealment claim, the judge found “no basis” to place the plaintiff’s claim outside of the 1969 law. And regarding the defective design claim, Justice McGinity wrote that although the majority relied on the Restatement Third of Torts, such was not New York law. He wrote that the consumer expectation test is one prong of New York’s law, and that since evidence showed the decedent had received numerous warnings from teachers, co-workers and publications, she should have known of the dangers. Jay L. Feigenbaum of Finz & Finz also represented the plaintiff.

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