An ad from 1954 for Kent cigarettes with micronite filter containing asbestos. Lorillard Tobacco Co. used Hollingsworth & Vose Co. cigarette filters from 1952 to 1956. ()
A cigarette filter maker could be legally tied to a cigarette company and therefore is potentially liable for the company’s misrepresentations, a Manhattan judge has ruled in allowing a woman’s mesothelioma-related lawsuit to go to trial.
Supreme Court Justice Sherry Heitler (See Profile), in her March 3 ruling in Correnti v. Stone, 190317/12, said that the 82-year-old plaintiff, Gladys Correnti, had adequately pleaded fraud and negligent misrepresentation against the filter maker, Hollingsworth & Vose Co. She also ruled that there were issues of fact as to whether H&V had a joint venture with Lorillard Tobacco Co., even though the two companies did not have any explicit agreement to share profits and losses.
Correnti, who lives in Fort Meyers, Fla. but was born in New York and lived here until 1997, was diagnosed with mesothelioma in September 2011. In 2012, she sued Lorillard and H&V, alleging that her illness was caused by Lorillard’s Kent brand cigarettes, which she smoked from 1952 to 1972. She alleged that H&V was liable because it made the filter material for the cigarettes, which contained asbestos.
H&V entered into an agreement to make Lorillard’s cigarette filter in 1952, according to Heitler’s decision. The filter was made of about 30 percent asbestos, mixed with cotton, crepe paper and cellulose acetate. Lorillard stopped using H&V’s filter in 1956.
Correnti alleged that H&V knew that the asbestos was harmful, and that Lorillard planned to market cigarettes containing it as safe. She further accused Lorillard of advertising Kent cigarettes as healthier than other brands, and concealing the fact that they contained asbestos. She argued that H&V is liable because it was engaged in a joint venture with Lorillard.
H&V moved to dismiss the case, arguing that it couldn’t be liable for Correnti’s illness because it was not engaged in a joint venture with Lorillard and had no agreement to share the profits and losses from Kent cigarettes. H&V also argued that Correnti had failed to plead her claims for fraud and negligent misrepresentation.
Heitler rejected both of these arguments, citing the standard for pleading fraud and negligent misrepresentation set forth in CPLR 3016(b). The law requires a plaintiff to make specific allegations that the defendant gave false information, that the plaintiff relied on that information, and that there was “a special or privity-like relationship imposing a duty” for the defendant to give true information.
Heitler cited the Court of Appeals’ 2008 decision in Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 491-92, which said CPLR 3016(b) does not require a plaintiff to provide “unassailable proof” of fraud, but only facts “sufficient to permit a reasonable inference of the alleged conduct.”
She found that Correnti’s allegations met that standard.
“I find that such allegations, assuming they are true, permit a reasonable inference that Lorillard and H&V committed the torts of which Plaintiff complains as partners and/or joint venturers in the manufacture and sale of asbestos-containing filter material,” she said.
Heitler said that whether or not Lorillard and H&V had a profit-and-loss sharing agreement was a “red herring.” According to the complaint, the two companies jointly owned patents related to the filter material and shared the costs of obtaining those patents. They agreed to divide any royalties equally between them and to own jointly any plant or machinery involved in making the filter material.
Lorillard also agreed to indemnify H&V against claims related to the cigarettes.
“H&V and Lorillard’s intent to share in the profits from their jointly owned inventions is clearly evidenced by reason of these provisions and indeed the terms of the Agreement as whole,” Heitler wrote.
Therefore, the judge said, there is a triable issue of fact as to whether Lorillard and H&V were joint venturers.
Correnti is represented by Darron Berquist, an associate at The Lanier Law Firm.
H&V is represented by William Vita, a partner at Westerman Ball Ederer Miller & Sharfstein.
The attorneys could not be reached for comment.