Rose v. Brown & Williamson Tobacco Corp.

In a products liability action brought by a smoker against cigarette manufacturers, the jury held for the plaintiffs, finding that regular cigarettes were negligently designed when evaluated against the manufacturers' alternative lower-tar, lower-nicotine, and thus safer "light" product design.  On appeal, the Court found that the plaintiffs had failed to present evidence to the jury that "light" cigarettes would have been accepted by smokers as an alternative to regular cigarettes, thereby failing to demonstrate that "light" cigarettes possessed the same utility as regular cigarettes.  The Court therefore reversed the jury verdict and dismissed the case, holding that the plaintiffs had not established a prima facie claim for design defect.  The dissent disagreed with the Court's finding that consumer acceptability was required to present a prima facie case. The dissent noted that consumer satisfaction in this instance meant the satisfaction of nicotine addictions purposely fostered by the manufacturers' manipulation of the nicotine content in regular cigarettes.

Rose, et al. v. Brown & Williamson Tobacco Corp., et al., 53 A.D.3d 80, 855 N.Y.S.2d 119, State of New York, Appellate Division, First Department (2008).

  • United States
  • Apr 10, 2008
  • State of New York, Appellate Division, First Department
Download Document

Parties

Plaintiff

  • Norma Rose
  • Others

Defendant Brown & Williamson Tobacco Corporation, as Successor in Interest to American Tobacco, et al.

Legislation Cited

Federal Cigarette Labeling and Advertising Act (as amended), 15 USC §§ 1331 - 1341

Federal Cigarette Labeling and Advertising Act of 1965, Section 1331, et seq.

Public Health Cigarette Smoking Act of 1969

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"It is, however, the second Scarangella element that, in my opinion, ultimately defeats any defense that the defendants have, since they cannot show that there are any "normal circumstances of use" under which regular cigarettes are "not unreasonably dangerous." The plaintiffs assert that there simply are no circumstances, normal or otherwise, when regular cigarettes are "not unreasonably dangerous." They point to the statistics in the 1979 Surgeon General's Report that show, for example, that one in every six deaths in the U.S. is the result of smoking and that smoking causes 87% of lung cancer deaths. The plaintiffs, however, cannot rest on that assertion. It is not sufficient to show that a product is dangerous. As the defendants correctly contend, manufacturing and marketing dangerous products is not per se negligent. (See Forni v Ferguson, 232 AD2d 176 [1st Dept 1996]; see also Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 479 [1980] [some products, for example, knives, must by their very nature [53 A.D.3d 98] be dangerous to be functional].) Instead, a defective design cause of action must establish that a product is unreasonably dangerous or "not reasonably safe"—that is, there is a substantial likelihood of harm and a feasible safer alternative design. (Voss, 59 NY2d at 108.) Conversely, for the defendants to succeed in their claim that there are circumstances when regular cigarettes are "not unreasonably dangerous," they must show that there are normal circumstances when the utility of regular cigarettes outweighs the risk inherent in them. (Id.; see also Rainbow v Elia Bldg.Co., 79 AD2d 287, 294 [1981] [balancing process weighs the benefits of a particular manufacturing design against the risks of using it].)When pressed at oral argument, however, the defendants had no rejoinder to the question of what circumstances might render regular cigarettes "not unreasonably dangerous" or, in other words, when they would be "reasonably safe." Understandably so. As one federal court recently observed, defendants in tobacco cases "wish to avoid having to make the awkward argument that their product's `utility' outweighs its risk, when their product is known to `sicken and kill hundreds of thousands of Americans each year for the `benefit' of satisfying an addiction.'" (See Clinton v Brown & Williamson Holdings, Inc., 498 F Supp 2d 639, 647 [SD NY 2007], quoting David G. Owen, Inherent Product Hazards, 93 Ky LJ 377, 381 [2004-2005]."
"The record on appeal indicates that not one of the three essential Scarangella elements was satisfied. First, the defendants could not show that the plaintiff was "thoroughly knowledgeable" regarding the product and "in a position to balance the benefits and the risks" of smoking high-yield cigarettes, so that she, not the manufacturer (of cigarettes) was in the superior position to make the risk-utility assessment to smoke regular cigarettes. Indeed, the evidence is directly to the contrary. Specifically, the defendants knew by 1959 that cigarettes were addictive. At least by 1972, the industry knew that nicotine was the active addictive constituent of cigarettes. As set forth above, the defendants knew in the 1960s that cigarette smoke contained at least 40 carcinogenic compounds, possibly including nitrosamines, "the most potent carcinogens known." The industry confirmed in 1982 that nitrosamines were present in "significant amounts." The plaintiff, on the other hand, was a consumer who typically would have received information about the hazards of smoking from the news outlets of the time, and from the warnings on cigarette packs. The warning labels were not mandatory until 1969."
"In our view, the foregoing considerations warrant reversing the judgment appealed from, and dismissing the complaint, without reaching defendants' other arguments. It is worth reiterating, however, that, on the issue of proximate cause, the record contains evidence suggesting not only that light cigarettes are inherently unsafe products (which no one disputes), but that they may create even greater risk of harm by inducing smokers to "compensate" for the reduced delivery of tar and nicotine by increasing the number of cigarettes smoked, the frequency of puffing, or the depth and duration of inhalation. Plaintiffs do not identify any expert evidence in the record providing a reasoned basis for concluding that, in spite of the possibility of such "compensation," the net effect of smoking light cigarettes is, on average, to reduce the smoker's ingestion of tar and nicotine and thereby to reduce the risk of cancer. Nor do plaintiffs identify expert evidence specifically excluding the possibility that a previously nicotine-addicted person may, due to such "compensation," maintain the addiction by smoking light cigarettes with nicotine content below the generally recognized addiction threshold. In this regard, it is significant that, as previously noted, Ms. Rose was already addicted to cigarettes when she began smoking the brands of the defendants that were held liable by the jury."