Fabiano v. Philip Morris Inc.

• Decision Date: 13 July 2010
• Citation: 909 N.Y.S.2d 314,29 Misc.3d 395
• Parties: Lorilynn FABIANO, as Executrix of the Estate of Maureen Fabiano, and Cosmo Fabiano, Individually, Plaintiffs, v. PHILIP MORRIS INCORPORATED, Philip Morris Companies, Inc., Philip Morris USA, The American Tobacco Company, Brown & Williamson Tobacco Corporation, Individually, and as Successor by Merger of Fortune Brands, Inc., f/k/a American Brands, Inc., R.J. Reynolds Tobacco Company, Liggett Group, Inc., n/k/a Brooke Group, Ltd., Liggett & Myers Tobacco Company, Lorillard Tobacco Company, Lorillard Inc., The Tobacco Institute, Inc., and the Council for Tobacco Research-USA, Inc., Defendants.
• Court: New York Supreme Court

909 N.Y.S.2d 314

29 Misc.3d 395

Lorilynn FABIANO, as Executrix of the Estate of Maureen Fabiano, and Cosmo Fabiano, Individually, Plaintiffs,

v.PHILIP MORRIS INCORPORATED, Philip Morris Companies, Inc., Philip Morris USA, The American Tobacco Company, Brown & Williamson Tobacco Corporation, Individually, and as Successor by Merger of Fortune Brands, Inc., f/k/a American Brands, Inc., R.J. Reynolds Tobacco Company, Liggett Group, Inc., n/k/a Brooke Group, Ltd., Liggett & Myers Tobacco Company, Lorillard Tobacco Company, Lorillard Inc., The Tobacco Institute, Inc., and the Council for Tobacco Research-USA, Inc., Defendants.

Supreme Court, New York County, New York.

July 13, 2010.

Douglas & London, P.C., New York City, for plaintiffs.

Jones Day, New York City (Daniel L. Russo and Robert Iscaro of counsel), for R.J. Reynolds Tobacco Company and others, defendants.

Jones Day, New York City (Daniel L. Russo and Robert Iscaro of counsel), and Chadbourne & Parke LLP, New York City, for Brown & Williamson Holdings, Inc., defendant.

Winston & Straw LLP, New York City, for Philip Morris USA Inc., defendant.

Greenberg Traurig, LLP, New York City, for Lorillard Tobacco Company, defendant.

EMILY JANE GOODMAN, J.

This tobacco products liability action is brought by Lorilynn Fabiano Wojciehowski and Cosmo Fabiano (Plaintiffs), the daughter and husband of the decedent Maureen Fabiano (herein Decedent or Smoker), who seek to recover damages for her injuries and death. Their theory implicitly characterizes all cigarettes as weapons of mass destruction. Decedent smoked cigarettes manufactured by Defendants for a period of 36 years, and died of lung cancer allegedly as a result of her addiction. Defendants R.J. Reynolds Tobacco Company, Brown & Williamson Holdings, Inc. (formerly known as Brown & Williamson Tobacco Corporation, sued herein individually and as successor by merger to The American Tobacco Company), Philip Morris USA Inc. (formerly known as Philip Morris Incorporated), and Lorillard Tobacco Company (collectively, Defendants) move, pursuant to CPLR 2221, for leave to renew their motion for summary judgment, and upon renewal, for an order dismissing Plaintiffs' claims for negligent design and defective design in strict products liability.

BACKGROUND

The Decedent, born on June 5, 1942, started smoking cigarettes at the age of 14, and smoked regularly until 1992. In June 2001, she was diagnosed with lung cancer and she died in February of 2002. She smoked several different brands over the years, including Winston (1956-64), Marlboro Red (1964-71), Marlboro Light (1972-4/5), Kool (1975-1978/79), and Kent Light 100 (1978/9-91). According to the moving papers, she had switched to Marlboro Light cigarettes in or around 1972 because she believed, given the label "Lights," that they were safer and better for her.

Plaintiffs seek to recover compensatory and punitive damages, alleging that Defendants manufactured, marketed, and sold cigarettes with knowledge that they are highly addictive and harmful to the health of smokers. In the first amendedcomplaint, Plaintiffs allege seven causes of action: (1) negligence, including negligent design and negligent misrepresentation; (2) failure to warn prior to 1969 that cigarette smoking causes cancer and/or is addictive; (3) strict products liability; (4) fraud, deceit, and conspiracy; (5) fraudulent concealment; (6) loss of services, income, society, consortium, and companionship; and (7) wrongful death. Plaintiffs also seek to hold defendants collectively liable on theories of conspiracy, concerted action, and aiding and abetting. This motion deals with the design defect cause of action only.

Defendants' prior motion for summary judgment dismissing the first amended complaint, was decided by Justice Charles Ramos, who wrote: ¹

There is, in fact, a common standard concerning a defectively designed product, whether the claim is grounded in negligence or in strict liability:

a defectively designed product is one which, at the time it leaves the seller'shands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce. Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 107, 450 N.E. [N.E.2d] 204, 463 N.Y.S.2d 398 (1993) [1983].

* * *

Plaintiffs' expert witness, William Farone, Ph.D., a former Philip Morris employee, states that tobacco companies "refused to adopt technology that would cause significant reductions in potent chemical toxic materials" such as harsher "uninhaleable" tobacco which cannot be inhaled by most people, de-nicotized or no tar cigarettes. Affidavit of William A. Farone, Ph.D., dated March 29, 2006 at p. 2. This clearly raises an issue of fact that it was feasible to design cigarettes in a safer manner.

* * *

Dr. Farone's expert opinion, combined with thebalancing of the evidence presented by both parties, raises a triable issue regarding cigarettes' inherent risks and whether safer alternative designs existed. The evidence presented by plaintiffs raise[s] issues of fact as to whether defendants acted unreasonably in designing cigarettes by refusing to adopt safer technology, on its claim for negligently designed product. Additionally, plaintiffs raised an issue of fact as to whether cigarettes were not reasonably safe, and whether that was a proximate cause of the Decedent's injury. Accordingly, summary judgement is denied on plaintiffs' first and third causes of action for design defect.

( Fabiano v. Philip Morris Inc., 16 Misc.3d 1130[A], *5, *6, 2007 N.Y. Slip Op. 51643[U], *5, *6, 2007 WL 2416750 [Sup. Ct., N.Y. County 2007], revd. on other grounds 54 A.D.3d 146, 862 N.Y.S.2d 487 [1st Dept.2008] ).

After Justice Ramos issued his decision, the Court of Appeals established the legal standard for design defect claims as applicable to cigarettes in ( Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545, 872 N.Y.S.2d 415, 900 N.E.2d 966 [2008], rearg. denied 12 N.Y.3d 769, 879 N.Y.S.2d 26, 906 N.E.2d 1058, cert. denied --- U.S. ----, 130 S.Ct. 197, 175 L.Ed.2d 126 [2009], affg. Rose v. Brown & Williamson Tobacco Corp., 53 A.D.3d 80, 855 N.Y.S.2d 119 [1st Dept.2008] ). In Adamo, the decedent smoked American Tobacco Company and Philip Morris USA Inc. regular cigarettes for more than 40 years. The plaintiffs in that case alleged that the cigarette manufacturers designed their product negligently and should not have put them into the stream of commerce; they should have sold light cigarettes only (i.e., cigarettes that are lower in tar and nicotine). In finding that the plaintiffs failed to make out a prima facie case at trial, the Court of Appeals wrote that:

Here, plaintiffs presented evidence from which a jury could find that light cigarettes-cigarettes containing significantly lower levels of tar and nicotine-are "safer" than regular cigarettes, but they did not show that cigarettes from which much of the tar and nicotine has been removed remain "functional." The function of a cigarette is to give pleasure to a smoker; plaintiffs have identified no other function. Plaintiffs made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes-indeed, it is virtually uncontested that they do not. Both regular and light cigarettes are available on the market, and the enhanced dangers that come from smoking regular cigarettes are well known, but large numbers of

[29 Misc.3d 399, 909 N.Y.S.2d 317]

consumers continue to prefer regular cigarettes. (11 N.Y.3d at 550 [872 N.Y.S.2d 415, 900 N.E.2d 966].)

Defendants contend that Adamo now requires Plaintiffs to prove that: (i) the cigarettes as designed were not reasonably safe; ² (ii) it was feasible to produce cigarettes employing a different, safer design, i.e., contents that would avoid Smoker's injury; and (iii) the alternative design (contents) would have been as acceptable, i.e., as marketable to consumers as the original design. With respect to the third element, Defendants argue that Plaintiffs cannot prove that any alternative design combination would be as acceptable to consumers as regular cigarettes are. William A. Farone Ph.D., Plaintiffs' expert, proposes three safer alternative designs for regular cigarettes: (1) "uninhaleable" tobacco common before the turn of the 19th century, similar to a cigar; (2) a de-nicotized cigarette; and (3) a virtually no tar cigarette ( id., ¶ 7).³ Defendants contend that Dr. Farone's affidavit does not address whether any of his three proposed alternative designs would be as acceptable to consumers as the cigarettes sold by Defendants. That is, would the Plaintiffs' proposed alternatives be as successful in the marketplace. Further, Defendants argue that Dr. Farone has no experience in the marketing or consumer acceptance of new products to allow him to offer such an opinion, although Plaintiffs offer another affidavit from Dr. Farone, a former Director of Applied Research at Philip Morris from 1976 through 1984 (Farone Aff., ¶ 5), stating that he was hired to develop a safer, consumer acceptable cigarette, and worked with the manufacturing, development, and marketing departments of the company ( id., ¶ 6). They argue that his expertise is a question for the jury.

Plaintiffs contend that Adamo does not apply to the facts of this case because, therein, "plaintiffs presented evidence from which a jury could find that light cigarettes ... are safer' than regular cigarettes" ( Adamo, 11 N.Y.3d at 550, 872 N.Y.S.2d 415, 900 N.E.2d 966), while here, the instant Plaintiffs argue that no cigarettes on the market aresafe. According to Plaintiffs, there is abundant evidence showing that light cigarettes are at least as dangerous as regular cigarettes, and that smokers mistakenly believe that light cigarettes are less dangerous than regular cigarettes, when, in fact, they are all dangerous. Plaintiffs...