Miele v. American Tobacco Company, 2001-07484.

• Decision Date: 29 December 2003
• Docket Number: 2001-07487.,2001-07486.,2001-07488.,2001-07484.,2001-07489.,2002-01777.
• Citation: 2 A.D.3d 799,770 N.Y.S.2d 386,2003 NY Slip Op 19972
• Parties: DANIEL MIELE, Appellant, v. AMERICAN TOBACCO COMPANY et al., Respondents, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

2 A.D.3d 799

770 N.Y.S.2d 386

2003 NY Slip Op 19972

DANIEL MIELE, Appellant, v. AMERICAN TOBACCO COMPANY et al., Respondents, et al., Defendants.

2001-07484.

2001-07486.

2001-07487.

2001-07488.

2001-07489.

2002-01777.

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 29, 2003.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of six orders of the Supreme Court, Nassau County (Martin, J.), all dated June 29, 2001, as granted those branches of the respective motions of the defendants Philip Morris, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, the Council for Tobacco Research-USA, Inc., and the Tobacco

Institute, Inc., which were for summary judgment dismissing the causes of action to recover damages for pre-1969 failure to warn, post-1969 fraudulent concealment, and concerted action to the extent that cause of action is predicated based on allegations of negligence, and so much of the same orders as granted those branches of the motions of the defendants Philip Morris, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Corporation, individually and as successor to The American Tobacco Company, which were to dismiss the cause of action to recover damages for post-1969 strict product liability design defects.

Ordered that the orders are reversed insofar as appealed from, on the law, those branches of all of the respondents' motions which were for summary judgment dismissing the causes of action to recover damages for pre-1969 failure to warn, post-1969 fraudulent concealment, and concerted action to the extent that cause of action is predicated on allegations of negligence are denied, those causes of action are reinstated insofar as asserted against all of the respondents, and those branches of the motions of the respondents Philip Morris, Inc., R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, which were to dismiss the cause of action to recover damages for post-1969 strict product liability design defects are denied, and that cause of action is reinstated insofar as asserted against those respondents.

The plaintiff alleged that his deceased wife (hereinafter the decedent) contracted lung cancer from smoking cigarettes that were manufactured, promoted, and/or sold by the respondents for more than 20 years. The respondents are five cigarette manufacturers, Philip Morris, Inc., R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, individually and as successor by merger to The American Tobacco Company, and Lorillard Tobacco Co., and two tobacco-related entities, the Tobacco Institute, Inc., and the Council for Tobacco Research-USA, Inc.

The Supreme Court dismissed the plaintiff's causes of action based on the failure to warn of the dangers of cigarette smoking before the effective date of the Federal Cigarette Labeling and Advertising Act, as amended by the Public Health Cigarette Smoking Act of 1969 (15 USC § 1331 et seq.) (hereinafter the Act), finding that the respondents established, as a matter of law, that the risks of smoking were a matter of common knowledge at the time the decedent began smoking. We find, however 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. Based upon the conflicting evidence presented, a reasonable juror could conclude that, at best, there was great confusion as to the hazardous effects of smoking. Thus, this question should be determined by a jury.

Furthermore, the Supreme Court improvidently exercised its discretion by disregarding the affidavit of the plaintiff's expert in which he opined that consumers who began smoking in the 1940's through the 1960's did not have a true understanding of the health hazards posed by smoking cigarettes. An expert is qualified to proffer an opinion if he or she is "possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v Ward, 48 NY2d 455, 459 [1979]). The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject (see Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998]). The plaintiff established that his expert witness, Dr. Allen Feingold, had a basis for formulating an opinion concerning the public awareness or lack thereof of the dangers of smoking tobacco. Specifically, the opinion was based both on his extensive personal experience interviewing and treating smokers, and on reliable reports and studies, including reports of the Surgeon General of the United States and the Department of Health Care Policy at Harvard Medical School. The respondents' objections to Dr. Feingold's qualifications on the subject of inquiry do not preclude the admission of his testimony; but rather they affect the weight to be accorded to it by a jury (see Kwasny v Feinberg, 157 AD2d 396 [1990]).

"[I]n cases where reasonable minds might disagree as to the extent of plaintiff's knowledge of the hazard, the question is one for the jury" (Liriano v Hobart Corp., 92 NY2d 232 [1998], citing Jiminez v Dreis & Krump Mfg. Co., 736 F2d 51, 55-56 [2d Cir 1984]). Only by deeming the plaintiff's expert unqualified and thereby disregarding his opinion could the Supreme Court and the dissent herein conclude that, as a matter of law, the dangers of smoking were common knowledge at the time the decedent began to smoke. Since however, the plaintiff established that Dr. Feingold was possessed of sufficient skill, knowledge and experience to give his opinion on the subject, and recognizing the role of the Supreme Court on this motion for summary judgment as issue finding and not issue determination, we reinstate the pre-1969 failure to warn cause of action against all of the respondents.

We also reinstate the plaintiff's causes of action to recover damages for post-1969 fraudulent concealment. The Supreme Court dismissed these causes of action, holding that they were pre-empted by the Act. In Cipollone v Liggett Group (505 US 504, 524 [1992]), the United States Supreme Court (hereinafter the USSC) held that the central inquiry for determining whether a cause of action is preempted by the Act is "whether the legal duty that is the predicate of the common-law damages action constitutes a `requirement or prohibition based on smoking and health ... imposed under State law with respect to ... advertising or promotion,' giving that clause a fair but narrow reading." Concerning fraudulent concealment specifically, the USSC held that "claims that [defendants] concealed material facts are ... not pre-empted insofar as those claims rely on a state-law duty to disclose such facts through channels of communication other than advertising or promotion" (Cipollone v Liggett Group, supra at 528).

The plaintiff asserts that, in addition to making actively fraudulent misrepresentations, the defendants "suppressed, ignored and disregarded test results not favorable to the tobacco industry" and "willfully and intentionally failed to disclose the material facts regarding the dangerous and addictive nature, properties, and propensities of the cigarette by concealing and suppressing material facts." New York recognizes a cause of action to recover damages for fraud based on concealment, where the party to be charged has superior knowledge or means of knowledge, such that the transaction without disclosure is rendered inherently unfair (see Stevenson Equip. v Chemig Constr. Corp., 170 AD2d 769 [1991], affd 79 NY2d 989 [1992]); Young v Keith, 112 AD2d 625 [1985]; 60A NY Jur 2d, Fraud and Deceit § 98). "Concealment with intent to defraud of facts which one is duty-bound in honesty to disclose is of the same legal effect and significance as affirmative misrepresentations of fact" (Nasaba Corp. v Harfred Realty Corp., 287 NY 290, 295 [1942]). Since the predicate duty underlying the plaintiff's fraudulent concealment claims is a state-law duty not to deceive, we agree with the plaintiff that the Supreme Court improperly held that his post-1969 fraudulent concealment causes of action were preempted by the Act (see Izzarelli v R.J. Reynolds Tobacco Co., 117 F Supp 2d 167 [D Conn 2000]; but see Small v Lorillard Tobacco Co., 252 AD2d 1 [1998], affd on other grounds, 94 NY2d 43 [1999]).

In addition, the plaintiff's causes of action to recover damages for post-1969 strict product liability design defects were erroneously dismissed as against the manufacturer respondents, on the ground that cigarettes were in a condition reasonably contemplated by the ultimate consumer. "[C]onsumer expectations do not constitute an independent standard for judging the defectiveness of product designs ... The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations ... may substantially influence or even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe. It follows that, while disappointment of consumer expectations may not serve as an independent basis for allowing recovery under [the...