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Plaintiffs commenced a products liability action against major U.S. tobacco companies

The Facts:

Plaintiffs commenced a products liability action against major U.S. tobacco companies to recover compensatory and punitive damages for the personal injuries suffered by, and eventual death of the decedent, who allegedly smoked cigarettes manufactured by defendants. On 20 February 2004, plaintiffs filed their summons and complaint.

Following a motion to dismiss the complaint, the defendants remaining in the action are four tobacco manufacturers.

Plaintiffs claim that the decedent developed lung cancer and died as a result of smoking cigarettes manufactured by defendants.

In motion sequence, defendants moved for a summary judgment dismissing plaintiffs’ first amended verified complaint with prejudice.

Plaintiffs are the daughter of decedent, the executrix of her estate and the decedent’s husband.

On behalf of all defendants, two of the manufacturer’s sought to dismiss plaintiffs’ claims for fraudulent misrepresentation, negligent misrepresentation, failure to warn, fraudulent concealment, concerted action, conspiracy, and aiding and abetting. All defendants also seek to dismiss plaintiffs’ claims for defective design or defective product, addiction, wrongful death, loss of consortium, punitive damage.

One manufacturer seeks to dismiss, on behalf of all defendants, plaintiffs’ claims for fraudulent concealment after 1 July 1969, on the ground of federal preemption.
Two of the defendant manufacturers separately move to dismiss all claims for failure to warn and fraudulent concealment, asserted against them individually, on the basis that these claims are limited to the time period before 1 July 1969, and the decedent did not smoke cigarettes manufactured by them, in its capacity as successor by merger, until 1975, or cigarettes manufactured by the other until 1978.

The Ruling:

As a rule, in order to grant a summary judgment, the court must determine whether a material and triable issue of fact exists. After the movant makes a prima facie case, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a material issue of fact that requires a trial. When deciding a motion for summary judgment, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every inference which can be drawn from the evidence.
On Plaintiff’s Design Defect Claims (defective product):

Here, the expert opinion presented combined with the balancing 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 issues of fact as to whether defendants acted unreasonably in designing cigarettes by refusing to adopt safer technology, on its claim for a 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.

Thus, summary judgment is denied on plaintiffs causes of action for design defect (defective product).

On the issue of Plaintiffs’ Claims for Punitive Damages:

Under the law, punitive damages may be recovered even though only private rights are involved. Thus, plaintiff is obliged to satisfactorily explain how defendants’ breach constituted a high degree of moral turpitude and such wanton dishonesty as to imply a criminal indifference to civil obligations. Whether to award punitive damages on the basis of moral turpitude and wanton dishonesty is a matter for the jury.

Here, defendants failed to establish that plaintiffs’ claim for punitive damages is barred by res judicata and determination of whether to award such damages is an issue for the fact-finder.
Thus, defendants’ motion to dismiss plaintiffs’ claim for punitive damages is denied as premature.

On the Plaintiffs’ Fraudulent Misrepresentation Claim:

In order to establish a claim for fraudulent misrepresentation, plaintiffs must show that: the defendant made a material false representation; the defendant intended to defraud the plaintiff thereby; the plaintiff reasonably relied upon the representation; and the plaintiff suffered damage as a result of his/her reliance.

Here, plaintiffs failed to establish that the decedent relied on tobacco advertisement made by defendants to start or continue to smoke; plaintiffs failed to show that the decedent’s belief that light cigarettes were safer than regular cigarettes was based on an advertisement the decedent had seen and relied on.

Thus, as reasonable reliance is a necessary element to recover on damages on a claim for fraudulent misrepresentation, summary judgment on plaintiffs’ fraudulent misrepresentation claim is granted.

On the Plaintiffs’ Negligent Misrepresentation Claims:

Negligent misrepresentation occurs when defendant has imparted the information under circumstances and in such a way that it would be reasonable to believe the plaintiff will rely upon it. The plaintiff must rely upon it in the reasonable belief that such reliance is warranted.
Here, the voluminous amount of tobacco-related documents should not obscure the purpose of the litigation. The cigarette industry has disseminated a large amount of information to advertise their products to current smokers and to attract new consumers. Defendants have created such a large pool of documents in an attempt to sell their product, whereby it is impossible for plaintiffs to pinpoint and identify each misrepresentation produced by defendants. However, plaintiffs have provided sufficient evidence to raise questions of fact as to whether defendants knowingly made false statements as to the health risks posed by cigarettes. This evidence includes, but is not limited to, a press release made by the American Tobacco Company’s president from the beginning of the 1950s to the late 1960s denying the dangerous nature of cigarettes; a variety of advertisements and newspaper articles laid out over two decades from the 1950s to the beginning of the 1970s emphasizing the low level of tar in cigarettes and even in some cases emphasizing the proof of the cigarette’s health protection.

Thus, plaintiffs sufficiently raise a triable question of material fact as to defendants’ alleged fraudulent misrepresentation, and, as to the decedent’s reliance upon such misrepresentation; summary judgment on plaintiffs’ negligent misrepresentation claim is denied.

On the Plaintiffs’ Failure to Warn and Fraudulent Concealment Claims:

A claim for fraudulent concealment is predicated on concealment of a material fact, not readily available to the plaintiff, scienter, justifiable reliance, and injury. There can be no fraudulent concealment claim based upon information which is common knowledge. Similarly, a manufacturer has no duty to warn a consumer of risks of a product which are ordinarily discoverable.

Clearly, a triable issue exists as to whether the actual health risks of cigarette smoking were common knowledge to the decedent during the time that she smoked cigarettes. While information surrounding health-related issues and cigarettes have always been a contentious issue for the tobacco industry, a review of the record, which includes several Surgeon General reports, recent newspaper articles about the recent increase of nicotine in cigarettes, new information on light cigarettes, testimony from the decedent’s family members, and statements by representatives of the tobacco industry reveal that a reasonable jury may differ as to the availability of information to the ordinary consumer. While the overall dangers of cigarette smoking have come to be more widely disseminated, due the mandated warnings that now appear on cigarette packs after the decedent started smoking, a reasonable jury may differ as to consumers’ awareness of smoking’s related injuries, illnesses and later death.
Thus, defendants’ motion for summary judgment on plaintiffs’ failure to warn claim is denied.
On the Fraudulent Concealment Claims and Negligent Misrepresentation Post-July 1969 Based Upon Preemption:

Plaintiffs do not dispute that all claims for failure to warn that accrued subsequent to 1969 are preempted as to all defendants, based upon the Federal Cigarette Labeling and Advertising Act. However, the Act does not preempt fraudulent concealment claims.

New York courts have similarly focused on a two-fold analysis to determine whether fraudulent concealment claims should be preempted: the extent of the manufacturer’s legal duty imposed by New York State to disclose material facts regarding smoking and health and whether the channels of communications involve means other than advertising or promotion. New York imposes a duty not to conceal material facts with intent to defraud.

Thus, the court denies defendants’ motion for summary judgment to dismiss the causes of action for fraudulent concealment and negligent misrepresentation occurring after 1969 to the extent that the motion is based on a common law duty imposed on the defendants to disclose the allegedly concealed material facts through channels of communication other than advertising or promotion.

On Plaintiffs’ Alternative Theories of Liability:

The theory of concerted action does not apply in this products liability action. The theory of concerted action provides for joint and several liability on the part of all defendants having an understanding, express or tacit, to participate in a common plan or design to commit a tortious act. The theory of concerted action is not available when plaintiff can identify the manufacturer of the allegedly defective product.

Here, the decedent’s family has identified the manufacturer of cigarettes which decedent smoked at any given time; thus, the theory of concerted action does not apply.

Thus, defendant’s motion for summary judgment to dismiss the claims for concerted action, conspiracy, and aiding and abetting is granted and the claims are dismissed.

On Plaintiffs’ Claims for Damages from Addiction:

Plaintiffs herein are not asserting a claim for damages arising out of the decedent’s addiction. Thus, defendant’s motion for summary judgment on plaintiffs’ claims for damages from addiction is moot. Nonetheless, the Court will consider evidence concerning the decedent’s addiction, if relevant, to prove other claims.

On Plaintiffs’ Wrongful Death and Loss of Consortium Claims:

Plaintiffs’ causes of action for loss of consortium and wrongful death are dependent on a viable underlying cause of action. Thus, defendants’ motion for summary judgment on these claims is denied.

On Plaintiffs’ Claims Against two of the remaining defendants, individually:

A review of the decedent’s family’s testimony reveals that the decedent did not smoke a two defendants’ brand until 1975. A party must plead and prove that the smoker consumed the cigarettes manufactured by the defendant tobacco manufacturer in order to recover damages in a products liability action. Thus, all failure to warn, in addition to fraudulent concealment claims based on pre-1969 conduct could not be a proximate cause of the decedent’s death. Accordingly, defendant’s motion for summary judgment is granted, and the claims asserted against the two manufacturers are dismissed.

In sum, defendants’ motion for summary judgment is denied on plaintiffs’ causes of action for design defect; defendants’ motion for summary judgment on plaintiffs’ punitive damages claim is denied at this juncture; defendants’ motion for summary judgment on plaintiffs’ fraudulent misrepresentation cause of action is granted; defendants’ motion for summary judgment dismissing the causes of action for fraudulent concealment and negligent misrepresentation occurring after 1969 is denied to the extent that the motion is not based on a common law duty imposed on the defendants to disclose the allegedly concealed material facts through channels of communication other than advertising or promotion; plaintiffs’ concerted action, conspiracy, and aiding and abetting claims are dismissed; defendants’ motion for summary judgment on plaintiffs’ loss of consortium and wrongful death claims is denied; and defendants’ motion for summary judgment is granted as to claims against two of the manufacturers for claims based on pre-1969 conduct.

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