Case Notes

NY Court Dismisses Negligent Design Claim Against 'Light' Cigarettes

Adamo v. Brown & Williamson, 205 (NY Dec. 1, 2008).

On Dec. 15 , New York's highest court, the Court of Appeals, upheld the reversal of a $20.5 million verdict and ruled that the estate of a smoker who died of lung cancer could not assert a negligent product design claim against two cigarette makers based on the availability of a safer “light” cigarette. The court concluded that the smoker, Norma Rose, who died during the pendency of the appeal, had failed to prove an “essential element” of her product liability claim ' that light cigarettes, which have low tar and nicotine levels, have the same “utility” as regular cigarettes.

The only utility of a cigarette, the majority wrote, “is to gratify smokers” and Rose's lawyers “made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes ' indeed it is virtually uncontested that they do not.” To have ruled that the availability of light cigarettes rendered regular cigarettes defective in design, he noted, “would amount to a judicial ban” on their sale.

The court's ruling affirmed a 3-2 decision of the Appellate Division, 1st Department, that reversed the $20.5 million verdict on the grounds that Rose failed to show “consumer acceptability” of light and ultra-light cigarettes. The jury verdict, which was returned in 2005, was divided into $3.4 million for compensatory damages and $17.1 million for punitive damages.

PA Intermediate Court Rejects Challenge to Statutory Limit on Asbestos Liability

Johnson v. American Standard, PICS No. 09-0236 (Pa.Sup.Ct. Feb. 10, 2009).

A deeply divided Pennsylvania Superior Court en banc panel ruled that asbestos plaintiffs did not have standing to challenge on constitutional grounds a statute limiting the liability of successor corporations in asbestos litigation. A four-judge minority denied the plaintiffs standing, rejecting their argument that the statute treats in-state and out-of-state companies differently. Both sides agreed in Johnson v. American Standard that Philadelphia-based Crown Cork & Seal Co. did not have to pay any more in asbestos liabilities on behalf of Mundet Cork, a company it purchased in 1963, because Crown Cork already paid out millions in liabilities attached to the company. Because Crown Cork paid out in liability more than the fair market value of Mundet at the time of its purchase, the company met the cap under 15 Pa. C.S.A Section 1929.1.

While the plaintiffs, administrators of the estates of three people who died from asbestos-related mesothelioma, agreed Crown Cork was protected under the statute, they argued the statute violated the Commerce Clause and the Equal Protection Clause of the U.S. Constitution, as well as the Equal Protection Clause and other provisions of Pennsylvania's constitution.

The majority agreed with the lower court's ruling that the plaintiffs did not fall under any “zone of interest” protected by the “dormant commerce clause” and therefore did not have standing to challenge the statute under that constitutional doctrine.

NY Court Dismisses Negligent Design Claim Against 'Light' Cigarettes

Adamo v. Brown & Williamson, 205 (NY Dec. 1, 2008).

On Dec. 15 , New York's highest court, the Court of Appeals, upheld the reversal of a $20.5 million verdict and ruled that the estate of a smoker who died of lung cancer could not assert a negligent product design claim against two cigarette makers based on the availability of a safer “light” cigarette. The court concluded that the smoker, Norma Rose, who died during the pendency of the appeal, had failed to prove an “essential element” of her product liability claim ' that light cigarettes, which have low tar and nicotine levels, have the same “utility” as regular cigarettes.

The only utility of a cigarette, the majority wrote, “is to gratify smokers” and Rose's lawyers “made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes ' indeed it is virtually uncontested that they do not.” To have ruled that the availability of light cigarettes rendered regular cigarettes defective in design, he noted, “would amount to a judicial ban” on their sale.

The court's ruling affirmed a 3-2 decision of the Appellate Division, 1st Department, that reversed the $20.5 million verdict on the grounds that Rose failed to show “consumer acceptability” of light and ultra-light cigarettes. The jury verdict, which was returned in 2005, was divided into $3.4 million for compensatory damages and $17.1 million for punitive damages.

PA Intermediate Court Rejects Challenge to Statutory Limit on Asbestos Liability

Johnson v. American Standard, PICS No. 09-0236 (Pa.Sup.Ct. Feb. 10, 2009).

A deeply divided Pennsylvania Superior Court en banc panel ruled that asbestos plaintiffs did not have standing to challenge on constitutional grounds a statute limiting the liability of successor corporations in asbestos litigation. A four-judge minority denied the plaintiffs standing, rejecting their argument that the statute treats in-state and out-of-state companies differently. Both sides agreed in Johnson v. American Standard that Philadelphia-based Crown Cork & Seal Co. did not have to pay any more in asbestos liabilities on behalf of Mundet Cork, a company it purchased in 1963, because Crown Cork already paid out millions in liabilities attached to the company. Because Crown Cork paid out in liability more than the fair market value of Mundet at the time of its purchase, the company met the cap under 15 Pa. C.S.A Section 1929.1.

While the plaintiffs, administrators of the estates of three people who died from asbestos-related mesothelioma, agreed Crown Cork was protected under the statute, they argued the statute violated the Commerce Clause and the Equal Protection Clause of the U.S. Constitution, as well as the Equal Protection Clause and other provisions of Pennsylvania's constitution.

The majority agreed with the lower court's ruling that the plaintiffs did not fall under any “zone of interest” protected by the “dormant commerce clause” and therefore did not have standing to challenge the statute under that constitutional doctrine.