Rose v. Brown & Williamson Tobacco Corp.

53 A.D.3d 80, 855 N.Y.S.2d 119

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 2008
• Status: Published

Opinions

OPINION OF THE COURT

Friedman, J.

Plaintiff Norma Rose developed lung cancer and neurological damage as the result (it is undisputed) of decades of cigarette smoking. In this action, a jury returned a verdict in favor of Ms. Rose and her husband (suing derivatively) on their claim that the cigarettes she smoked from the 1960s to 1993 were negligently designed. Specifically, it was plaintiffs’ contention that, during the years in question, the relevant tobacco companies should have sold only “light” cigarettes (which contain relatively low levels of cancer-causing tar and addictive nicotine) and should not have sold regular cigarettes of the kind Ms. Rose smoked (which contain significantly higher levels of the aforementioned harmful substances). While light cigarettes were available during the relevant period, plaintiffs failed to present any evidence that such cigarettes appeal to more than a small portion of the cigarette-smoking public. Stated otherwise, the record contains no basis for a finding that light cigarettes have the same utility for the vast majority of smokers as do regular cigarettes.

The critical question on this appeal is whether plaintiffs presented a legally sufficient case on their negligent design claim— the only cause of action submitted to the jury—without offering any evidence that the alternative product design they propose (low-tar, low-nicotine cigarettes) would have been acceptable to the consumers that constituted the market for the allegedly defective product (regular cigarettes). In our view, this question must be answered in the negative. Under New York law, a manufacturer cannot be held liable for failing to adopt an alternative product design that has not been shown to retain the “inherent usefulness” the product offers when manufactured according to the more risky (but otherwise lawful) design that was actually used (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 108 [1983]). In the case of cigarettes, in which the product’s “usefulness” (such as it is) is the production, not of any objectively observable results, but of certain subjective sensations and feelings in the user (the taste of tar and the psychological effect of nicotine), the product’s functionality can only be demonstrated by its acceptability to consumers. Absent any evidence that cigarettes with the low levels of tar and nicotine advocated by plaintiffs would be acceptable in the market for the cigarettes Norma Rose smoked, it cannot be said that plaintiffs have carried their burden of proving that it was “feasible to design the [offending] product in a safer manner” (id.). Thus, defendants’ motions for a directed verdict and for judgment notwithstanding the verdict should have been granted. We therefore reverse the judgment in plaintiffs’ favor and dismiss the complaint.

The standard to be applied in determining (in both negligence and strict products liability actions) whether or not a product is defectively designed is

“whether the product as designed was ‘not reasonably safe’—that is, whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (Voss, 59 NY2d at 108; see also Giunta v Delta Intl. Mach., 300 AD2d 350, 353 [2002]).

In trying a case under this standard,

“[t]he plaintiff ... is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner. The defendant manufacturer, on the other hand, may present evidence in opposition seeking to show that the product is a safe product—that is, one whose utility outweighs its risks when the product has been designed so that the risks are reduced to the greatest extent possible while retaining the product’s inherent usefulness at an acceptable cost.” (Voss, 59 NY2d at 108 [citations omitted].)

Among the factors to be considered in the risk-utility analysis is “the availability of a safer design” (id. at 109). Further, “[w]here a court, after considering the relevant facts and risk-utility factors, determines that the plaintiff has failed to make out a prima facie case of a design defect, the claim should not be submitted to the jury” (Scarangella v Thomas Built Buses, 93 NY2d 655, 659 [1999]).

As the Court of Appeals has noted, the risk-utility analysis mandated by Voss is “rooted in a recognition that there are both risks and benefits associated with many products and that there are instances in which a product’s inherent dangers cannot be eliminated without simultaneously compromising or completely nullifying its benefits” (Denny v Ford Motor Co., 87 NY2d 248, 257 [1995] [emphasis added]).

Plaintiffs do not dispute that, under the foregoing case law, they cannot prevail on their negligent design claim, as a matter of law, without demonstrating the feasibility of a safer (or, to put it better here, measurably less dangerous) alternative design for the cigarettes Norma Rose smoked. Plaintiffs argue, however, that they carried this burden by showing that, during the years Ms. Rose smoked regular Pall Mall and Benson & Hedges cigarettes, tobacco companies also marketed light cigarettes with lower levels of tar and nicotine. As plaintiffs conceded on the record at trial, they established only the technical feasibility of light cigarettes, which they claimed was all that was required. “The feasibility aspect,” their counsel asserted, “is whether or not it can be made.” Plaintiffs admittedly offered no evidence on the extent to which light cigarettes would have been acceptable to smokers of regular cigarettes as a substitute for the latter. Plaintiffs’ counsel told the court: “[I]t’s a whole different trial to determine what is acceptable to a consumer. That’s a different case tha[n] we have been trying before your Honor.”

In our view, plaintiffs could not make out a prima facie case that light cigarettes were a feasible alternative to regular cigarettes without presenting evidence on consumer acceptability. Contrary to the trial court’s stated view, a cigarette’s function is not simply “to be lit, burned and inhaled” (10 Misc 3d 680, 698 [2005]). A person presumably could smoke lettuce if cigarettes existed only to provide the smoker with the opportunity to light up and inhale. To the contrary, the record establishes that people smoke cigarettes to obtain the additional “utility” of the taste provided by the tar and the psychological effect provided by the nicotine; in fact, one of plaintiffs’ experts testified that “nicotine is the product that sells cigarettes.” It is undisputed that the reduced amounts of tar and nicotine in light cigarettes provide less taste and less psychological effect, respectively. It was plaintiffs’ burden to prove that, notwithstanding the reduced taste and psychological effect they provide, light cigarettes could feasibly serve the same function as regular cigarettes for cigarette smokers generally. Again, given the subjective nature of the benefits of smoking, the viability of light cigarettes as an alternative to regular cigarettes could not be demonstrated directly, but only through evidence of their acceptability to consumers—which, to reiterate, was admittedly not part of plaintiffs’ case. The issue is not (as plaintiffs suggest) whether tobacco companies would make a profit, but whether the alternative product design would fulfill the public’s demand.

In further considering the issue of feasibility of a safer alternative design, it must be recognized that two differently designed products that, like regular cigarettes and light cigarettes, are generally similar in function, may nonetheless yield results so different in quality as to make it impossible to characterize the design of the safer product as a feasible alternative to the design of the more hazardous product. In Felix v Akzo Nobel Coatings (262 AD2d 447 [1999]), for example, the plaintiff argued that a quick-drying lacquer sealer, with a highly flammable solvent base, was defective by reason of the availability of water-based lacquer sealers, which, although slow-drying, were safer. The Second Department, noting that quick-drying, solvent-based lacquer sealers “comprise approximately 95% of the lacquer sealer market” (id. at 448), disagreed:

“The plaintiffs own expert testified . . . that there was no way to make a quick-drying lacquer sealer offering the same results as those from solvent-based lacquer sealers using alternative fluids and that the very nature of quick-drying lacquer sealer necessitates that it contain a highly flammable solvent. He further testified that nothing can be introduced to the formula to make it safer without creating an entirely different product. . . .

“Further, contrary to the plaintiffs contention, the evidence presented clearly shows that water-based products are not essentially the same as the solvent-based lacquer sealer at issue. The plaintiffs expert admitted that the water-based products take hours longer to dry, so that there is a functional difference. . . . Additionally, the plaintiffs expert could not name any water-based lacquer sealers matching the results obtained by the quick-drying, solvent-based lacquer sealer with respect to the appearance of the finish, its hardness, and its scratch-resistant properties.” (Id. at 448-449.)

Since the record established that “the volatile solvent contained in the defendant’s quick-drying lacquer sealer [was] critical to the products’ performance,” there was no issue as to the availability of “an alternative, safer design,” and the complaint was dismissed insofar as it sought recovery based on a theory of design defect (id. at 449; accord Perez v Radar Realty, 34 AD3d 305, 306 [2006] [dismissing claim that volatile lacquer sealer was defectively designed where plaintiff “made no showing that utilization of (a) water-based sealer instead of the complained-of (volatile) lacquer-based product would be similarly efficacious”], affg 7 Misc 3d 1015[A], 2005 NY Slip Op 50599[U] [Sup Ct, Bronx County 2005]).¹

Regular and light cigarettes differ from each other, not in the nature of the relevant ingredients (as is the case with solvent-based and water-based sealers), but in the proportions of those ingredients. Still, plaintiffs in this case made no showing that regular and light cigarettes “offer[ ] the same results” (Felix, 262 AD2d at 448), or had no “functional difference” from each other (id.), in terms of the taste and psychological experience delivered to the consumer. To the contrary, plaintiffs’ own experts apparently agreed that the great majority of smokers reject both low-tar and low-nicotine cigarettes. In any event, plaintiffs, not defendants, had the burden of production and persuasion on the issue of the feasibility of an alternative design (see Voss, 59 NY2d at 108 [“The plaintiff, of course, is under an obligation to present evidence that ... it was feasible to design the product in a safer manner”]). Since, as their counsel admitted at trial, plaintiffs offered no evidence of the consumer acceptability of light cigarettes—which was the only way to prove that light cigarettes were a feasible alternative design— plaintiffs failed to make out a prima facie case of negligent design, and were not entitled to have this claim (the only one at issue on appeal) submitted to the jury.²

Nor can it plausibly be argued that plaintiffs established defendants’ liability on the ground that the cigarettes Ms. Rose smoked did not pass the three-factor test for nondefectiveness set forth in Scarangella (93 NY2d at 661). The Scarangella factors are not generally applicable in all design defect cases, but are only used to determine whether “a product without an optional safety feature is defectively designed because the equipment was not standard” (id.). The question of whether an optional feature should have been made standard does not arise unless the product would have served essentially the same function with or without that feature.³ This was clearly true of the bus in Scarangella (which lacked an optional backup alarm), but, to reiterate, plaintiffs here failed to establish that light and regular cigarettes serve the same function. The dispositive question in this case is whether these two differently designed products have the same utility for the consumer, and the Scar-angella factors simply are not addressed to that inquiry. Thus, in Perez v Radar Realty (supra), the lacquer case in which we faced a question similar to the one presented here, we did not refer to the Scarangella factors.

Further, while plaintiffs and the dissent argue that evidence of the market acceptability of light cigarettes is not relevant to the issue of their feasibility as an alternative to regular cigarettes, they do not suggest any other means of proving the functional interchangeability of two products that (unlike the lacquers at issue in Felix and Perez) serve a utility that is entirely subjective. The result of plaintiffs’ approach would be to assume that they have proven one element of their cause of action without presenting any evidence on it. This would be error.

It is no answer to say, as the dissent does, that, even if consumer acceptability is relevant, the evidence defendants proffered on that issue was insufficient to establish that light cigarettes are not a feasible alternative to regular cigarettes. It must be borne in mind that the feasibility of the alternative design was an element of plaintiffs’ affirmative case, on which plaintiffs had the burden of proof. As previously discussed, consumer acceptability is the only way to demonstrate the feasibility of light cigarettes as an alternative to regular cigarettes, and plaintiffs have admitted that they presented no evidence of the acceptability of light cigarettes to consumers of regular cigarettes. Thus, whether or not the dissent is correct about the strength of defendants’ evidence on consumer acceptability (and we do not think it is), plaintiffs failed to prove their case.⁴

The dissent also argues that plaintiffs should not be required to show the consumer acceptability of light cigarettes because the consumers in question are “nicotine addicts—a class of consumer created by the defendants [and other tobacco companies] through their admitted manipulation of nicotine levels.”⁵ The premise of this argument is that it is appropriate for a court, through the imposition of tort liability, to retroac-lively outlaw the satisfaction of the demand for a given product, notwithstanding that the satisfaction of that demand has long been consciously tolerated—and taxed and regulated—by the political branches of government. For the reasons that follow, we reject this premise.

It is, of course, incongruous to speak of a toxic product, which offers only fleeting sensual pleasure while sickening, disabling and killing multitudes each year, as serving a “function,” or having “utility,” for the consumer. Nonetheless, cigarettes plainly serve some subjective function or utility for smokers; if this were not true, the tobacco companies would quickly go out of business. Thus, an affirmance of the judgment holding defendants liable for the severe health effects of regular cigarettes, regardless of plaintiffs’ failure to prove that any alternative product design would feasibly serve the same function, would essentially outlaw the satisfaction of the demand for any product serving that function. As a federal judge of the Southern District of New York recently observed in rejecting an argument similar to the one made by plaintiffs here, such an “imposition] [of] state law tort liability on the manufacture and sale of virtually every cigarette now on the market” would constitute “a virtual ban on cigarettes, just as a requirement that allows only ‘alcohol-free’ liquor to be sold would be a ban on whiskey” (Clinton v Brown & Williamson Holdings, Inc., 498 F Supp 2d 639, 648 [SD NY 2007]).

One could reasonably argue, on both moral and policy grounds, that regular cigarettes are so dangerous that they should be outlawed, regardless of the absence of any feasible alternative design that would serve the same function. Then again, one could also argue that the virtual prohibition of a product that has been as widely used, and for as long a period of time, as regular cigarettes, would be too costly, and too difficult to enforce, to say nothing of the fact that it could be considered an unwarranted intrusion on individual autonomy.⁶ Whatever position one takes on the merits of this important policy issue, we believe that whether to make as sharp a break with past practice as the one plaintiffs advocate, and to accept the undoubtedly vast social and economic consequences of such a change of course, is a political decision resting with the legislative branch of government or with regulators acting pursuant to a legislative grant of authority. The decision is not, we submit, one appropriately made by the judicial branch. According to one scholar, this is the view taken by most courts that have been presented with the issue (see Owen, Inherent Product Hazards, 93 Ky LJ 377, 383 [2004-2005] [“the vast majority of courts have been markedly unreceptive to the call that they displace markets, legislatures, and governmental agencies by decreeing whole categories of products to be ‘outlaws’ ”], quoted in Clinton, 498 F Supp 2d at 648).

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.

For the reasons discussed above, we reverse the judgment and dismiss the complaint. Of course, since plaintiffs failed to make out a prima facie case for holding defendants liable for compensatory damages, there is no basis for the award of punitive damages against defendant Philip Morris USA Inc.

Accordingly, the judgment of the Supreme Court, New York County (Karen S. Smith, J.), entered July 18, 2005, which, insofar as appealed from, after a jury trial, awarded plaintiffs damages against defendants Brown & Williamson Holdings, Inc. and Philip Morris USA Inc. based on a cause of action for negligent product design, should be reversed, on the law, without costs, the aforesaid defendants’ motions for a directed verdict and for judgment notwithstanding the verdict granted, and the second amended verified complaint dismissed. The Clerk is directed to enter judgment accordingly.

1 . The dissent posits that light and regular cigarettes must be deemed functionally interchangeable unless it is shown that most smokers of regulars would quit smoking if lights were the only cigarettes available. This notion is inconsistent with the Felix and Perez decisions, which held that slow-drying sealers are not feasible alternatives to fast-drying sealers, notwithstanding that consumers would undoubtedly turn to slow-drying sealers if fast-drying sealers became unavailable.

2 . On appeal, plaintiffs point to testimony by one of their experts that low-nicotine cigarettes would “have some stimulating action, but not be addicting.” Plaintiffs now assert that, to the extent they were required to prove that light cigarettes serve the function of producing a “stimulatory effect,” the referenced testimony “supports the conclusion that cigarettes with nicotine levels below the addiction threshold would serve that function.” The question, however, is not whether low-nicotine cigarettes would have any “stimulatory effect” at all, but whether that effect would be of sufficient magnitude: to satisfy the smoking public.

3 . An automobile and a motorcycle are both means of motorized transportation, for example, but that does not mean that they are so interchangeable in function that a motorcycle is defective because it provides the rider with less protection than an automobile. Even plaintiffs presumably would not go so far as to argue that light cigarettes are feasible alternatives to cigars and pipes.

4 . The position of plaintiffs and the dissent—that evidence of consumer acceptability is never needed to demonstrate the feasibility of an alternative product design—finds no support in decisions like Voss, which concerned products used to produce objective, physical results (e.g., the power saw in Voss). Given the nature of the products at issue, Voss and similar cases presented no occasion to discuss consumer acceptability as a measure of the feasibility of a proposed alternative product design. Again, consumer acceptability becomes relevant to the feasibility inquiry only where, as here, the product at issue is one used to produce subjective results in the user.

5 . It is not strictly accurate to say, as the dissent seems to imply, that nicotine addiction originated with the manipulation of the nicotine levels of cigarettes. After all, it is undisputed that people were smoking cigarettes long before the 1950s and 1960s, when the tobacco industry developed the capability to adjust nicotine levels. We also note that the injured plaintiff in this case, Norma Rose, began smoking in the late 1940s, and thus had already been addicted to cigarettes for more than a decade when she began smoking the brands (Pall Malls in the 1960s and Benson & Hedges in the 1970s) for which the defendants bringing this appeal are responsible. The jury exonerated defendant R.J. Reynolds Tobacco Company, the maker of the brand Ms. Rose smoked in the 1950s (Camels).

6 . As noted by Dr. Blackie, a defense expert witness quoted in the dissenting opinion, one possible consequence of prohibiting a product that has been widely used for generations is the creation of a “black market” for that product.