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[T] Rose v. American Tobacco Co.2/20/2004
UNPUBLISHED
This opinion is uncorrected and will not be published in the printed Official Reports.
Motion sequence Nos. 004, 005, and 006 are consolidated herein for disposition.
In sequence 004, defendants Philip Morris Incorporated, (Philip Morris), R.J. Reynolds Tobacco Company, (R.J. Reynolds) and Brown & Williamson Tobacco Corporation (Brown & Williamson), move for an order pursuant to CPLR 3212 granting summary judgment and dismissing the fraud, failure to warn and the design defect claims asserted against all defendants and the failure to warn claim asserted against defendant Philip Morris. In sequence 005, defendants Philip Morris, R.J. Reynolds and Brown & Williamson move for summary judgment in their favor and dismissal of the failure to warn, fraudulent concealment, breach of warranty and design defect claims. In sequence 006, defendant Brown & Williamson moves for summary judgment and dismissal of all claims as barred by the applicable statute of limitations, dismissal of the warranty claims, and dismissal of all claims asserted against defendant Brown & Williamson Tobacco Corporation, individually.
In this tobacco products liability action, plaintiffs seek to recover for personal injuries, including lung cancer and permanent neurological damage, allegedly sustained by plaintiff Norma Rose as the result of her use of cigarettes manufactured, advertised and/or sold by defendants . Plaintiffs allege that Norma Rose began smoking in the mid-1940s while a teenager and, by the time she was 20 years old, smoked approximately one pack a day. Plaintiffs further alleges that, beginning in the mid-1970s, Norma Rose tried to quit several times, but, because of an addiction to the nicotine in cigarettes, was unsuccessful until February 1993. In March 1995, Norma Rose was diagnosed as suffering from lung cancer and paraneoplastic cerebellar degeneration (PNCD), a neurological condition which sometimes accompanies lung cancer. She was cured of cancer later that same year, but allegedly continues to suffer from PNCD.
Plaintiffs allege that, in the 1950s, Norma Rose smoked Camel cigarettes manufactured by defendant R.J. Reynolds Tobacco Company; in the 1960s, she smoked Pall Mall cigarettes manufactured by The American Tobacco Co., which later merged into defendant Brown & Williamson; and, in the 1970s, she smoked Merit, Vantage, Parliament and Benson & Hedges cigarettes manufactured by defendant Philip Morris Incorporated. In the 1980s and until she quit smoking in 1993, Norma Rose smoked Benson & Hedges cigarettes.
Plaintiffs also allege that cigarettes are a defective product and are not reasonably safe when used as intended because they are addictive and carcinogenic. Plaintiffs further allege that defendants knew of the health hazards presented by cigarette smoking, yet concealed the extent of these hazards from the public during the decades Norma Rose smoked.
In the second amended verified complaint, plaintiffs assert causes of action against defendants for: failure to warn consumers of the dangers of cigarette smoking prior to 1969; fraud and deceit; negligent misrepresentation; negligent and defective design; strict products liability; breach of express warranty; breach of implied warranty of merchantability; breach of implied warranty of fitness for a particular purpose; and loss of consortium on behalf of plaintiff Leonard Rose.
In three separate motions, one by each of the remaining defendants, defendants seek summary judgment dismissing these claims on a variety of grounds, including failure to demonstrate reasonable reliance on defendants' alleged fraudulent misreprese
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