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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
From February 7, 2005 through March 28, 2005 this court tried the instant case before a jury in three phases. The first phase of the trial was to determine liability for damages suffered by the plaintiffs as a result of plaintiff Norma Rose's having smoked cigarettes manufactured by defendants over a 46 year period. The second phase of the trial was to determine if there was sufficient evidence to impose punitive damages on defendants who were found liable in phase one of the trial. Phase three of the trial was to determine what amount, if any, should be imposed as punitive damages on defendants who were found liable for such damages in phase two of the trial.
At the commencement of the trial of this action and throughout the different phases of the trial, the parties made various motions in limine. The court considered the motions, issued brief decisions from the bench and advised counsel for the parties that the court would provide written decisions setting forth the court's reasoning behind its decisions. Because of the importance of this case and in an effort to provide the parties with a clear basis for the court's determinations on their motions, the following are the decisions of this court with respect to the within motions in limine.
Plaintiffs in this action are Norma and Leonard Rose. Norma Rose smoked cigarettes from the time she was a teenager in 1947 up until 1993 when, after repeated efforts, she finally quit. Thereafter, she was diagnosed with lung cancer and perineoplastic cerebella degeneration ("PCD"). She commenced this litigation against defendant cigarette manufacturers for the damages she alleged to have suffered as a result of smoking their cigarettes. Her husband, Leonard Rose, brought a claim for loss of consortium as a result of his wife's injuries. By the time the trial commenced, the only remaining cause of action was for negligent product design. The essence of plaintiffs' cause of action was that defendants' design of cigarettes with high tar and high nicotine content became negligent at the point in time: 1) defendants knew or should have known that a) smoking high tar and high nicotine cigarettes increases the risk that a smoker will develop lung cancer b) smoking cigarettes is addictive and c) consuming less tar and nicotine reduces the risk of developing lung cancer, and 2) it became technologically feasible to make low tar and low nicotine cigarettes.
Plaintiff's Motion to Preclude Common Knowledge Evidence
Plaintiffs' motion to preclude defendants from introducing evidence at phase one of the trial that the general public has been aware of the dangers of cigarette smoking from at least 1969, was granted to the extent and for the reasons set forth herein.
Plaintiffs moved to preclude the introduction of evidence of the public's awareness of the risks of cigarette smoking contending: (1) it was not relevant to the cause of action for negligent product design and (2) it would be more prejudicial than probative.
Defendants contended that the jury had to be allowed to hear and consider evidence of the public's awareness of the risks of cigarette smoking as such evidence was one of the factors which the New York State Court of Appeals has established to determine whether a product is not reasonably safe.
The first issue to be addressed in a negligent product design case is whether the product in question is defective. A product is defective if it is not reasonably safe. In order to
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