 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Rose v. Brown & Williamson Tobacco Corp.9/29/2005
ny evidence regarding the applicable standard of care for designing cigarettes or how Defendant Reynolds purportedly fell below such a standard. Therefore, to the extent that Plaintiffs are arguing that Defendant Reynolds negligently designed its cigarettes, we find that the Plaintiffs have not created a genuine issue of material fact as to these claims and Defendant Reynolds is entitled to summary judgment." (Id. at 119.) Thus, the Cruz-Vargas court allowed the defective design claim to stand in the face of defendants' defense of conflict preemption and, instead, granted defendants' summary judgment motion by reason of the plaintiffs' failure to raise material issues of fact.
Accordingly, this court found defendants' argument that federal conflict preemption precluded the assertion against cigarette manufacturers of tort claims for negligent product design under state law to be without merit and denied defendants' motion to dismiss plaintiffs' cause of action for negligent product design.
Evidentiary Ruling on Admissibility of Evidence Concerning Commercial Viability of Safer Alternative Design Cigarettes
An essential element of plaintiffs' cause of action for negligent product design is that a safer alternative design to the cigarettes being marketed by defendants was feasible at the time Ms. Rose used defendants' products. During phase one of the trial, the court ruled that for plaintiffs to sustain their burden of proof, they needed to prove that a safer alternative design was technologically feasible, i.e. defendants had the capability of manufacturing the alternative design at the time Ms. Rose smoked the various defendants' cigarettes.
Defendants contended that they should be allowed to offer evidence tending to prove that the "safer alternative design" suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e. not commercially viable). The evidence defendants sought to admit consisted of sales and market data as well as consumer complaints indicating that, when defendants offered the alternatively designed (i.e. low tar and nicotine) cigarettes in the market place, consumers did not like them and did not purchase them but, instead, continued to purchase the higher tar/nicotine cigarettes which were then being sold by defendants. Defendants argued that (1) a cigarette's function is to provide taste, comfort, relaxation and other subjective factors to smokers and (2) unless the alternatively designed product provided those things to consumers, the alternatively designed products would not be acceptable to consumers, and thus not commercially viable and, therefore, not feasible to produce. To support their argument, defendants offered the testimony of Dr. Sharon Blackie, as an expert witness, to the effect that, when lower tar/nicotine cigarettes were first introduced, consumers complained and would not accept the lower tar/nicotine cigarettes.
Plaintiffs countered that New York case law defines "feasibility" as the technological ability to produce the alternative design at a cost that is not substantially disparate to the cost of the original product, and "functionality" as the actual ability of the product to function in a fashion that is similar to the original product. Plaintiffs argued that, pursuant to New York case law on this subject, "feasibility" relates solely to the technological ability of the tobacco companies to make the safer alternative design cigarette and has no relationship to whether or not the companies choose to place an alternatively designed product on the market or whether or not the product is, in fact, successfully marketed. Plaintiffs also argued that a functional cigarette is one which will a
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|