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Rose v. Brown & Williamson Tobacco Corp.9/29/2005
llow a smoker to inhale smoke from the end of the cigarette placed in his or her mouth when the other end is ignited.
None of the New York cases (in either federal or state court) which have been offered by defendants support the position that the commercial viability of the proposed alternatively designed product is relevant to the determination of whether or not said design is "feasible." Even those cases referring to "economic" feasibility relate solely to the cost of designing the product, not the acceptability of the product to the public. (See Friedman v National Presto Industries, Inc., 566 F. Supp 762, 764 [EDNY 1983].) The economics in such cases relate to whether or not the expense of the alternate design is justified by increases in safety. Therefore, to meet the burden of proving the feasibility of the safer, alternative design a plaintiff must demonstrate the technological feasibility of the "design," not its commercial viability. As the Federal Court for the Southern District of New York stated in Rypkema v Time Manufacturing Company (263 F. Supp 2d 687, 692 [SDNY 2003]):
There are two means of satisfying this burden:
1. Plaintiff's expert can show, through testing and construction of a prototype, that such an alternative design is within the realm of practical engineering feasibility, thereby demonstrating the utility, cost, safety, sanitation and other characteristics of the proposed alternative; and/or
2. Plaintiff's expert can identify makers of similar equipment who have already put into use the alternative design that has been proposed.
(See also Colon v Bic USA, Inc., 199 F Supp 2d 53, 76-77 [SDNY 2001] which lists numerous federal cases rejecting expert testimony concerning various alternative designs because the expert had not offered a prototype or other indication of testing of the alternative design.) Neither of the two alternatives listed in Rypkema contains any indication that commercial viability of the alternative design is relevant to whether or not it is a feasible design.
Defendants attempt to define a cigarette's function in terms of the subjective benefits which they claim motivate consumers to use cigarettes, is also misdirected. A saw or knife cuts wood and a gun shoots bullets. While the users of those products may derive many subjective benefits which motivate them to use the products (such as the pride of producing a work of art or a piece of furniture, or the prestige and notoriety of being an expert marksman) those benefits do not alter the function of the product. A cigarette's function is to be lit, burned and inhaled.
Moreover, notwithstanding defendants' attempts through their arguments and Dr. Blackie's testimony to link consumer acceptance of cigarettes to their function, upon cross examination Dr. Blackie admitted: "You train the consumer to accept new products." (Transcript of trial, Page 3147, Lines 18 and 19). Thus, it cannot be said that consumer acceptance or the commercial viability of an alternatively designed product has any relevance to its function or to whether or not the product's manufacturer acted reasonably by continuing to market the product in its unsafe condition when the manufacturer could have produced a safer, alternatively designed product.
Accordingly, this court ruled that evidence concerning the commercial viability of safer, alternatively designed products was inadmissible as being irrelevant to the issue of whether or not the safer alternative design was feasible or functional.
Defendants Philip Morris USA Inc. and Brown & Williamson Tobacco Corporation's Motion for Special Additional Jury Instructions.
P
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