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Tomasino v. American Tobacco Co.11/21/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
BARRY A. COZIER, J.P., DAVID S. RITTER, REINALDO E. RIVERA and ROBERT J. LUNN, JJ.
DECISION & ORDER
(Index No. 027182/97)
ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.
The plaintiff alleged that his deceased wife (hereinafter the decedent) contracted lung cancer from smoking cigarettes for more than 20 years that were manufactured, promoted, and/or sold by the appellants. The appellants are five cigarette manufacturers - Philip Morris Incorporated, Brown & Williamson Tobacco Corporation, individually and as successor by merger to the American Tobacco Company, R.J. Reynolds Tobacco Company, Lorillard Tobacco Company, and Liggett & Myers Tobacco Company (hereinafter collectively the manufacturer appellants), and two tobacco-related entities, the Council for Tobacco Research-USA, Inc., and The Tobacco Institute, Inc.
The Supreme Court properly denied those branches of the appellants' respective motions which were for summary judgment dismissing the causes of action to recover damages for fraudulent concealment occurring after 1969; specifically, after the effective date of the Federal Cigarette Labeling and Advertising Act, as amended by the Public Health Cigarette Smoking Act of 1969 (15 USC § 1331 et seq.) (hereinafter the Act). The appellants' claim that these causes of action are preempted by the Act is virtually identical to the claim raised in and rejected by this court in Miele v American Tobacco Co. (2 AD3d 799, 801-803). As the plaintiff in that case asserted, the plaintiff herein asserts that the appellants "suppressed, ignored, and disregarded test results not favorable to the tobacco industry" and "willfully and intentionally failed to disclose the material facts regarding the dangerous and addictive nature, properties, and propensities of the cigarette by controlling and suppressing material facts." We held that inasmuch as "the predicate duty underlying the plaintiff's fraudulent concealment claims is a state-law duty not to deceive . . . the Supreme Court improperly held that the post-1969 fraudulent concealment causes of action were preempted by the Act" (Miele v American Tobacco Co., supra at 803). Similarly, in this case, the Supreme Court properly denied those branches of the appellants' respective motions which were for summary judgment dismissing the causes of action alleging fraudulent concealment after 1969 on preemption grounds. Further, we are unpersuaded by the appellants' suggestion that our decision in Miele v American Tobacco Co. (supra), should be revisited and overturned.
There is no merit to the claim that the manufacturer appellants should have been awarded summary judgment dismissing the causes of action to recover damages for post-1969 strict product liability and negligent design defects on the ground that cigarettes were in a condition reasonably contemplated by the ultimate consumer (see Miele v American Tobacco Co., supra at 804). "' onsumer expectations do not constitute an independent standard for judging the defectiveness of product designs . . . The mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations . . . may substantially influence or even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe. It follows that, while disappointment of consumer expecta
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