Fabiano v Philip Morris Inc.

[*1] Fabiano v Philip Morris Inc. 2007 NY Slip Op 51643(U) [16 Misc 3d 1130(A)] Decided on August 1, 2007 Supreme Court, New York County Ramos, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 1, 2007
Supreme Court, New York County

Lorilynn Fabiano, as Executor of the Estate of Maureen Fabiano, and Cosmo Fabiano, Individually, Plaintiffs,

against

Philip Morris Inc., the American Tobacco Company, Brown & Williamson Tobacco Corporation, Individually, and as successor by merger to American Tobacco Company, RJ Reynolds Tobacco Company, Liggett & Myers Tobacco Company, Lorillard Tobacco Company, The Tobacco Institute, Inc., and The Council for Tobacco Research-USA, Inc., Defendants.



102715/04

Charles Edward Ramos, J.

In motion sequence 011-014, defendants R.J. Reynolds Tobacco Company ("RJ"); Brown & Williamson Holdings ("B&W")[FN1]; Philip Morris USA, Inc. ("PM"); and Lorillard Tobacco Company ("Lorillard") move pursuant to CPLR 3212 for summary judgment to dismiss plaintiffs' first amended verified complaint with prejudice.

Plaintiffs Lorilynn Fabiano Wojciehowski ("Lorilynn"), is the daughter of decedent Maureen Fabiano (the "Decedent"), and the executrix of her estate. Plaintiff Cosmo Fabiano (" Mr. Fabiano") is the decedent's husband.

Reynolds and B&W, on behalf of all defendants, seek to dismiss plaintiffs' claims for fraudulent misrepresentation, negligent misrepresentation, failure to warn, fraudulent concealment, concerted action, conspiracy, and aiding and abetting. All defendants also seek to dismiss plaintiffs' claims for defective design, addiction, wrongful death, loss of consortium, punitive damage. Lorillard seeks to dismiss, on behalf of all defendants, plaintiffs' claims for fraudulent concealment after July 1, 1969, on the ground of federal preemption.

B&W and Lorillard separately move to dismiss all claims for failure to warn and fraudulent concealment, asserted against B&W, individually, and Lorillard, on the basis that [*2]these claims are limited to the time period before July 1, 1969, and the Decedent did not smoke cigarettes manufactured by B&W, in its capacity as successor by merger to American Tobacco, until 1975, or cigarettes manufactured by Lorillard until 1978.

Background

Plaintiffs commenced this products liability action against major U.S. tobacco companies to recover compensatory and punitive damages for the personal injuries suffered by, and eventual death of the Decedent, who allegedly smoked cigarettes manufactured by defendants. Plaintiffs filed a summons and complaint on February 20, 2004.

Following a motion to dismiss the complaint, the defendants remaining in the action are four tobacco manufacturers: RJ; B&W; PM; and Lorillard. Plaintiffs claim that the Decedent developed lung cancer and died as a result of smoking cigarettes manufactured by defendants. Plaintiffs filed a first amended verified complaint on October 24, 2005. Plaintiffs assert various causes of action premised on defendants' alleged design defects in the cigarettes the Decedent smoked; failure to warn prior to 1969 that cigarette smoking causes cancer and/or is addictive(negligent and intentional failure to warn); strict liability; fraud, deceit, and conspiracy; fraudulent concealment; wrongful death on behalf of the estate of plaintiff-decedent; and alleged misrepresentation. Plaintiffs also seek to hold defendants collectively liable by asserting claims of conspiracy, concerted action, and aiding and abetting.

Defendants served their answer in October 2005.

The Decedent was born on June 5, 1942, and raised in Kingston, New York. The Decedent met Mr. Fabiano in late December of 1959, and they married on April 30, 1961. From approximately 1987 until she died, the Decedent worked as a receptionist in a physician's office.

Plaintiffs allege that the Decedent started smoking in 1956 at the age of 14. The Decedent smoked a few different brands of cigarettes over the years, including Winston, Marlboro, Kools, and Kent [FN2].

Defendants claim that plaintiffs fail to submit evidence establishing that she smoked regularly or the amount she smoked. The Decedent's sister, Jeanine Madison, testified at her deposition that she did not know why her sister started to smoke, that smoking was prohibited in high school, and that the Decedent's parents did not allow her or her siblings to smoke before they graduated high school. Mrs. Madison also stated that the Decedent did not smoke in front of her parents until she was engaged to Mr. Fabiano. Further, Mrs. Madison stated that she did not know when the Decedent started smoking, or when she started buying her own cigarettes, or how much she was smoking when she graduated high school in 1960.

The decedent and Mr. Fabiano met at the end of December 1959, while she was still in high school. According to Mr. Fabiano, the Decedent was allegedly smoking filtered Winston cigarettes, manufactured by RJ at the time. Mr. Fabiano smoked as well. Mr. Fabiano testified in his deposition that he also does not know why the Decedent began to smoke, or why her first cigarette was a Winston. Further, Mr. Fabiano testified that he does not know why the Decedent became a "regular smoker." According to Mr. Fabiano, the Decedent smoked filtered Winston cigarettes until 1963 or 1964, when they switched to "Marlboro Reds," manufactured by PM. According to Mr. Fabiano, the Decedent switched to Marlboros because he switched, and she followed his brand choice. When asked specifically whether the Decedent ever told Mr. Fabiano that she switched because of any advertisements, he answered "no." In about 1972, Mr. Fabiano and the Decedent switched to Marlboro Light cigarettes, around the time that the brand first came out on the market. Several witnesses testified that the Decedent smoked light cigarettes because they were safer and better for her given the label "Lights." Plaintiffs argue that the [*3]connotation "lights" constitutes a portrayal of cigarettes as safer and healthier products.

In 1975, Mr. Fabiano switched to Kool cigarettes, manufactured by B&W, and the Decedent also switched, again following Mr. Fabiano's brand choice in an effort to cut down on their smoking. Mr. Fabiano states in his deposition that he and the Decedent switched to Kools because they did not like the taste, and thus, believed that they would smoke less. Mr. Fabiano testified that one of the reasons that they wanted to cut down on smoking was because they were concerned about their health. Around 1978, the Fabianos switched to Kent Lights 100s, manufactured by Lorillard. Again, the Decedent switched because her husband switched, according to Mr. Fabiano's statements made during his deposition. Kent Light 100s was the last brand that the Decedent smoked until she quit in 1992, four years after Mr. Fabiano quit.

Defendants claim that the Decedent never smoked a cigarette manufactured by American Tobacco; that the Decedent did not smoke cigarettes manufactured by B&W until 1975, and that she did not smoke cigarettes manufactured by Lorillard until 1978.

In late 2000, the decedent began to experience shortness of breath and a dry cough. In June of 2001 she was diagnosed with lung cancer. She died in February of 2002.

Mr. Fabiano testified that the Decedent tried to stop smoking at least once a year, by substituting cigarettes with candy, gum and any other item that would distract her from smoking. The Decedent was able to quit only 3 times, for periods of around a week, namely, when she was pregnant in 1962 with Lorilynn, in 1969, when she was pregnant with her second daughter, Tricia, and in 1972, when she was expecting her son, Chris, because the Decedent believed it was healthier for the unborn children, according to Mr. Fabiano. She was also able to stop for at least 24 hours after seeing a hypnotist. She was able to permanently stop smoking in 1992, by attending a smoking cessation program organized by one of the physicians at Pine Street Associates where she worked. According to Mr. Fabiano and Mrs. Madison, the Decedent enjoyed smoking cigarettes. Plaintiffs argue that, notwithstanding the Decedent's diligent and continuous efforts to stop smoking permanently, she was only able to do so in 1992, with the assistance of a medical professional.

The Decedent was diagnosed with lung cancer in June, 2001.[FN3] After her cancer diagnosis, the Decedent underwent rigorous medical care and treatment, including chemotherapy, radiation, and surgery. The Decedent died on February 22, 2002 as a result of lung cancer.

According to Mr. Fabiano and Mrs. Wojciehowski, they had no reason to believe that the Decedent was aware of the Tobacco Industry Committee, the Council for Tobacco Research, or The Tobacco Institute, because they never discussed these organizations. Further, the Fabianos never discussed any statements or advertisements by tobacco companies; however, Mr. Fabiano testified that the Decedent knew that there was a health warning on cigarette packages, that started to appear in November of 1970 that stated: "Warning: The Surgeon General Has Determined That Cigarette Smoking is Dangerous To Your Health." Finally, according to Kevin Tierney, the Decedent's brother, she knew that smoking was bad for her health in the 1970s as he, as well as her children, informed her, and repeatedly encouraged her to stop smoking. In the early 1980s, the Decedent learned that her daughter, Mrs. Wojciehowski, was a smoker. The Decedent told her daughter to quit because it was bad for her.

In 1966, the first federally mandated warnings began to appear on all cigarette packages and cartons in the United States, stating: "CAUTION: Cigarette Smoking May Be Hazardous To Your Health." In 1969 this warning was revised to state: "WARNING: The Surgeon General Has determined That Cigarette Smoking Is Dangerous To Your Health." [*4]

In 1985, cigarette manufacturers were required to place one of the following "rotating" warnings on their products: SURGEON GENERAL'S WARNING: Smoking causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy.SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks To Your Health.SURGEON GENERAL'S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide.

In January of 1997, the New York Attorney General, filed an action in parens patriae against the principal cigarette manufacturers, including the defendants in this action, as well as against industry trade organizations, and various corporate parents or affiliated non-manufacturing companies. On November 23, 1998, the State of New York, along with 45 other states, five U.S. territories and the District of Columbia, executed a Master Settlement Agreement (the "MSA") with the nation's major tobacco companies, including defendants herein. The settlement with New York was reduced to a consent decree and final judgment, which was approved by the court, see State of New York v Philip Morris, Inc., 179 Misc 2d 435 (Sup Ct NY County, 1998)(entering final judgement), upheld on appeal, State of New York v Philip Morris, Inc., 263 AD2d 400 (1st Dep't, 1999).

Discussion

Defendants argue that the Decedent did not see, hear, or rely upon any statements of any defendants in starting or continuing to smoke, plaintiffs' claims for fraudulent misrepresentation, and negligent misrepresentation (the first and fourth causes of action), both of which premise liability of injury on a false statement, should be dismissed. Defendants also assert that there can be no liability for "concealment" of information because the Decedent had actual knowledge of the allegedly concealed information which was widely reported, known by the Decedent and publicly available and discoverable when the Decedent started to smoke, even without the explicit warnings on cigarette packages. Therefore, according to defendants, plaintiffs' second and third causes of action for failure to warn and fraudulent concealment should be dismissed. Defendants claim that the Decedent continued to smoke for decades after she became aware of the health risks of smoking, which demonstrates that any alleged failure to warn, inadequate warning, or "concealment" was not a proximate cause of the Decedent's lung cancer.

Finally, defendants argue that plaintiffs' collective liability claims should be dismissed because the claims are derivative and thus, should be dismissed, as the underlying substantive claims are dismissed. Defendants assert that plaintiffs' claims for concerted action is inapplicable, because the manufacturers of cigarettes used by the Decedent can be identified.

Defendant PM argues that plaintiffs' design defect claims should be dismissed, because plaintiffs cannot prove that, at the time the Decedent smoked, there was a safer, feasible alternative design for cigarettes that would have prevented her injuries, and that she would have smoked them. PM further contends that plaintiffs' claims are time-barred since the Decedent was addicted to cigarettes more than 3 years before her death, in 2002. B&W further claims that the Decedent never smoked a cigarette manufactured by American Tobacco and thus, cannot recover damages against B&W, as successor by merger to American Tobacco. According to B&W, plaintiffs' failure to warn and fraudulent concealment claims should be dismissed, at least against B&W and Lorillard, because these claims are limited to the time period before July 1, 1969, and the Decedent did not smoke B&W tobacco products until 1975, or Lorillard products until 1978. Thus, her injuries could not have been caused by B&W's or Lorillard's alleged failure to warn or fraudulent concealment prior to July 1, 1969.

In order to grant summary judgment, the court must determine whether a material and triable issue of fact exists. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, rearg denied 3 NY2d 941 July 3, 2007 (1957). After the movant makes a prima facie case, the burden [*5]shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a material issue of fact that requires a trial. Winegrad v New York Medical Univ. Med. Cen., 64 NY2d 851 (1985). When deciding a motion for summary judgment, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every inference which can be drawn from the evidence. See Assaf v Ropog Cab Corp., 153 AD2d 520 (1st Dep't 1989).

Plaintiffs' Design Defect Claims

Defendants argue that plaintiffs' design defect claims should be dismissed because plaintiffs cannot prove the existence of a feasible safer alternative which could have prevented the Decedent's illness or that the defective design of the cigarettes smoked by the Decedent caused her cancer. Defendants contend that cigarettes have inherent risks which the Decedent should have reasonably contemplated because of the federally mandated warning on cigarette packaging. Therefore, defendants conclude that cigarettes are not defective as a matter of law.

In New York, a plaintiff injured by an allegedly defective product design may seek recovery against the manufacturer on the basis of four theories of liability: based upon contract, express or implied, on the ground of negligence, or upon the theory of strict liability. Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 400 (1975). Plaintiffs have two claims for defective design: the first cause of action for negligent design i.e., design defect premised on a negligence theory, and the third cause of action for strict liability. Defendants argue that plaintiffs' defective design claims should be dismissed becauseplaintiffs cannot establish a prima facie case based on design defect.

Defendants treat both the strict products liability claim and the negligent design claim as functionally equivalent, and seek to apply the same standard to both claims, for purposes of establishing that plaintiffs failed to prove the elements of a design defect claim.

There is, in fact, a common standard concerning a defectively designed product, whether the claim is grounded in negligence or in strict liability: a defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce. Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 (1993).

The Court in Voss lists seven nonexclusive factors to determine whether a product is unreasonably dangerous, balanced against the product's inherent risks: (1) the product's utility to the public as a whole, (2) its utility to the individual user, (3) the likelihood that the product will cause injury, (4) the availability of a safer design, (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes. Voss at 109.

In a claim for strict products liability for design defect, contrary to a cause of action based upon a negligently designed product, plaintiff is not required to prove that the manufacturer acted unreasonably in designing the product. Voss at 107.

Ultimately, regardless of the plaintiffs' theory of liability, the court must evaluate each factor individually; however, certain factors will be given greater or lesser weight, given the circumstances of the case and the type of claim. See Rose v Brown & Williamson, 10 Misc 3d 680 (Sup Ct NY County, 2005) The plaintiff, of course, is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and [*6]it was feasible to design the product in a safer manner. Voss at 108.

Plaintiffs' expert witness, William Farone, Ph.D., a former Philip Morris employee, states that tobacco companies "refused to adopt technology that would cause significant reductions in potent chemical toxic materials" such as harsher "uninhaleable" tobacco which cannot be inhaled by most people, de-nicotized or no tar cigarettes. Affidavit of William A. Farone, Ph.D., dated March 29, 2006 at p2. This clearly raises an issue of fact that it was feasible to design cigarettes in a safer manner.

Additionally, plaintiffs submit evidence that there is a substantial likelihood that the product causes injury. A report by the Surgeon General dated 2004 regarding the health consequences of smoking lists the adverse effects and disease caused by cigarettes. The Surgeon General identified smoking as a cause of the following diseases: bladder cancer; cervical cancer; esophageal cancer; kidney cancer; laryngeal cancer, Leukemia; lung cancer, oral cancer; pancreatic cancer, stomach cancer; abdominal aortic aneurysm; Atherosclerosis; cerebrovascular disease; coronary heart disease; chronic obstructive pulmonary disease; Pneumonia; respiratory effects in utero; respiratory effects in childhood and adolescence; respiratory effects in adulthood; fetal death and stillbirths; fertility diseases; low birth weight; pregnancy complications; cataract; diminished health status/morbidity; low bone density; peptic ulcer disease.

Dr. Farone's expert opinion, combined with the balancing of the evidence presented by both parties, raises a triable issue regarding cigarettes' inherent risks and whether safer alternative designs existed. The evidence presented by plaintiffs raise issues of fact as to whether defendants acted unreasonably in designing cigarettes by refusing to adopt safer technology, on its claim for negligently designed product. Additionally, plaintiffs raised an issue of fact as to whether cigarettes were not reasonably safe, and whether that was a proximate cause of the Decedent's injury. Accordingly, summary judgement is denied on plaintiffs' first and third causes of action for design defect.

Plaintiffs' Claims for Punitive Damages

Defendants argue that plaintiffs' punitive damages claims are barred by the doctrine of res judicatabased on a prior action by the New York Attorney General in his capacity as parens patriae against the principal domestic cigarette manufacturers. State of New York v Phillip Morris Inc. et al., 308 Ad2d 57(1st Dep't), lv denied, 1 NY3d 502 (2003). This Court disagrees.

A party asserting that a claim is barred by res judicata must establish that the prior action resulted in: (1) a final judgement on the merits, (2) arising out of the same transaction or series of transactions, (3) involving the same parties or their privies. Cirri v Daily News, L.P., 9 Misc 3d 1130A, 2005 NY Slip Op 51855U, *3 (Sup Ct, Kings County, Feb. 7, 2005). If the three prongs are met, res judicata prevents a party from relitigating claims that were brought or could have been brought in the prior litigation. O'Brien v City of Syracuse, 54 NY2d 353, 357 1981). The Fabianos, plaintiffs in the current action, are not in privity with the State of New York, the party to the prior action.

In State of New York, the previous action, the Attorney General, in his parens patriae capacity, sought to recover the costs that the State and its local governments incurred in treating smoking-related illnesses as well as to enjoin advertising directed towards children. The State's complaint asserted various claims, including a claim for punitive damages, however, it did not seek punitive damages predicated upon personal injury. In 1998, the State of New York, along with 45 other states, executed a $200 billion Master Settlement Agreement with the defendants, the nation's major tobacco companies. The settlement with New York was reduced to a Consent Decree and Final Judgment was approved by the court, see State of New York v Phillip Morris, Inc., 179 Misc 2d 435, 451 (Sup Ct, NY County, 1998)(entering final judgement), aff'd 263 [*7]AD2d 400 (1st Dep't, 1999).

Defendants claim, for purposes of punitive damages, that while the Fabianos were not parties in State of New York v Phillip Morris, Inc., res judicata bars them as they are in privity with the plaintiff in the former action, the State of New York, through the doctrine of parens patriae. The United States Supreme Court validated the concept of parens patriae as "inherent in the supreme power of every state [...] to be exercised in the interest of humanity, and for the protection of injury to those who cannot protect themselves." Late Corp. of the Church of Jesus Christ of Latter-Day Saints v United States, 136 US 1, 57 (1890). Under the doctrine of parens patriae, "when the state does bring suit, it must be for redress of wrongs done to the interests of the people as a whole and not merely to vindicate the individual or private interests of certain citizens." State by Abrams v New York City Conciliation & Appeals Bd., 123 Misc 2d 47, 49 (Sup Ct NY County, 1984).

The State of New York did not act on behalf of the Fabianos' individual interests. Inherent in the principle of parens patriae is the state's involvement and interest on behalf of its citizens. The Fabianos benefit from the previous action only to the extent that the State was seeking redress of continued promotional activities directed towards children, as well as the State's financial recovery in treating smoking related illnesses."In January 1997, Dennis C. Vacco, in his capacity as the Attorney General for the State of New York, commenced this action in New York State Supreme Court against [Tobacco Defendants], seeking the recovery of Medicaid and other expenses the State of News York and its political subdivisions incurred in treating smoking related illnesses."

State v. Philip Morris, 400361/97, motion seq., 026, datedOctober 22, 2002.

The Fabianos are asking for punitive damages in relation to Mrs. Fabiano's personal injuries, and subsequent death caused by cigarette smoking. Plaintiffs in this action are pursuing a private claim which by definition cannot be encompassed within the parens patriae umbrella. Alfred L. Snapp & Son, Inc. v Puerto Rico, ex rel. Barez, 458 US 592, 607 (1982)("In order to maintain [a parens patriae] action, the State must articulate an interest apart from the interests of a particular private parties [...] the State must express a quasi-sovereign interest.") New York v Operation Rescue National, 80 F3d 64,71 (2nd Cir), cert denied 519 US 825 (1996).

Further, the claim of privity rests on both the principle of parens patriae and the public nature of punitive damage claims. While punitive damages are typically awarded as a means of vindicating public, as opposed to individual rights, under New York Law, plaintiffs may obtain punitive damages based on their private interests, provided they have satisfied certain requirements. [P]unitive damages may be recovered even though only private rights are involved, to do so plaintiff [is] obliged to satisfactorily explain [...] how defendants' breach constituted a high degree of moral turpitude and [...] such wanton dishonesty as to imply a criminal indifference to civil obligations'." Malone Housing Authority v Jardine Ins. Brokers, Inc., 140 Ad2d 917, 918 (3rd Dep't), appeal dismissed, 72 NY2d 953 (1988), appeal denied 78 NY2d 861 (1991).

Whether to award punitive damages on the basis of moral turpitude and wanton dishonesty is a matter for the jury.Fordham-Coleman v National Fuel Gas Distrib. Corp., 2007 NY Slip OP 03368(4th Dep't, 2007)("A jury is particularly well suited to the expression of community attitudes, and the decision whether to award punitive damages should reside in the sound discretion of the original trier of the facts'.") Because defendants failed to establish that plaintiffs' claim for punitive damages is barred by res judicata, and determination of whether to award such damages is an issue for the fact-finder, defendants' motion to dismiss plaintiffs' claim for punitive damages is denied as premature.

Plaintiffs' Fraudulent Misrepresentation Claim [*8]

Defendants argue that plaintiffs' claim for fraudulent misrepresentation should be dismissed because there is no evidence that the Decedent saw, heard or relied on any statement made by defendants, to start or continue to smoke.

In order to establish a claim for fraudulent misrepresentation, plaintiffs must show that: (1) the defendant made a material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result of his/her reliance. Swersky v Dryer and Traub, 219 AD2d 321 (1st Dep't), rehearing denied 232 AD2d 968 (1st Dep't, 1996).

Testimony from the Decedent's daughter, husband and sister show: (1) that the Decedent switched according to her husband's brand of choice who, in turn, testified that he once had switched due to a Marlboro advertisement which he found appealing; and (2) that the Decedent smoked light cigarettes due to the belief that such cigarettes was better for her health than regular cigarettes.

Since the Decedent smoked cigarette brands based on her husband's choices, plaintiffs fail to establish that the Decedent relied on tobacco advertisement made by defendants to start or continue to smoke. The fact that Mr. Fabiano testified that he once saw a Marlboro advertisement which enticed him to change to the brand is insufficient to impute his reliance on the Decedent. Additionally, plaintiffs fail to show that the Decedent's belief that light cigarettes were safer than regular cigarettes was based on an advertisement the Decedent had seen and relied on.

As reasonable reliance is a necessary element to recover on damages on a claim for fraudulent misrepresentation, summary judgement on plaintiffs' fraudulent misrepresentation claim is granted.

Plaintiffs' Negligent Misrepresentation Claims

Negligent misrepresentation occurs when: defendant [has] imparted the information under circumstances and in such a way that it would be reasonable to believe the plaintiff will rely upon it. The plaintiff must rely upon it in the reasonable belief that such reliance is warranted. David Heard et al., v City of New York, 82 NY2d 66 (1993).

The voluminous amount of tobacco-related documents should not obscure the purpose of this litigation. The United States District Court, Judge Gladys Kessler stated in the case of United States v Phillip Morris USA, Inc., 449 F Supp 2d 1, 28 (US Dist Ct DC, 2006), that: [Tobacco litigation] is about an industry, and in particular these Defendants, that survive, and profit, from selling a highly addictive product which causes diseases that lead to a staggering number of deaths per year, an immeasurable amount of human suffering and economic loss, and a profound burden on our national health care system. Defendants have known many of these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly, and with enormous skill and sophistication, denied these facts to the public, to the Government, and to the public health community.

The cigarette industry has disseminated a large amount of information to advertise their products to current smokers and to attract new consumers. Defendants have created such a large pool of documents in an attempt to sell their product, whereby it is impossible for plaintiffs to pinpoint and identify each misrepresentation produced by defendants. However, plaintiffs have provided sufficient evidence to raise questions of fact as to whether defendants knowingly made false statements as to the health risks posed by cigarettes.This evidence includes, but is not limited to, a press release made by the American Tobacco Company's president from the beginning of the 1950s to the late 1960s denying the dangerous nature of cigarettes; a variety of [*9]Marlboro, Kent, Kool advertisements and newspaper articles laid out over two decades from the 1950s to the beginning of the 1970s emphasizing the low level of tar in cigarettes and even in some cases emphasizing the "proof of [the cigarette's] health protection." See Exhibits to Affirmation of Michael London in Opposition to all Defendants' Motion for Summary Judgment, dated January 18, 2007, Volume 5, Exhibit II, Kent Advertisement, dated May 28, 1952.

Summary judgement is a drastic remedy which deprives the litigant of her day in court and should not be granted where a genuine triable issue of material fact exists. Andre v Pomeroy, 35 NY2d 361 (1974). Plaintiffs sufficiently raise a triable question of material fact as to defendants' alleged fraudulent misrepresentation, and, as to the Decedent's reliance upon such misrepresentation. Accordingly, summary judgement on plaintiffs' negligent misrepresentation claim is denied.

Plaintiffs' Failure to Warn and Fraudulent Concealment Claims

According to defendants, plaintiffs' failure to warn claim should be dismissed because defendants had no duty to warn of the risks of smoking, and because such risks were ordinarily discoverable in the 1950s when the Decedent allegedly started smoking. Similarly, defendants argue that plaintiffs' fifth cause of action for fraudulent concealment fails since information pertaining to the health risks of smoking was widely available at least by the mid 1950s.

A claim for fraudulent concealment is predicated on concealment of a material fact, not readily available to the plaintiff, scienter, justifiable reliance, and injury. Kaufman v Cohen, 307 AD2d 113 (1st Dep't, 2003). There can be no fraudulent concealment claim based upon information which is common knowledge.

Similarly, a manufacturer has no duty to warn a consumer of risks of a product which are ordinarily discoverable. Landrine v Mego Corp., 95 AD2d 759 (1st Dep't, 1983)("[T]here is no necessity to warn a customer already aware -through common knowledge or learning- of a specific hazard.").

Clearly, a triable issue exists as to whether the actual health risks of cigarette smoking were common knowledge to the Decedent during the time that she smoked cigarettes. See Liriano v Hobart Corp., 92 NY2d 232 (1998)("in cases where reasonable minds might disagree as to the extent of plaintiff's knowledge of the hazard, the question is one for the jury.").[FN4] While information surrounding health-related issues and cigarettes have always been a contentious issue for the tobacco industry, a review of the record, which includes several Surgeon General reports, recent newspaper articles about the recent increase of nicotine in cigarettes, new information on "light" cigarettes, testimony from the Decedent's family members, and statements by representatives of the tobacco industry reveal that a reasonable jury may differ as to the availability of information to the ordinary consumer. See Miele v The American Tobacco, 2 AD3d 799 (2nd Dep't, 2003)(the Court reinstated a claim for failure to warn on the ground that the plaintiff raised factual issues as to whether consumers were fully aware of the health hazards of smoking when his wife began smoking cigarettes in the 1940s through the 1960s in light of information disseminated by defendants that disputed the validity of scientific evidence linking cigarette smoking to cancer.); Standish-Parkin v Lorillard Tobacco, 12 AD3d 301 (1st Dep't, 2004)(plaintiffs presented sufficient evidence to raise triable issues of fact as to the state of public's common knowledge of the risks of cigarette smoking prior to 1969).

Denise Fabiano, one of the Decedent's children, testified that the decedent stated during the 1960s' that, at the time, no one knew that cigarette smoking was unhealthy. This lack of information concerns namely the composition and health related injuries to light cigarettes [*10]despite their "light" designation; the presence of carcinogens in smoke which only became readily available to the public in the late 80s when the United States Surgeon General released a report listing 43 carcinogenic agents found in tobacco smoke [FN5]; the results of testing and research that were done to allow designing of allegedly more addictive products; and the overall extent of cigarettes's health hazards, that is to say that they cause lung cancer and that they are addictive. See Ex. CC, Scientific Evidence on the Causal Relationship Between Cigarette Smoking and Lung Cancer.

To that effect, the U.S. General Surgeon stated in his 2004 report that:

In 1964, the majority of men smoked and an increasing number of women were becoming smokers. Today, there are more former smokers than current smokers, and each year over half of all daily smokers try to quit (CDC 2003a) [...]. In 1964, smoking was permitted almost everywhere, and even the U.S. Public Health Service had logo ashtrays on its conference tables. Today, secondhand tobacco smoke is widely accepted as a public health hazard and levels of exposure among nonsmokers have declined dramatically over the last decade.

On a motion for summary judgement, defendants must come forth with sufficient evidence to eliminate all factual issues. It is unclear what was common knowledge in the 1960s' about the health effects of smoking, and when the current information about cigarettes' hazards became common knowledge. Defendants argue that numerous courts have found that the health risks of smoking were publicly known since the 1950s. However, the series of cases cited by defendants for the proposition that health risks of smoking were common knowledge are contrary and not controlling.

While the overall dangers of cigarette smoking have come to be more widely disseminated (due the mandated warnings that now appear on cigarette packs after the Decedent started smoking), a reasonable jury may differ as to consumers' awareness of smoking's related injuries, illnesses and later death. Therefore, defendants' motion for summary judgment on plaintiffs' failure to warn claim is denied.

Fraudulent Concealment Claims and Negligent Misrepresentation Post-July 1969 Based Upon Preemption

Plaintiffs do not dispute that all claims for failure to warn that accrued subsequent to 1969 are preempted as to all defendants, based upon the Federal Cigarette Labeling and Advertising Act (the "Act"). See Cipollone v Liggett Group, Inc., 505 US 504, 12 (1992).

Congress enacted the Act, as amended by the Public Health Cigarette Smoking Act of 1969 [FN6], "to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health." 15 USC 1331. The Act provides, in relevant part, that "[no] requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." Id at 1334(b). The statute further specifies the precise warnings that must be included on all cigarette packages sold in the United States. Id at 1333.

However, the Act does not preempt fraudulent concealment claims. Cipollone is the leading Supreme Court case addressing the Act's preemption of State law claims. In Cipollone, [*11]the petitioner alleged similar facts to plaintiffs in this action: that his mother contracted fatal lung cancer from smoking cigarettes. Petitioner asserted a wide variety of claims against the cigarette manufacturers, including inadequate warning, breach of express warranty, fraud and conspiracy. Cipollone, at 2613. While petitioner in Cipollone did not allege a claim for fraudulent concealment, he asserted that the tobacco manufacturers "had possessed but, had ignored and failed to act upon,' medical and scientific data indicating cigarettes were hazardous to the health of consumers'."[FN7] The Supreme Court held that: Section 5(b) pre-empts only the imposition of state-law obligations "with respect to the advertising or promotion" of cigarettes. Petitioner's claims that respondents concealed material facts are therefore not pre-empted insofar as those claims rely on a state-law duty to disclose such facts through channels of communication other than advertising or promotion. Thus, for example, if state law obliged respondents to disclose material facts about smoking and health to an administrative agency, § 5(b) would not pre-empt a state-law claim based on a failure to fulfill that obligation. Cipollone, at 2623.

In addressing fraudulent misrepresentation, the Court further specified that: fraudulent-misrepresentation claims that do arise with respect to advertising and promotions (most notably claims based on allegedly false statements of material fact made in advertisements) are not pre-empted by § 5(b). Such claims are predicated not on a duty "based on smoking and health" but rather on a more general obligation the duty not to deceive. Cipollone, at 2624.

New York courts have similarly focused on a two-fold analysis to determine whether fraudulent concealment claims should be preempted: (1) the extent of the manufacturer's legal duty imposed by New York State to disclose material facts regarding smoking and health, See Standish-Parkin v Lorillard Tobacco Co., 12 AD3d 301 (1st Dep't, 2004); Tomasino v American Tobacco Co., 23 AD3d 546(2nd Dep't, 2005); Miele at 803; and (2) whether the channels of communications involve means other than advertising or promotion. See Rose v Am. Tobacco Co., 3 Misc 3d 1103(A)(Sup Ct, NY County, Feb 20, 2004),(Ramos, J.).

New York imposes a duty not to conceal material facts with an intent to defraud. Kaufman v Cohen, 307 AD2d 113 (1st Dep't, 2003). The Fabianos set forth a series of documents and scientific research which raise questions of material fact as to whether defendants/manufacturers concealed the presence of carcinogens in cigarette smoke, the design of less addictive cigarettes, the extent of cigarettes' addictive nature, as well as the extent of cigarettes' health-related illnesses.

This Court denies defendants' motion for summary judgement to dismiss the causes of action for fraudulent concealment and negligent misrepresentation occurring after 1969 to the extent that the motion is based on a common law duty imposed on the defendants to disclose the allegedly concealed material facts through channels of communication other than advertising or promotion. See Miele v American Tobacco., 2 AD3d 799, 803 (2nd Dep't, 2003).

Plaintiffs' Alternative Theories of Liability

Defendants argue that plaintiffs' claims for concerted action, conspiracy, and aiding and abetting should be dismissed because (i) these are derivative claims which must be dismissed if the underlying claims are dismissed, and (ii) concerted action does not apply to tobacco litigation because the precise manufacturer can be and has been identified.

The theory of concerted action does not apply in this products liability action. The theory of concerted action provides for joint and several liability on the part of all [*12]defendants having an understanding, express or tacit, to participate in a common plan or design to commit a tortious act. [...]. Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 295 (1992).

Other than plaintiffs' mere allegation that defendants hired Hill & Knowlton Public Agency to issue individual and group press releases to combat health scares linking cigarettes to disease, plaintiff does not establish that defendants entered into an agreement to engage in concerted action. "Parallel activity among companies developing and marketing the same product, without more, is insufficient to establish the agreement element necessary to maintain a concerted action claim." Id.

Further, the theory of concerted action is not available when plaintiff can identify the manufacturer of the allegedly defective product. Hymowitz v Eli Lilly & Co., 73 NY2d 487, 505, cert denied 493 US 944 (1989). The Decedent's family has identified the manufacturer of cigarettes which Decedent smoked at any given time; thus, the theory of concerted action does not apply here. See Rose v American Tobacco Co., No. 122131/96, 1997 NY Misc LEXIS, at *9-10 (Sup Ct NY County Oct 15, 1997). In Rose, Judge Lebedeff held that: in order to use the concerted action theory, there must have been a tortious act committed by each of the conspirators within the scope of an agreement. Cigarette purchases, on the other hand, necessarily involves a choice of cigarette brand made by the smoker. Brands are readily identifiable. Brand loyalty is promoted and a common phenomenon. Id at *9-10.

Accordingly, for those reasons, defendant's motion for summary judgment to dismiss the claims for concerted action, conspiracy, and aiding and abetting is granted and the claims are dismissed.

Plaintiffs' Claims for Damages from Addiction

Defendants assert that to the extent that plaintiffs seek to recover damages based on the Decedent's addiction, that claim is time barred. Plaintiffs herein are not asserting a claim for damages arising out of the Decedent's addiction. Therefore, defendant's motion for summary judgment on plaintiffs' claims for damages from addiction is moot. Nevertheless, this Court will consider evidence concerning the Decedent's addiction, if relevant, to prove other claims.

Plaintiffs' Wrongful Death and Loss of Consortium Claims

Plaintiffs' sixth and seventh causes of action for loss of consortium and wrongful death, respectively, are dependant on a viable underlying cause of action.See Holmes v City of New Rochelle, 190 AD2d 713, 714 (2nd Dep't, 1993). Therefore, defendants' motion for summary judgment on these claims is denied.

Plaintiffs' Claims Against B&W individually, and Lorillard

A review of the Decedent's family's testimony reveals that the Decedent did not smoke a B&W Tobacco Brand or a Lorillard brand until 1975. A party must plead and prove that the smoker consumed the cigarettes manufactured by the defendant tobacco manufacturer in order to recover damages in a products liability action. Rose at 17, 26. Thus, all failure to warn, in addition to fraudulent concealment claims based on pre-1969 conduct could not be a proximate cause of the Decedent's death. Accordingly, defendant's motion for summary judgement is granted, and these claims asserted against B&W and Lorillard are dismissed.

Accordingly, it is

ORDERED that defendants' motion for summary judgement is denied on plaintiffs' first and third causes of action for design defect; and it is further

ORDERED that defendants' motion for summary judgement on plaintiffs' punitive damages claim is denied at this juncture; and it is further [*13]

ORDERED that defendants' motion for summary judgement on plaintiffs' fraudulent misrepresentation cause of action is granted; and it is further

ORDERED that defendants' motion for summary judgement dismissing the causes of action for fraudulent concealment and negligent misrepresentation occurring after 1969 is denied to the extent that the motion is not based on a common law duty imposed on the defendants to disclose the allegedly concealed material facts through channels of communication other than advertising or promotion; and it is further

ORDERED that plaintiffs' concerted action, conspiracy, and aiding and abetting claims are dismissed; and it is further

ORDERED that defendants' motion for summary judgment on plaintiffs' loss of consortium and wrongful death claims is denied; and it is further

ORDERED that defendants' motion for summary judgement is granted as to claims against B&W and Lorillard for claims based on pre-1969 conduct.

Dated: August 1, 2007

________________________

J.S.C. Footnotes

Footnote 1: B&W is sued individually and as successor by merger to the American Tobacco Company. B&W no longer manufactures, advertises or sells cigarettes. In December of 1994, B&W purchased the stock of American Tobacco from American Brands, Inc. In February 1995, American Tobacco merged into B&W. On July 30, 2004, B&W U.S. cigarettes and tobacco business was merged with that of RJ.

Footnote 2: The following is a summary of the alleged specific brands and dates the Decedent smoked: Winston from 1956 through 1964; Marlboro (Red) from 1964 through 1972; Marlboro (Lights) from 1972 through 1974/1975; Kools from 1975 through 1978/1979; and Kent Light 100s from 1978/1979 through 1992.

Footnote 3: Decedent had Adenomasquamous Carcinoma of the lung. Plaintiffs argue that lung cancer is causally related to cigarette smoking, in particular the incidence of Adenocarcinoma, Squamous Cell, and large cell lung cancers which are each prominently associated with cigarette smoke.

Footnote 4: Defendants also cite to Liriano v Hobart Corp., 92 NY2d 232 (1998), in an attempt to show that no duty to warn exists when no benefit would be gained by requiring a warning, because the risk is common knowledge. However, Liriano is distinguishable. There, the consumer made substantial modifications to a meat cutter and suffered injury. The Decedent did not make any modifications to cigarettes, and used them as was intended by the manufacturer.

Footnote 5: US Dept of Health and Human Services. Reducing the Health Consequences of Smoking: 25 Years of Progress. A Report of the Surgeon General. US Dept. of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. DHHS Publication No. (CDC) 89-8411, 1989.

Footnote 6: See Cipollone v Liggett Group, Inc., 505 US 504, 2616-2620 (1992), for a complete history of the Labeling Act.

Footnote 7: Petitioner's second theory further alleges intentional fraud and misrepresentation by false representation of a material fact and by concealment of a material fact. The Supreme Court additionally bases its preemption analysis on manufacturer's state duty not to "conceal" a material fact.