April 11, 2008

For years smokers of "light" cigarettes have sued manufacturers for "failure to warn" that they would in fact smoke more cigarettes in order to achieve the desired nicotine intake. Norma Rose tried the opposite, alleging that Brown & Williamson and Philip Morris negligently designed cigarettes by continuing to market a product with higher levels of tar and nicotine than so-called "light cigarettes." [Yet another instance of "darned if you do...."]

The 73-year old Ms. Rose won a $3.4 million compensatory damage award against the two industry giants, plus $17.1 million in punitive damages against Philip Morris [perhaps they "deliberately" marketed the light cigs?]. Yesterday, as the New York Law Report (via Law.com) reports, New York's Appellate Division, 1st Department, quashed the judgment in a 3-2 opinion.

Justice David S. Friedman wrote that Rose simply provided no evidence that low-tar, low-nicotine cigarettes would "have been acceptable to the consumers that constitute the market for the allegedly defective product," regular cigarettes.