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New York Intermediate Appellate Court Says Punitives Not Possible in Tobacco Case

The New York Law Journal (via Law.com) reports on a very interesting New York appellate court decision, Fabiano v. Philip Morris Inc., in which the Appellate Division, 1st Department, holds that the $248 billion settlement with tobacco companies in which New York state was a party bars the estate and husband of a New York woman who died of lung cancer from collecting punitive damages from them. The court unanimously held that the massive 1998 settlement and the Fabiano wrongful death suit were predicated on "materially indistinguishable" transactions.

"[A] claim by a private attorney general to vindicate what is an essentially public interest in imposing a punitive sanction cannot lie where, as here, that interest has been previously and appropriately represented by the State Attorney General in an action addressed, on behalf of all of the people of the State, including plaintiffs and the decedent, to the identical misconduct," presiding Justice Jonathan Lippman wrote for the court. This is a most interesting take on the nature of punitive damages, which as we know have been limited by the Supreme Court.

The Fabiano demand for punitive damages centered around the companies' alleged "targeting of young people in their advertising and marketing of cigarettes," (Ms. Fabiano started smoking at age 14). The court found this to be "materially indistinguishable," from the suit that culminated in the settlement/cartel agreement now well known. The court rejected the Fabianos' claim that they were not bound by the 1998 settlement because the attorney general failed to represent smokers' interests in the earlier litigation.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.