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Cigarette Manufacturers Not Liable for Not Making All Cigarettes "Light":

So New York's highest court held Dec. 16 in Adamo v. Brown & Williamson Tobacco Corp., and I think the court got it quite right (some paragraph breaks added):

Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine... [But] plaintiffs failed to prove an essential element of their case: that regular cigarettes and "light" cigarettes have the same "utility." The only "utility" of a cigarette is to gratify smokers' desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes....

Here, plaintiffs presented evidence from which a jury could find that light cigarettes — cigarettes containing significantly lower levels of tar and nicotine — are "safer" than regular cigarettes, but they did not show that cigarettes from which much of the tar and nicotine has been removed remain "functional." The function of a cigarette is to give pleasure to a smoker; plaintiffs have identified no other function.

Plaintiffs made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes — indeed, it is virtually uncontested that they do not. Both regular and light cigarettes are available on the market, and the enhanced dangers that come from smoking regular cigarettes are well known, but large numbers of consumers continue to prefer regular cigarettes.

It is not necessary in every product liability case that the plaintiff show the safer product is as acceptable to consumers as the one the defendant sold; but such a showing is necessary where, as here, satisfying the consumer is the only function the product has. A cigarette is a different kind of product from the circular saw in [an earlier case], whose function was to cut wood, or the molding machine in [another case], whose function was to melt and form plastic.

We find an apt analogy, as the Appellate Division did, in Felix v. Akzo Nobel Coatings (262 A.D.2d 447, 692 N.Y.S.2d 413 [2d Dept 1999]). The product involved in Felix was a quick drying lacquer sealer made from a highly flammable solvent base. The plaintiff argued that a safer design was "feasible," because a sealer can be made from a water base, but the plaintiff's expert "admitted that the water-based products take hours longer to dry." The court in Felix found that this "functional difference" defeated the plaintiff's case; the plaintiff failed to produce evidence "that there was an alternative, safer design" serving the same function. Similarly, here plaintiffs' case fails because plaintiffs failed to show that light cigarettes are equivalent in function, or utility, to regular ones.

Of course we are conscious, as everyone must be, of the irony in speaking of cigarettes' "utility." A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless.

But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts.

Judge Pigott dissented, agreeing that a design is negligent only if the safer alternatives would be equally functional, but reasoning that the defendants should bear the burden of proving that the safer alternatives wouldn't be "as satisfying"; he would have remanded "for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette."

JB:
Haven't cigarette manufacturers also been sued on the opposite theory? I.E, that since smokers who smoke light cigarettes smoke more cigarettes, light cigarettes are actually no safer than regulars and claiming that they are is false advertising?
1.2.2009 10:41am
SSFC (www):

he would have remanded "for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette."

"Your honor, as expert witnesses we would like to call six smokers we found loitering beside the garbage can, on the sidewalk, immediately in front of the courthouse."
1.2.2009 10:59am
David M. Nieporent (www):
Haven't cigarette manufacturers also been sued on the opposite theory? I.E, that since smokers who smoke light cigarettes smoke more cigarettes, light cigarettes are actually no safer than regulars and claiming that they are is false advertising?
Yes. Trial lawyers are nothing if not creative.
1.2.2009 11:06am
gattsuru (mail) (www):
"Your honor, as expert witnesses we would like to call six smokers we found loitering beside the garbage can, on the sidewalk, immediately in front of the courthouse."


Better that than to take a judge's assumption of fact.

It's not as much of a problem in this case, but I've seen more than a fair share of cases where judges assume 'fact' where any person of moderate skill or knowledge in a field would know otherwise or even precisely opposite. I'm not a fan of Daubert era expert witnesses, but it at least requires the judge to find someone who would agree with him.

That said, why the hell is any single judge talking about putting the burden of proof on the defendant? I'll admit to being a layperson on legal matters, but even in a civil court, isn't that exactly the opposite of how the system is supposed to work?
1.2.2009 11:32am
krs:
The idea that cigarette manufacturers have a duty to make cigarettes "safe" in the long-term is more than a little ridiculous. The plaintiffs do realize that these are cigarettes, right? Doctors don't prescribe them to improve your health... rather, plaintiffs smoke them because they're willing to trade their health for some momentary satisfaction.

It would be one thing if the paper was toxic or if smokers were finding razor blades and pins in the cigarettes...

...but the idea that cigarettes are like some kind of medication is more than a little ridiculous.

An alternative, safer design is simply not to smoke.
1.2.2009 11:34am
ray_g:
"That said, why the hell is any single judge talking about putting the burden of proof on the defendant? "

Because these are the evil tobacco companies and anything is allowable against them.

I said years ago that the way the state's suits against the tobacco companies went might decide the future of freedom in this country. At the time even I thought that was a bit of hyperbole, but I'm not so sure now.
1.2.2009 12:08pm
Cornellian (mail):

That said, why the hell is any single judge talking about putting the burden of proof on the defendant? I'll admit to being a layperson on legal matters, but even in a civil court, isn't that exactly the opposite of how the system is supposed to work?


Generally yes, but there are a number of exceptions.
1.2.2009 12:25pm
Le Messurier (mail):
Cornellian:

isn't that exactly the opposite of how the system is supposed to work?

Generally yes, but there are a number of exceptions.


Examples please. And is this one of them?
1.2.2009 12:36pm
krs:
Examples please. And is this one of them?

Usually when the burden is shifted to the defendant, that happens after the plaintiff has already shown something.

Like in anti-discrimination law, if someone sues his employer saying that he was fired because of unlawful discrimination, first the plaintiff has to put forward some evidence that he's right. If the plaintiff does that, the burden shifts to the defendant to show that the plaintiff was fired for a legitimate reason. If the defendant does that, then the burden goes back to the plaintiff to show that the defendant's explanation was just a pretext.

In many civil cases (and some criminal cases, I think), the defendant has the burden of proving affirmative defenses. If the defendant admits that he committed the crime or the tort, but says that he has a justification or an affirmative defense of some sort, then the burden is often on him to prove that.
1.2.2009 12:42pm
Displaced Midwesterner:
"Examples please. And is this one of them?"

As krs indicates, there are a number of exceptions, with McDonnell-Douglas and discrimination law, and affirmative defenses, being the classic ones. I could be wrong, but I believe it is the plaintiff's job in a product liability case to show the the safe alternative is viable. It seems, however, that the trial court ruled that consumer acceptance is irrelevant. The majority effectively reverses that though. Judge Pigott, the dissenter, argues that "In my view, this language improperly
shifts the burden of proving consumer acceptability to
plaintiffs." No argument or citations as to why the plaintiffs should not have this burden. Given all the other justices didn't think, I'm guessing Judge Pigott feels like the law should be changed, but that's about it.
1.2.2009 1:42pm
Displaced Midwesterner:
"Examples please. And is this one of them?"

As krs indicates, there are a number of exceptions, with McDonnell-Douglas and discrimination law, and affirmative defenses, being the classic ones. I could be wrong, but I believe it is the plaintiff's job in a product liability case to show the the safe alternative is viable. It seems, however, that the trial court ruled that consumer acceptance is irrelevant. The majority effectively reverses that though. Judge Pigott, the dissenter, argues that "In my view, this language improperly
shifts the burden of proving consumer acceptability to
plaintiffs." No argument or citations as to why the plaintiffs should not have this burden. Given all the other justices didn't think, I'm guessing Judge Pigott feels like the law should be changed, but that's about it.
1.2.2009 1:42pm
NaG (mail):
The burden can never shift to the defendant unless and until the plaintiff has presented evidence constituting a prima facie claim against the defendant.

The majority here found that the plaintiffs, in failing to show that the light cigarettes had the same "utility" as regular cigarettes, thus failed to provide evidence to show that it was "feasible" to go with just light cigarettes and get rid of the regular cigarettes entirely. The dissent claims that this "feasibility" requirement should not be the plaintiff's burden -- even though the case law pretty clearly demonstrates that it is. But the real error by the dissent is that it proposes a useless remedy. At trial, everyone admits that the plaintiff put on no evidence about functionality. The defendant tobacco company moved to put on evidence to show precisely that the light cigarettes did not have the same "utility" as regular cigarettes in the marketplace. The trial court refused to allow that evidence. The dissent wanted to remand the case back to the trial court to admit that evidence. But to what end? Either way, there would be no evidence from the plaintiff to show equivalent utility.
1.2.2009 1:53pm
josh:
I think JB raises the right question, D Nieropent's snark aside. The Supreme Court ruled in Altria v. Good that the plaintiffs' class action could proceed on the theory that cigarette makers used deceptive advertising for "light" cigarettes.

While the opinion in this post may correctly hold that makers have no duty to make all cigarettes "light," as a former smoker, I know that I and may others smoked "light" cigarettes b/c we thought them, not unsafe, but certainly less harmful.

What's interesting is that the fact discussion here seems contrary to the facts alleged in Good, where the plaintiffs claimed "light" cigarettes are no less dangerous b/c the smoker compensates by taking a larger drag (i.e., more "light" smoke, tar, etc.) The allegations, as I understand them, are that, as usual, the cigarette makers knew this alleged fact and marketed the "light" cigarettes nevertheless as a less unsafe product.
1.2.2009 1:57pm
adam Scales:
Re: Burden Shifting

In California, a plaintiff who demonstrates that a product is causally associated with his injuries establishes a prima facie case requiring the defendant to demonstrate that the product's utility outweighed the product's risks. The case is Soule v. General Motors.

This is actually a double benefit for the plaintiff - first, the burden shifting, second, the slight redefinition of "defectiveness" away from the more familiar negligence-based conception (i.e., the product is defective if the risks outweigh the benefits). Now, the defendant is liable even if the risks and benefits are equal.

Some may be surprised to learn that Judge Posner endorsed this view in an article, suggesting that if the benefits and burdens of a product were equal, society might well prefer there to be fewer personal injuries.

Operationally, this sort of rule probably sends doubtful cases to juries more often; it is unlikely that it changes the outcome of many cases already before the jury, as the difference between B
Judge Pigott appears to have something similar in mind, whether or not he is right.
1.2.2009 2:30pm
adam Scales:
Sorry, something went wrong there. The penultimate sentence should have continued, "...the difference between B (less than) PL and B (equal to or less than) PL is slight."
1.2.2009 2:35pm
gattsuru (mail) (www):
Generally yes, but there are a number of exceptions.


I'm not sure I phrased my statement right.

In an affirmative defense, the defendant has already been proven (or admits to) the principal charge. There's no change in where the burden of proof lies; it's merely the point where the plaintiff has matched the burden of proof's requirements.

That's not the case, here; there's no law against providing motorcycles if cars exist, or anything less than the safest possible foodstuffs. The courts simply could not uphold such a law if they tried. Is there ''any'' field that wouldn't fill with nuisance suits after that? The only violation would be if the company produced a largely more dangerous product while a safer yet widely similar product existed, and a judge sitting on the highest court in New York wants the burden of evidence on the defendant for a basic element of the charge.
1.2.2009 2:38pm
Steve2:

Because these are the evil tobacco companies and anything is allowable against them.

Not in Mecklenburg County, Virginia, it isn't! Mecklenburg County supports tobacco - as anyone who's seen the sign on the side of US 58 will tell you.
1.2.2009 2:43pm
Fub:
Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine...
But these claims are mere puffery. Plaintiffs are just blowing smoke. Case dismissed.
1.2.2009 3:23pm
A. Zarkov (mail):
Josh:

"While the opinion in this post may correctly hold that makers have no duty to make all cigarettes "light," as a former smoker, I know that I and may others smoked "light" cigarettes b/c we thought them, not unsafe, but certainly less harmful."

Evidently they are less harmful,
Here, plaintiffs presented evidence from which a jury could find that light cigarettes — cigarettes containing significantly lower levels of tar and nicotine — are "safer"
I'm not sure what you are getting at.
1.2.2009 3:50pm
Oren:
Actually, they are not less harmful -- light cigarettes are made to test lighter by putting small holes radially in the filters. During the testing protocol, fresh air comes in through the holes and dilutes the smoke, leading to smaller test numbers. When actually smoked, however, the smokers fingers obstruct the holes. If you don't believe me, find a smoker buddy that smokes lights and take his cigarette and roll the filter between your thumb and forefinger a few times, then give it back to him and ask him if he tastes the difference.

I don't know enough about torts &liability to say whether this is actionable.
1.2.2009 4:04pm
Joseph Slater (mail):
I'll second what Adam Scales said. Under the Second Restatement of Torts, when using the "risk utility" test for determining whether a product was defective, a handful of jurisdictions put the burden on defendant to show that the utility of the product outweighed the risk.

While I'm not endorsing that approach myself, rationales for it included: (1) this is strict liability; (2) the language of the Second Restatement (unlike analogous sections of the Third Restatement) only refers to "consumer expectations" as the test for whether a product is defect, i.e., it doesn't explicitly anticipate that a defendant will be able to use a risk-utility defense at all; and (3) in defective design cases, defendants are in a much better position to know the costs and benefits of alternative designs of the product they make than plaintifs are.

Again, this was always a minority rule under the more plaintiff-friendly Second Restatement. The Third Restatement only allows the risk-utility test (it does not mention the "consumer expectation" test of the Second Restatement), and the Third Restatement explicitly puts the burden of proof on plaintiff to show that a safer, alternative design exists.

And FWIW, I would agree that this case came out the right way.
1.2.2009 4:15pm
Joseph Slater (mail):
"whether a product is defective" not "whether a product is defect." Consider that a manufacturing defect in my post.
1.2.2009 4:16pm
one of many:
almost Oren, you imply that the act of holding the cigarette inherently nullifies the "light" effect of the filter. Instead what happens is that in actual usage, smokers tend to adjust the way they hold the cigarette so that they customize the amount of "lightness" they get. There is somewhat conflicted evidence that smokers of light cigarettes inhale the smoke deeper than non-light smokers, however this may just be an effect of switching between non-light and light cigarettes.

The rolled filter trick can also be used to modify the taste of non-light cigarettes.
1.2.2009 4:32pm
Kazinski:
krs:
but the idea that cigarettes are like some kind of medication is more than a little ridiculous.


Except for the fact that there have been quite a few studies that show nicotine can enhance memory and concentration, like here and here.

I'm a lifelong non smoker, but it is pretty clear from the research that nicotine is one of the very few drugs discovered that can enhance mental performance.
1.2.2009 6:50pm
whit:
nicotine IS a performance enhancing drug (acceptable up to certain threshold amounts in most sports bodies), helps stave off appetite, etc.

i know several bodybuilders who (not being smokers) have used nicotine patches during cutting phase, to good effect.

nobody denies that nicotine does not have (like almost all drugs) benefits and risks.

the problem with cig's is not the (primary) drug: nicotine. the problem, that makes them particularly dangerous is the method of administration.

there are also TONS of drugs that can enhance mental performance. depending on pre-existing conditions, age, etc. there are any # of nootropics, for instance.

fwiw, many (if not most) stimulants IN GENERAL improve mental performance, with the same U-shaped dose response curve you would expect. iow, effective up to a certain amount. go far beyond that, and it has negative efects.

caffeine, for example, enhances mental performance. but (see U -shaped curves) take too much (for your tolerance level) and it's detrimental to mental performance
1.2.2009 7:15pm
A. Zarkov (mail):
Whit:

Caffeine does enhance mental performance, but has no calming effect. Nicotine (or is it cigarettes?) is one of the few substances that produces calmness and clarity at the same time. One can do cognitively intensive activities while smoking. Caffeine works too, but not quite as well. Full disclosure: I have never smoked, but this is what smokers tell me.

When I was a child nearly everyone around me smoked-- parents, aunts, uncles cousins etc. They all knew it was risky, but smoked anyway because they liked it. For some reason, I never had any desire to smoke, and still don't. But I don't mind others doing so. In fact, I'm put off by the Jihad against smoking.
1.2.2009 8:03pm
gattsuru (mail) (www):
I'm a lifelong non smoker, but it is pretty clear from the research that nicotine is one of the very few drugs discovered that can enhance mental performance.


There's a pretty wide variety of other drugs capable of doing this. Methylphenidate, aka Ritalin aka cocaine light, is a central nervous stimulant intended to increase clarity and mental agility. Nicergoline is a much safer drug intended to treat dementia but enhances clarity and mental agility without the stimulant effect. Carphedon is believed to have a nootropic effective along the same lines, although it's mostly used for stamina and cold resistance in the countries that use the stuff. Abuse of dextroamphetamine (aka Adderal) is at ridiculous levels, while on the opposite side of things Piracetam is available without a prescription and has passed a double-blind study or two.

Modafinil (aka Provigil) has been described by transhumanists as "viagra for the brain", although at the alleged cost of reduced creative inspiration.

The FDA has no process to test drugs intended to enhance performance in the general public, though. Their policy holds that drugs are intended to bring the ill to functioning levels, not make normal or average individuals 'better' -- that's why few of the above are marketed as nootropics.
1.2.2009 8:57pm
whit:
yes. as to nicotine. phenibut (fwiw), speaking of nootropics has a simultaneous calming and mental clarifying effect.

i'm a libertarian so...

i loathe cigarette smoke with every fiber of my soul... and i personally benefit from smoking bans (such as the one where i live), since i can go in restaurants/bars etc. and not smell smoke...

however, i don't think the govt. should have to power to tell private businesses (like bars) that they can't allow smoking
1.2.2009 9:01pm
whit:
i've used piracetam and aniracetam both.

they work
1.2.2009 9:02pm
gattsuru (mail) (www):
I should add as a disclaiming : do not try do-it-yourself neurochemistry without the advice and consent of a reasonable physician. If you were smart enough to do so safely, you wouldn't need to bother.
1.2.2009 9:13pm
whit:
i should add that most physicians are woefully ignorant of nootropics
1.2.2009 9:15pm
David Schwartz (mail):
Why should it matter whether the risk is greater than or less than the utility provided the purchaser is aware of both? The logic that the utility must outweigh the risk objectively, regardless of any subjective, illogical wishes of the purchasers, would find lottery tickets defective.

I like to ski. There is no objective way to compare the benefits I get from skiing to the risks I take when I ski. But I know both, and I choose to ski. That's enough to make my skis not defective -- they provide both the benefit and the risk that I paid for. That some other device could provide some other risk has no relevance on my skis.

The existence of safety matches doeesn't make strike anywhere matches defective.
1.2.2009 11:28pm
one of many:
Ixnay on the atchesmay, it may come back to haunt me, er you.

Damn difficult to find them anymore and I'm waiting for the MSDS to become mandatory with each purchase. Goodness, last year international law was changed to make it illegal to carry them on an airplane (and that includes shipping them on UPS, cargo planes are covered, which makes finding them even more difficult).

Of course the international ban could be used by an inspired lawyer to make a claim about them being defective... .
1.3.2009 1:56am
gattsuru (mail) (www):
i should add that most physicians are woefully ignorant of nootropics


At least they remember to read the drabble on the toxicity sheet, maybe even do math on the proper dose right. Most nootropics have a major 'normal' use (for reasons described above), so your average doctor can at least help from a survivability viewpoint if not from an effectiveness.

Knowing not to mix with grapefruit can and does save lives.
1.3.2009 2:41am
Bruce_M (mail):
There was just a SCOTUS case with the opposite theory, that the lite cigs were unreasonably dangerous/deceptive because the lower nicotine levels cause people to smore MORE cigarettes, thus making them inhale more smoke and thus making the cigarettes more dangerous (it's the smoke that causes cancer, not the addictive nicotine).

It's the same basis for why marijuana with high THC content is safer than marijuana with low THC content. People will smoke the same amount of THC, but it will take more smoking with the weaker, less-potent pot. Thus they have to inhale more smoke and thus their risk for lung cancer is increased. Drug warriors are just shocked at this logic, as they love to claim that today's pot is so strong that it's "not the pot you smoked in the 60s" so parents who smoked pot and had no ill effects will be tricked into thinking it really is okay to be a hypocrite vis a vis their children's experiences with pot.
1.3.2009 3:46am
2cents (mail):
Res ipsa loquitur
1.3.2009 4:08am
Kazinski:
I'm certainly happy with the result of the case, judicially mandated 3.2 beer would shatter Americans faith in our legal system.
1.3.2009 5:54pm
whit:

At least they remember to read the drabble on the toxicity sheet, maybe even do math on the proper dose right. Most nootropics have a major 'normal' use (for reasons described above), so your average doctor can at least help from a survivability viewpoint if not from an effectiveness.

Knowing not to mix with grapefruit can and does save lives.


not with aniracetam etc.

last i checked the ld50 of aniracetam, for instance was over 600 gms!!

taking aniracetam with grapefruit (many drugs absorption is significantly increased with grapefruit) would still bring you nowhere NEAR the ld50, same goes for piracetam, phenibut, etc.

the "grapefruit effect" fwiw, was discounted/ignored by conventional medical doctors LONG AFTER sports scientists etc. knew about it (decades ago).

i repeat. medical doctors are usually woefully ignorant of nootropics...
1.4.2009 2:32pm

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