ALBANY, N.Y. (Legal Newsline) - New York's higher court has rejected an argument that says tobacco companies have been negligent in their designs of cigarettes, using levels of nicotine and tar that are too high.

The state Court of Appeals' 6-1 decision on Tuesday reversed a 2005 jury award of more than $20 million in favor of Frank Adamo, the executor of the Estate of Norma Rose. Rose died of lung cancer during the appeal.

The suit against Brown & Williamson and Phillip Morris claimed selling light cigarettes meant the design of regular cigarettes was negligent. On Monday, the U.S. Supreme Court gave the go-ahead for smokers to file suits that argue the "light" label was misleading.

"(I)t is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them," Judge Robert Smith wrote for the majority.

"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."

Smith added that it is uncontested that smokers do not find light cigarettes as satisfying as regular ones.

Judge Eugene Pigott was the lone dissenter, though he would have ordered a new trial instead of affirming the award.

"At trial, defendants moved to offer evidence tending to prove that the 'safer alternative design' suggested by plaintiffs was not feasible because it was not acceptable to consumers (i.e., not commercially viable)," Pigott wrote.

"The trial court denied that motion, concluding that evidence of commercial viability of the lighter cigarette was irrelevant to its feasibility or functionality. That was error and, therefore, I would remit the matter to the Supreme Court 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."

From Legal Newsline: Reach John O'Brien by e-mail at

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