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Family of woman who died of lung cancer sues multiple tobacco companies for false and misleading advertising – Fabiano v. Philip Morris Inc., 2007 NY Slip Op 32393(U) (N.Y. Sup. Ct. 8/3/2007)


In Fabiano v. Philip Morris Inc., the court is presented with the issue of the circumstances under which false and misleading advertising of cigarettes by multiple manufacturers can be the basis for recovery in a product liability claim.

The decedent, Fabiano, smoked cigarettes for over 40 years, starting in 1956 when she was 14 years old. Over the years Fabiano and her husband smoked several different brands of cigarettes. Oftentimes Fabiano switched brands to the brand that her husband smoked. She also was concerned about her health, and sometimes opted for brands that were advertised as “lite,” and, therefore, healthier. In addition, Fabiano made multiple attempts to quit, but, because of her addiction, she was note able to until a few year prior to her death. Fabiano died in 2002 from lung cancer.

Fabiano’s daughter and her husband filed a product liability claim against several of the major cigarette manufacturers seeking damages. The defendants seek to dismiss plaintiffs’ claims for fraudulent misrepresentation and negligent misrepresentation. In addition, their claims also include, failure to warn, fraudulent concealment, concerted action, conspiracy, aiding and abetting, defective design, addiction, wrongful death, loss of consortium, and punitive damages.

The plaintiffs allege that Fabiano was always concerned about her health. While she only was able to stop smoking a few years before year death, over the years she had taken several steps to reduce the risks associated with smoking. For example, according to the plaintiffs, when the tobacco companies marketed “lite” cigarettes, Fabiano believed they implied that these cigarettes had less tar and carcinogens than regular cigarettes. Fabiano allegedly switched to lite cigarettes to because she believe that they were more healthy.

The plaintiffs further stated that the tobacco companies knowingly manufactured cigarettes that are dangerous, even though there were less dangerous alternatives that they could have produced. To support their claims, the plaintiff referred to documentation that showed that the tobacco companies were aware of several options that could be less hazardous to the health of smokers and that tobacco companies negligently declined to manufacture them. These options included cigarettes made with coarser tobacco so that less of the tar would be ingested or making cigarettes without tar or other chemicals that are dangerous. In addition, plaintiff stated that Fabiano chose filtered cigarettes in an attempt to make her habit less damaging to her health.

In 1969, the federal government began requiring tobacco companies to place warnings on their cigarette packages. Later, specific warnings were required including warnings that cigarettes can cause birth defects, birth injuries, emphysema, and lung cancer. Because Fabiano died of lung cancer, her family maintains that the tobacco companies should be held liable.

The tobacco companies requested summary judgment to dismiss the case for a variety of reasons. As for plaintiff’s fraudulent misrepresentation claim, defendants argue that that claim should be dismissed because the plaintiffs have not presented any evidence that Fabiano saw, heard, or relied on any statements the defendant tobacco companies made when she started and continued to smoke. While plaintiffs allege that Fabiano started to smoke at the age of 14, there is no evidence as to why she started. In addition, the plaintiffs testified that Fabiano switched brands to what she thought were healthier options, but also to smoke the same brand as her husband. The law requires that the plaintiff show not only that the defendants made a material false representation and intended to defraud, but that the decedent relied on the representation and suffered damage. Thus, the court granted the defendants motion for summary judgement on the plaintiffs’ fraudulent misrepresentation claim.

As for the plaintiff’s claim of negligent misrepresentation, the court denied the defendants’ motion for summary judgement. The plaintiffs presented a substantial amount of evidence that defendant tobacco companies for years knowingly made false statements about the health risks of smoking. Therefore, the court ruled that there was a triable question of a material fact as to the defendant’s alleged fraudulent misrepresentation.

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