Media Backgrounder& Analysis:

Manhattan Jury Punishes Philip Morris with Punitive Damages in Lung Cancer Trial

Boston
March 28, 2005 

Contact:  Richard Daynard;
Mark Gottlieb or
Edward L. Sweda, Jr.
617-373-2026
 media@tplp.org

               Rose v. American Tobacco Co., et al. is the second consecutive
NYC smoker's trial to result in a jury verdict for the plaintiff

Background:

 

 

Norma Rose and Leonard Rose

 

Plaintiffs

 

  

v.

  

The American Tobacco Company, Philip Morris, Inc.,

R.J. Reynolds Tobacco Company and Brown & Williamson Tobacco Corporation

 

 Defendants

 

 

Supreme Court of the State of New York, County of New York at Manhattan

  

Index No. 101996/02

 

The Plaintiffs are Norma and Leonard Rose, who are married. The complaint was originally filed on Dec. 18, 1996 in the Supreme Court of New York for New York County and alleged that Norma Rose smoked cigarettes manufactured by defendants R.J. Reynolds Tobacco Company, the American Tobacco Company and Philip Morris, Inc., and that her smoking caused her lung cancer and certain neurological problems.

 

Norma C. Rose was born on August 19, 1932 in Brooklyn and attended New York City public schools. She dropped out of high school at the age of 15, attended continuation school until age 16, and later attended Blake's Business School. In the 1950s, she worked in the business office of a supermarket and later worked at an accounting firm, where she was responsible for the books and operating their adding machines. From 1965 until 1978, Mrs. Rose worked as a dental assistant and office manager in a dentist's office.  From 1980 until 1992, Mrs. Rose owned her own catering and restaurant businesses. 

 

Norma Rose was first married in 1951 to Peter Adamo. She and Mr. Adamo lived in Brooklyn and Queens and had one child, Frank Adamo. She and Mr. Adamo divorced in June 1978. 

 

Norma Rose married her current husband, Leonard Rose, in November 1978. Leonard Rose was born April 16, 1933 in New York City. He attended New York public schools and graduated from high school. For approximately 25 years, Mr. Rose worked as a salesperson and manager in various men's clothing stores. Starting in the 1980s, he managed a warehouse for a textile business, from which he retired in 1998.

 

Mr. and Mrs. Rose have lived in the Murray Hill neighborhood of Manhattan since 1978.  Mrs. Rose is currently 72 years old, and Mr. Rose is 71.   

 

The Plaintiffs are represented by Stuart Finz of the Jericho, New York law firm of Finz & Finz.

Norma Rose began smoking in the mid-1940s while a teenager and, by the time she was 20 years old, smoked approximately one pack a day. The plaintiffs alleged that, beginning in the mid-1970s, Norma Rose tried to quit several times, but, because of an addiction to the nicotine in cigarettes, was unsuccessful until February 1993. In March 1995, Norma Rose was diagnosed as suffering from lung cancer and paraneoplastic cerebellar degeneration (PNCD), a neurological condition which sometimes accompanies lung cancer. She was cured of cancer later that same year, but allegedly continues to suffer from PNCD.

Plaintiffs alleged that, in the 1950s, Norma Rose smoked Camel cigarettes manufactured by defendant R.J. Reynolds Tobacco Company; in the 1960s, she smoked Pall Mall cigarettes manufactured by The American Tobacco Co., which later merged into defendant Brown & Williamson; and, in the 1970s, she smoked Merit, Vantage, Parliament and Benson & Hedges cigarettes manufactured by defendant Philip Morris Incorporated. In the 1980s and until she quit smoking in 1993, Norma Rose smoked Benson & Hedges cigarettes.

Plaintiffs also alleged that cigarettes are a defective product and are not reasonably safe when used as intended because they are addictive and carcinogenic. Plaintiffs further allege that defendants knew of the health hazards presented by cigarette smoking, yet concealed the extent of these hazards from the public during the decades Norma Rose smoked.

 

 

 

Feb. 2, 2005

 

 

 

 

BACKGROUNDER

 

 

PURPOSE

 

 

This backgrounder has been prepared by R.J. Reynolds Tobacco Company to provide a concise reference document on this individual smoking and health case. It is not a court document.

 

THE PLAINTIFFS

 

 

 

THE DEFENDANTS

 

 

Brown & Williamson Tobacco Corporation, now known as Brown & Williamson Holdings, Inc.

 

Brown & Williamson Holdings, Inc. (B&W), based in Louisville, Ky., formerly manufactured the Kool, Pall Mall, GPC, Carlton, Lucky Strike and Misty cigarette brands.

As of July 31, 2004, B&W’s domestic tobacco business merged with R.J. Reynolds Tobacco Company, a New Jersey corporation, to form R.J. Reynolds Tobacco Company, a North Carolina corporation. B&W is an affiliate of British American Tobacco, p.l.c. and is also successor by merger to The American Tobacco Company.

Brown & Williamson is represented by Thomas Riley and Allison Alcasabas of the New York law firm of Chadbourne & Parke.

 

R.J. Reynolds Tobacco Company

 

R.J. Reynolds is a wholly-owned subsidiary of Reynolds American Inc., and is headquartered in Winston-Salem, North Carolina. It is the nation’s second-largest manufacturer of cigarettes. Its brands include Winston, Salem, Camel, Doral and those of B&W mentioned above.

 

R.J. Reynolds is represented by Steve Kaczynski and Liza Kessler of the law firm of Jones Day.

 

The American Tobacco Company

 

See Brown & Williamson Tobacco Corporation.

 

Philip Morris USA

 

Philip Morris USA (PM USA), the nation’s largest cigarette company, is the maker of Marlboro, Virginia Slims, Benson & Hedges, Parliament and Basic. PM USA is headquartered in Richmond, Va.

 

PM USA is represented by Thomas Quigley and Luke Connelly of the New York law firm of Winston & Strawn.

 

TRIAL SITE

 

 

The case is being tried in the New York Supreme Court for New York County at Manhattan.

 

JUDGE

 

 

Justice Karen Smith, acting justice for the New York Supreme Court for New York County - Civil Branch, is the trial judge.

 

EXPECTED DURATION

 

 

Jury selection will begin on Feb. 3, 2005. The parties expect the trial to last six to eight weeks.

 

JURY AND VERDICT

 

The jury will consist of six jurors. A verdict is reached when five of the six jurors agree on a decision.

 

 

PLAINTIFFS’ CASE

 

 

Plaintiff Norma Rose alleges that defendants failed to warn her of the health risks of smoking, fraudulently concealed information from her about the health risks of smoking, and designed an unreasonably dangerous product. 

 

Mrs. Rose was diagnosed with small cell lung cancer and Paraneoplastic Cerebellar Degeneration (PCD) in 1995, which she alleges was caused by her cigarette smoking.  Mrs. Rose was treated for her lung cancer and has been living cancer-free for the last 10 years.  She demands $5 million for each claim plus punitive damages. 

 

Plaintiff Leonard Rose also asserts a claim for loss of consortium based on his wife's alleged injuries.  Mr. Rose demands $5 million plus punitive damages for his loss of consortium claim.

 

DEFENDANT’S CASE

 

 

Under New York law, defendants do not have a duty to warn consumers of risks in their products that are well-known.  At trial, defendants will show that Mrs. Rose was well aware of the risks associated with smoking, which are and have been common knowledge.  Fully informed of such risks, Mrs. Rose assumed these risks for the approximately 40 years she continued to smoke.  Additionally, Mrs. Rose has not offered and cannot offer any evidence that, at any time during her smoking history, there was any feasible, safer alternative cigarette design that she would have tried and that would have prevented her lung cancer. 

 

In addition, defendants' medical experts will testify that Mrs. Rose's medical process is not consistent with small cell lung cancer.  Based on the histologic appearance and size of her tumor, her presentation, the absence of metastatic disease, and her long-term survival, Mrs. Rose more likely than not had a variant of a neuroendocrine carcinoma called an atypical carcinoid, that is not caused by cigarette smoking.  Further, defendants' medical experts will testify that Mrs. Rose's neurological deficits could have been caused by an atypical carcinoid, her diet, alcohol use, and other non-paraneoplastic factors. 

 

PROCEDURAL BACKGROUND

 

Plaintiffs, Norma and Leonard Rose, filed this action on December 18, 1996 in the Supreme Court of New York, County of New York.  As originally filed, plaintiffs alleged multiple claims against multiple defendants. 

 

As a result of motions to dismiss, summary judgment motions and other pre-trial proceedings, the only claim remaining for trial is negligent defective design.