GEIGER v. AMERICAN TOBACCO COMPANY

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Supreme Court, Appellate Division, Second Department, New York.

William GEIGER, etc., et al., Appellants, v. AMERICAN TOBACCO COMPANY, et al., Respondents.

Decided: November 27, 2000

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, FRED T. SANTUCCI and LEO F. McGINITY, JJ. Finz & Finz, P.C., Jericho, N.Y. (Leonard L. Finz, Stuart L. Finz, and Jay L. Feigenbaum of counsel), for appellants. Dechert Price & Rhoads, New York, N.Y. (Robert A. Cohen and Hugh R. Whiting of counsel), for respondents Philip Morris Incorporated and Philip Morris Companies, Inc.;   Greenberg Traurig, LLP, New York, N.Y., for respondents Lorillard Tobacco Company and Lorillard, Inc.;   Chadbourne & Parke, LLP, New York, N.Y., for respondents Brown & Williamson Industries, Inc., and Brown & Williamson Tobacco Corp., individually and as successor by merger to American Tobacco Company and Fortune Brands, Inc., f/k/a American Brands, Inc.;   Jones, Day, Reavis & Pogue, New York, N.Y., for respondents RJR Nabisco, Inc., and R.J. Reynolds Tobacco Co.;   Debevoise & Plimpton, New York, N.Y., for respondent Council for Tobacco Research-USA, Inc.;   and Seward & Kissel, LLP, New York, N.Y., for respondent Tobacco Institute, Inc. (one brief filed).

In a proposed class action by and on behalf of, among others, New York State residents who have contracted lung and/or throat cancer from smoking cigarettes, to recover damages, inter alia, for failure to warn prior to 1969, the plaintiffs appeal from an order of the Supreme Court, Queens County (Berke, J.), dated September 2, 1999, which denied their cross motion for class certification.

ORDERED that the order is affirmed, with costs.

 Contrary to the plaintiffs' contentions, the Supreme Court properly denied their cross motion for class action certification.   The purportedly common issues proposed by the plaintiffs in their complaint are actually dependent on the resolution of issues such as addiction and causation as to each individual member of the proposed class.   Issues of causation must be resolved on a case-by-case basis, and thus, the difficult questions of causation and the extent of injuries (see, Rosenfeld v. Robins Co., 63 A.D.2d 11, 15-16, 407 N.Y.S.2d 196), weigh against class action treatment (see, Small v. Lorillard Tobacco Co., 252 A.D.2d 1, 7, 679 N.Y.S.2d 593, affd. 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892;  Rosenfeld v. Robins Co., supra, at 17, 407 N.Y.S.2d 196;  see also, Insolia v. Philip Morris, Inc., 186 F.R.D. 535, 542 543, affd. in part, reversed in part 216 F.3d 596;  In re Agent Orange Product Liability Litigation, 2d Cir., 818 F.2d 145, 165).

 Although the plaintiffs contend that addiction is not an issue, proof of addiction is essential to the causes of action asserted by the plaintiffs (see, Small v. Lorillard Tobacco Co., supra, at 8, 679 N.Y.S.2d 593;  Barnes v. American Tobacco Co., 3rd Cir., 161 F.3d 127, 144, cert. denied 526 U.S. 1114, 119 S.Ct. 1760, 143 L.Ed.2d 791).   Addiction is an issue “ ‘[involving] far too many subjective factors and present[ing] many of the same manageability concerns * * * to warrant class action treatment’ ” (Small v. Lorillard Tobacco Co., supra, at 8, 679 N.Y.S.2d 593;  see also, Castano v. American Tobacco Co., 5th Cir., 84 F.3d 734).

 With respect to the defective design cause of action, each type and brand of cigarette contains different tar and nicotine yields.   Cigarettes are not a generic product.   Although each cigarette does contain tar and nicotine, under a strict product liability theory, “ ‘each class member would have to establish that the type of cigarettes he or she smoked contained a defect at the time he or she smoked them’ ” (Barnes v. American Tobacco Co., supra, at 145;  see also, Arch v. American Tobacco Co., 175 F.R.D. 469).   Since the plaintiffs allege that the defendants intentionally designed the cigarettes to be addictive by manipulating the levels of tar and nicotine in the cigarettes, proof of whether the defendants caused the injury will depend on addiction as well (see, Barnes v. American Tobacco Co., supra, at 145).   Additionally, certain defects may be present in some types of cigarettes, while absent in others.   Thus, there are issues with respect to that cause of action which affect only individual members of the proposed class.

 As the Supreme Court properly concluded, even if there are common issues in this case, those issues do not predominate (see, CPLR 901 [a] [2] ).   Although a court has the power to sever issues and try the remaining matters as a class action (see, CPLR 906), it does not appear that judicial economy would be served by following that course of conduct in this case (cf., R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 41).

MEMORANDUM BY THE COURT.

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