Court Voids First Smoker-Death Damage Award

A federal appeals court Friday threw out the nation’s first damage award against a cigarette manufacturer in the death of a smoker. But the court gave her family a chance for a new trial on another aspect of its case against three tobacco companies.

The $400,000 damage judgment had been issued in the case of Rose Cipollone of Little Ferry, N. J., who died of lung cancer at the age of 58 in 1984. She had smoked for 42 years.

In its complex ruling, the U.S. 3rd Circuit Court of Appeals affirmed a U.S. District Court ruling that dismissed claims of Cipollone’s family that the cigarette companies had failed to issue warnings about the risks of tobacco smoking after 1965, when a federal labeling requirement took effect.

In addition, the court reversed a jury’s award of $400,000 against Liggett Group Inc., granted to Cipollone’s husband, Antonio Cipollone of Lakehurst, N. J., on grounds that the company had violated an express warranty, or advertising promise, that its products were safe.

But the family did win the right to a new trial against three firms on one aspect of the case.

The court, in an opinion written by Judge Edward R. Becker, said Antonio Cipollone has “live claims” against Liggett and the other two companies, Lorillard Inc. and Philip Morris Inc., on grounds that they marketed the product knowing the risks of cigarette smoking.

That “risk-utility” theory of liability involves whether the average user can easily recognize the risks of the use. The District Court had barred Antonio Cipollone’s claim of “risk-utility” against all three.

In addition, the appeals court ruled that he could make additional claims against Liggett that had been denied in lower court.

Cipollone had won in District Court on his contention that the tobacco companies promised through advertising that their products were safe, which resulted in the $400,000 award.