Florida Cigarette Case Could Affect Other Products

By Bill Kaczor
November 12, 2008

A tobacco lawyer has asked the Florida Supreme Court to reverse a $545,000 product liability verdict because the ailing smoker who won the judgment wasn't required to prove the company could have made a safer cigarette.

It's a case that could serve as a precedent affecting other smokers and a broad range of what have been legally classified as "inherently dangerous" products, said Alvin B. Davis, representing cigarette maker Liggett Group Inc.

"Products many Floridians enjoy, such as convertible automobiles, motorcycles, personal watercraft, and a cold beer on a hot day could all be legally condemned,'' lawyers for several business groups wrote in a friend-of-the-court brief.

The 4th District Court of Appeal certified the issue to the Supreme Court as a question of great public importance.

A three-judge appellate panel unanimously said there's no requirement for an injured party to establish an alternative safer design in a ruling that upheld the verdict won by a Broward County woman.

Beverly Davis smoked Chesterfield cigarettes made by Liggett from 1951 to 1974 before switching to another brand. In 2001, she was diagnosed with lung cancer.

The jury found the Chesterfields she smoked were not just inherently dangerous but "unreasonably dangerous'' due to a flawed design that was less safe than an ordinary consumer would expect when the product was used as intended.

"This is a very, very high tar cigarette, high nicotine cigarette without a filter,'' said Beverly Davis' lawyer, John Venable.

He told the justices there are no safe cigarettes but there are safer ones. His client, though, did not offer an alternative design at trial, suggesting instead that Liggett could have switched to cigars, which ordinarily are not inhaled.

Unless injured parties are required to prove an alternative design would be safer, manufacturers can be required to pay damages whether or not they did anything wrong, Alvin Davis argued.

"Cigarettes are unreasonably dangerous, and we don't dispute that,'' he said after the hearing. "The question is whether that alone is a sufficient basis to hold the manufacturer liable.''

Venable argued that's too great a burden to put on injured consumers. He said the appellate judges got it right by deciding "a safer alternative is one factor to be considered among many" but that it's not a must.