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From Products Liability Law Daily, June 19, 2013

Smoker’s claims that cigarettes were defective because they were nicotine-manipulated not dismissed

By John W. Scanlan, J.D.

A long-time smoker’s product liability claims against three cigarette manufacturers alleging that the cigarettes he smoked were defective because the manufacturers had manipulated the nicotine in the cigarettes to make them more addictive were sufficiently alleged to survive a motion to dismiss, a U.S. District Court for the District of New Hampshire ruled (Bougopoulos v. Altria Group, Inc., June 18, 2013, DiClerico, J.).

Background. George Bougopoulos was diagnosed in 2011 with Chronic Obstructive Pulmonary Disease (COPD), which resulted in his inability to work or travel and his need for an oxygen tank in order to breathe. Bougopoulos began smoking cigarettes in 1960 when he was 13 years old. He brought, inter alia, claims for products liability and negligence against Altria Group, Inc., Philip Morris USA Inc., and R.J. Reynolds Tobacco Company, Inc., alleging that the manufacturers manipulated the nicotine in their cigarettes to make them more addictive, leading eventually to his COPD. The manufacturers moved to dismiss.

Defective design. Bougopoulos’s assertion that the manufacturers manipulated the nicotine in their cigarettes to make them more addictive was sufficient to allege a product defect, according to the court. While a plaintiff cannot maintain a strict liability claim against a cigarette manufacturer based on the allegation that all cigarettes are inherently defective, manipulated nicotine would constitute a different product defect.

Causation. Bougopoulos had asserted a sufficient causal connection between the allegedly manipulated nicotine and his COPD. Although he did not assert that the properties of the allegedly manipulated nicotine directly caused disease, he asserted that the manipulated nicotine caused him to remain addicted to cigarettes, that each and every exposure to nicotine increased the risk of developing disease, and that his life-long smoking habit caused his COPD.

Preemption. Bougopoulos’s strict liability claim was not preempted by federal law. The court stated that Congress has foreclosed the removal of tobacco products from the market. His claim alleged a defect due to the manufacturers’ alleged nicotine manipulation, not to the inherent characteristics of cigarettes and, therefore, imposing liability would not be the equivalent to a ban on cigarettes.

Negligence. A negligence claim was not dismissed because it was based on the manufacturers’ alleged manipulation of the nicotine in their cigarettes to make them more addictive rather than on the inherent danger of smoking cigarettes.

Consumer Protection Act and misrepresentations. Claims that the manufacturers violated the New Hampshire Consumer Protection Act (CPA) by making misrepresentations about the risks and addictive nature of their cigarettes and by designing the cigarettes to be addictive were not time-barred. The manufacturers did not meet their burden of proving that the transactions upon which Bougopoulos’s claims were exempt from the CPA because they occurred more than three years before he knew or should have known of its wrongful nature. Although he had not specifically identified each misrepresentation or wrongful act, that fact did not establish for purposes of a motion to dismiss that all of the misrepresentations or wrongful acts were exempted transactions.

The case number is 12-cv-338-JD; Opinion No. 2013 DNH 087.

Attorneys: John James Washburn (John Washburn Attorney at Law) for George C. Bougopoulos. Robert A. McCarter, III (Shook Hardy & Bacon LLP), Wilbur A. Glahn, III (McLane Graf Raulerson & Middleton) for Altria Group, Inc. Christopher M. Morrison (Jones Day), David K. Pinsonneault (Winer & Bennett) for R.J. Reynolds Tobacco Company, Inc.

Companies: Altria Group, Inc.; R.J. Reynolds Tobacco Company, Inc.; Philip Morris USA Inc.

MainStory: TopStory DesignManufacturingNews PreemptionNews TobaccoProductsNews NewHampshireNews

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