Two New York judges have reached very different conclusions about whether plaintiffs can sue tobacco companies using a design-defect theory, the New York Law Journal reported Aug. 8.

Manhattan Supreme Court Justice Charles E. Ramos ruled this week that the family of a woman who died of cancer could seek punitive damages against Philip Morris and other tobacco firms by claiming that they sold a dangerous and defective product.

However, just last week, Southern District of New York Judge Charles L. Brieant threw out a $20-million verdict against two cigarette companies in a similar case, ruling that New York's participation in the 1998 nationwide tobacco settlement precluded such lawsuits.

"Two respected, learned judges have come to different conclusions," said Stephen J. Kaczynski, a lawyer for tobacco companies. "Ultimately, [New York's] Court of Appeals will have to consider these issues."

Ramos ruled that "the evidence presented by plaintiffs raise issues of fact as to whether defendants acted unreasonably in designing cigarettes by refusing to adopt safer technology, on its claim for negligently designed product." He specifically said that the plaintiffs could sue despite the state's role in the tobacco settlement, saying that they were not a party to the settlement.

"The [plaintiffs] benefit from the previous action only to the extent that the State was seeking redress of continued promotional activities directed towards children, as well as the State's financial recovery in treating smoking related illnesses," Ramos said.