![[ASH Logo]](/images/ash3.gif) |
ACTION ON SMOKING AND HEALTH (ASH)
A National Legal-Action Antismoking Organization 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310 |
A class-action suit has been brought against the tobacco industry in New York state court on behalf of all persons affected by lung and throat cancer due to cigarette smoke.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS WILLIAM GEIGER AS ADMINISTRATOR OF THE ESTATE OF ANITA GEIGER, WILLIAM GEIGER, DONALD CILIA, MURIEL HOFFMAN, and GEORGE TALT, individually and on behalf of others similarly situated, Plaintiffs, against - ]THE AMERICAN TOBACCO COMPANY, AMERICAN BRANDS, INC., LORILLARD INC., LORILLARD TOBACCO COMPANY, PHILIP MORRIS INCORPORATED, PHILIP MORRIS COMPANIES, INC., RJR NABISCO INC., R.J. REYNOLDS TOBACCO COMPANY, LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD., LIGGETT & MYERS TOBACCO COMPANY, BROWN & WILLIAMSON INDUSTRIES, INC., BROWN & WILLIAMSON TOBACCO CORPORATION, THE TOBACCO INSTITUTE, INC, and THE COUNCIL FOR TOBACCO RESEARCH-USA, INC. Defendants. Index No. VERIFIED CLASS ACTION COMPLAINT Plaintiffs, on behalf of themselves and others similarly situated, as and for their Verified Complaint, by their attorneys, FINZ & FINZ, P.C, and STANLEY R. WAXMAN, P.C., respectfully alleges upon information and belief as follows: Upwards of ten million Americans have died as a result of smoking cigarettes. Upwards of 350,000 Americans die each year as a result of smoking cigarettes. The Environmental Protection Agency has classified cigarette smoke as a Class A carcinogen. The Food and Drug Administration has classified nicotine as a drug. In or about 1954, and continuing to date, the defendants have knowingly and intentionally entered into a course of conduct directly intended to conceal information and misrepresent information about cigarettes particularly the carcinogenic properties of tar and the highly addictive nature of nicotine. Plaintiffs, are residents of the State of New York. This class action is being brought on behalf of all others similarly situated in the State of New York for the purpose of asserting the claims alleged herein on a common basis. Plaintiffs' proposed Classes are defined as: (a) all persons in the State of New York who have smoked cigarettes manufactured by the defendant tobacco companies and have contracted lung and/or throat cancer as a result of having smoked said cigarettes. (b) the estates, representatives, administrators and spouses of all persons in the State of New York who have smoked cigarettes manufactured by the defendant tobacco companies; contracted lung and/or throat cancer as a result of having smoked said cigarettes; and died from said cancer. For purposes of class definition, those who have contracted lung and/or throat cancer as a result of smoking cigarettes manufactured by the defendant tobacco companies and those who have died as a result of contracting lung and/or throat cancer from smoking said cigarettes, will be collectively referred to as "CANCER VICTIMS". The First through Eighth Causes of Action are asserted on behalf of the CANCER VICTIMS. The Ninth Cause of Action is asserted on behalf of the spouses of the CANCER VICTIMS. The Tenth Cause of Action is asserted on behalf of the children and distributees of the deceased lung and/or throat cancer victims. This class action is brought, and may be maintained, as a class action pursuant to CPLR Section 901. The above described class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable. The exact number of class members is unknown to plaintiffs at this time, but it is reasonably believed to be tens of thousands of people who are located throughout the State of New York. Members of the Class may be notified and informed of the pendency of the action through the broadcast and print media, and computer and/or Internet web sites. COMMON QUESTIONS OF LAW AND FACT There are questions of law or fact common to the class which predominate over any questions affecting only individual members. These common questions of law and fact, which do not vary from class member to class member, arise from (1) the defendants' role in manufacturing, testing, promoting and selling cigarettes (2) the chemical properties of tar and nicotine and other ingredients in cigarettes. The common questions of law and fact pertaining to the Class include, but are not limited to, whether cigarettes cause lung cancer; whether cigarettes cause throat cancer; whether and when the defendants knew or should have known that cigarettes cause lung cancer; whether and when the defendants knew or should have known that cigarettes cause throat cancer; whether the defendants knowingly and intentionally entered into a common scheme or plan to conceal information and misrepresent information about cigarettes, particularly the addictive nature of nicotine and the cancer causing properties of tar; whether the defendant tobacco companies have controlled and manipulated the levels of nicotine in its cigarettes; whether the acts of the defendants constitute negligence, gross negligence, fraud, negligent misrepresentation, breach of warranties and failure to warn; whether the defendant tobacco companies' cigarettes are defectively designed; whether the plaintiffs and those similarly situated are entitled to compensatory damages, punitive and exemplary damages. The claims of the plaintiffs are typical of the claims of the above described class in that all members of the class have contracted lung and/or throat cancer and, where applicable, have died from lung and/or throat cancer as a result of smoking of cigarettes. Plaintiffs do not have any interests which are adverse to the other Class members. Plaintiffs will fairly and adequately protect the interests of the class in that plaintiffs have retained competent counsel who are experienced in the prosecution of complex personal injury actions and that plaintiffs intend to vigorously prosecute this action to conclusion for the benefit of the class. A class action is superior to other available methods for the fair and efficient adjudication of the controversy since the joinder of all the individuals who belong to this class is impracticable. Further, individual actions would delay resolution of the actions, create a financial burden on the individuals and be unduly burdensome to the Courts. A class action would obviate the above problems, provide a single, consistent adjudication and promote judicial economy. PARTIES Plaintiffs and proposed Class representatives are residents of the State of New York. At all relevant times herein, the CANCER VICTIMS ingested, inhaled, absorbed, consumed, and otherwise came into contact with cigarettes designed, produced, tested, manufactured, distributed, marketed, advertised and sold by one or more of the defendants. Plaintiff WILLIAM GEIGER is the duly appointed Administrator of the Estate of ANITA GEIGER. THE AMERICAN TOBACCO COMPANY and AMERICAN BRANDS, INC. Defendant THE AMERICAN TOBACCO COMPANY is a Delaware corporation with its principal place of business in New York, New York. Defendant THE AMERICAN TOBACCO COMPANY was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant THE AMERICAN TOBACCO COMPANY, in person or through an agent, transacts business in the State of New York. Defendant THE AMERICAN TOBACCO COMPANY regularly does and/or solicits business within the State of New York. Defendant THE AMERICAN TOBACCO COMPANY derives substantial revenue from goods used or consumed in the State of New York. Defendant THE AMERICAN TOBACCO COMPANY expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant THE AMERICAN TOBACCO COMPANY owns, uses or possesses real property situated within the State of New York. Defendant AMERICAN BRANDS, INC. is a New Jersey corporation with its principal place of business in New York. Defendant AMERICANS BRANDS, INC. was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant AMERICAN BRANDS, INC. in person or through an agent, transacts business in the State of New York. Defendant AMERICAN BRANDS, INC. regularly does and/or solicits business within the State of New York. Defendant AMERICAN BRANDS, INC. derives substantial revenue from goods used or consumed in the State of New York. Defendant AMERICAN BRANDS, INC. expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant AMERICAN BRANDS, INC. owns, uses or possesses real property situated within the State of New York. Defendant THE AMERICAN TOBACCO COMPANY is a wholly owned subsidiary of defendant AMERICAN BRANDS, INC. Defendant AMERICAN BRANDS, INC. exercises domination and control over the day-to- day operations and business of defendant THE AMERICAN TOBACCO COMPANY. Defendant AMERICAN BRANDS, INC. utilized its domination and control over the defendant THE AMERICAN TOBACCO COMPANY to commit the fraud, wrongful and unjust acts alleged herein. PHILIP MORRIS INCORPORATED and PHILIP MORRIS COMPANIES, INC. Defendant PHILIP MORRIS INCORPORATED is a Virginia corporation with its principal place of business in New York. Defendant PHILIP MORRIS INCORPORATED was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant PHILIP MORRIS INCORPORATED in person or through an agent, transacts business in the State of New York. Defendant PHILIP MORRIS INCORPORATED regularly does and/or solicits business within the State of New York. Defendant PHILIP MORRIS INCORPORATED derives substantial revenue from goods used or consumed in the State of New York. Defendant PHILIP MORRIS INCORPORATED expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant PHILIP MORRIS INCORPORATED owns, uses or possesses real property situated within the State of New York. Defendant PHILIP MORRIS COMPANIES INC. is a Virginia corporation with its principal place of business in New York. Defendant PHILIP MORRIS COMPANIES, INC. was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant PHILIP MORRIS COMPANIES, INC. in person or through an agent, transacts business in the State of New York. Defendant PHILIP MORRIS COMPANIES, INC. regularly does and/or solicits business within the State of New York. Defendant PHILIP MORRIS COMPANIES, INC. derives substantial revenue from goods used or consumed in the State of New York. Defendant PHILIP MORRIS COMPANIES, INC. expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant PHILIP MORRIS COMPANIES, INC. owns, uses or possesses real property situated within the State of New York. Defendant PHILIP MORRIS INCORPORATED is a wholly owned subsidiary of defendant PHILIP MORRIS COMPANIES, INC. Defendant PHILIP MORRIS COMPANIES, INC. exercises domination and control over the day-to- day operations and business of defendant PHILIP MORRIS INCORPORATED. Defendant PHILIP MORRIS COMPANIES, INC. utilized its domination and control over the defendant PHILIP MORRIS INCORPORATED to commit the fraud, wrongful and unjust acts alleged herein. LORILLARD TOBACCO COMPANY and LORILLARD INC. Defendant LORILLARD TOBACCO COMPANY is a Delaware corporation with its principal place of business in New York. Defendant LORILLARD TOBACCO COMPANY was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant LORILLARD TOBACCO COMPANY in person or through an agent, transacts business in the State of New York. Defendant LORILLARD TOBACCO COMPANY regularly does and/or solicits business within the State of New York. Defendant LORILLARD TOBACCO COMPANY derives substantial revenue from goods used or consumed in the State of New York. Defendant LORILLARD TOBACCO COMPANY expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant LORILLARD TOBACCO COMPANY owns, uses or possesses real property situated within the State of New York. Defendant LORILLARD, INC. is a New York corporation with its principal place of business in New York. Defendant LORILLARD, INC. was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant LORILLARD, INC. in person or through an agent, transacts business in the State of New York. Defendant LORILLARD, INC. regularly does and/or solicits business within the State of New York. Defendant LORILLARD, INC. derives substantial revenue from goods used or consumed in the State of New York. Defendant LORILLARD, INC. expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant LORILLARD, INC. owns, uses or possesses real property situated within the State of New York. Defendant LORILLARD TOBACCO COMPANY is a wholly owned subsidiary of defendant LORILLARD INC. Defendant LORILLARD, INC. exercises domination and control over the day-to-day operations and business of defendant LORILLARD TOBACCO COMPANY. Defendant LORILLARD, INC. utilized its domination and control over the defendant LORILLARD TOBACCO COMPANY to commit the fraud, wrongful and unjust acts alleged herein. R.J. REYNOLDS TOBACCO COMPANY and RJR NABISCO INC. Defendant R.J. REYNOLDS TOBACCO COMPANY is a New Jersey corporation with its principal place of business in North Carolina. Defendant R.J. REYNOLDS TOBACCO COMPANY, was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant R.J. REYNOLDS TOBACCO COMPANY, in person or through an agent, transacts business in the State of New York. Defendant R.J. REYNOLDS TOBACCO COMPANY, regularly does and/or solicits business within the State of New York. Defendant R.J. REYNOLDS TOBACCO COMPANY derives substantial revenue from goods used or consumed in the State of New York. Defendant R.J. REYNOLDS TOBACCO COMPANY expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant R.J. REYNOLDS TOBACCO COMPANY owns, uses or possesses real property situated within the State of New York. Defendant RJR NABISCO, INC. is a Delaware corporation with its principal place of business in North Carolina. Defendant RJR NABISCO, INC., was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant RJR NABISCO, INC., in person or through an agent, transacts business in the State of New York. Defendant RJR NABISCO, INC., regularly does and/or solicits business within the State of New York. Defendant RJR NABISCO, INC. derives substantial revenue from goods used or consumed in the State of New York. Defendant RJR NABISCO, INC. expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant RJR NABISCO, INC. owns, uses or possesses real property situated within the State of New York. Defendant R.J. REYNOLDS TOBACCO COMPANY is a wholly owned subsidiary of defendant RJR NABISCO INC. Defendant RJR NABISCO INC. exercises domination and control over the day-to-day operations and business of defendant R.J. REYNOLDS TOBACCO COMPANY. Defendant RJR NABISCO INC. utilized its domination and control over the defendant R.J. REYNOLDS TOBACCO COMPANY to commit the fraud, wrongful and unjust acts alleged herein. LIGGETT & MYERS TOBACCO COMPANY and LIGGETT GROUP,INC. Defendant LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD. is a Delaware corporation with its principal place of business in New York. Defendant LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD., was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant, LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD., in person or through an agent, transacts business in the State of New York. Defendant LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD., regularly does and/or solicits business within the State of New York. Defendant LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD. derives substantial revenue from goods used or consumed in the State of New York. Defendant LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD. expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant LIGGETT GROUP, INC. now known as BROOKE GROUP, LTD. owns, uses or possesses real property situated within the State of New York. Defendant LIGGETT & MYERS TOBACCO COMPANY is a Delaware corporation with its principal place of business in New York. Defendant LIGGETT & MYERS TOBACCO COMPANY was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant, LIGGETT & MYERS TOBACCO COMPANY in person or through an agent, transacts business in the State of New York. Defendant LIGGETT & MYERS TOBACCO COMPANY, regularly does and/or solicits business within the State of New York. Defendant LIGGETT & MYERS TOBACCO COMPANY derives substantial revenue from goods used or consumed in the State of New York. Defendant LIGGETT & MYERS TOBACCO COMPANY expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant LIGGETT & MYERS TOBACCO COMPANY owns, uses or possesses real property situated within the State of New York. Defendant LIGGETT & MYERS TOBACCO COMPANY is a wholly owned subsidiary of defendant LIGGETT GROUP INC. Defendant LIGGETT GROUP INC. exercises domination and control over the day-to-day operations and business of defendant LIGGETT & MEYERS TOBACCO COMPANY. Defendant LIGGETT GROUP INC. utilized its domination and control over the defendant LIGGETT & MEYERS TOBACCO COMPANY to commit the fraud, wrongful and unjust acts alleged herein. BROWN & WILLIAMSON TOBACCO CORPORATION and BROWN & WILLIAMSON INDUSTRIES, INC. Defendant BROWN & WILLIAMSON TOBACCO CORPORATION, is a Delaware corporation with its principal place of business in New York. Defendant BROWN & WILLIAMSON TOBACCO CORPORATION was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant, BROWN & WILLIAMSON TOBACCO CORPORATION in person or through an agent, transacts business in the State of New York. Defendant BROWN & WILLIAMSON TOBACCO CORPORATION, regularly does and/or solicits business within the State of New York. Defendant BROWN & WILLIAMSON TOBACCO CORPORATION derives substantial revenue from goods used or consumed in the State of New York. Defendant BROWN & WILLIAMSON TOBACCO CORPORATION expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant BROWN & WILLIAMSON TOBACCO CORPORATION owns, uses or possesses real property situated within the State of New York. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC., is a Delaware corporation with its principal place of business in New York. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC. was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant, BROWN AND WILLIAMSON INDUSTRIES, INC. in person or through an agent, transacts business in the State of New York. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC., regularly does and/or solicits business within the State of New York. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC. derives substantial revenue from goods used or consumed in the State of New York. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC. expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC. owns, uses or possesses real property situated within the State of New York. Defendant BROWN & WILLIAMSON TOBACCO COMPANY is a wholly owned subsidiary of defendant BROWN AND WILLIAMSON INDUSTRIES, INC. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC. exercises domination and control over the day-to-day operations and business of defendant BROWN & WILLIAMSON TOBACCO COMPANY. Defendant BROWN AND WILLIAMSON INDUSTRIES, INC. utilized its domination and control over the defendant BROWN & WILLIAMSON TOBACCO COMPANY to commit the fraud, wrongful and unjust acts alleged herein. THE COUNCIL FOR TOBACCO RESEARCH- USA, INC. Defendant THE COUNCIL FOR TOBACCO RESEARCH-USA, INC., (hereinafter "CTR") formerly known as TOBACCO RESEARCH INDUSTRY COMMITTEE, is a non-profit corporation organized under the laws of the State of New York with its principal place of business in New York, New York. Defendant THE COUNCIL FOR TOBACCO RESEARCH-USA, INC. was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant, THE COUNCIL FOR TOBACCO RESEARCH-USA, INC. in person or through an agent, transacts business in the State of New York. Defendant THE COUNCIL FOR TOBACCO RESEARCH-USA, INC., regularly does and/or solicits business within the State of New York. Defendant THE COUNCIL FOR TOBACCO RESEARCH-USA, INC. derives substantial revenue from goods used or consumed in the State of New York. Defendant THE COUNCIL FOR TOBACCO RESEARCH-USA, INC. expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant THE COUNCIL FOR TOBACCO RESEARCH-USA, INC. owns, uses or possesses real property situated within the State of New York. THE TOBACCO INSTITUTE, INC. Defendant THE TOBACCO INSTITUTE, INC. (hereinafter "TI") is a not-for-profit corporation organized under the laws of the State of New York with its principal place of business in New York. Defendant TI, was and still is a foreign corporation, duly authorized to do business and in fact, is doing business in the State of New York. Defendant TI in person or through an agent, transacts business in the State of New York. Defendant TI, regularly does and/or solicits business within the State of New York. Defendant TI derives substantial revenue from goods used or consumed in the State of New York. Defendant TI expected or should have expected its acts to have consequences within the State of New York and derives substantial revenue from interstate or international commerce. Defendant TI owns, uses or possesses real property situated within the State of New York. Defendants THE AMERICAN TOBACCO COMPANY, LORILLARD TOBACCO COMPANY, PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, LIGGETT & MEYERS TOBACCO COMPANY and BROWN & WILLIAMSON TOBACCO COMPANY are collectively referred to herein as "MANUFACTURERS". Defendants AMERICAN BRANDS, INC., LORILLARD INC., PHILIP MORRIS COMPANIES, INC., RJR NABISCO INC., LIGGETT GROUP, INC., and BROWN & WILLIAMSON INDUSTRIES, INC. (collectively referred to herein as "TOBACCO MANUFACTURERS' OWNERS") each controlled, dominated and directed the design, production, testing, manufacturing, distribution, marketing, advertising and selling of the cigarettes by their respective subsidiary corporations. In and about 1954 the defendant MANUFACTURERS formed THE COUNCIL FOR TOBACCO RESEARCH-USA, INC., then known as the TOBACCO INDUSTRY RESEARCH COMMITTEE. CTR is a joint industry group consisting of, among others, the defendant MANUFACTURERS. CTR derives most, if not all of its funds from the defendant MANUFACTURERS. The work of CTR is dominated, directed and controlled by the defendant MANUFACTURERS. The budget of CTR is dominated, directed and controlled by the defendant MANUFACTURERS. CTR performed and conducted research on cigarettes at the direction of defendant MANUFACTURERS. Defendant TI, is a joint industry group formed by the defendant MANUFACTURERS. Defendant TI derives most, if not all of its funds from the defendant MANUFACTURERS. Defendant TI is dominated, directed and controlled by the defendant MANUFACTURERS. The budget of defendant TI is dominated, directed and controlled by the defendant MANUFACTURERS. Defendant TI disseminates, publishes, distributes, publicizes and advertises information about cigarettes at the direction of and under the control of defendant MANUFACTURERS. Each defendant is sued herein individually. Each defendant herein acted in concert in the commission of the torts hereafter alleged and is sued as a co-conspirator and aider and abettor of each other defendant. Each defendant is liable for the torts alleged herein pursuant to a concerted action theory because the defendant MANUFACTURERS, the defendant TOBACCO MANUFACTURERS' OWNERS, defendant CTR and defendant TI, individually and collectively, expressly agreed to pursue the tortious conduct herein set forth. Each defendant is liable for the conduct alleged herein pursuant to a concerted action theory, because the defendant MANUFACTURERS, the defendant TOBACCO MANUFACTURERS' OWNERS, defendant CTR and defendant TI, individually and collectively, impliedly or tacitly agreed to pursue the tortious conduct herein set forth. Each defendant is liable for the conduct alleged herein pursuant to a concerted action theory because the defendant MANUFACTURERS, the defendant TOBACCO MANUFACTURERS' OWNERS, defendant CTR and defendant TI, had an understanding to participate in a common plan or design to pursue the tortious conduct herein set forth. Each defendant is liable for the conduct alleged herein pursuant to a concerted action theory because one or more of the defendants committed the tortious acts herein set forth. Each defendant is liable for the conduct alleged pursuant to a concerted action theory which arises from the fact that one or more of the defendants, pursuant to a common plan or design, committed and/or aided and abetted in the commission of all or part of the conduct alleged herein by jointly conducting and collaborating on tests, studies, surveys, and experiments upon their cigarettes, together with other joint actions, all with an understanding, express or tacit, to participate in a common plan, scheme or design to commit the tortious acts set forth herein. Each brand of cigarette purchased, ingested, inhaled, absorbed and consumed by the CANCER VICTIMS and members of the class is similar in design to the extent that it contained the same basic ingredients, including but not limited, to nicotine and tar. The cigarettes are a designed smoke inhalation system with a combination of many ingredients and properties, including but not limited to tar and nicotine. Defendants THE AMERICAN TOBACCO COMPANY, LORILLARD TOBACCO COMPANY, PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, LIGGETT & MEYERS TOBACCO COMPANY and BROWN & WILLIAMSON TOBACCO COMPANY each designed, produced, tested, manufactured, distributed, marketed, advertised and sold cigarettes. Defendant MANUFACTURERS designed their cigarettes upon the results of their own testing or the testing conducted by defendant CTR or other agents. Defendant MANUFACTURERS designed their cigarettes to achieve specific purposes, including but not limited to addicting the users of the cigarettes to the cigarettes. The cigarettes were marketed, sold, distributed and advertised to the public by the defendant MANUFACTURERS for consumption by the public. Defendant TOBACCO MANUFACTURERS' OWNERS directed and controlled the design of the cigarettes manufactured by their respective subsidiary corporations to achieve specific purposes, including but not limited to addicting the users of the cigarettes to the cigarettes. AS AND FOR A FIRST CAUSE OF ACTION FAILURE TO WARN THAT CIGARETTE SMOKING CAUSES CANCER AND IS ADDICTIVE PRIOR TO THE EFFECTIVE DATE OF THE PUBLIC HEALTH CIGARETTE SMOKING ACT OF 1969 Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Nicotine is the drug that causes an addiction to cigarettes. Defendant MANUFACTURERS tested and researched the effects of nicotine. All defendants knew or should have known prior to 1969 that cigarettes were addictive due to the nicotine in the cigarettes. Defendant MANUFACTURERS designed their cigarettes with the specific design specification that they be addictive. Defendant MANUFACTURERS manipulated the level of nicotine in the cigarettes to addict smokers. All defendants knew or should have known prior to 1969 that cigarettes could be harmful to the user's health. All defendants knew or should have known prior to 1969 that cigarettes could cause lung and/or throat cancer. Defendant MANUFACTURERS each had a duty to warn consumers of cigarettes that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer. Defendant TOBACCO MANUFACTURERS' OWNERS each had a duty to warn consumers of cigarettes manufactured by their respective subsidiary corporations that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer. Defendant CTR, by conducting research and testing of cigarettes for and on behalf of defendant MANUFACTURERS, had a duty to warn consumers of cigarettes that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer. Defendant TI, by publicizing, disseminating, distributing and advertising information about cigarettes, for and on behalf of defendant MANUFACTURERS, had a duty to warn consumers of cigarettes that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer. All defendants failed to warn prior to 1969 that cigarettes were addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses. All defendants failed to properly and adequately warn prior to 1969 that cigarettes were addictive, could be harmful to health, and cause lung and/or throat cancer. As a direct result of Defendants' failure to warn, prior to 1969, that their cigarettes were addictive, could be harmful to health, and cause lung and/or throat cancer, the CANCER VICTIMS and all others similarly situated were permanently addicted to cigarettes by 1969. As a direct result of Defendants' failure to properly and adequately warn that their cigarettes could be harmful to health, and cause lung and/or throat cancer or other serious illnesses prior to 1969, the CANCER VICTIMS and all those who are similarly situated contracted lung and/or throat cancer. Defendant MANUFACTURERS, defendant CTR and defendant TI created and developed advertisements and/or promotions prior to 1969 for the purpose of inducing people, including the CANCER VICTIMS and young people, to start and continue smoking cigarettes. Defendant TOBACCO MANUFACTURERS' OWNERS, dominated and controlled all the other defendants and caused all the other defendants to create and develop advertisements and/or promotions prior to 1969 for the purpose of inducing people, including the CANCER VICTIMS and young people, to start and continue smoking cigarettes. All defendants, directly or indirectly, tested the effects of their advertisements prior to 1969. All defendants knew or should have known prior to 1969 that their advertisements would induce people, including the CANCER VICTIMS to commence smoking cigarettes. All defendants' advertisements and/or promotions prior to 1969 were false and misleading. All defendants' advertising and/or promotions prior to 1969 failed to contain warnings as to the addictive nature of cigarettes or the health consequences, including but not limited to the risks of lung and/or throat cancer and other serious illnesses from smoking cigarettes. All defendants' advertisements and/or promotions prior to 1969 portrayed smoking cigarettes as associated with sexuality, virility, social acceptance, popularity, fun, enjoyment and healthfulness. All defendants' advertisements and/or promotions prior to 1969 had direct and subliminal messages associating smoking cigarettes with sexuality, virility, social acceptance, popularity, fun, enjoyment and healthfulness. As a result of defendants' false and misleading advertising and/or promotions as set forth above the CANCER VICTIMS commenced smoking cigarettes and continued smoking cigarettes for a period of time. As a result of smoking cigarettes for a period of time, the CANCER VICTIMS were caused to develop lung and/or throat cancer. Defendants' individual and collective failure to warn and false and misleading advertising and/or promotions as set forth above were wanton, grossly negligent, reckless and demonstrated a complete disregard and reckless indifference to the safety and welfare of the general public and to these cancer victims particularly. AS AND FOR A SECOND CAUSE OF ACTION FAILURE TO WARN AFTER 1969 THAT CIGARETTE SMOKING CAUSES CANCER AND IS ADDICTIVE Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Nicotine is the drug that causes an addiction to cigarettes. Defendant MANUFACTURERS tested and researched the effects of nicotine. All defendants knew or should have known that cigarettes were addictive due to the nicotine in the cigarettes. Defendant MANUFACTURERS designed their cigarettes with the specific design specification that they be addictive. Defendant MANUFACTURERS manipulated the level of nicotine in the cigarettes to addict smokers. All defendants knew or should have known that cigarettes could be harmful to the user's health. All defendants knew or should have known that cigarettes could cause lung and/or throat cancer and other serious health risks to their users. Defendant MANUFACTURERS each had a duty to warn consumers of cigarettes that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses. Defendant TOBACCO MANUFACTURERS' OWNERS each had a duty to warn consumers of cigarettes manufactured by their respective subsidiary corporations that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses. Defendant CTR, by conducting research and testing of cigarettes for and on behalf of defendant MANUFACTURERS, had a duty to warn consumers of cigarettes that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses. Defendant TI, by publicizing, disseminating, distributing and advertising information about cigarettes, for and on behalf of defendant MANUFACTURERS, had a duty to warn consumers of cigarettes that the smoking of cigarettes would be addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses. All defendants failed to warn that cigarettes were addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses. All defendants failed to properly and adequately warn that cigarettes were addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses. As a direct result of Defendants' failure to warn that their cigarettes were addictive, could be harmful to health, and cause lung and/or throat cancer or other serious illnesses, the CANCER VICTIMS and all others similarly situated began and continued to smoke defendants' cigarettes. As a direct result of Defendants' failure to properly and adequately warn that their cigarettes could be harmful to health, and cause lung and/or throat cancer or other serious illnesses, the CANCER VICTIMS and all those who are similarly situated contracted lung and/or throat cancer. Defendant MANUFACTURERS, defendant CTR and defendant TI created and developed advertisements and/or promotions for the purpose of inducing people, including the CANCER VICTIMS and young people, to start and continue smoking cigarettes. Defendant TOBACCO MANUFACTURERS' OWNERS, dominated and controlled all the other defendants and caused all the other defendants to create and develop advertisements and/or promotions for the purpose of inducing people, including the CANCER VICTIMS and young people, to start and continue smoking cigarettes. All defendants, directly or indirectly, tested the effects of their advertisements. All defendants knew or should have known that their advertisements would induce people, including the CANCER VICTIMS to commence smoking cigarettes. All defendants' advertisements and/or promotions were false and misleading. All defendants' advertising and/or promotions failed to contain warnings as to the addictive nature of cigarettes or the health consequences, including but not limited to the risks of lung and/or throat cancer and other serious illnesses from smoking cigarettes. All defendants' advertisements and/or promotions portrayed smoking cigarettes as associated with sexuality, virility, social acceptance, popularity, fun, enjoyment and healthfulness. All defendants' advertisements and/or promotions had direct and subliminal messages associating smoking cigarettes with sexuality, virility, social acceptance, popularity, fun, enjoyment and healthfulness. As a result of defendants' false and misleading advertising and/or promotions as set forth above the CANCER VICTIMS commenced smoking cigarettes and continued smoking cigarettes for a period of time. As a result of smoking cigarettes for a period of time, the CANCER VICTIMS were caused to develop lung and/or throat cancer. Defendants' individual and collective failure to warn and false and misleading advertising and/or promotions as set forth above were wanton, grossly negligent, reckless and demonstrated a complete disregard and reckless indifference to the safety and welfare of the general public and to the CANCER VICTIMS particularly. AS AND FOR A THIRD CAUSE OF ACTION FRAUD and DECEIT Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Each defendant MANUFACTURER united with each other defendant MANUFACTURER to form an organization now known as defendant CTR for the stated purpose of researching the effects of tobacco on health. Each defendant MANUFACTURER and defendant CTR conducted research and tested cigarettes. Defendant CTR was represented and promoted by defendant MANUFACTURERS as an independent research organization when in fact it was only a public relations vehicle for defendant MANUFACTURERS to falsely represent and/or conceal the effects of smoking cigarettes on the health of users. As a result of this research and testing, each defendant MANUFACTURER, defendant CTR and defendant TI, distributed information, including but not limited to reports and press releases to the public, including the CANCER VICTIMS. As a result of this research and testing, each defendant MANUFACTURER, defendant CTR and defendant TI, created advertisements to disseminate results of the testing and research to the public, including the CANCER VICTIMS. Each defendant MANUFACTURER, defendant CTR and defendant TI, had a duty when disseminating information in the form of advertisements, reports and press releases to disseminate truthful information. The information distributed to the public and the CANCER VICTIMS, by each defendant MANUFACTURER, defendant CTR and defendant TI, including but not limited to the reports, press releases, and advertisements, contained material representations extolling the use of cigarettes. The information distributed to the public and the CANCER VICTIMS by each defendant MANUFACTURER, defendant CTR and defendant TI, included representations that cigarettes were safe for consumption. The information distributed to the public and the CANCER VICTIMS by each defendant MANUFACTURER, defendant CTR and defendant TI, included representations that cigarettes were not injurious to health. The information distributed to the public and the CANCER VICTIMS by each defendant MANUFACTURER, defendant CTR and defendant TI, included representations that the substances in cigarettes, including but not limited to the absorption of tar and nicotine from cigarette smoke in the human body, was not harmful. The information distributed to the public and the CANCER VICTIMS by each defendant MANUFACTURER, defendant CTR and defendant TI, included representations that filters on cigarettes made the air that was inhaled from cigarettes pure. Each defendant MANUFACTURER and defendant CTR pledged to the public, including the CANCER VICTIMS, in full-page newspaper advertisements entitled "A Frank Statement to Cigarette Smokers", that each would thoroughly research and test cigarettes to determine if there was any connection between cigarette smoking and cancer and would cooperate to safeguard the health of the public. Each defendant MANUFACTURER, defendant CTR and defendant TI thereafter suppressed, ignored and disregarded test results not favorable to the tobacco industry and results that demonstrated that cigarettes caused addiction, cancer, and other serious illnesses. Each defendant MANUFACTURER and defendant CTR and defendant TI, acting individually and in concert, made material representations to the Federal government and the public, including the medical profession and the CANCER VICTIMS herein, regarding the composition, qualities, and nature of the cigarettes, specifically but not limited to the levels of tar and nicotine in the cigarettes, the properties of tar and nicotine, the propensities of tar and nicotine, the nature of tar and nicotine, the purpose of tar and nicotine, the need for tar and nicotine in cigarettes and the safety of tar and nicotine. That it was the purpose of each defendant MANUFACTURER and defendant CTR and defendant TI, in making these representations to deceive and defraud the public and the CANCER VICTIMS to gain the confidence of the public and the CANCER VICTIMS, to falsely ensure the quality and fitness for consumption of the cigarettes and induce the public and the CANCER VICTIMS to purchase the cigarettes for consumption. That each defendant MANUFACTURER and defendant CTR and defendant TI, made the aforementioned claims and representations and others to convince the public, including the CANCER VICTIMS, that cigarettes were fit and safe for human consumption. That each defendant MANUFACTURER and defendant CTR and defendant TI, made claims and representations in its documents submitted to the government and to the public, that nicotine was not addictive and that smoking cigarettes did not cause cancer or present a health risk. That these representations and others made by each defendant MANUFACTURER, defendant CTR and defendant TI, were false when made, and/or were made with a pretense of actual knowledge when knowledge did not actually exist, and/or were made recklessly and without regard to the actual facts. That these representations and others, made by each defendant MANUFACTURER and defendant CTR and defendant TI, were made with the intention of deceiving and defrauding the CANCER VICTIMS and were made in order to induce the CANCER VICTIMS to rely upon the representations and caused the CANCER VICTIMS to purchase, ingest, inhale and consume the cigarettes. That each defendant MANUFACTURER and defendant CTR and defendant TI, willfully and intentionally falsely represented the dangerous and addictive nature, properties and propensities of the cigarettes to the public at large and the CANCER VICTIMS in particular, for the purpose of influencing the marketing of a product known to be dangerous and defective. That each defendant MANUFACTURER, defendant CTR and defendant TI, willfully and intentionally failed to disclose the material facts regarding the dangerous and addictive nature, properties and propensities of the cigarettes by concealing and suppressing material facts regarding the dangerous and addictive nature and causal relationship to cancer, of its cigarettes. That each defendant MANUFACTURER and defendant CTR and defendant TI, willfully and intentionally failed to disclose the truth, failed to disclose material facts and made false representations with the purpose and design of deceiving and lulling the CANCER VICTIMS into a sense of security so that the CANCER VICTIMS would rely on the representations and purchase, ingest, inhale and consume the cigarettes. Each defendant MANUFACTURER, defendant CTR and defendant TI, through its massive and extensive public relations efforts which included but was not limited to advertising, press releases, and publication of "scientific" research, knew or should have known that the public, including the CANCER VICTIMS, would rely on the information being disseminated. That the CANCER VICTIMS believed the defendants' representations to be true at the time they were made and relied upon the representations as well as the superior knowledge of cigarettes possessed by defendants, and were thereby induced to purchase, inhale, ingest and consume the cigarettes. That at the time that representations were made, the CANCER VICTIMS did not know the truth with regard to the dangerous and addictive nature, properties and propensities of the cigarettes or the causal relationship between cancer and cigarettes. That the CANCER VICTIMS did not discover the true facts with respect to the cigarettes and the false representations nor could the CANCER VICTIMS with reasonable diligence have discovered the true facts. That had the CANCER VICTIMS known the true facts with respect to the dangerous and addictive nature, properties and propensities of the cigarettes and the causal relationship between cigarettes and cancer, the CANCER VICTIMS would not have purchased, inhaled, ingested or consumed the cigarettes. As a result of the willful, malicious, false and fraudulent representations of the defendant MANUFACTURERS and defendant CTR and defendant TI, the CANCER VICTIMS were caused to contract lung and/or throat cancer. AS AND FOR A FOURTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. All defendants had knowledge and expertise regarding the dangerous and addictive nature of nicotine and the causal relationship between cigarettes and cancer superior to the knowledge and expertise possessed by the CANCER VICTIMS. All defendants had knowledge of the fact that defendant MANUFACTURERS were manipulating the nicotine level in their cigarettes with the intent to addict users to the cigarettes. By virtue of the foregoing knowledge, all defendants had a duty to be truthful and accurate in their representations regarding their cigarettes. By virtue of the knowledge that cigarettes constituted a known danger, the defendant MANUFACTURERS had a duty to disclose the known dangerous propensities of cigarettes. All defendants were careless, reckless, negligent, failed to exercise reasonable care, skill or competence and exhibited a conscious disregard for the safety of the public, including the CANCER VICTIMS, in making false representations about the cigarettes. Reliance upon the representations by the public, including the CANCER VICTIMS, was foreseeable to the defendant. By failing to disclose the known dangerous propensities of cigarettes, defendant MANUFACTURERS conveyed the appearance that cigarettes were safe. Defendant MANUFACTURERS knew or should have known that the public, including the CANCER VICTIMS, would rely upon the appearance of safety created by the defendant MANUFACTURERS failure to disclose the dangers of cigarettes. The CANCER VICTIMS relied upon the representations and as a proximate cause of the aforementioned, the defendants caused the CANCER VICTIMS to suffer grievous, serious and severe permanent physical and personal injuries, mental anguish, emotional distress and pain and suffering as previously set forth. As a result of the foregoing, the CANCER VICTIMS were caused to contract lung and/or throat cancer. AS AND FOR A FIFTH CAUSE OF ACTION NEGLIGENT AND DEFECTIVE DESIGN Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. At all relevant times, defendant MANUFACTURERS caused, engaged in, and/or brought about the design, manufacture and production of their cigarettes. At all relevant times, defendant CRT caused, engaged in, and/or brought about the design of the MANUFACTURERS cigarettes. Defendant MANUFACTURERS and defendant CTR had a duty to provide a reasonably safe product in design and manufacture. At all relevant times, defendant MANUFACTURERS and defendant CTR did not test and/or failed to properly test their cigarettes for the intended use of ingestion, inhalation and consumption. At all relevant times, the defendant MANUFACTURERS and defendant CTR failed to employ the state of knowledge and technology then available to the tobacco industry. At all relevant times, defendant MANUFACTURERS and defendant CTR were grossly negligent in the manner that they tested, researched, and sold their cigarettes in that they did not learn of the addictive quality of their cigarettes and/or they learned of the addictive quality and failed to warn, give notice and inform wholesalers, retailers, consumers, purchasers, users and the CANCER VICTIMS that the cigarettes they manufactured cause cancer and are addictive. Defendant MANUFACTURERS and defendant CTR breached their duty of care by failing to design a cigarette that was not addictive and/or did not contain dangerous levels of tar and nicotine. Defendant MANUFACTURERS and defendant CTR breached their duty of care by failing to design a cigarette that did not cause cancer, and other serious health problems. Defendant MANUFACTURERS thereafter caused their cigarettes to be shipped from the place of manufacture and caused them to be delivered to a place or point within the State of New York where it was foreseeable that they would be, and were in fact, purchased by the CANCER VICTIMS. The cigarettes were by their design and/or production and/or manufacture inherently defective and dangerous in that defendant MANUFACTURERS and defendant CTR manipulated the amount of nicotine in the cigarette knowing that nicotine was dangerous, hazardous and addictive. The cigarettes were by their design and/or production and/or manufacture inherently defective and dangerous in that defendant MANUFACTURERS, defendant CTR and defendant TI, knew or should have known that the cigarettes would cause cancer. The CANCER VICTIMS used the cigarettes for the purpose and in the manner normally intended. As a result of the CANCER VICTIMS using the cigarettes in the manner in which they were intended, the CANCER VICTIMS contracted lung and/or throat cancer by reason of the defect in the product; and which defect was the sole and/or substantial cause and/or factor in bringing about the injuries and damage. The CANCER VICTIMS would not by the exercise of reasonable care have discovered the defect and perceived its danger. Defendant MANUFACTURERS, defendant CTR and defendant TI, their agents, servants and/or employees, were careless and grossly negligent in the manufacture, production, compounding, fabrication, analyzing, and testing of their cigarettes and failed to conduct proper and sufficient tests to determine the dangers thereof; in failing to employ the technology and testing available to the tobacco and health communities in order to determine whether cigarettes were safe; in carelessly, negligently and recklessly producing, manufacturing, developing, promoting, advertising and distributing cigarettes when their efficacy and safety had never been established by testing or otherwise; in carelessly and negligently manufacturing, producing, compounding, fabricating, and analyzing, cigarettes without sufficient knowledge as to their dangerous propensities; in negligently and carelessly representing that cigarettes were safe for use for the purposes intended when in fact, they were unsafe for use as aforesaid; in negligently and carelessly manufacturing, producing, compounding, fabricating, analyzing, testing, and promoting cigarettes as safe when in fact, proper testing would have disclosed and/or did disclose that they were not reasonably safe for the intended purpose; in failing to act in a reasonably prudent manner; in consulting, collaborating and in consciously acting jointly and in concert with others in the manufacture, production, compounding, fabrication, analyzing, distributing, selling and testing, and recommendation of cigarettes for use; in failing to consider, review, study, evaluate and confirm the available medical studies, literature, reports, tests and other data available to the tobacco industry prior to manufacturing, producing, compounding, fabricating, analyzing, testing, distributing, selling and recommending cigarettes; in carelessly, negligently and consciously pursuing a common plan or design in the commission of tortious acts and in actively taking part and furthering, either by cooperation, request or agreement, by lending aid and encouragement, all designed to ratify and adopt each other's acts for the benefit of widely manufacturing, producing, selling, distributing, compounding, fabricating, and recommending cigarettes; in failing to adequately test and warn the general public and the CANCER VICTIMS of their negligent and careless manufacturing, producing, compounding, fabrication, analyzing, testing, and recommendation of cigarettes. As a result of the foregoing, the CANCER VICTIMS were caused to contract lung and/or throat cancer. AS AND FOR A SIXTH CAUSE OF ACTION STRICT PRODUCT LIABILITY Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Defendant MANUFACTURERS, while regularly engaged in the business activities aforementioned, did design, develop, manufacture, produce, sell, market, and/or distribute cigarettes which were inhaled, ingested and consumed by the CANCER VICTIMS. That the cigarettes were expected to and did reach the usual consumers, including the CANCER VICTIMS, without substantial change in the condition in which they were produced, manufactured, sold, distributed and marketed by the defendant MANUFACTURERS. At the time of the inhalation, ingestion and consumption of the cigarettes by the CANCER VICTIMS, the cigarettes were being used for the purposes and in a manner normally intended. Defendant MANUFACTURERS, defendant CTR and defendant TI, knew or should have known that at all times herein mentioned the cigarettes were in a defective condition, inherently dangerous and unsafe. Defendant MANUFACTURERS and defendant CTR, with this knowledge, voluntarily designed their cigarettes in a dangerous condition for consumption by the public and, in particular the CANCER VICTIMS. Defendant MANUFACTURERS, and to the extent that defendant CTR and defendant TI provided assistance to defendant MANUFACTURERS, had a duty to create a product that was not unreasonably dangerous for its normal, intended use. Defendant MANUFACTURERS, aided and abetted by defendant CTR and defendant TI, created a product unreasonably dangerous for its normal, intended use. Defendant MANUFACTURERS, by including tar and nicotine, among other substances, in their cigarettes, designed and created a product that is defective even though it was manufactured in accordance with its design. Defendant MANUFACTURERS, by manipulating the level of nicotine in their cigarettes, designed and created a product that is defective even though it was manufactured in accordance with its design. Defendant MANUFACTURERS, aided and abetted by defendant CTR and defendant TI, have designed, manufactured and distributed a defective product which created an unreasonable risk to the health of consumers and the CANCER VICTIMS in particular and defendants are therefore strictly liable for the injuries they caused to the CANCER VICTIMS by the intended use of this defective product. That said defects were a substantial factor in causing the CANCER VICTIMS' lung and/or throat cancer. The CANCER VICTIMS could not by the exercise of reasonable care, have discovered the defects herein mentioned and/or perceived their danger. By reason of the foregoing, the defendant MANUFACTURERS, defendant CTR and defendant TI, have become strictly liable in tort to the CANCER VICTIMS for the marketing of a defective product which caused the CANCER VICTIMS lung and/or throat cancer. As a result of the foregoing, the CANCER VICTIMS were caused to contract lung and/or throat cancer. AS AND FOR A SEVENTH CAUSE OF ACTION BREACH OF EXPRESS WARRANTY Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Defendant MANUFACTURERS, defendant CTR and defendant TI, made assertions of fact relating to the cigarettes they manufactured, marketed, sold and distributed in documents they submitted to the government, public and the CANCER VICTIMS through advertising, literature, detailmen, brochures and other materials, including but not limited to the effect that cigarettes were fit and safe for human consumption, that nicotine was not addictive and that smoking cigarettes did not cause cancer or present other health risks. Defendant MANUFACTURERS, defendant CTR and defendant TI, had a duty to make assertions of fact that were truthful, honest and accurate. These assertions of fact were express warranties that were relied upon by the CANCER VICTIMS when purchasing the cigarettes designed, manufactured and distributed by defendant MANUFACTURERS. Defendant MANUFACTURERS breached these warranties by offering for sale cigarettes that contained dangerous, hazardous, carcinogenic and addictive substances, including but not limited to tar and nicotine. As a result of the foregoing, the CANCER VICTIMS, were caused to contract lung and/or throat cancer. AS AND FOR A EIGHTH CAUSE OF ACTION BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Defendant MANUFACTURERS, as the manufacturers, sellers, marketers and distributors of their cigarettes, and defendant CTR and defendant TI, to the extent that they assisted, aided and abetted defendant MANUFACTURERS, impliedly warranted that their cigarettes were merchantable and fit for the ordinary purposes for which they were used. Defendant MANUFACTURERS, defendant CTR and defendant TI, to the extent that they assisted, aided and abetted defendant MANUFACTURERS, knew or should have known that in fact said warranties were false and untrue in that cigarettes were not safe and not fit for the use intended, and were not of merchantable quality. Defendant MANUFACTURERS' cigarettes are cancer-causing, addictive and unreasonably dangerous to the health and well being of those who used the cigarettes in the manner in which they were intended. Defendant MANUFACTURERS, defendant CTR and defendant TI, to the extent that they assisted, aided and abetted defendant MANUFACTURERS, breached this warranty by knowingly designing and manufacturing, distributing and selling a product which contained harmful, carcinogenic, and addictive ingredients, including but not limited to tar and nicotine, and was therefore not fit for its ordinary and intended purpose. As a result of the foregoing, the CANCER VICTIMS were caused to contract lung and/or throat cancer. AS AND FOR AN NINTH CAUSE OF ACTION BREACH OF IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE Plaintiffs on behalf of themselves and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Defendant MANUFACTURERS, as the manufacturers, distributors, marketers and sellers of their cigarettes, impliedly warranted that their cigarettes were fit for the particular purposes for which they were used. Defendant MANUFACTURERS, defendant CTR and defendant TI, to the extent that they assisted, aided and abetted defendant MANUFACTURERS, knew or should have known that consumers, including the CANCER VICTIMS, would rely upon the skill and knowledge of the defendant MANUFACTURERS, defendant CTR and defendant TI, to furnish cigarettes that were suitable for the particular purpose intended. Defendant MANUFACTURERS, by including tar and nicotine in their cigarettes, created a product with a concealed hazard which was inherently dangerous because of its carcinogenic and addictive properties. Defendant MANUFACTURERS, in manipulating the level of nicotine in their cigarettes, created a product with a concealed hazard which was inherently dangerous because of its addictive and carcinogenic properties. Defendant MANUFACTURERS, defendant CTR and defendant TI, because of their superior knowledge and testing of their cigarettes, knew or should have known that consumers, including the CANCER VICTIMS, would rely on the special knowledge of defendant MANUFACTURERS, defendant CTR and defendant TI, in determining whether the cigarettes were fit for the particular purpose for which they were intended. Defendant MANUFACTURERS, aided and abetted by defendant CTR and defendant TI, breached the implied warranty of fitness for a particular purpose by manufacturing, distributing and selling cigarettes which were not fit for their particular purpose. As a result of the foregoing, the CANCER VICTIMS were caused to contract lung and/or throat cancer. AS AND FOR A TENTH CAUSE OF ACTION ON BEHALF OF THE SPOUSES OF THE CANCER VICTIMS Plaintiff, WILLIAM GEIGER, on behalf of him/herself and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Plaintiff WILLIAM GEIGER was married to ANITA GEIGER as each of the other members of this class was married to a CANCER VICTIM, and as such was entitled to the services, society and companionship of their respective spouses. That as a result of the foregoing, plaintiff WILLIAM GEIGER and those similarly situated spouses of the CANCER VICTIMS, were caused to sustain the loss of services, income, society, consortium, and companionship of their spouses and were caused to incur medical expenses on behalf of the CANCER VICTIMS. AS AND FOR A ELEVENTH CAUSE OF ACTION ON BEHALF OF THE ESTATES OF THE DECEASED CANCER VICTIMS Plaintiff, WILLIAM GEIGER on behalf of him/herself and all others similarly situated Estate Representatives, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. That as a result of the foregoing, lung and/or throat cancer ANITA GEIGER and others similarly situated, were caused to die. That ANITA GEIGER and each of the other similarly situated CANCER VICTIMS who were caused to die, left heirs, next of kin and/or distributees surviving who, by reason of their respective decedent's deaths, have suffered a pecuniary loss including, but not limited to, support, income, services and guidance of the decedents and were all permanently damaged. At all times herein mentioned, the actions of the defendants and their agents, servants and/or employees, were wanton, grossly negligent, reckless and demonstrated a complete disregard and reckless indifference to the safety and welfare of the general public and to the CANCER VICTIMS and those similarly situated, particularly. AS AND FOR A TWELFTH CAUSE OF ACTION ON BEHALF OF THE SPOUSES OF THE CANCER VICTIMS Plaintiff, WILLIAM GEIGER on behalf of him/herself and all others similarly situated, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. Plaintiff WILLIAM GEIGER was married to ANITA GEIGER as each of the other members of this class was married to a CANCER VICTIM, and as such was entitled to the services, society and companionship of their respective spouses. That as a result of the foregoing, plaintiff WILLIAM GEIGER, and those similarly situated spouses of the CANCER VICTIMS, were caused to sustain the loss of services, income, society, consortium, and companionship of their spouses and were caused to incur medical expenses on behalf of the CANCER VICTIMS. AS AND FOR A THIRTEENTH CAUSE OF ACTION ON BEHALF OF THE ESTATES OF THE DECEASED CANCER VICTIMS Plaintiff, WILLIAM GEIGER, on behalf of him/herself and all others similarly situated Estate Representatives, repeats, reiterates and realleges each and every allegation contained in the preceding paragraphs with the same force and effect as if hereinafter set forth at length. That as a result of the foregoing, lung and/or throat cancer ANITA GEIGER and others similarly situated, were caused to die. That ANITA GEIGER and each of the other similarly situated CANCER VICTIMS who were caused to die, left heirs, next of kin and/or distributees surviving who, by reason of their respective decedent's deaths, have suffered a pecuniary loss including, but not limited to, support, income, services and guidance of the decedents and were all permanently damaged. At all times herein mentioned, the actions of the defendants and their agents, servants and/or employees, were wanton, grossly negligent, reckless and demonstrated a complete disregard and reckless indifference to the safety and welfare of the general public and to the CANCER VICTIMS and those similarly situated, particularly. PRAYER FOR RELIEF WHEREFORE, plaintiffs, on behalf of themselves and all others similarly situated demand judgment against the defendants, jointly and severally, as follows: 1. For an Order certifying the Classes as set forth above and appointing plaintiffs and their counsel to represent the Classes; 2. Awarding compensatory damages to plaintiffs and the class for past and future damages, including but not limited to pain and suffering for injuries sustained by the respective classes, and health care costs, together with interest and costs as provided by law; 3. Punitive and exemplary damages for the wanton, grossly negligent, reckless acts of the defendants who demonstrated a complete disregard and reckless indifference to the safety and welfare of the general public and to these plaintiffs and those similarly situated in an amount sufficient to punish defendants and deter future similar conduct; 4. Awarding plaintiffs reasonable attorneys fees; 5. Awarding plaintiffs the costs of these proceedings; 6. Such other and further relief as this Court deems just and proper. Dated: New York, New York May 1, 1997 Yours, etc., FINZ & FINZ, P.C. Attorneys for Plaintiffs 222 Broadway - 27th Floor New York, New York 10038 (212) 513-1000 STANLEY R.WAXMAN, P.C. Attorneys for Plaintiffs 330 Old Country Road Mineola, New York 11501 (516) 877-1000 FINZ & FINZ, P.C. ATTORNEYS VERIFICATION STATE OF NEW YORK : ss : COUNTY OF NEW YORK Jay L. Feigenbaum, an attorney and counsellor at law, duly admitted to practice in the Courts of the State of New York and associated with the FINZ & FINZ, P.C., attorneys for plaintiff herein, affirms the following to be true under penalties of perjury: I have read the foregoing COMPLAINT and know the contents thereof, and upon information and belief, I believe the matters alleged therein to be true. The reason this verification is made by deponent and not by plaintiff is that plaintiff reside in a county other than the one in which your deponent's office is maintained. The source of your deponent's information and the grounds of my belief are communications, papers, reports and investigations contained in my file. Dated: New York, New York May 1, 1997 ______________________________ JAY L. FEIGENBAUM
|
ACTION ON SMOKING AND HEALTH (ASH)
A National Legal-Action Antismoking Organization 2013 H Street, NW / Washington, DC 20006 / (202) 659-4310 |