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Camryn Hansen
Camryn Hansen
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Should Consumers have to Design Alternative Products to the Defective Ones that Harmed Them? An Open Cigarette Case in Florida May Decide.

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A cigarette case argued this week in the Florida Supreme Court may ultimately change the future of tobacco and other product liability in that state. On Thursday, to answer the question of whether former Chesterfield cigarette manufacturer Liggett Group should award damages for allegedly producing defective cigarettes, the Justices were asked whether plaintiffs should have to provide an alternative, safer design to products they claim to be defective in order to prove liability.

Chief Justice Peggy Quince worried that requiring consumers to be the ones to come up with safer product designs would put them in “a very, very difficult position,” noting that such a requirement would mean that every consumer who sued for a defective product would have to hire his or her own product engineer.

Justice Barbara Pariente said that such a requirement would trump all precedent. “Very often a plaintiff does as part of the risk utility show what else was out there. Good plaintiff attorneys are doing it,” she said. “But the way it’s being argued as the plaintiff’s sole burden to show it and the sole way to show defect would turn products liability on its head.”

The plaintiff in this case is Beverly Davis, a lifelong Chesterfield smoker who was awarded $540,000 by Broward Circuit Court for her claim against the Liggett Group, which argued the company was negligent for manufacturing cigarettes it knew to be particularly harmful (Chesterfields contain higher tar levels than other brands) as well as defective.

Florida’s 4th District Court of Appeal threw out the negligence verdict but upheld the design defect verdict. Significantly, it also turned over to the state Supreme Court the question of whether a plaintiff should be required to provide alternate product designs for products they claim defective.

Liggett’s attorney, Alvin Davis, argued that the plaintiff should be forced to provide an alternative design. His position has been supported in friend-of-the-court-briefs by a number of business groups, including the US Chamber of Commerce and Associated Industries of Florida, who have both argued that there should be no liability without a reasonable alternative design.

The original plaintiff, Beverly Davis, who took up smoking at 15 and smoked until she was diagnosed with lung cancer in 2001, died at age 69 during the appeal. Her personal representative, Scott Davis, is carrying on the case in her stead.