Case Name:

DAWN APOSTOLOU-MOUSA as the Administratrix of
the Estate of BONNIE APOSTOLOU,
Plaintiffs,

vs.

THE AMERICAN TOBACCO COMPANY, et al.,
Defendants.

SUPREME COURT OF NEW YORK
KINGS COUNTY
Index No. 34734/00

Case Background:

The plaintiff, Dawn Apostolou-Mousa, is the administratrix of the estate of her mother, Bonnie Apostolou.  The defendants are the major cigarette manufacturers: Philip Morris Inc., R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., Brwon & Williamson Tobacco Corp. and the Liggett Group, Inc.   Two other defendants are the Council for Tobacco Research and the Tobacco Institute.

The trial took place in the New York Supreme Court (a trial court), Kings County, Brooklyn, New York.  The trial judge was Herbert Kramer, who also presided over the Andderson trial last summer in which the jury rejected the claims of a lung cancer survivor against several tobacco industry defendants.

In this trial, the plaintiff's causes of action included: 1) failure to warn prior to 1969; 2) fraud and deceit; 3) negligent misrepresentation; 4) negligent and defective design; 5) strict product liability; 6) breach of express warranty; 7) breach of implied warranty; and 8) breach of implied warranty of fitness for a particular purpose.  The plaintiff also alleges that the defendants engaged in a conspiracy and asserts a wrongful death claim.

The defendants denied all of the plaintiff's claims, relying on their traditional "blame-the-victim" defense.  The defendants allege that Bonnie Apostolou "knew" the risks of smoking at the same time that the companies were publicly denying those risks and asserting that smoking had yet to be "proven" to cause disease in human beings.

In the opening phase of this case, a six-woman jury in Brooklyn decided on November 20, 2000 that smoking over a period of 32 years was a substantial cause of the lung cancer that killed Bonnie Apostolou in 1996.  The jury rejected the tobacco companies' contention that no one can prove to a reasonable certainty that smoking caused her fatal cancer.

In Phase II of the case addressing the defendants' liability, the same jury ruled on January 16, 2001, that Philip Morris and the other tobacco industry defendants were not liable for Bonnie Apostolou's death from lung cancer, despite its previous finding that cigarette smoking caused the death.  The jury ruled that Ms. Apostolou had expressly assumed the risk of smoking and therefore could not hold the manufacturers of the product liable for her injury and death.

The plaintiff's firm is Finz & Finz, which was today handed its second defeat in a tobacco trial in Brooklyn in the past year has vowed to appeal the verdict. 
 

Comment: 

Edward Sweda, Senior Staff Attorney for the Tobacco Products Liability Project at Northeastern University School of Law reacted to today's verdict: "The jury's verdict is not consistent with the decision it rendered in November during Phase I of this case. I will be interested in the results of any post-trial interviews to see if any jury members give us some indication as to how it could have returned the verdict it did."