After Judtith Tormey, a nonsmoker, died of cancer in May 2004, her widower, Thomas Tormey, sued the major American cigarette manufacturers, alleging that her cancer was caused by her exposure to secondhand smoke. The Onondaga County Supreme Court granted the defendants’ motion to dismiss several claims and then ruled on a motion for summary judgment filed by the defendants. The trial court, interpreting the preemption language of the Federal Cigarette Labeling and Advertising Act (FCLAA) and the U.S. Supreme Court’s 1992 decision in Cipollone v. Liggett Group (505 U.S. 504), ruled that the plaintiff’s claim that the companies failed to warn about the hazards of secondhand smoke are preempted even though they are based not on the decedent’s smoking but on the smoking of others. A panel of the Supreme Court’s Appellate Division affirmed, ruling that the plaintiff’s failure-to-warn claim “is necessarily ‘based on smoking and health,’ and therefore is preempted by the Act.”
Tormey v. The American Tobacco Co., 2008 N.Y. Slip Op. 770, 2008 N.Y. App. Div. LEXIS 706.