The 1969 amendments, however, did not preempt claims based on express warranty, intentional fraud and misrepresentation, or conspiracy.

In a split opinion, the Court held that the Surgeon General's warning did not preclude lawsuits by smokers against tobacco companies on the basis of several claims.

[citation needed] The case examined whether tobacco companies could be liable for not warning the consumer "adequately" of the dangers of cigarettes as well as ultimately held the stance that smoking was in fact a free choice.

Tobacco and smoking began to be engraved in the culture and lifestyle of the American public, associated with things such as "sexy, cool, masculine".

With medical evidence more advanced than in previous decades, the association between smoking and diseases like cancer was becoming ever more prevalent, leaving tobacco companies less options to hide from this truth.

In addition to liability laws being changed from the time of the 1950s, plaintiffs no longer had to prove negligence on the part of the company with regards to their product but expose a defect.

In 1968, Rose switched to smoking Parliament brand cigarettes, citing conditions attributed to her health as her reasoning.

Her options at this point were to either quit smoking or switch to this brand of cigarette with its advertised plastic filter inserts.

Recommended by her chest surgeon, Marc Edell was skilled in the art of going after companies and their negligence to protect consumer health.

From that case, Edell became familiar with “pulmonary pathology and risks of smoking” and became interested in litigation against the tobacco industry.

He gathered facts to bring a series of claims to the court that argued the following: Liggett and Myers, Philip Morris, and Lorillard all cited the 1965 Federal Cigarette Labeling and Advertisement Act.

[6][3] In the retrial, Edell was not allowed to enter evidence claiming that Liggett & Myers had worked on the creation of a safer cigarette.

He also was not allowed to bring evidence regarding the tobacco industry's “duty to warn” of the dangers of cigarette smoking.

The tobacco companies unsuccessfully struggled to suppress the evidence papers obtained by Edell on the grounds that it would "divulge trade secrets"; the trial court judge, Sarokin, ruled that the people and the court had the Constitutional right to know what the companies know and granted the use of the papers.

[2][3] Alongside the tobacco industry documents, Edell argued that the powerful advertising for the brands Cipollone smoked was an unscrupulous strategy utilized by the tobacco industry to not only overshadow the warning labels mandated by the federal government, but also to promote cigarette use and nicotine addiction as a marketing strategy for company profit.

Edell made sure that Cipollone was portrayed as a woman who was disparaged by her powerful addiction to the tobacco industry's product; expert testimony showed that she even displayed withdrawal symptoms, sometimes digging through “the trash for butts when she ran out of cigarettes”.

As research and the industry documents were used in trial, Edell failed to show any explicit proof that lung cancer is linked directly to smoking.

Cipollone's constant switching between “healthier” brands also showed her acknowledgment of the dangers of smoking, argued by the defense.

[2][3] The jury deliberated for 6 days, and reached the verdict on June 3, 1988[1]—considering the conspiracy claims and the lack of expression in warranty and warning argued by Edell.

[1] The Cigarette Labeling and Advertising Act of 1966, which excludes all manufacturers who label their packages with proper warnings from requirement or prohibition, led the majority of the court to the opinion that: The majority ruling by the Supreme Court limited the potential litigants in lawsuits against tobacco industries to only smokers who developed diseases prior to 1969.

The opinion did not exclude fraud and conspiracy or express warranty, as section 5b of the 1969 Act does not explicitly define this;[1] The Supreme Court also stated that if the plaintiff, Edell and Cipollone's son in this case, could prove any of the following: then a new case can be filed, as there is no discussion of tort litigation or damage claims in the Act.

The retrial never occurred; the $400,000 verdict for Cipollone from the original trial was far eclipsed by the exorbitant costs and length of the lawsuit.

[9] In 1988, Phillip Morris was quoted as saying: "Almost 200 lawsuits have been brought in the last five and a half years and the cigarette manufacturers have not ... paid a penny to settle one.

"[9] As of 1992, the law firms handling Cipollone and seven other tobacco litigation cases had "incurred approximately $1.2 million in out-of-pocket expenses ...

They were the first to introduce the concept of a conspiracy by tobacco companies to keep the public misinformed on the dangers of smoking and that there was a "safer cigarette" hidden in the shadows.