The medical evidence is quite strong as to tobacco causation of lung cancer. However, this leaves several legal questions to be answered before a plaintiff can recover from a cigarette manufacturer. The primary question at hand is: Do cigarette manufacturers impliedly warrant that their product is not dangerous to health; or, if not, do they have a duty to warn the public or the consumers in some direct way of the probable dangers to health in smoking. To phrase it differently, recovery will most likely lie in either implied warranty or in negligence, until statutory provisions are made to help with the problem.
Richard H. Burgess, Lung Cancer Liability of Cigarette Manufacturers, 10 Clev.-Marshall L. Rev. 35 (1961)