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Major v. R.J. Reynolds Tobacco Co.

California Court of Appeals, Second District, Eighth Division

August 30, 2017

TAJIE MAJOR., Plaintiff and Appellant,
R.J. REYNOLDS TOBACCO COMPANY, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC473650 Amy D. Hogue, Judge. Affirmed.

          Jones Day, Steven N. Geise, Gregory G. Katsas and Charles R.A. Morse for Defendant and Appellant.

          Brayton Purcell, Gilbert L. Purcell, Richard M. Grant and Jason M. Rose for Plaintiff and Appellant.

          RUBIN, ACTING P. J.

         William E. Major smoked two packs of cigarettes a day, on average, from 1961 to 1989. He was diagnosed with lung cancer in 1997, and died a year later. His wife, plaintiff Tajie Major, brought suit against several manufacturers of cigarettes Major had smoked, as well as manufacturers of asbestos to which he had been exposed, alleging that Major's smoking and his asbestos exposure caused his lung cancer and death.[1] All defendants but one settled, and plaintiff proceeded to trial against only Lorillard Tobacco Company, the manufacturer of Kent and Newport cigarettes.[2] After trial, the jury concluded that Lorillard's cigarettes were defectively designed, and that their design was a substantial factor in causing Major's death. In allocating responsibility for plaintiff's damages, the jury determined Major was 50 percent liable, Lorillard was 17 percent liable, other cigarette manufacturers were 33 percent liable, and asbestos exposure was not a substantial factor. After making appropriate allowances for comparative negligence and settlements, judgment was entered against Lorillard for an amount in excess of $3.75 million, plus costs and interest.

         Lorillard appeals, arguing: (1) federal law preempts liability on the theory pursued; (2) the trial court erred in refusing its proposed jury instruction that the sale of cigarettes is lawful; (3) the trial court erred in refusing to instruct the jury on “but-for” causation; (4) there is insufficient evidence that any defective design of Lorillard's cigarettes caused Major's death, in that Major would not have smoked any conceivable non-defective cigarette; and (5) the trial court erred in excluding evidence of Major's asbestos exposure, in the form of admissions in Mrs. Major's complaint, discovery responses, and claims against asbestos bankruptcy trusts. Mrs. Major cross-appeals, arguing the court erred in calculating the prejudgment interest to which she was entitled. We reject each of these arguments and affirm both the appeal and cross-appeal.

         In doing so, we conclude, among other things, that: (1) Congress has expressed no intent to foreclose tort liability against cigarette manufacturers, even if liability may have some negative impact on the sale of cigarettes; and (2) but-for causation does not apply in a case of multiple causes, different combinations of which are sufficient to have caused the harm.


         1. Major's Smoking History

         There is no serious dispute that Major smoked heavily from 1961 until he quit in 1989. What is not entirely clear is when he smoked Lorillard cigarettes, specifically Kents and Newports, as opposed to other brands. Mrs. Major testified that she did not recall Major being exclusive to any one brand, although she remembered seeing him smoke Kents, Marlboros and Winstons. In one interrogatory answer, which Lorillard entered into evidence, Mrs. Major stated that Major smoked Winstons from 1961 to 1965; Marlboros from 1961 to 1984; and Kents from 1984 to 1989. However, anecdotal evidence reflects Major's use of Lorillard cigarettes was not limited to the 1984-1989 period. A Navy colleague testified that, in Spring 1973, Major was smoking Kents and Newports. From that point until March 1975, he saw Major smoking Kents and (once) Marlboros. One of Major's daughters testified that Major smoked Kents between 1979 and 1981. In short, the jury appears to have concluded that Lorillard cigarettes accounted for approximately one-third of the harm Major suffered from cigarettes - a conclusion broadly supported by the evidence that he smoked Lorillard cigarettes, although not exclusively, during 12 years of his nearly 30-year smoking history.

         Major quit smoking in 1989. It was hard. Later, when he encouraged his daughter to get her husband to quit, he told her that “[i]t's going to be hard to quit” and “[i]t's really tough to quit.” Before he stopped, Major had tried to quit perhaps four times; each attempt had been unsuccessful and he had resumed the habit. Major's smoking history was in line with expert testimony that, due to nicotine addiction, only three percent of smokers' attempts to quit are successful and, on average, it takes seven or eight years for a smoker to stop smoking once he or she has chosen to do so.

         2. Major's Cancer and Death

         In 1997, Major was diagnosed with small cell lung cancer, which the lung pathologist expert described as a “bad, bad type of cancer.” It metastasized to Major's lymph nodes, brain, liver and bone. He was dead in a year. There is no dispute that Major's lung cancer was caused, at least in part, by cigarette smoke carcinogens. At trial, Lorillard questioned whether it was not also caused by asbestos exposure. On that, the medical evidence was, at best, inconclusive. There was no evidence that Major had asbestosis or chest cavity scarring caused by asbestos. While this did not exclude asbestos as a cause of Major's lung cancer, most people who have asbestos-caused lung cancer “usually” also present with evidence of a scar disease specific to asbestos.

         3. Plaintiff's First Action

         In January 1999, plaintiff brought suit against Lorillard, two other cigarette manufacturers, and numerous asbestos manufacturers (the “First Action”). She alleged that Major's cancer was caused by exposure to both asbestos and cigarettes.

         4. The Action is Dismissed and Refiled Six Years Later

         In 2005, the parties then remaining in the First Action agreed to a dismissal without prejudice (the “Dismissal Agreement”). At that time, several smoking-related cases were then pending in appellate courts, and the parties concluded that those cases might control, or at least affect, the disposition of this one. The parties agreed that plaintiff could refile her action after the appellate cases had been resolved, and that, if she did, “[a]ll prior costs and C.C.P. § 998 offers will be tacked onto and applicable to, any refiled Action.” The Dismissal Agreement is at issue here solely in connection with plaintiff's cross-appeal.

         The case was ultimately refiled in 2011.

         5. The Operative Complaint

         The operative pleading in the refiled action is Mrs. Major's first amended complaint, filed in February 2012. By this time, plaintiff had resolved her disputes with the asbestos manufacturers, and the only defendants were cigarette companies. Nonetheless, the operative complaint still alleged that Major's cancer had been caused by “the exposure to asbestos and tobacco.”

         Mrs. Major alleged two wrongful death causes of action: negligence and products liability. She alleged that defendants' cigarettes were defective when used as intended, and their risks outweighed their benefits.

         6. The Trial

         The other cigarette company defendants settled, and the case proceeded to jury trial against Lorillard, on the theory of design defect under the risk/benefit test, and negligent design which, in this case, was virtually identical to the risk/benefit theory. What was remarkable about the case was that Lorillard called no witnesses on its own behalf; the only testimony it elicited was through cross-examination of plaintiff's witnesses.

         A. Evidence That Lorillard's Cigarettes Were Defective

         On the issue of Lorillard's defective design, plaintiff elicited expert testimony to the following effect: (1) cigarettes are highly-engineered products, with design choices being made on every possible detail, including, for example, the length and diameter of the cigarette, the weight of the tobacco, the type of filter, the density of the coating over the inside of the filter, and the flavor additives; (2) cigarette “tar” -- the chemicals produced by smoking - includes 69 identifiable carcinogens; (3) at the time plaintiff was smoking Lorillard cigarettes, the state of the art was such that cigarette manufacturers could have made a no-tar cigarette, both as a traditional cigarette (which actually was marketed at the time) and as an aerosolized e-cigarette (which was not); and (4) nonetheless, Lorillard continued to sell Kent and Newport cigarettes, which contained substantial tar. Lorillard did not contest any of this evidence, but instead suggested that a no-tar cigarette was not a commercially viable alternative design, in that although there were a few no-tar brands marketed, very few smokers found them satisfying. Plaintiff's expert agreed that no-tar cigarettes would not be used by the majority of smokers, as long as higher tar cigarettes remained on the market.

         B. Evidence That the Design of Lorillard's Cigarettes Was a Cause of Major's Cancer

         As to whether the design of Lorillard's cigarettes was a substantial factor in causing Major's cancer, it was not disputed that cigarette smoking itself played a substantial factor in causing the cancer. The issue at trial was whether the design of Lorillard's cigarettes was a substantial factor, as opposed to the simple fact that Major smoked. Plaintiff presented expert testimony that lung cancer is a total dose/response disease, meaning that “the more that you are exposed to a carcinogen..., the lot more likely you are going to develop a disease that is caused by it.” One might infer that if the design of Lorillard's cigarettes resulted in an increased exposure to carcinogens (which they did, compared to a no-tar alternative), the design would also result in an increased risk of cancer. This was made explicit in expert testimony. Plaintiff's lung pathology expert agreed that if the design of Lorillard's cigarettes resulted in increased exposure to carcinogens, there is no doubt that those increased exposures “would be causal specifically in Captain Major's lung cancer.” The expert testified that it is scientifically impossible to assign causal exposures to parts of an overall aggregate dose. The best science can do is say that “all of the carcinogens that he was exposed to contributed to cause his small cell lung cancer.” The expert implicated every cigarette Major smoked from birth to 1987 as a substantial factor in his lung cancer.

         C. Evidence Pertaining to Asbestos

         One of Lorillard's theories of defense was that, even conceding its cigarettes contributed in some way to Major's cancer, the cancer could be attributed to Major's smoking of other cigarettes combined with his asbestos exposure. Expert testimony indicated that asbestos and cigarette smoke carcinogens work synergistically to create an increased risk of lung cancer over and above the risk caused by simply adding together the risks caused by the total exposures. That Major smoked other brands of cigarettes, for many years, is uncontroverted. It is also uncontroverted that he was exposed to asbestos. What was controverted was whether his asbestos exposure was a substantial factor in his development of lung cancer.

         Plaintiff's counsel, in his opening statement, conceded probable asbestos exposure, stating, “there's no question that Captain Major, when we go through his career, was aboard ship and doing things where there was significant activity of asbestos products in his vicinity, and he probably had some exposure to it.” But counsel did not concede causation from asbestos, stating, “the evidence will show you that [Major's cancer] was certainly caused by cigarettes and may have also been contributed to by asbestos exposure [that] he had.”

         Plaintiff's lung pathology expert testified that there was no evidence of asbestos-related lung scarring, which is usually seen when a lung cancer is caused by asbestos. He conceded, though, that he had been looking at a small tissue sample which was “probably not enough, really, to make an absolute conclusion.” He agreed that Major had been exposed to asbestos, and testified that Major's cancer might have involved both cigarettes and asbestos. In cross-examination based on Mrs. Major's interrogatory responses, the expert conceded that if the interrogatory responses were true, Major suffered significant exposure to asbestos and asbestos “was a cause” of Major's lung cancer. At one point he testified that Major's lung cancer “was caused by the combined effect of asbestos and the carcinogens in cigarette smoke.” On redirect, the expert explained that, prior to trial, he did not have sufficient information regarding Major's asbestos exposure to reach opinions regarding asbestos. He agreed that if Major had been exposed to asbestos and cigarette smoke carcinogens, both contributed to his cancer. Other than the fact that Major had been exposed to asbestos, there was no medical evidence - such as test results or lung scarring - showing that Major was afflicted with an asbestos-related disease.

         Plaintiff's expert pulmonologist testified similarly. It is not necessary to have asbestosis in order to have an asbestos-caused lung cancer, but it is “common” for them to present together. Major did not have radiologic evidence of an exposure to asbestos sufficient to cause a scar response. The pulmonologist could not say that asbestos contributed to Major's malignancy, nor could he exclude it as a cause. However, he conceded that he did not have a sufficient understanding of Major's work history to determine if asbestos had been involved.[3]

         Prompted by the testimony of plaintiff's experts, Lorillard wanted to introduce evidence of Major's exposure to asbestos. Specifically, it sought to introduce excerpts from Mrs. Major's complaint, Mrs. Major's admissions in interrogatories, and Mrs. Major's assertions in claims against asbestos bankruptcy trusts, which would show both Major's history of asbestos exposure and Mrs. Major's legal assertion that the asbestos exposure was a factor in causing Major's cancer. Mrs. Major objected, and the asbestos evidence which defendant was permitted to introduce was limited by the trial court's rulings and, in one case, by a stipulation by the parties. Lorillard challenges these rulings on appeal, and we will discuss them at length in the Discussion section of our opinion.

         We describe here the evidence which Lorillard was permitted to introduce at trial. It included a lengthy discussion of Major's job history, including the many years he spent as a Naval officer. This specifically referenced asbestos exposure in several situations, as excerpted here: “Decedent was exposed to asbestos-containing materials installed on the [U.S.S.] England, including those installed prior to the time he served on board.... Decedent qualified as a surface warfare officer, which required him to regularly stand watch in the engine rooms. Decedent was exposed to asbestos-containing materials installed on the [U.S.S.] Fox prior to the time he served on board....” The interrogatory answer, as read to the jury, ended with, “At all of the above sites, decedent worked with or around asbestos-containing materials....” Finally, Lorillard read an interrogatory answer in which Mrs. Major stated that Major “suffered significant exposure to asbestos-containing products in the U.S. Navy. Plaintiff further responds that she does not have sufficient personal knowledge to identify and describe each and every exposure to asbestos decedent suffered throughout his lifetime.”

         7. The Verdict

         On a special verdict, the jury unanimously concluded that the design of Lorillard's cigarettes was a substantial factor causing harm to Major, and that the risks outweighed the benefits of their design. Major's negligence was also found to be a substantial factor, as were other cigarette manufacturers; asbestos exposure was not. Fault was allocated 50 percent to Major, 33 percent to the other cigarette manufacturers, and 17 percent to Lorillard. The jury calculated economic damages at $2, 736, 700, and non-economic damages at $15 million. No punitive damages had been sought.

         8. The Judgment

         The court denied Lorillard's motions for a new trial and judgment notwithstanding the verdict. Reducing the damages for comparative negligence and giving credit for settlements with other tortfeasors, judgment was entered for plaintiff in the amount of $3, 780, 100.93, plus interest and costs.

         9. Prejudgment Interest

         It is undisputed that, in connection with the First Action, plaintiff had served, and defendant had rejected, an offer to settle under Code of Civil Procedure section 998 for $199, 999. It was also undisputed that, because plaintiff's result at trial was better than her rejected offer, she was entitled to prejudgment interest.

         The parties further agreed that, due to the Dismissal Agreement, plaintiff was entitled to prejudgment interest accruing during: (1) the period between service of her offer to settle and dismissal of the First Action; and (2) the period between the filing of the second action and judgment in the second action. They disputed, however, whether plaintiff was also entitled to prejudgment interest during the period in between, when no action was pending. The issue was briefed, and the trial court ...

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