Major v. R.J. Reynolds Tobacco Co.

Filed 8/30/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

TAJIE MAJOR., B260355 c/w B265671

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC473650)

v.

R.J. REYNOLDS TOBACCO COMPANY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los

Angeles County. 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.

__________________________

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.

1 We refer to the decedent as “Major,” and his wife as

“plaintiff” or “Mrs. Major.” Some witnesses referred to Major as

“Captain Major” reflecting his Navy rank.

2 Lorillard has since been acquired by R.J. Reynolds Tobacco

Company, which was one of the original defendants in this action.

Although Reynolds has substituted in for Lorillard, and is a party

to the appeal, we nonetheless refer to defendant/appellant as

“Lorillard,” because here we are concerned with Reynolds’s

liability for Lorillard’s conduct, as opposed to Reynolds’s liability

for its own conduct (an issue resolved by pretrial settlement).

2

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.

FACTUAL AND PROCEDURAL BACKGROUND

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

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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

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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

5

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

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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

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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.”

8

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.

3 As Lorillard called no witnesses, no defense expert testified

that Major’s lung cancer was caused in whole or in part by

asbestos.

9

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.”

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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

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between, when no action was pending. The issue was briefed,

and the trial court agreed with Lorillard that plaintiff was not

entitled to prejudgment interest during the period that the

Dismissal Agreement was in effect.

10. Cross-Appeals

Lorillard timely appealed from the judgment; Mrs. Major

timely appealed the denial of prejudgment interest during the

period the Dismissal Agreement was in effect.

DISCUSSION

1. Federal Law Does Not Preempt Plaintiff’s Claim

Lorillard’s first argument on appeal is that liability in this

case is federally preempted. The argument begins: Plaintiff

prevailed on a theory that virtually all cigarettes sold in the

United States – all except the handful of no-tar cigarettes which

had a negligible market share – are defectively designed. Tort

liability on this basis is the functional equivalent of a ban on all

cigarettes. It continues: But Congress has concluded that

cigarettes may, in fact, be sold in the United States. Thus, tort

liability on the theory successfully pursued by plaintiff is

contrary to the intent of Congress, and must therefore be

preempted.4

4 We proceed to discuss whether the current state of federal

law preempts state law tort liability for the design and sale of

cigarettes. It is important to note, however, that we reject, for

lack of evidence at trial, Lorillard’s initial premise – that tort

liability in this case is the functional equivalent of a ban on all

cigarettes. The Kent and Newport cigarettes Major smoked were

not no-tar cigarettes, nor were they low-tar cigarettes. Many

other cigarettes existed with lower tar yields, and it is only

speculation that the jury’s conclusion that the Lorillard cigarettes

12

We start with some general observations about federal

preemption. “ ‘There is ordinarily a “strong presumption” against

preemption. [Citations.] “Consideration of issues arising under

the [s]upremacy [c]lause ‘start[s] with the assumption that the

historic police powers of the States [are] not to be superseded by

. . . Federal Act unless that [is] the clear and manifest purpose of

Congress.’ [Citation.] Accordingly, ‘ “[t]he purpose of Congress is

the ultimate touchstone” ’ of pre-emption analysis. [Citation.]”

[Citation.] However, when the state regulates in an area where

there has been a history of significant federal presence the

“ ‘assumption’ of nonpre-emption is not triggered . . . .”

[Citation.]’ [Citation.]” (Sturgeon v. Bratton (2009)

174 Cal.App.4th 1407, 1422 (Sturgeon).) While Congress has

acted in the area of cigarette labeling and advertising, to the

point of expressly preempting state laws to the contrary in those

areas (Altria Group, Inc. v. Good (2008) 555 U.S. 70, 78-79 [state

fraud liability not preempted]; Cipollone v. Liggett Group, Inc.

(1992) 505 U.S. 504, 518-519 [express preemption clause of 1965

federal act “merely prohibited state and federal rulemaking

bodies from mandating particular cautionary statements on

cigarette labels [citation] or in cigarette advertisements

[citation]” but does not encompass “common-law damages

actions”]), Lorillard points to no “significant federal presence”

(Sturgeon, supra, 174 Cal.App.4th at p. 1422) in terms of

cigarette design and sale. As such, the usual presumption of

nonpreemption applies.

“Preemption of state law can be express or implied. It is

express when Congress positively enacts a preemption clause

Major smoked were defective is equivalent to a finding that all

cigarettes are defective and must be removed from the market.

13

displacing state law; it is implied when courts infer a

congressional intent to displace state law under one of three

doctrines of ‘implied preemption’—namely, ‘field, conflict, or

obstacle preemption.’ [Citation.] ‘Field preemption applies when

federal regulation is comprehensive and leaves no room for state

regulation’; ‘[c]onflict preemption is found when it is impossible to

comply with both state and federal law simultaneously’; and

‘[o]bstacle preemption occurs when state law stands as an

obstacle to the full accomplishment and execution of

congressional objectives.’ [Citation.]” (Roberts v. United

Healthcare Services, Inc. (2016) 2 Cal.App.5th 132, 142; see also

Brown v. Mortensen (2011) 51 Cal.4th 1052, 1059.)

Lorillard’s argument is one of obstacle preemption. It is

based on the premise that Congress intends to allow cigarettes to

be sold, and that tort liability for the sale of cigarettes would at a

minimum stand as an obstacle to the accomplishment of that

goal. But Lorillard does not direct us to any specific federal

statute to establish its premise that Congress does, in fact, intend

that cigarettes be exempt from tort liability. Instead, as we see

it, Lorillard hangs its argument primarily on language in a

United States Supreme Court case that has nothing to do with

tort liability, Food and Drug Administration v. Brown &

Williamson Tobacco Corp. (2000) 529 U.S. 120 (Brown &

Williamson).

In Brown & Williamson, the Supreme Court considered

whether the Food and Drug Administration (“FDA”) possessed

jurisdiction to regulate tobacco products, on the theory that

nicotine is a drug within the meaning of the Food, Drug, and

Cosmetic Act (“FDCA”). (Brown & Williamson, supra, 529 U.S.

at p. 125.) The court concluded that the FDA did not have such

14

jurisdiction. (Id. at p. 126.) The issue in Brown & Williamson

was not one of federal preemption of state law, but one of an

agency’s (in this case, the FDA’s) construction of a statute that it

administers (the FDCA). The court’s consideration of the issue

began with whether Congress had spoken directly on the FDA’s

jurisdiction, and the court ultimately concluded that Congress

had. (Id. at p. 133.) Specifically, the court found that, if

cigarettes were regulated under the FDCA, the FDA would be

required to remove them from the market. (Id. at pp. 135-136.)

But when the court considered Congress’s history of regulating

cigarettes, the court concluded that a “ban of tobacco products by

the FDA would . . . plainly contradict congressional policy.” (Id.

at p. 139.) The court believed that Congress had been aware of

the health consequences of tobacco when it chose to regulate

cigarette labeling and advertising while “stopp[ing] well short of

ordering a ban.” (Id. at p. 138.) It believed that, if the FDA

enacted a ban, that would directly counter Congress’s implied

decision not to enact a federal ban itself. (Id. at pp. 137-139.)

Lorillard reasons that if an FDA ban on tobacco products

would contradict congressional policy, tort liability that was the

functional equivalent of a state law ban would also contradict

congressional policy, and is therefore federally preempted. We

have already rejected for lack of evidentiary support Lorillard’s

claim that tort liability in this case equates with a ban. Beyond

that, Lorillard relies on certain language from Brown &

Williamson stating that Congress’s intent was that “cigarettes

and smokeless tobacco will continue to be sold,” without

recognizing the implicit limitation on that language in light of

Brown & Williamson’s limited inquiry into whether the FDA

could impose a ban.

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The flaw in Lorillard’s argument is that Congress’s intent

that a federal agency created by Congress did not have the

authority to impose a nationwide ban on cigarettes says little

about whether a state could impose such a ban within its borders

under the state’s traditional police powers. That issue was not

before the Supreme Court; nor do we have to decide it here.

Standing alone, Brown & Williamson’s discussion of

Congressional intent vis-à-vis the FDA does not overcome the

presumption against preemption. And nothing in Brown &

Williamson tells us about Congress’s intent as to state

restrictions on cigarettes.

Following Brown & Williamson, Congress enacted

legislation specifically addressing the issue. In 2009, Congress

superseded the holding of Brown & Williamson by in fact

granting the FDA authority over tobacco products, including

cigarettes. (21 U.S.C. § 387a(a) & (b).) In that statute, the

Family Smoking Prevention and Tobacco Control Act, Congress

specified that the FDA’s authority did not include the authority

to ban all cigarettes. (21 U.S.C. § 387g(d)(3).) At the same time,

Congress specified that nothing in that subchapter (with an

exception not relevant here) “shall be construed to limit the

authority of a Federal agency (including the Armed Forces), a

State or political subdivision of a State, or the government of an

Indian tribe to enact, adopt, promulgate, and enforce any law,

rule, regulation, or other measure with respect to tobacco

products that is in addition to, or more stringent than,

requirements established under this chapter, including a law,

rule, regulation, or other measure relating to or prohibiting the

sale, distribution, possession, exposure to, access to, advertising

and promotion of, or use of tobacco products by individuals of any

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age . . . .” (21 U.S.C. § 387p(a)(1).) Considered together, these

statutes state that while Congress’s intent is that the FDA not

ban cigarettes entirely, Congress has made no such

determination with respect to the states. (U.S. Smokeless

Tobacco Mfg. Co. LLC v. City of New York (2013) 708 F.3d 428,

433 [“the preservation clause of [this section] expressly preserves

localities’ traditional power to adopt any ‘measure relating to or

prohibiting the sale’ of tobacco products”].)

Lorillard responds that this statute does not “retroactively

abrogate the Supreme Court’s conclusion that, at least before

2009 [the year Congress granted FDA authority], Congress

deliberately chose to foreclose the removal of tobacco products

from the market.” But there is no abrogation, because there was

no such congressional intent. In Brown & Williamson, the

Supreme Court concluded that Congress did not intend for the

FDA to remove tobacco products from the market; it did not

address the states’ powers. The Family Smoking Prevention and

Tobacco Control Act confirmed that the Supreme Court was

correct in interpreting Congress’s intent with respect to the FDA,

but also confirmed that Congress did not have a similar intent

with regard to the states.5

5 Lorillard offers no other interpretation of this statutory

language. Instead, Lorillard notes that an uncodified section of

the same statute provided that it shall not be construed to “affect

any action pending in Federal, State, or tribal court, or any

agreement, consent decree, or contract of any kind.” (Pub. L. No.

111-31 (June 22, 2009) 123 Stat. 1776, § 4(a)(2).) Lorillard

interprets this provision to mean that no “rationale based on” the

statute can have any effect on this case, as it is “a continuation of

one that was pending” before the statute was enacted in 2009.

Even if the provision somehow prevents a court from considering

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Because we find no general federal preemption of state tort

law that regulates the sale of cigarettes, Lorillard’s argument

fails. Other courts have agreed. Just this year, the Florida

Supreme Court rejected similar preemption claims by cigarette

manufacturers. (R.J. Reynolds Tobacco Company v. Marotta

(2017) 214 So.3d 590 (Marotta).) In Marotta, the tobacco

company defendant argued, just as Lorillard does here, that

Brown & Williamson establishes that Congress intended the

manufacture and sale of cigarettes to continue, and therefore

preempts state law claims based on such manufacture and sale.

(Marotta, at pp. 595-596.) The Florida court disagreed,

concluding, as do we, that “while Brown & Williamson held that

the FDA did not have the authority to regulate tobacco products,

it said nothing about the states’ power to do the same.” (Marotta,

at p. 598.) Considering Congress’s history of tobacco regulation,

the Marotta court concluded that while Congress expressly

preempted state and local regulations pertaining to labeling and

advertising cigarettes, “there is no indication that Congress had a

‘clear and manifest purpose’ to insulate the tobacco industry from

state tort liability.” (Id. at p. 600.) While Marotta did not have to

consider the validity of a state ban on cigarettes, it said even if an

its expression of congressional intent, it is not applicable here

because the statute was enacted well after the First Action was

dismissed and before the current action was actually filed. There

is no suggestion in the Dismissal Agreement that the law in

effect at the time the First Action was filed would govern.

Indeed, the intent of the Dismissal Agreement was to enable

certain cases to wend their way through the appellate system, as

their resolution might affect this action.

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outright ban on cigarette sales was preempted, state tort law

liability was preserved.6 (Id. at p. 601.)

Lorillard notes that several federal district courts have

accepted its preemption argument. (Pooshs v. Philip Morris

USA, Inc. (N.D. Cal. 2012) 904 F.Supp.2d 1009, 1025-1026;

appeal filed Mar. 10, 2016; Johnson v. Brown & Williamson

Tobacco Corp. (D. Mass. 2004) 345 F.Supp.2d 16, 21; Conley v.

R.J. Reynolds Tobacco Co. (N.D. Cal. 2002) 286 F.Supp.2d 1097,

1107.) We find these authorities unpersuasive. These cases

uncritically accept the premise that Brown & Williamson

6 In oral argument, Lorillard suggested that Marotta was

incorrectly decided because it failed to consider the effect of Geier

v. American Honda Motor Company, Inc. (2000) 529 U.S. 861. In

Geier, the U.S. Supreme Court concluded that a claim for tort

liability for the failure to equip a vehicle with airbags was

preempted by a safety standard, promulgated pursuant to the

National Traffic and Motor Vehicle Safety Act, which provided for

a general phasing-in of airbags and specifically permitted other

restraints to be used instead. (Id. at pp. 864-865, 874-875, 879.)

The court concluded that the tort action was preempted, because

it would have stood as an obstacle to the federal intent that

multiple different types of restraints be used at that time and

that mandatory air bag installation was to be deferred. (Id. at

p. 881.) Geier does not undermine Marotta, or our conclusion,

because it is based on a distinguishable federal standard. Geier

found preemption based on an actual federal safety standard that

permitted different types of restraints to be used in motor

vehicles. Lorillard would analogize to a congressional intent that

cigarettes be sold in the United States. But, as we have

explained, there is no such intent. Lorillard points to no

statutory enactment providing that cigarettes shall be sold;

Brown & Williamson holds only that Congress did not intend

that a federal agency could ban them. Subsequent federal

legislation reflects a very different Congressional intent.

19

confirmed an across-the-board congressional intent that

cigarettes not be banned; in reaching this conclusion the courts

did not appear to consider that Brown & Williamson addressed

FDA action, not state action. We therefore decline to adopt these

district court opinions. Moreover, in an en banc decision, the

Eleventh Circuit decided that Brown & Williamson “does not

address state sovereignty, and it does not consider the

preemptive reach of federal legislation on tobacco.”7 (Graham v.

R.J. Reynolds Tobacco Company (11th Cir. 2017) 857 F.3d 1169,

1190 (en banc).) As such, the traditional police powers of the

states to regulate cigarette sales and impose tort liability on

cigarette manufacturers remain. (Id. at p. 1191.)

2. Lorillard Was Not Entitled to an Instruction That

Cigarettes Are Lawful

Lorillard next argues, as a alternative to its preemption

argument, that the trial court erred in rejecting its instruction on

the legality of cigarette sales. Specifically, Lorillard requested

that the jury be instructed: “I remind you that the manufacture

and sale of cigarettes is a lawful activity. Therefore, you cannot

find Lorillard Tobacco Company liable merely based on a finding

7 The en banc panel consisted of 10 judges. The 7-judge

majority held that Brown & Williamson did not consider the

preemptive reach on states of federal legislation of tobacco. An

eighth judge concurred in “the majority opinion’s decision that

federal law does not preempt” jury findings of liability against

cigarette manufacturers. (Graham v. R.J. Reynolds Tobacco

Company, supra, 857 F.3d at p. 1191 (conc. & dis. opn. of Carnes,

J.).) A ninth judge concluded that a due process error meant it

was unnecessary to reach the preemption issue. (Id. at p. 1315

(dis. opn. of Wilson, J.).) Only one judge expressly found

preemption. (Id. at p. 1194 (dis. opn. of Tjoflat, J.).)

20

that Lorillard’s product caused injury, or solely because Lorillard

manufactures, advertises, or sells cigarettes.”

California law on the duty to instruct is clear: “A party is

entitled to have the jury instructed on each viable legal theory

supported by substantial evidence if the party requests a proper

instruction. [Citation.]” (Orichian v. BMW of North America,

LLC (2014) 226 Cal.App.4th 1322, 1333.) “A court may refuse a

proposed instruction that is erroneous, misleading, or otherwise

improper and ordinarily has no duty to modify a proposed

instruction in a civil case. [Citations.] This general rule is

inapplicable, however, if the inaccuracy is minor and easy to

correct and the failure to do so would leave the jury inadequately

instructed on an important issue. [Citations.]” (Ibid.)

Here, the instruction Lorillard sought was both

unnecessary and not supported by the evidence. On appeal,

Lorillard attempts to characterize this case as one in which it

was held liable simply for selling cigarettes, in that plaintiff’s

design expert took the position that any cigarette which produced

tar could have been more safely designed, given that no-tar

designs were available. But the issue before the jury was

whether the Kent and Newport cigarettes smoked by Major – the

specific tar and nicotine yields of which were before the jury in

written exhibits – were defective. That plaintiff’s expert may

have drawn the line beyond Lorillard’s cigarettes does not mean

that any brand of cigarettes other than those smoked by Major

was actually at issue here. The jury did not find liability for all

cigarettes. The issue was: under the design defect test, do the

benefits of Lorillard’s cigarettes – which delivered more tar than

several competing labels – outweigh their risk?

21

We therefore conclude Lorillard was not entitled to the

instruction it sought. But even if the trial court erred, the error

would have been harmless. That the sale of cigarettes is lawful

and not alone a basis of liability is an obvious fact known to every

juror. Tort liability is frequently imposed for the sale of products

lawful in the abstract; the issue is whether the particular product

was defective and caused harm. The same analysis applies to

cigarettes.

Our conclusion is partially supported by the history of

California law on the liability of cigarette manufacturers. If this

case had been presented during 1988 through 1997, under

California law applicable then, Lorillard’s jury instruction

argument might have more traction. During those ten years,

cigarettes were entitled to special treatment immunizing

liability. No longer. Civil Code section 1714.45, subdivision

(a)(1) provides a statutory immunity from product liability

actions for common consumer products when the product is

“inherently unsafe and the product is known to be unsafe by the

ordinary consumer who consumes the product with the ordinary

knowledge common to the community.” Subdivision (a)(2)

specifies certain products, such as alcohol, to which the immunity

applies. For a ten-year period, from January 1, 1988, through

December 31, 1997, the statute also applied to tobacco, but

tobacco was then removed from the list. (Myers v. Philip Morris

Companies, Inc. (2002) 28 Cal.4th 828, 832-834.) In repealing the

immunity for tobacco, it was the “intention of the Legislature . . .

to declare that there exists no statutory bar to tobacco-related

personal injury, wrongful death, or other tort claims against

tobacco manufacturers and their successors in interest by

California smokers or others who have suffered or incurred

22

injuries, damages, or costs arising from the promotion,

marketing, sale, or consumption of tobacco products.” (Civ. Code,

§ 1714.45, subd. (f).) “Therefore, with respect to conduct falling

outside the 10-year immunity period, the tobacco companies are

not shielded from product liability lawsuits.” (Myers v. Philip

Morris Companies, Inc., supra, 28 Cal.4th at p. 832; see also

Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 860

[“The liability of tobacco companies based on their conduct

outside the 10-year period is governed by general tort

principles.”].)

As tort liability for defectively designed cigarettes is

governed by the same tort law principles which govern tort

liability for any defectively designed product, Lorillard’s proposed

instruction regarding the lawfulness of cigarettes would have had

no effect on this action.

3. The Court Did Not Err in Refusing to Instruct on But-For

Causation

Lorillard argues the court erred in refusing to instruct the

jury on but-for causation. For us to properly address the issue,

we must take a brief detour to the evolution of causation

instructions in California.

A. Legal Background

In 1991, the California Supreme Court considered two

then-current BAJI instructions regarding causation. One, former

BAJI No. 3.75, provided a but-for test. The second, BAJI

No. 3.76, was a substantial factor test. In Mitchell v. Gonzales

(1991) 54 Cal.3d 1041, the court concluded that the but-for

instruction was poorly written and caused jury confusion. (Id. at

pp. 1050-1052.) The Supreme Court disapproved of the but-for

instruction and held the substantial factor instruction was a

23

better instruction. (Id. at pp. 1045, 1053.) In the course of its

discussion, the court noted that, generally speaking, the

substantial factor test subsumes the but-for test. (Id. at p. 1052.)

But this general proposition is untrue when “two ‘causes concur

to bring about an event and either one of them operating alone

could have been sufficient to cause the result.’ ” (Id. at p. 1049.)

In such a case, neither cause can be considered a but-for cause of

the injury, as the injury would have occurred without either one,

but both causes are substantial factors in bringing about the

injury. (Ibid.) In short, (1) in the “great majority of cases,” the

substantial factor test produces the same result as the but-for

test, and (2) the substantial factor test also produces the right

result in cases of independent causes, where the but-for test

would lead to incorrect results. (Id. at pp. 1052-1053.) Although

the court disapproved of the then-existing but-for instruction, it

did not remove the concept of but-for causation from California

law, and observed that nothing in the opinion should be read to

discourage the jury instruction committee from drafting a new

and proper but-for instruction. (Id. at p. 1054, fn. 10.)

Twelve years later, the court reaffirmed that there is still a

place for but-for causation in the law, holding that a client cannot

recover for attorney malpractice in a transactional setting unless

the client can establish the harm would not have occurred

without the malpractice. (Viner v. Sweet (2003) 30 Cal.4th 1232,

1235.) In the course of its discussion, the court reaffirmed that,

generally, the substantial factor test subsumes the but-for test.

(Id. at p. 1240.) It also reaffirmed that the but-for test is

inappropriate in cases when two forces are actively operating and

each is sufficient to bring about the harm. (Ibid.) The court

recognized that this exceptional situation “has been given various

24

labels, including ‘concurrent independent causes’ [citation],

‘combined force criteria’ [citation], and ‘multiple sufficient causes’

[citation].” (Ibid.)

The current causation jury instruction is CACI No. 430. It

provides, “A substantial factor in causing harm is a factor that a

reasonable person would consider to have contributed to the

harm. It must be more than a remote or trivial factor. It does

not have to be the only cause of the harm. [¶] [Conduct is not a

substantial factor in causing harm if the same harm would have

occurred without that conduct.]” The instruction’s Use Note

explains that “[t]he ‘but for’ test of the last optional sentence does

not apply to concurrent independent causes, which are multiple

forces operating at the same time and independently, each of

which would have been sufficient by itself to bring about the

same harm. [Citations.] Accordingly, do not include the last

sentence in a case involving concurrent independent causes.”

Contemporaneous with these developments in but-for

causation doctrine, another line of cases was considering a

problem of proof arising in cases of asbestos exposure. If a

plaintiff has developed an asbestos-related disease after having

been exposed to multiple defendants’ asbestos products, medical

science was unable to determine which defendant’s product

included the specific fibers that caused the plaintiff’s disease.

(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976

(Rutherford).) As a result of this barrier, the long latency-period

of asbestos-related disease, and the occupational settings that

often exposed workers to multiple forms and brands of asbestos,

our Supreme Court concluded than an asbestos plaintiff need

only prove “that exposure to the defendant’s asbestos products

was, in reasonable medical probability, a substantial factor in

25

causing or contributing to his risk of developing cancer.” (Id. at

pp. 957-958.)

In light of Rutherford, California adopted CACI No. 435,

titled “Causation for Asbestos-Related Cancer Claims.” It

provides, “A substantial factor in causing harm is a factor that a

reasonable person would consider to have contributed to the

harm. It does not have to be the only cause of the harm. [¶]

[Name of plaintiff] may prove that exposure to asbestos from

[name of defendant]’s product was a substantial factor causing

[his/her/[name of decedent]’s] illness by showing, through expert

testimony, that there is a reasonable medical probability that the

exposure was a substantial factor contributing to [his/her] risk of

developing cancer.”

Subsequent authority has extended Rutherford to cancer

caused by long-term exposure to multiple different toxins.

(Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 77,

79.) While one case suggested that Rutherford’s rule “would

appear appropriate” for injuries due to cigarette smoke, the

appellate court ultimately concluded that it need not resolve the

issue on the facts before it. (Whiteley v. Philip Morris, Inc. (2004)

117 Cal.App.4th 635, 700-701 (Whiteley).)

B. Causation Instructions in This Case

With this background, we now discuss the jury instruction

issue as it arose in this case.

Pretrial, Mrs. Major argued for the Rutherford standard of

causation (CACI No. 435). Lorillard wanted the usual

substantial factor instruction, including the optional but-for

language (CACI No. 430). The trial court initially determined

that, in the absence of authority that Rutherford applied in a

smoking case, it would not give the Rutherford instruction.

26

Therefore, the court would give CACI No. 430. The dispute then

turned to whether the last bracketed line of the instruction,

regarding but-for causation, also would be given. Plaintiff

objected to that sentence.

Because the Use Note stated that the but-for sentence

should not be given in cases of concurrent independent causes,

the debate turned to whether this case involved concurrent

independent causes, or some other type of multiple causes.8 At

this point, the court decided to defer ruling until after it heard

the evidence, although it was, at that moment, “inclined” to

instruct on but-for causation.

Near the close of the evidence, the court returned to the

issue. By this time, the court’s tentative view was that the jury

should not be instructed on but-for causation, but it intended to

further research the issue. After reviewing the law, particularly

the Whiteley case, the court reconsidered whether to give the

Rutherford instruction. The court stated, however, that even if it

did not give Rutherford, it was not going to give the but-for

sentence from CACI No. 430. The court was convinced that but-

for causation did not apply to this case. Given the uncertainty as

to whether Rutherford applied to a cigarette case, the court

believed that giving CACI No. 430 without the but-for instruction

8 The parties appeared to go off on a tangent on whether

asbestos exposure and cigarette smoking were “dependent” or

“independent.” This was mistaken. The issue is not whether the

causes were dependent or independent; “concurrent independent

causes” is a term of art, used to refer to the situation of two forces

each sufficient to bring about the harm. The parties could have

just as easily considered whether the causes were “multiple

sufficient causes,” a term some courts have used. (See Viner v.

Sweet, supra, 30 Cal.4th at p. 1240.)

27

was a fair resolution of the problem.9 The court ultimately

followed this course, instructing in the language of CACI No. 430,

without the optional but-for language.

C. Analysis

Preliminarily we note, as did the Whiteley court, that it

appears that there is no reason that Rutherford would apply in

cases of asbestos exposure and multiple toxic substance exposure,

but not exposure to carcinogens in cigarettes. As the issue is not

before us, we go no further, but await the proper case raising and

fully briefing the issue.

Because the trial court in this case did not give the

Rutherford instruction, the only issue raised by this appeal is

whether the court erred in declining to give the but-for

instruction. The law is clear that but-for and substantial factor

tests frequently lead to the same result. The law is also clear

they may produce different results in cases of concurrent

independent causes and that, in such cases, substantial factor

leads to the correct result; but-for does not.

Here, the parties’ argument on whether the but-for

instruction should be given focused on whether this was a case of

9 The court also agreed to give CACI No. 431, which

provides, “A person’s negligence may combine with another factor

to cause harm. If you find that [name of defendant]’s negligence

was a substantial factor in causing [name of plaintiff]’s harm,

then [name of defendant] is responsible for the harm. [Name of

defendant] cannot avoid responsibility just because some other

person, condition, or event was also a substantial factor in

causing [name of plaintiff]’s harm.” On appeal, Lorillard argues

that the court’s use of CACI No. 431 compounded its error in

refusing to give the but-for language of CACI No. 430, but does

not assert that giving CACI No. 431 was itself error.

28

concurrent independent causes. “Concurrent independent

causes” are, as discussed above, two causes which concur to bring

about an event when either one of them operating alone could

have been sufficient to cause the result. We believe the issue

raised by this case, although not specifically phrased in this

manner, is how to deal with a case of more than two concurrent

causes, when various combinations of the causes – although

perhaps not any individual cause – would have been sufficient to

cause the harm. Or, putting it more concretely, suppose there

were three equal causes acting on Major’s lungs: Lorillard’s

cigarettes, R.J. Reynolds’s cigarettes, and Philip Morris’s

cigarettes. Suppose that each was only 33 1/3 percent

responsible, and, acting alone, would not have been sufficient to

cause Major’s cancer; but any two acting together would have

been 66 2/3 percent responsible, and likely would have caused the

cancer.10 No individual cigarette manufacturer’s liability would

satisfy the but-for test, as Major would have developed cancer

based on the other two alone; but no cigarette manufacturer

would satisfy the independent concurrent cause test, because no

individual manufacturer alone caused the cancer. In short, when

there are three causes working together, any two of which would

alone cause the harm, all three can escape liability via the but-for

test.

This precise scenario is addressed in the Restatement

Third of Torts: Liability for Physical and Emotional Harm,

10 This may, in fact, have been the jury’s thinking in this case.

When subtracting out the 50 percent comparative negligence

allotted to Major for choosing to smoke the cigarettes, the jury

allocated approximately one-third of the remaining negligence to

Lorillard, and two-thirds of the remaining negligence to other

cigarette manufacturers (of which only two were sued).

29

section 27, comment f. Section 27 addresses the exception to but-

for causation for “Multiple Sufficient Causes,” which is another

term for concurrent independent causes. (Viner v. Sweet, supra,

30 Cal.4th at p. 1240.) The section provides, “If multiple acts

occur, each of which . . . alone would have been a factual cause of

the physical harm at the same time in the absence of the other

act(s), each act is regarded as a factual cause of the harm.”

Comment f explains, “In some cases, tortious conduct by one actor

is insufficient, even with other background causes, to cause the

plaintiff’s harm. Nevertheless, when combined with conduct by

other persons, the conduct overdetermines the harm, i.e., is more

than sufficient to cause the harm.” The comment provides, “The

fact that an actor’s conduct requires other conduct to be sufficient

to cause another’s harm does not obviate the applicability of this

Section. [Citation.] Moreover, the fact that the other person’s

conduct is sufficient to cause the harm does not prevent the

actor’s conduct from being a factual cause of harm pursuant to

this Section, if the actor’s conduct is necessary to at least one

causal set.” The comment includes Illustration 3: “Able, Baker,

and Charlie, acting independently but simultaneously, each

negligently lean on Paul’s car, which is parked at a scenic

overlook at the edge of a mountain. Their combined force results

in the car rolling over the edge of a diminutive curbstone and

plummeting down the mountain to its destruction. The force

exerted by each of Able, Baker, and Charlie would have been

insufficient to propel Paul’s car past the curbstone, but the

combined force of any two of them is sufficient. Able, Baker, and

Charlie are each a factual cause of the destruction of Paul’s car.”

The but-for test simply does not govern when it would exclude a

30

substantial cause merely due to the fact that other causes acting

together are alone sufficient to cause the harm.

We believe this analysis is correct, and, in fact, necessary.

Without this gloss on the concurrent independent cause rule,

each of three equally liable tortfeasors can escape liability on the

basis that they are neither but-for causes nor concurrent

independent causes – a wholly unjust result. Yet this is exactly

the result Lorillard seeks – it would use the but-for rule to avoid

liability because the combined effects of Philip Morris’s cigarettes

and R.J. Reynolds’s cigarettes were likely sufficient to cause

Major’s death alone; despite the fact that Lorillard’s cigarettes,

combined with either Philip Morris’s or R.J. Reynolds’s

cigarettes, were likely also sufficient. We therefore conclude that

multiple sufficient causes exist not only when there are two

causes each of which is sufficient to cause the harm, but also

when there are more than two causes, partial combinations of

which are sufficient to cause the harm. As such, the trial court

did not err in refusing to instruct the jury with the but-for test.

4. There Was Sufficient Evidence the Defective Cigarette

Design Was a Substantial Factor in Causing Major’s

Cancer

Lorillard’s next argument is that there is insufficient

evidence that its defective cigarette design was a substantial

factor in causing Major’s lung cancer. Lorillard does not question

the medical evidence; plaintiff’s expert specifically testified that if

the design of Lorillard’s cigarettes resulted in increased exposure

to carcinogens, those increased exposures were a factor in causing

Major’s lung cancer. Instead, Lorillard argues that plaintiff had

to introduce evidence that if Lorillard’s cigarettes had been no-tar

31

cigarettes, Major would have smoked them (or not smoked at all).

We believe Lorillard’s argument is legally erroneous.

Lorillard relies exclusively on Whiteley, supra,

117 Cal.App.4th 635. In that case, the plaintiff argued that his

wife’s cancer had been caused by the defendant’s cigarettes,

which were defective due to their high levels of nicotine. (Id. at

p. 696.) On the cigarette manufacturer’s appeal from a

substantial jury verdict, the cigarette manufacturer argued that

there was insufficient evidence of causation. The Court of Appeal

agreed. (Id. at p. 702.) The court reasoned that there was no

evidence that, if the defendant had lowered the nicotine in its

cigarettes, the decedent would have smoked them, smoked less,

or quit smoking. Any such conclusion would have been

speculative, and contrary to the evidence at trial, which showed

that when the decedent had switched from unfiltered to filtered

cigarettes, her smoking increased. (Ibid.)

We believe the Whiteley court was mistaken, to the extent

it considered this evidence in terms of the plaintiff’s failure of

proof of causation, as opposed to the defendant’s proof of

comparative fault. Prior to the California Supreme Court’s

decision in Daly v. General Motors Corp. (1978) 20 Cal.3d 725, a

plaintiff’s contributory negligence did not constitute a defense to

an action in strict products liability, but the plaintiff’s

assumption of risk was a complete defense. (Id. at p. 733.) In

Daly, the court concluded that assumption of risk should in fact

be considered as a form of comparative fault, which applies to

strict liability. (Id. at pp. 736-738.) The argument that a

defendant who designed and marketed a defective cigarette

should not be liable because the plaintiff’s decedent would have

smoked other manufacturers’ defective cigarettes is a form of

32

assumption of risk. It is therefore to be adjudicated as part of the

affirmative defense of comparative fault.

We observe that one of the federal cases on which Whiteley

relied was Boerner v. Brown & Williamson Tobacco Co. (E.D. Ark.

2000) 121 F.Supp.2d 1252, affirmed in part and reversed in part

(8th Cir. 2001) 260 F.3d 837.11 In Boerner, the district court

granted summary judgment to the defendant. In its analysis, the

court stated that plaintiff suffered from a failure of proof on its

design defect claim, in that “there is no evidence from which a

jury could reasonably infer that [the plaintiff’s decedent] would

have used any of the safer designs and thereby lessened the

chances of contracting cancer. [The decedent] has testified that

she . . . avoided filtered cigarettes because their low nicotine

content did not satisfy her. This failure of proof entitles

defendant to summary judgment on the defective design claim.”

(Boerner, supra, 121 F.Supp.2d at p. 1255.) On appeal, the

Eighth Circuit reversed, stating, “In reaching this conclusion, we

have considered the district court’s conclusion that [the decedent]

would not have used a safer alternative product because she

disliked filtered cigarettes, and find it to be beside the point.

Under Arkansas law, contributory negligence is no bar to

recovery under a strict liability theory.” (Boerner v. Brown &

Williamson Tobacco Corp. (8th Cir. 2001) 260 F.3d 837, 848.) We

read the quoted language as the Eighth Circuit’s recognition that

whether the decedent would have smoked safer cigarettes is a

11 While Whiteley cited to the district court’s opinion in

Boerner, it did not discuss the Eighth Circuit’s opinion reversing

the district court, even though the Eighth Circuit’s opinion in

Boerner predated Whiteley.

33

component of the decedent’s own negligence – an issue which, in

California, is resolved under comparative fault principles.

Here, the jury found that Major himself was 50 percent

comparatively at fault, presumably based on Lorillard’s

argument that he did not choose to quit smoking earlier and did

not choose to smoke available no-tar cigarettes. The jury

concluded that the cigarette manufacturers (taken together) and

Major had been equally responsible for his lung cancer – the

manufacturers for selling the defective cigarettes and Major for

smoking them. Both are but-for causes of the cancer – had the

cigarettes not been made or had Major not smoked them, the

cancer would not have occurred. The cigarette manufacturers

cannot transform the fact that Major’s choice to smoke their

defective cigarettes was a but-for cause into an argument that

their defectively designed cigarettes were not a cause at all.

We also find persuasive Mrs. Major’s argument that, if we

are truly to consider a hypothetical world in which Lorillard

made only safe cigarettes, before we speculate as to what Major

would have done, we would have to also assume that Lorillard

informed the public that its prior cigarettes (and all other tar

cigarettes) were unsafe. To the extent this sort of hypothetical

inquiry is too speculative to support any reasonable conclusion, it

simply confirms our conclusion that Major’s decision to smoke

Lorillard’s defective cigarettes goes to the issue of his

comparative negligence, and is not something plaintiff must

address as part of her causation case-in-chief.

5. The Court Did Not Prejudicially Err in Excluding Evidence

of Asbestos Exposure and Causation

Although it was undisputed that Major had been exposed to

asbestos, the jury concluded that asbestos exposure was not a

34

substantial factor in causing his cancer – apparently having been

persuaded by the medical evidence that showed Major had not

developed other asbestos-related disease. On appeal, Lorillard

argues that the jury found no asbestos causation because the trial

court prejudicially erred in excluding its evidence of asbestos

exposure and causation.

We review the trial court’s ruling on the admissibility of

evidence for abuse of discretion. (Zhou v. Unisource Worldwide,

Inc. (2007) 157 Cal.App.4th 1471, 1476.) A court’s error in

excluding evidence is grounds for reversal only if the appellant

demonstrates a miscarriage of justice, that is, that a different

result would have been probable had the error not occurred. (Id.

at p. 1480.)

The excluded evidence falls into three categories:

(1) allegations in the complaint; (2) admissions in interrogatories;

and (3) assertions in asbestos bankruptcy claim forms.

A. Allegations of the Complaint

On appeal, Lorillard contends the trial court erred in

preventing it from introducing into evidence three particular

allegations from Mrs. Major’s complaint: (a) that asbestos acted

synergistically with the cigarette smoke; (b) that a person

exposed to asbestos fibers and cigarette smoke would be at a

much greater risk for lung cancer than if he had been exposed to

either one alone; and (c) that Major’s cancer was caused by his

exposure to both asbestos and tobacco. Lorillard argues these

admissions should have been admissible at least for

impeachment if not as substantive evidence.

Procedurally, the issue was first raised in a motion in

limine, by which plaintiff sought to preclude Lorillard from

referring to the caption of the complaint, or any other allegations

35

of the complaint which would indicate Mrs. Major had sued

additional defendants who are no longer in the case. Lorillard

and the other tobacco defendants in the case responded that the

allegations in Mrs. Major’s complaint are admissible as either

evidentiary admissions or prior inconsistent statements. They

argued, “[T]o the extent Plaintiff now claims that tobacco

defendants are solely liable for Decedent’s death, Plaintiff’s

allegations concerning asbestos nonparties, which are the same

in both her previously dismissed . . . complaint and her operative

Complaint, may be offered as evidentiary admissions or for

impeachment.” Plaintiff replied that the tobacco defendants’

premise was incorrect; she explained that she was not asserting

that asbestos played no causal role in Major’s lung cancer. She

had “not made any inconsistent statements and freely

acknowledges that asbestos was a cause of decedent’s lung

cancer.”

At the hearing on the motion in limine, the court stated,

“Nobody will be reading from any complaints in the case. That’s

for sure. Those are lawyer words. So I would grant.” The court

reasoned that allegations in the unverified complaint relating to

causation were legal arguments of counsel, not factual assertions

of plaintiff herself.

Lorillard did not raise the issue during trial. It made no

attempt to impeach the testimony of Mrs. Major with allegations

from her complaint. In fact, Mrs. Major did not testify as to her

belief regarding whether asbestos played a causal role in Major’s

cancer; there was therefore nothing to impeach.

We question whether Lorillard obtained a final ruling on

the admissibility of the three precise complaint excerpts it now

argues were improperly excluded. Although the court made the

36

broad statement that “[n]obody will be reading from any

complaints in the case,” Lorillard did not draw the court’s

attention to the three specific allegations nor present at trial its

argument for their admissibility. Moreover, the court made its

ruling based on plaintiff’s counsel’s representation that plaintiff

“freely acknowledges that asbestos was a cause of decedent’s lung

cancer.” Once plaintiff’s counsel had backed off from this

somewhat in his opening statement, by saying that Major’s

cancer was caused by cigarettes “and may have also been

contributed to by asbestos,” Lorillard did not seek to reopen the

issue.

In any event, even if Lorillard obtained a final ruling on

admissibility, and even if the trial court erred in excluding the

excerpts, we conclude any error was not prejudicial. The first

excerpt was that asbestos acted synergistically with cigarette

smoke. The second was that a person exposed to asbestos and

cigarette smoke would be at a much greater risk for lung cancer

than if he had been exposed to asbestos or cigarettes alone. Both

of these points were not controverted at trial, and in fact testified

to by plaintiff’s lung pathology expert, Dr. Samuel Hammar. The

third excerpt was plaintiff’s allegation that Major’s cancer was

caused by both asbestos and cigarette exposure. While the causal

role played by asbestos was disputed at trial, it was disputed

because of medical evidence. It was clear that Major had been

exposed to some amount of asbestos; but it was also clear that he

had not suffered asbestos lung scarring, which is usually present

when a lung cancer is caused by asbestos. Faced with this

potential contradiction, Dr. Hammar testified that he would infer

asbestos causation based on the significant asbestos exposure.

Apparently the jury was not persuaded. That plaintiff herself

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made the same inference in her complaint is even less convincing

than the expert’s testimony, causing us to conclude that the

exclusion of the evidence was not prejudicial.12

B. Interrogatory Answers

We need not discuss at length the interrogatory answers

Lorillard sought to introduce, the arguments for and against

admission, and the court’s rulings. On appeal, defendant argues

that the court erred in its ruling with respect to one interrogatory

answer only, a lengthy response given by Mrs. Major explaining

the nature and extent of Major’s exposure to asbestos. At trial,

however, the parties reached an agreement with respect to that

precise interrogatory: Lorillard could read a specified portion of

the answer and, in light of the agreement, Lorillard agreed to

“withdraw the proffer of the remainder of that interrogatory

response” so there would be no issue on appeal.

Nonetheless, Lorillard argues now that excluding the

remainder of Mrs. Major’s answer was error. When plaintiff

argued waiver in her respondent’s brief, Lorillard responded with

the somewhat remarkable argument that plaintiff waived the

right to rely on waiver – by failing to raise the waiver argument

when Lorillard complained of the exclusion of the interrogatory

answer in its motion for new trial. The authority on which

Lorillard relies for this proposition, Federal Insurance Company

v. Superior Court (1998) 60 Cal.App.4th 1370, 1375, does not

support it. That case holds only that when a party argues on

12 Nor is this “one of those relatively rare cases where a party

can be bound by a judicial admission made in an unverified

complaint.” (Womack v. Lovell (2015) 237 Cal.App.4th 772, 776.)

Here, Lorillard was not misled by the so-called admission to

think the issue of the extent of asbestos involvement in causation

was not disputed at trial. The issue was, in fact, fully litigated.

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appeal that its opponent waived the right to arbitrate by seeking

to litigate in court, the party asserting waiver must have first

raised the issue before the trial court. (Id. at p. 1375.) That is

simply an application of the general proposition that an

argument must be pursued at trial before it can be raised on

appeal. Here, in open court, Lorillard withdrew its proffer of the

remainder of the interrogatory answer and waived its right to

pursue its admissibility on appeal; that withdrawal and waiver is

not undone by Mrs. Major’s failure to mention the point in

opposition to Lorillard’s new trial motion.

C. Bankruptcy Trust Claim Forms

Many asbestos manufacturers have declared bankruptcy.

(See Snyder, Todd R. & Siemer, Deanne C. (2005) 13 Am.Bankr.

Inst. L. Rev. 801, Asbestos Pre-Packaged Bankruptcies: Apply

The Brakes Carefully And Retain Flexibility For Debtors.) Mrs.

Major initiated claims for Major’s death against some asbestos

bankruptcy trusts. Lorillard argues that it was error to exclude

certain excerpts from Mrs. Major’s claim forms submitted to

those trusts. Mrs. Major responds, in part, that Lorillard has

failed to identify the excerpts it sought to introduce – having

presented only the unredacted stack of Mrs. Major’s bankruptcy

trust claim forms on appeal – and thereby provided an

inadequate record for appellate review. Lorillard replies that the

excerpts it “contends should have been admitted are clear from

the face of the [unredacted documents] and thus easily

identified.” We review the unredacted documents with the

understanding that it is not at all clear which excerpts Lorillard

sought to introduce, and without knowing, if the excerpts had

been admitted, which other portions the court would have

allowed plaintiff to introduce. (Evid. Code, § 356 [where part of

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an act, declaration, conversation, or writing is given in evidence

by one party, the whole on the same subject may be inquired into

by an adverse party.].)

The issue was first raised in a motion in limine, by which

Mrs. Major sought to exclude all references to all asbestos

bankruptcy trust claim forms she submitted. Lorillard responded

that, at the very least, some of the factual information in the

claim forms would be admissible. Specifically, Lorillard argued

that it “should be able to cross-examine [plaintiff’s expert

witnesses] at trial with documents demonstrating that not only

was decedent exposed to asbestos, plaintiff believed that his lung

cancer was caused by this exposure . . . .” At the hearing on the

motion, the court tentatively decided to exclude the evidence of

plaintiff’s belief as to causation, on the grounds that whatever

Mrs. Major believed to be the cause was not relevant. However, it

tentatively denied the motion with respect to factual statements

in the forms regarding Major’s asbestos exposure. The court

directed defendant to “give the court and opposing counsel a

heads-up” before attempting to use any particular bankruptcy

trust claim forms in cross-examination, so that any specific

objection could be addressed.

Lorillard did not attempt to cross-examine any of plaintiff’s

witnesses with the bankruptcy trust claim forms. Lorillard did

not return to the issue of bankruptcy trust claim forms at all

until after plaintiff had rested. After reading some of Mrs.

Major’s interrogatory answers to the jury, Lorillard sought to

admit into evidence excerpts from the bankruptcy trust claim

forms. The trial court conceded that it had previously ruled that

the factual allegations in the forms were relevant, but noted that

Lorillard had failed to lay a foundation for their admissibility by

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establishing that Mrs. Major saw and signed the forms. More

than that, the court stated the evidence was cumulative, unless

there were different factual statements in the bankruptcy trust

claim forms than those made in the interrogatory answers

already admitted. Plaintiff’s counsel represented that Lorillard

had not identified anything different and plaintiff’s counsel

believed that everything in the redacted exhibit was already in

evidence. Lorillard’s counsel said nothing. The court then ruled

that the exhibit was cumulative.

On appeal, Lorillard argues that the excerpts it sought to

admit were not cumulative. It states, “The claim forms contained

detailed information about the dates of exposure, the places of

exposure, and the activities that gave rise to the exposure. None

of this factual information was introduced in another form at

trial.” This argument is made with no citation to the record, and

without identification of the specific information Lorillard sought

to introduce. It is only in its reply brief that Lorillard for the first

time purports to identify specific information in the claim forms

which was not otherwise introduced at trial.

We have reviewed the unredacted exhibit and conclude

that, on the whole, the claim forms paint a very different picture

than Lorillard asserts. The forms are, in fact, standard forms,

which are to be filled out by the claimant. One of the questions

asked on the form is “Was [the] death asbestos related?” While

plaintiff answered “yes” on some of the forms, she left the

question blank on several others.13 Many of the forms also fail to

answer the question regarding Major’s asbestos exposure. Those

13 One claim form includes a “Questions-Problems” page that

says, “No meds stating LC [presumably: lung cancer] caused by

asb. Expo” and indicates the claim was withdrawn.

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that discuss asbestos do so with little detail, stating, for example,

“Shipyard workers doing construction, overhaul and repair.”

Another states that Major “[o]versaw operation of engine rooms

and inspected piping systems & boilers.”

Other than specifically identifying the manufacturers of

asbestos to which Major was exposed – a fact which has no

relevance to causation – Lorillard has not identified any fact

regarding Major’s asbestos exposure which appears in these

claim forms and was not otherwise already in evidence. As such,

on this record, the court did not abuse its discretion in finding the

excerpts cumulative.

To the extent Lorillard also argues the court erred in not

admitting the claim forms’ assertions that Major’s death was

asbestos-related, we conclude – as we did with respect to

identical allegations in the complaint – that any error was not

prejudicial. Particularly given that Mrs. Major did not assert the

death was asbestos-related across all of the claim forms, and that

any such assertion was only Mrs. Major’s lay opinion, the

admission of these assertions would have been of minimal

significance in light of Mrs. Major’s lung pathology expert’s

inference of asbestos causation, an inference which the jury

rejected.

6. Plaintiff’s Cross-Appeal: The Court Did Not Err in

Refusing to Award Prejudgment Interest For the Time the

Dismissal Agreement Was in Effect

In her cross-appeal, Mrs. Major contends the court erred by

denying her prejudgment interest for the period the Dismissal

Agreement was in effect.

Mrs. Major claimed a right to prejudgment interest under

Civil Code section 3291. That provision states, in pertinent part,

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“If the plaintiff makes an offer pursuant to Section 998 of the

Code of Civil Procedure which the defendant does not accept prior

to trial or within 30 days, whichever occurs first, and the plaintiff

obtains a more favorable judgment, the judgment shall bear

interest at the legal rate of 10 percent per annum calculated from

the date of the plaintiff’s first offer pursuant to Section 998 of the

Code of Civil Procedure which is exceeded by the judgment, and

interest shall accrue until the satisfaction of judgment.”

Mrs. Major made no section 998 offer in the actual case

that prompted this appeal – the second case. She did make an

offer during the First Action. The only way in which the offer she

made in the First Action could justify any award of prejudgment

interest in this case is by the terms of the Dismissal Agreement,

by which the parties agreed, among other things, that “[a]ll prior

. . . [Code of Civil Procedure section] 998 offers will be tacked onto

and applicable to, any refiled Action.” Because of this language,

the plaintiff’s section 998 offer from the First Action became

applicable to the second, and justified an award of prejudgment

interest.

The question then becomes what is the period when

pretrial interest legally accrued. Interpreting the language of the

Dismissal Agreement, the trial court awarded interest accruing

during the First Action and during the current action, but not for

the period in which the Dismissal Agreement was in effect. On

appeal, plaintiff challenges this ruling, contending the terms of

the Dismissal Agreement unambiguously provided for

prejudgment interest to accrue during the period of the Dismissal

Agreement. In the alternative, plaintiff relies on extrinsic

evidence, in the form of the declaration of her attorney involved

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in negotiating the Dismissal Agreement, as to his understanding

of the intent of the parties.

“The language of a contract is to govern its interpretation,

if the language is clear and explicit, and does not involve an

absurdity.” (Civ. Code, § 1638.) “ ‘[A] contract must be

interpreted so as to give effect to the mutual intention of the

parties, and the whole of a contract is to be taken together, so as

to give effect to every part, if reasonably practicable, each clause

helping to interpret the other.’ [Citation.]” (Gray1 CPB, LLC v.

Kolokotronis (2011) 202 Cal.App.4th 480, 486-487.)

Here, we consider two relevant provisions of the Dismissal

Agreement. First, the agreement states its purpose is to

“comprehensively freeze the rights and remedies available to the

parties as presently contained in the Action at the point of

dismissal, as permitted by law.” Second, the parties included a

specific provision as to costs and section 998 offers, which

provided, “If plaintiff refiles the Action, all recoverable costs

associated with the Action carry over to the refiled Action and

can be thereafter claimed by a prevailing party subject to a

motion for costs subsequent to a judgment. All prior costs and

[Code of Civil Procedure section] 998 offers will be tacked onto

and applicable to, any refiled Action.”

There is only one way to interpret this unambiguous

language. The agreement intended to “comprehensively freeze

the rights and remedies . . . at the point of dismissal.” This does

not allow for the continued accrual of prejudgment interest – a

type of remedy – while the action remained dismissed. (See Civ.

Code, § 3291 [under which plaintiff sought prejudgment interest

in this case], found in Article 2 “Interest as Damages” of Chapter

1 “Damages in General” of Title 2 “Compensatory Relief” of

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Division 4 “General Provisions” of the Civil Code.) That remedy,

among others, was frozen. The specific provision relating to costs

and section 998 offers is in agreement. Prior costs and section

998 offers are to be “tacked onto” the refiled action; the costs do

not continue to accrue, and the offers are not outstanding until

the action is refiled. The trial court did not err in refusing to

award prejudgment interest during the period of the Dismissal

Agreement.

DISPOSITION

The judgment is affirmed in all respects. Plaintiff is to

recover her costs on appeal.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

*

SORTINO, J.

* Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

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