LOS ANGELES (Legal Newsline) - Last month, a California appeals court upheld a $3.75 million judgment against a major cigarette maker in a lawsuit brought against it and other manufacturers, despite allegations that the plaintiff’s late husband’s lung cancer also was caused by asbestos exposure.

The California Court of Appeal, Second Appellate District, Division Eight, filed its opinion Aug. 30, affirming a judgment by the Los Angeles County Superior Court.

Plaintiff Tajie Major sued several cigarette manufacturers her husband, William, had smoked, as well as manufacturers of asbestos to which he had been exposed, alleging both his smoking and asbestos exposure caused his lung cancer and death.

According to the court’s opinion, William Major smoked two packs of cigarettes a day, on average, from 1961 to 1989. He was diagnosed with small cell lung cancer in 1997. It metastasized to his lymph nodes, brain, liver and bone, and he died a year later.

All of the defendants but one settled, and Tajie Major proceeded to trial against only Lorillard Tobacco Company, the manufacturer of Kent and Newport cigarettes.

Lorillard has since been acquired by R.J. Reynolds Tobacco Company, which was one of the original defendants in the action.

The appeals court noted in its opinion that it refers to the defendant as Lorillard instead of Reynolds because it said it is concerned with Reynolds’ liability for Lorillard’s conduct, not Reynolds’ liability for its own conduct.

After trial, a jury concluded Lorillard’s cigarettes were defectively designed, and that their design was a “substantial factor” in causing William Major’s death.

In allocating responsibility for the 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 significant factor.

Judgment was entered against Lorillard for an amount in excess of $3.75 million, plus costs and interest.

Lorillard appealed, arguing, among other things, that federal law preempts liability on the theory pursued and the trial court erred in refusing its proposed jury instruction that the sale of cigarettes is lawful.

The appeals court rejected the company’s arguments.

Acting Presiding Justice Laurence D. Rubin said the court could find no general federal preemption of state tort law that regulates the sale of cigarettes.

“Other courts have agreed,” Rubin wrote for the court, pointing out that, this year, the Florida Supreme Court rejected similar preemption claims by cigarette manufacturers.

The appeals court also ruled that the instruction Lorillard sought was both “unnecessary” and “not supported by the evidence.”

The company requested 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 that Lorillard’s product caused injury, or solely because Lorillard manufactures, advertises, or sells cigarettes.”

“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,” Rubin wrote. “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?”

Even if the trial court had erred, Rubin said 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,” he wrote. “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.”

The appeals court panel, which also included Justice Madeleine Flier and Los Angeles Superior Court Judge Douglas Sortino, affirmed the judgment in all respects.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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