Metropolitan News-Enterprise


Thursday, August 31, 2017


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C.A. Upholds $3.8 Million Award Against Tobacco Company

Justice Rubin Declares That Federal Government Has Not Preempted Disputes Concerning Liability For Smokers’ Deaths, Rejects Contention That State Is Effectively Creating a Ban on Cigarettes


By a MetNews Staff Writer


The Court of Appeal for this district yesterday upheld a judgment for $3.8 million, plus costs and interest, against a cigarette-maker found by a jury to have been 17 percent at fault for the death of a heavy smoker, rejecting the contention that the federal government has preempted the field of tobacco companies’ liability.

The jury found that the decedent, William E. Major, was 50 percent responsible for his own death from cancer and that other cigarette manufacturers that were sued, and settled, were 33 percent liable.

Lorillard—maker of Kent and Newport cigarettes—was the sole remaining defendant.

Acting Presiding Justice Laurence D. Rubin of Div. Eight wrote the opinion. Los Angeles Superior Court Judge Amy D. Hogue presided at the trial.

Rubin refers to the defendant as “Lorillard,” while noting that it has been swallowed up by R.J. Reynolds Tobacco Company. He explained that he wanted to differentiate “Reynolds’s liability for Lorillard’s conduct, as opposed to Reynolds’s liability for its own conduct (an issue resolved by pretrial settlement).”

Congressional Intent

Lorillard’s chief contention was that plaintiff Tajie Major, widow of the decedent, prevailed on a theory that all cigarettes—except “no tar” ones which do not have a meaningful market share—are defectively designed; for a state to establish liability on that basis is tantamount to a ban on cigarettes, which contravenes Congressional intent; in light of the expressed intent that cigarettes sales remain lawful, Congress has created federal preemption.

The defendant relied on the United States Supreme Court’s 2000 opinion in Food and Drug Administration v. Brown & Williamson Tobacco Corp. There, the justices said that the FDA did not have the power to ban cigarettes because it would conflict with the wishes of Congress.

“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, Rubin recited.

But, he declared, there is a “lack of evidentiary support” for “Lorillard’s claim that tort liability in this case equates with a ban.”

Limited Inquiry

He added:

“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.

“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.”

District Court Decisions

Lorillard pointed out that several federal district courts have adopted its preemption argument. Rubin responded:

“We find these authorities unpersuasive. These cases uncritically accept the premise that Brown & Williamson 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.”

Rubin also said that Lorillard’s proposed instruction, which Hogue declined to give, that the sale of cigarettes is lawful was not legally required, and that even if it were, the omission would have been harmless error. He explained:

“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.”

The case is Major v. R.J. Reynolds Tobacco Company, B260355.

The lawyers on appeal were Steven N. Geise, Gregory G. Katsas and Charles R.A. Morse of Jones Day for Lorillard and Gilbert L. Purcell, Richard M. Grant and Jason M. Rose of Brayton Purcell for Tajie Major.


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