Wife sued a tobacco manufacturer for her husband’s death from lung cancer that he contracted after decades as a heavy smoker of the manufacturer’s cigarettes. The decision rejects the argument that federal law recognizing the legality of tobacco and cigarettes preempts state tort law insofar as it holds most cigarettes to be a defective product and thus exposes the manufacturers to substantial tort liability. The manufacturer relied on a Supreme Court decision holding that the FDA lacked authority to ban cigarette sales, but Congress’ intent not to allow a federal agency to ban cigarettes said nothing about its intent to preempt state laws imposing liability on cigarette manufacturers for selling defective products. The manufacturer was not entitled to a jury instruction stating that manufacture and sale of tobacco products is legal and cannot be the basis of a finding of liability. The issue in the case wasn’t whether all cigarettes were defective and should be banned but rather whether the manufacturer’s cigarettes, which had higher levels of tar than some competing brands were defective. The manufacturer was also not entitled to an instruction requiring the jury to find that its cigarettes were the but-for cause of plaintiff’s harm. But-for causation is required only when an injury allegedly has only a single cause. “Substantial factor” in causation is the proper legal test when multiple causes concur to produce the injury.
California Court of Appeal, Second District, Division 8 (Rubin, Acting P.J.); August 30, 2017; 2017 WL 3725640