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




                                  3
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




                                4
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




                                  6
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




                                 7
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.”




                                 10
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




                                11
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.




                                 15
       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




                                16
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



                                 17
       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.



                                 18
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




                                 37
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.



                                38
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




                                39
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




                                40
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.



                                  41
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,




                                 42
“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




                                 43
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




                                 44
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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