News
& trends
California
high court limits immunity for Big Tobacco
The California
Supreme Court has upheld a state statute that created a 10-year immunity
period for tobacco companies. (Myers v. Philip Morris Cos., Inc.,
50 P.3d 751 (2002).) But the court declined to make immunity retroactive
and, in a companion case, immediately narrowed the scope of immunity.
(Naegele v. R.J. Reynolds To bacco Co., 50 P.3d 769 (2002).)
Tobacco
companies are claiming victory, but plaintiff attorneys say that immunity
will have little effect because most smokers' claims are based on
tobacco companies' conduct before the immunity period began.
California
lawmakers passed legislation effective January 1, 1988, that gave
tobacco companies immunity from products liability suits filed by
smokers. The law, commonly called the "immunity statute," was based
on the theory that there should be no liability for products that
are "inherently unsafe" and are known to be so by the ordinary consumer.
Ten
years later, state legislators passed the "repeal statute," which
removed tobacco products from the immunity statute's list of "inherently
unsafe" products.
The
case that led to the supreme court's rulings was brought by Betty
Jean Myers, who smoked cigarettes from 1956 to 1997. In 1998, she
was diagnosed with lung cancer and sued Philip Morris, R.J. Reynolds,
and Brown & Williamson in state court. The manufacturers removed
the case to federal district court, which dismissed it under the immunity
statute. Myers died in 2000, but her sons appealed, arguing that the
repeal statute should be applied retroactively, eliminating immunity
in all tobacco cases. The Ninth Circuit asked the California Supreme
Court for an advisory opinion.
The
court ruled that applying the repeal statute retroactively to the
10-year immunity period would violate the constitutional ban on ex
post facto laws—unless there was clear legislative intent to
make the law retroactive. The court could find no such intent and
held that tobacco manufacturers are immune from products liability
claims based on their conduct from 1988 to 1998.
But
the court also ruled that tobacco companies are not shielded from
lawsuits based on conduct falling outside that period. It allowed
the part of Myers' claim that was based on the manufacturers' actions
from 1956 to 1988 to proceed under general tort principles.
The
manufacturers argued that if the repeal statute were not retroactive,
it could not remove any protection conferred by the immunity statute.
That statute purported to extend immunity even for conduct occurring
before its effective date, the industry claimed, because it applied
to "all product liability actions pending on, or commenced after"
the effective date. But Justice Joyce Kennard wrote for the majority
that the repeal statute simply "restored the law" to what it had been
before the immunity statute was passed.
Tobacco
companies believe the Myers decision will help them overturn
earlier damages awards to plaintiffs in California courts. R.J. Reynolds
associate general counsel Seth Moskowitz cited a March 2000 verdict
against the company and codefendant Philip Morris in Whitely v.
Philip Morris Cos., Inc.—the first for a person who began
smoking after 1969, when the surgeon general's warning began appearing
on cigarette packs. (No. 303184 (Cal., San Francisco Super. Ct. Mar.
20, 2000).)
"The
Whitely verdict should be overturned, because evidence from
the 10-year immunity period was erroneously admitted," Moskowitz said.
He added that there are at least two other California cases in which
the courts "wrongly interpreted the repeal statute as retroactive."
Richard
Daynard, chair of the Tobacco Products Liability Project at Northeastern
University School of Law in Boston, said it is "doubtful" that tobacco
verdicts will be overturned because of Myers. "The ruling ex
cludes only a small amount of evidence," he said. "Most evidence in
tobacco cases is pre-1988, because after that, the industry became
more careful about how to write memos."
In
the companion ruling in Naegele, the court held that the immunity
statute does not protect tobacco companies from liability for harm
caused by cigarette additives. Immunity is based on the inherent and
well-known dangers of nicotine, Kennard wrote, and it does not apply
to "something not inherent in the product itself."
Moskowitz
called Naegele "a dead end" because "cigarette companies don't
add anything to cigarettes that would increase their inherent risks."
But
Daynard said the ruling could be significant because one common cigarette
additive is ammonia. "While ammonia is not necessarily an inherently
dangerous product, the general understanding is that ammonia is added
to cigarettes to make the nicotine in them more addictive," he said.
"The industry has argued that ammonia is added for taste, but how
many cooks do you know who add floor cleaner for that extra zing?"
—Janet
L. Holt
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