Repeal of Immunity on Liability of Tobacco Companies in California

In Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828 and Naegele v. R.J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, the Supreme Court discussed the effect of the repeal of the immunity on the liability of tobacco manufacturers before, during and after the 10-year period the immunity was in effect. ( Myers, supra, 28 Cal.4th at p. 832; Naegele, supra, 28 Cal.4th at p. 860.) In Myers, the court held: "The Immunity Statute applies to certain statutorily described conduct of tobacco companies that occurred during the 10-year immunity period, which began on January 1, 1988, and ended on December 31, 1997. With respect to such conduct, therefore, the statutory immunity applies, and no product liability cause of action may be based on that conduct, regardless of when the users of the tobacco products may have sustained or discovered injuries as a result of that conduct. That statutory immunity was rescinded, however, when the California Legislature enacted the Repeal Statute, which as of January 1, 1998, restored the general principles of tort law that had, until the 1988 enactment of the Immunity Statute, governed tort liability against tobacco companies. Therefore, with respect to conduct falling outside the 10-year immunity period, the tobacco companies are not shielded from product liability lawsuits." ( Myers, at p. 832.) In Naegele, the court considered "what forms of conduct by tobacco companies during the 10-year immunity period come within the protection conferred by the Immunity Statute." ( Naegele, supra, 28 Cal.4th at p. 860.) The court concluded that the Immunity Statute's broad definition of product liability lawsuits barred actions for fraud, as well as for negligence and manufacture of an inherently unsafe product, provided the lawsuit is seeking damages for personal injury or death caused by the use of "pure and unadulterated" tobacco products. ( Id. at pp 863-864.) Therefore, the allegation that tobacco companies, during this period, controlled or increased the nicotine content of their cigarettes through blended or high-nicotine tobacco does not avoid the bar of the Immunity Statute "because it does not allege that defendants exposed plaintiff to a risk other than those inherent in tobacco products." ( Id. at p. 865.) However, product liability lawsuits based upon allegations that the tobacco companies manipulated the addictive properties of cigarettes through additives, such as " 'controlling nicotine delivery to the smoker through adding ammonia' " ( id. at p. 865), are not barred during the immunity period. "The essence of these allegations is that defendant tobacco companies adulterated the cigarettes plaintiff smoked with additives that exposed him to dangers not inherent in cigarette smoking. Because, as we have explained, the statutory immunity does not shield a tobacco company from liability for injuries or deaths caused by something not inherent in the product itself, the Immunity Statute does not bar these claims." (Ibid.) In summary, Naegele concluded: "As we hold in the companion case of Myers, supra, 28 Cal.4th 828, the Immunity Statute governs conduct of tobacco companies during the immunity period, which began on January 1, 1988, and ended on December 31, 1997. But when, on January 1, 1998, the California Legislature's repeal of that immunity took effect, the Legislature restored the common law principles that had, until enactment of the Immunity Statute, governed tort liability against tobacco companies. Thus, the Immunity Statute provides no protection to tobacco companies for conduct that occurred before the statute's 10-year period of immunity. Regarding defendants' conduct during the statutory immunity period, we conclude that the Immunity Statute bars plaintiff's claims, however labeled, where they allege no more than personal injury caused by dangers or risks inherent in the consumption of tobacco products such as cigarettes. But the Immunity Statute does not bar plaintiff's claims that the defendants adulterated the cigarettes plaintiff smoked with additives that exposed him to dangers not inherent in cigarette smoking. Nor does the Immunity Statute shield tobacco companies from liability for conduct outside the immunity period." ( Naegele, supra, 28 Cal.4th at p. 867.)