Introduction In recent years, courts across the country have seen an increase in lung cancer cases based on alleged asbestos exposure. Many of these cases involve plaintiffs with significant histories of smoking tobacco. Despite this common sense alternative causation, courts vary widely on the impact of this factual scenario depending on the jurisdiction’s utilization of comparative or contributory negligence, recognition of a claim of strict liability, and method of apportionment of damages. Consideration of these factors is essential to evaluate the defense of a case and the potential financial impact of an adverse verdict.

Comparative Fault A vast majority of states employ comparative fault, in which the plaintiff’s negligence can be considered by the jury to potentially offset a percentage of the judgment against the defendant due to the plaintiff’s own actions in causing the alleged injury. In Dafler v. Raymark Indus., Inc., 611 A.2d 136 (N.J. Super 1992), the appellate division of the Superior Court of New Jersey affirmed the jury’s finding that the plaintiff’s 45 years of smoking contributed 70% to his lung cancer, while his use of asbestos-containing products during six years as a shipfitter contributed 30%. In upholding the proportionate reduction of the overall verdict, Dafler referenced courts in Arkansas, Connecticut, Hawaii, Louisiana, Michigan, and Texas that have allowed comparative consideration of smoking and asbestos exposure.

Contributory Negligence & Strict Liability Only five jurisdictions—Alabama, the District of Columbia, Maryland, Virginia, and North Carolina—still employ contributory negligence, in which a plaintiff’s negligence is a complete bar to recovery. Of these five states, only the first three recognize a cause of action of strict liability, which is commonly utilized in asbestos litigation. While contributory negligence is a recognized defense to strict liability in Alabama, it is not an available protection in Maryland and the District of Columbia. Defendants in these two jurisdictions are left to argue that a plaintiff cannot prove the causation element required in strict liability, which only necessitates that the asbestos product at issue be a substantial factor in causing the plaintiff’s injury.

Apportionment of Damages Regardless of comparative and contributory fault, apportionment of damages is another important consideration. The vast majority of jurisdictions across the country use some variation of joint and several liability, in which the plaintiff can recover all of the damages from any one defendant regardless of each defendant’s individual share of liability. The paying defendant can then attempt to litigate with any other solvent defendants for contribution.

Reconciling Fault with Damages Maryland, a contributory negligence state employing joint and several liability, recently addressed a smoking lung cancer asbestos case in Carter v. Wallace & Gale Asbestos Settlement Trust, 439 Md. 333 (Md. 2014). The deceased plaintiff, a half to one pack per day smoker for 65 years, was a laborer in a copper refinery from 1966 to 1975, and alleged exposure to asbestos-containing insulation. The defense attempted to offer expert medical testimony that the plaintiff’s smoking contributed 75% to his lung cancer, and the exposure to asbestos contributed 25%. In affirming the trial judge’s rejection of this testimony, the Court of Appeals ruled that apportionment of damages was inappropriate with an indivisible injury, and that apportioning damages between plaintiff’s smoking history and asbestos exposure holds the plaintiff accountable under comparative negligence principles which are inapplicable in a contributory negligence jurisdiction such as Maryland.

This recent appellate opinion and its potential application in smoking lung cancer asbestos litigation in contributory negligence jurisdictions that recognize strict liability claims may be problematic for the defense. Defendants in other jurisdictions can be optimistic to avoid or offset any potential verdict due to a plaintiff’s history of smoking. In contrast, defendants in the few jurisdictions utilizing contributory negligence but not allowing it to serve as a defense in strict liability claims are limited to arguing that their alleged asbestos-containing product was not a substantial factor in causing the plaintiff’s injury. Plaintiffs’ counsel can essentially concede the plaintiff’s contributory negligence from smoking and still recover by focusing their entire argument on the exposure to asbestos.

Given the low standard utilized by the courts in applying the substantial factor test, defendants whose products had little if any proximate exposure to a life-long smoker may nevertheless be completely liable for an entire judgment if the trier of fact finds that the asbestos product was a substantial factor in causing the lung cancer, and the jurisdiction fails to allow for apportionment. While the Court’s ruling in no way absolves plaintiffs of their burden to establish that any alleged asbestos exposure was a substantial factor in causing the plaintiff’s asbestos-related disease (see Eagle Picher Indus. Inc. v. Balbos, 326 Md. 179 (Md. 1992); Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986)), there is no question that the ruling appears to significantly and negatively limit the options for defending smoking lung cancer cases in Maryland or the District of Columbia.

Consistent Facts with Inconsistent Results Consider a similar plaintiff in other jurisdictions who testifies to a 65-year history of smoking yet claims his lung cancer was caused by exposure to an asbestos-containing product. A jury subsequently finds the plaintiff’s injury to be 75% percent attributable to his smoking and 25% attributable to the asbestos-containing product, and awards the plaintiff $1,000,000. In a jurisdiction such as Alabama, where contributory negligence can serve as a defense to negligence and strict liability, the defendant may be liable for nothing. In jurisdictions utilizing pure comparative fault in negligence and strict liability claims without a threshold level for recovery, the defendant may be liable for $250,000. In Maryland or the District of Columbia, where contributory negligence only serves as a defense to negligence and not strict liability claims, the defendant may be liable for the full amount of $1,000,000

Future Implications These inconsistent results for a consistent factual scenario demonstrate a number of potential future implications. For instance, interested parties may seek to lobby their respective legislatures to rethink the application of negligence, strict liability and apportionment of damages in the limited context of smoking lung cancer asbestos claims, or permitting evidence of contributory negligence to serve as a defense to strict liability. Defendants may want to reevaluate their litigation strategy, which may entail impleading tobacco manufacturers as a party to the litigation, or, where possible, filing a motion for forum non conveniens. Regardless, smoking lung cancer asbestos claims highlight many jurisdictional and fact-specific issues and concerns that must be considered in evaluating these cases. It is clear that the number of lung cancer cases being filed is increasing; therefore, litigators should be mindful of the current and evolving medical causation studies that may provide a generally accepted scientific basis for reducing or apportioning damages.

Disclaimer: This is for general information and is not intended to be and should not be taken as legal advice for any particular matter. It is not intended to and does not create any attorney-client relationship. The opinions expressed and any legal positions asserted in the article are those of the authors and do not necessarily reflect the opinions or positions of Miles & Stockbridge P.C., its other lawyers, or American Lawyer Media.

Deborah K. St. Lawrence Thompson is a principal and Scott J. Richman is an associate with Miles & Stockbridge’s Products Liability and Mass Torts Practice Group. Deborah and Scott focus their practices on the defense of products liability matters, including mass torts, toxic torts, and those involving consumer products, and serve as local and/or national trial counsel for numerous Fortune 500 companies.