Kentucky Court Upholds Dismissal of Asbestos Claim Against Cigarette Maker

The widow of a former cigarette factory worker has lost her bid for a new trial seeking compensation for her husband’s death, contending that he died of exposure to asbestos while working and smoking at a factory that made cigarettes.

The 2-1 decision by the Kentucky Court of Appeals last Friday rejected an argument by Wanda McGuire that Lorillard Tobacco’s practice of giving out asbestos-filtered Original Kent cigarettes to employees in the 1950s resulted in his contracting and dying from mesothelioma three years ago.

McGuire contended that a Jefferson County jury received improper instructions about Lorillard’s possible liability for giving employees free cigarettes that had asbestos-laden filters. Circuit Judge Charles L. Cunningham instructed jurors to consider two years of asbestos exposure when weighing whether Lorillard was liable rather than the full three years McGuire worked at the company’s Louisville production plant.

Judges Laurence B. VanMeter and James H. Lambert found any error made in the instructions proved harmless when the jury found in favor of the cigarette company.

“In other words, it is not reasonable to believe that the jury’s consideration of three years of smoking Original Kent cigarettes, from August 1953 to 1956, as opposed to two years, August 1954 to 1956, as instructed, would have affected the verdict with respect to Lorillard,” VanMeter wrote for the pair.

Judge Joy A. Moore split with her colleagues on that issue, saying jurors could have concluded Bill McGuire had been exposed to asbestos from the cigarettes, regardless of the time frame.

“Here, I believe it is reasonably possible that the jurors could have believed Bill was exposed to asbestos as a result of smoking Original Kent cigarettes from August of 1953 to August 1954,” Moore wrote.

McGuire’s husband, Bill McGuire, worked in Lorillard’s Louisville, Ky., plant from August 1953 to August 1954. While there, the company had a practice of giving employees free Original Kent cigarettes to smoke on the job. Original Kent cigarettes had a “micronite filter,” which included a type of asbestos called crocidolite.”

Bill McGurie died in March 15, 2011, from mesothelioma, a rare form of cancer that develops from cells of the mesothelium, the protective lining that covers many of the internal organs of the body. Wanda McGuire sued Lorillard Tobacco, based in Greensboro, N.C., after her husband’s diagnosis in 2010, saying he contracted the deadly disease because he smoked Original Kent’s while working at Lorillard.

Moore, who joined her colleagues for much of their decision, noted that contracting mesothelioma while working at Lorillard and smoking the cigarettes in question, the smoking cannot be said to have any direct relationship with his employment. Therefore, Moore said, contracting the disease had no relationship to his job.

“In that regard, Lorillard gave Bill Original Kent cigarettes and allowed Bill to smoke them while working, it did not pay him to smoke,” Moore wrote.

The appeals court also upheld Judge Charles L. Cunningham’s decision to exclude evidence that other Lorillard employees from the same time frame also contracted mesothelioma.

“Here, while these other individuals who worked at Lorillard at varying times between 1952 and 1956 may have eventually contracted mesothelioma, the level of their individual exposure to asbestos at Lorillard’s plant or anywhere else is unknown, as is the specific cause of their individual diseases,” Moore wrote.