dissenting:
I respectfully dissent. In allowing the defense of contributory negligence, the majority fails to follow the plain language of North Carolina’s product liability law. The defense of contributory negligence is available only when “[t]he claimant failed to exercise reasonable care under the circumstances in his use of the product, and such failure was a proximate cause of the occurrence that caused injury or damage to the claimant.” N.C.Gen.Stat. § 99B-4(3) (emphasis added). There is no contention that plaintiffs misused the product here.
True, the plaintiffs smoked cigarettes. I do not understand, however, why use of one product (cigarettes) operates to bar recovery against the manufacturer of a totally different product (asbestos). The statute requires examination of the care taken in plaintiffs’ use of the product — here asbestos — and plaintiffs’ smoking is an independent fact not related to this question. The majority claims that the words “reasonable care under the circumstances” should somehow change this reading. Those words modify the phrase “use of the product,” however, a point that the majority’s interpretation of the statute overlooks. If exposure to asbestos caused these plaintiffs serious harm, the defendant is not to be exonerated by the happenstance of plaintiffs’ health habits.1
Although the majority indicates that N.C.Gen.Stat. § 99B^4(3) was intended to codify the common law of contributory negligence, the North Carolina courts have paid strict attention to the actual wording of the statute. Champs Conv. Stores v. United Chemical, 329 N.C. 446, 406 S.E.2d 856, 859-62 (1991). The majority’s reading of these statutory terms might be less puzzling if North Carolina had enacted a statute that raised novel questions of product liability law. But various formulations of the product misuse defense are a staple of modern tort litigation, and such litigation typically involves alteration or use of the product in an arguably risky way. See, e.g. Welge v. Planters Lifesavers Co., 17 F.3d 209 (7th Cir.1994) (whether use of knife to remove label from jar is misuse); Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1324-25 (6th Cir.1992) (whether exposure of acetylene cylinder to open flames is misuse); Weir v. Federal Ins. Co., 811 F.2d 1387, 1391-92 (10th Cir.1987) (whether locating dryer below leaking faucet is product misuse); Beacham v. Lee-Norse, 714 F.2d 1010, 1014-17 (10th Cir.1983) (whether elevation of roof bolter on blocks is product misuse). Conduct such as this is what the North Carolina statute contemplated as contributory negligence, and I regret to see my fine colleagues carry the statutory purpose far afield.
The majority’s hypothetical of a person ingesting alcohol with prescription drugs differs from this case. Affixed to the medicine bottle in the majority’s hypothetical is an explicit warning against such product misuse — a warning which defendants do not even claim was present here. Indeed, they *723could not claim it, because plaintiffs’ smoking and plaintiffs’ exposure to defendant’s product both predated by many years the Surgeon General’s 1964 report.
Although North Carolina law does not afford a right to assert contributory negligence in these circumstances, I do not mean to imply that evidence of plaintiffs’ smoking habits would routinely be withheld from a jury. A history of cigarette smoking may be relevant to the question of the proximate cause of a plaintiffs injuries, see In re Manguno, 961 F.2d 533 (5th Cir.1992), or perhaps to the amount of damages a plaintiff may recover, see Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1138-40 (5th Cir.1985).2 These questions, however, are not now before us. The jury has found that prolonged exposure to defendant’s product was a substantial contributing cause of plaintiffs’ lung condition, and I do not think that the company may assert a defense of contributory negligence to escape all liability.
In sum, I would affirm the judgment of the district court.
. Some courts have determined that evidence of smoking in asbestos tort actions is relevant to comparative fault. Ingram v. Acands, Inc., 977 F.2d 1332, 1342 (9th Cir.1992); Fulgium v. Armstrong World Industries, Inc., 645 F.Supp. 761 (W.D.La.1986). These cases, however, did not involve a statute analogous to North Carolina’s and thus do not provide guidance for the present case. As the majority recognizes, Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276 (4th Cir.1993), did not reach the issue before the court.
. In this connection, the majority’s “synergism” theory addresses a matter of causation rather than a matter of contributory negligence. However intriguing as a matter of policy, the synergism theory would include as evidence of contributory negligence conduct that is not contemplated as such by the plain wording of the North Carolina statute.