State Supreme Court Clarifies Causation Standard in Asbestos Case

The unique and overwhelming features of the grandfather of all mass torts, asbestos, has created bad law in many jurisdictions, procedurally and substantively.  One important example is the issue of causation, and the questions that arise from an injury possibly associated with multiple  exposures to multiple products over many years.  Last year, we posted about a Pennsylvania decision that rejected the plaintiff position that an expert can opine that any level of exposure to a toxic substance is a substantial contributing factor to a disease that is governed by a dose-response relationship.

Recently, the Virginia Supreme Court adopted a new “multiple sufficient causes” analysis as the standard for Virginia mesothelioma cases involving multiple asbestos exposures. See Ford Motor Co. v. Boomer, No. 120283 (Va. 1/10/13).

Plaintiff was diagnosed with mesothelioma, a malignant cancer of the pleura of the lungs.  He asserted that his job duties required that he observe vehicle inspections wherein mechanics used compressed air to blow out brake debris (dust) to allow for a visual inspection of the vehicle's  brakes. He testified that he observed vehicle inspections in approximately 70 garages a month, for five to six hours a day, ten days each month. He testified that his rotations included supervising inspections at a Ford dealership. He said he also specifically remembered Oldsmobile dealers on his rotation. Plaintiff could not identify the type of brake linings being inspected, but presented some circumstantial evidence as to the likely manufacturer of the brake linings being Bendix.

Plaintiff's experts opined that the exposure to dust from Bendix brakes and brakes in Ford cars were both substantial contributing factors in his mesothelioma. And they opined that the current medical evidence suggests that there is no safe level of chrysotile asbestos exposure above background levels in the ambient air. However, plaintiff also testified that he worked as a pipefitter at the Norfolk Naval Shipyard in the early 1940s. His own work and the work of those immediately around him involved packing sand into pipes so that the pipes could be bent to fit the ships. Defense experts opined that his profile was more consistent with a person who had exposure to amosite asbestos at a shipyard sixty years ago than a person exposed to chrysotile brake products.

The jury found in favor of the plaintiff; the trial court denied Bendix' and Ford's motions to strike the expert testimony and their motions to set aside the verdict or for a new trial. Bendix and Ford timely appealed, including on the issue that the court had instructed the jury to determine whether Ford's or Bendix' negligence was a "substantial contributing factor" to plaintiff's mesothelioma. Defendants challenged the use of the substantial contributing factor language as contrary to prevailing Virginia law as to causation.

The court reviewed the traditional Virginia law of causation, which in most instances requires proof that but for the defendant's actions the plaintiff would not have been injured.The 'but for' test is a useful rule of exclusion in all but one situation, said the court: where two causes concur to bring about an event and either alone would have been sufficient to bring about an identical result.  Thus, state law has long provided a means of holding a defendant liable if his or her negligence is one of multiple concurrent causes which proximately caused an injury, when any of the multiple causes would have each have been a sufficient cause.

Causation in a mesothelioma case, however, observed the court, presents a challenge beyond even that standard concurring negligence instruction. Mesothelioma is virtually a signature disease: it was uncontroverted at trial that in most situations the cause of mesothelioma is exposure to asbestos at some point during an individual's lifetime. The long latency period of the disease, however, makes it exceedingly difficult to pinpoint when the harmful asbestos exposure occurred and, in the presence of multiple exposures, equally difficult to distinguish the causative exposures. Further complicating the issue, said the court, although numerous individuals were exposed to varying levels of asbestos during its widespread industrial use before safety measures became standard, not all persons so exposed developed mesothelioma.  It is not currently known why some are more susceptible than others to developing mesothelioma, or why even comparatively lower levels of exposure may cause mesothelioma in some individuals while others exposed to higher dosages never develop the disease. Thus, in the context of a lifetime of various potential asbestos exposures, designating particular exposures as causative presents courts with a unique  challenge.

Certainly, said the court, if the traditional but-for definition of proximate cause was invoked, the injured party would virtually never be able to recover for damages arising from mesothelioma in the context of multiple exposures, because injured parties would face the difficult if not impossible task of proving that any one single source of exposure, in light of other exposures, was the sole but-for cause of the disease. The lower court thus used a "substantial factor" test.  In the last several decades, with the rise of asbestos-based lawsuits, the "substantial contributing factor" instruction has become prominent in some other jurisdictions. See, e.g., Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986) (upholding Maryland's substantial contributing factor standard in an asbestosis case); Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1219 (Cal. 1997).

Here, the court rejected the “substantial contributing factor” analysis used by these several other jurisdictions.  The Court did not believe that substantial contributing factor has a single, common-sense meaning, and concluded that a reasonable juror could be confused as to the quantum of evidence required to prove causation in the face of both a substantial contributing factor and a proximate cause instruction. In sum, some jurors might construe the term to lower the threshold of proof required for causation while others might interpret it to mean the opposite. The court also agreed with the explicit rejection of substantial contributing factor language in the recent Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010).  The substantial-factor rubric, says the commentary, tends to obscure, rather than to assist, explanation and clarification of the basis of causation decisions. The latest Restatement provides a rule for finding each of two acts that are elements of sufficient competing causal sets to be factual causes without employing the substantial-factor language of the prior Torts Restatements. There is no question of degree in the new version.  It holds that if multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each can be regarded as a factual cause of the harm.

The court found this model, as explicated in the comments, quite consistent with its prior rulings regarding concurring causation. A defendant whose tortious act was fully capable of causing the plaintiff's harm should not escape liability merely because of the fortuity of another sufficient cause. So the but-for standard is a helpful method for identifying causes, but it is not the exclusive means for determining a factual cause. Multiple sufficient causes may also be factual causes.  The acts themselves do not have to be concurrent, so long as they are operating and sufficient to cause the harm contemporaneously. As to mesothelioma, said the court, the "harm" occurs not at the time of exposure but at the time when competent medical evidence indicates that the cancer first exists and  thus causes injury. 

 The court said that the separate comment under Restatement § 27, entitled "Toxic substances and disease," should not be applied here.  That approach allows for a finding of causation when multiple exposures combine to reach the threshold necessary to cause a disease, allowing parties who were responsible for some portion of that threshold to be held liable. While it may be the case that this dose-related approach to causation is indeed appropriate for some cancers or diseases, the court did not find it to be necessarily appropriate for mesothelioma from asbestos.

Based on this rule, plaintiff must show that it is more likely than not that his alleged exposure to dust from defendant's brakes occurred prior to the development of cancer and was sufficient to cause his mesothelioma. Given that this approach differs from that taken in the circuit court, the court did not find it appropriate to rule on the sufficiency of the evidence at trial at this time, and instead remanded. On remand, the experts must opine as to what level of exposure is sufficient to cause mesothelioma, and whether the levels of exposure at issue in this case were sufficient.

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