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In Mesothelioma Case, Virginia High Court Rejects Maryland’s “Substantial Contributing Factor” Causation Standard and Instead Adopts “Sufficient to Have Caused the Harm” Standard from the Restatement (Third) of Torts
Ford Motor Co. v. Boomer
In this case, the Virginia Supreme Court addressed a pair of appeals arising out of a jury verdict against Honeywell International Incorporated (“Honeywell”) and Ford Motor Company (“Ford”) for the alleged wrongful death of James D. Lokey. Lokey’s death was allegedly caused by mesothelioma resulting from exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles (Bendix’s successor in interest was Defendant Honeywell).
The Court held that the trial court gave an improper jury instruction as to causation, and reversed and remanded the case. In a case of first impression, the Court explicitly ruled on the causation standard that was appropriate for mesothelioma cases. In doing so, the Court adopted the standard from the Restatement (Third) of Torts § 27 and its comments a through e.
The underlying facts were that Lokey’s exposure to asbestos arose from his job as a state trooper. Beginning in 1965 or 1966, and for approximately eight years, his duties required that he observe vehicle inspections wherein mechanics used compressed air to blow out brake debris to allow for a visual inspection of the brakes. Lokey testified that he supervised inspections at a Ford dealership and that he was present when this process was being done on Ford cars. Lokey could not identify the type of brake linings being inspected, but his estate produced circumstantial evidence at trial that the likely manufacturer of the brake linings was Bendix.
Plaintiff’s experts, Dr. John C. Maddox and Dr. Laura Welch, testified that chrysotile asbestos, the type of asbestos found in brakes, can cause mesothelioma. They opined that the exposure to dust from Bendix brakes and brakes in new Ford cars were both “substantial contributing factors” to Lokey’s mesothelioma.
Lokey also testified that he worked as a pipefitter at the Norfolk Naval Shipyard for slightly over a year in the early 1940s. Lokey testified that 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. He had no personal knowledge of any exposure to asbestos in the shipyard. Lokey admitted, however, that he worked in a large warehouse and was unaware of all the work done and products used in the warehouse, whether asbestos products were present, or whether there was any ventilation.
Defense expert Dr. David H. Garabrant, testified that people who work around asbestos-containing brakes are at no higher risk of developing mesothelioma than those who do not. He noted documented evidence, though, of increased risk of mesothelioma for those who worked around shipyards, both directly with asbestos material and also in its vicinity. Dr. Victor Roggli, a defense pathologist, testified that he found amosite asbestos fibers in Lokey's lung tissue. Dr. Roggli opined that Lokey’s 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. Dr. Roggli admitted, however, that his investigation did not include the pleura of the lungs. He also opined that each and every exposure to asbestos above background level is a substantial contributing factor in the development of mesothelioma.
The trial court instructed the jury on negligence and breach of warranty theories. The jury found in favor of the estate as to negligence and awarded damages in the amount of $282,685.69. Defendants appealed, on grounds that, inter alia, the circuit court erred in its jury instructions regarding causation.
The trial court instructed the jury to determine whether Ford’s or Bendix’ negligence was a “substantial contributing factor” to Lokey’s mesothelioma. The Virginia Supreme Court noted that the “substantial contributing factor” instruction was “prominent” in other jurisdictions, citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986), which upheld Maryland’s substantial contributing factor standard in asbestosis cases. The Court noted, however, that it had never invoked this language. In considering it for the first time, the Court found “several problems” with the “substantial contributing factor” instruction, which had the potential to confuse the jury. The Court agreed with the “explicit rejection” of the “substantial contributing factor” language from the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010).
While the Restatement (Second) of Torts used the substantial factor language, the latest version of the Restatement had abandoned it. To the Court, the question in mesothelioma cases is whether exposure to the Defendant’s product, alone, would have been “sufficient to have caused the harm.” After being so instructed, the factfinder, having heard the nature of the exposures to each of the products at issue, as well as the medical testimony as to the requisite exposure necessary to cause mesothelioma, to determine whether the exposure attributable to each Defendant was “more likely than not sufficient” to have cause the harm. The Court therefore held that in concurring causation cases, the “sufficient”-to-have-caused standard is the proper way to define the cause-in-fact element of proximate cause. The Court held that the trial court erred in failing to sustain the Defendant’s objections to the “substantial contributing factor” jury instructions, and remanded the case.
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