Virginia Top Court Adopts 'Multiple-Sufficient Causes' Analysis

Virginia Top Court Adopts 'Multiple-Sufficient Causes' Analysis

CHARLOTTESVILLE, Va. - (Mealey's) Mesothelioma plaintiffs must show asbestos exposure from a defendant's product sufficient to give rise to the disease, the Virginia Supreme Court held Jan. 10 (Honeywell International Inc. v. Walter E. Boomer, administrator, No. 120299, Va. Sup.).

The court rejected the strict "but-for" causation standard championed by the defendants, as well as substantial contributing factor causation. Instead, the court said the "multiple sufficient cause" analysis in Restatement (Third) of Torts Sections 26 and 27 applies in mesothelioma cases. Under that standard, each harm must be a factual cause of the injury, even where multiple harms led to the injury.

James "Doug" Lokey's widow, Virginia Lokey,her daughter Sandra Boomer and her husband, Walter Boomer, filed suit in the Albermarle Circuit Court against numerous entities whose conduct allegedly exposed James "Doug" Lokey to asbestos. In addition to other exposures, the plaintiffs alleged that the decedent worked around asbestos-containing automotive brakes while certifying state inspection stations as a state trooper between 1966 and 1974.At trial, only the plaintiffs' claims against Ford Motor Co. and Honeywell International Inc. for exposure to asbestos in brake pads at the inspection stations remained.

Substantial Factor Causation

After a trial against the two remaining defendants, a jury awarded the plaintiffs $282,675.69, consisting of$50,000 each to Virginia Lokey and Sandra Boomer, $180,545.44 for the care, treatment and hospitalization of the decedent and $2,140.25 for funeral expenses.

Judge Cheryl V. Higgins denied motions to strike expert testimony and for a new trial. The Virginia Supreme Court accepted and consolidated appeals from Honeywelland Ford.

"Considering it now for the first time, we find several problems with the substantial contributing factor instruction," the court said. The first problem is that the judge never defined "substantial contributing factor" for the jury.

"It is not clear whether it was meant to alter the proximate cause requirement in some way, such as reducing the cause-in-fact requirement by referring to a 'contributing' factor rather than an independent but-for cause," the court said. Without a definition of "substantial," the jury was left to wonder whether a mere de minimus cause was sufficient or whether some more elevated standard applied, the court said.

Multiple Triggers

While mesothelioma leaves more doubt as to which exposure or exposures triggered a disease than a car accident or multiple fires, the court found the difference unimportant.

"This is, however, a distinction without a difference: if the jurors, after hearing the testimony and evidence, believe that a negligent exposure was more likely than not sufficient to have triggered the harm, then the defendant can be found liable in the same way that a jury can conclude that a driver in a multiple-car collision or the negligent party in one of two converging fires is liable," the court said.

The court said that given its finding, it would not rule on challenges to expert testimony opining that "any exposure" to asbestos contributes to mesothelioma. On remand, Judge Higgins must consider whether the experts can opine on what level of exposure causes mesothelioma and whether the exposures at issue here were more likely than not sufficient to have caused the disease, the court said.

Finally, the court affirmed Judge Higgins' conclusion that sufficient evidence supported the jury's failure-to-warn finding. The court said the plaintiffs submitted sufficient evidence that a "by-the-book" guy such as the decedent would have heeded warnings from Ford or Honeywell. And while Honeywell eventually provided warnings on its brakes, there is no evidence that the decedent saw the warnings, the court said. An insufficient warning acts the same as no warning, the court said.

Justice LeRoy F. Millette Jr. wrote for the court.

Nathan D. Finch of Motley Rice in Mount Pleasant, S.C., and Gary Kendall and E. Kyle McNew of Michie, Hamlett, Lowry, Rasmussen & Tweel in Charlottesville represent the plaintiffs.William D. Bayliss and Lynn K. Brugh of Williams Mullen in Newport News, Va., represent Honeywell. J. Tracy Walker IV, Samuel Tarry Jr. and Richard C. Beaulieu of McGuireWoods in Richmond, Va., represent Ford.

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