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No Instruction for ‘Substantial Contributing Factor’

Deborah Elkins//January 17, 2013

No Instruction for ‘Substantial Contributing Factor’

Deborah Elkins//January 17, 2013//

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The Supreme Court of Virginia reverses a $282,685 jury award to the estate of a state trooper who died of mesothelioma after exposure to asbestos while observing vehicle brake inspections as a state trooper and previously, through employment as a shipyard pipefitter; Virginia law does not allow for a jury instruction on “substantial contributing factor” in multiple-causation cases, and the case is reversed and remanded.

Our law provides 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 been a sufficient cause. Causation in a mesothelioma case presents a challenge for the courts beyond even our standard concurring negligence instruction. The long latency period of the disease 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 exposure.

Further complicating the issue, although numerous individuals were exposed to varying levels of asbestos during its widespread industrial use before safety measures became standard, not all persons exposed developed mesothelioma.

The question here is whether the commonwealth’s approach to proximate cause should be modified to allow such recovery in multiple-causation cases and, if so, how. The circuit court, in an admirable attempt to offer guidance to the jury, invoked a supplemental term in its jury instructions: “substantial contributing factor.” This instruction has become prominent in some other jurisdictions in the last several decades, with the rise of asbestos-based lawsuits.

The phrase “substantial contributing factor” is not grounded, however, in the jurisprudence of this court: we have not, in the history of our case law, ever invoked this language. Considering it now for the first time, we find several problems with the instruction. We do not believe this phrase has a single, common-sense meaning, and we conclude 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.

We have held, as to mesothelioma, that the “harm” occurs not at the time of exposure but at the time when competent medical evidence indicates the cancer first exists and causes injury. The exposure must have been “a” sufficient cause: if more than one party caused a sufficient exposure, each is responsible. Other sufficient causes, whether innocent or arising from negligence, do not provide a defense. Excluding other exposures from the pool of multiple sufficient causes will require competent medical testimony indicating whether the timing of exposure could possibly have caused the cancer. Defendants with sufficient exposures that occur after the cancer has already developed cannot be held liable.

We find 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. Use of the multiple-sufficient-causes approach remains appropriate whether the concurring causes are all tortious in nature or whether some are innocent.

We conclude the trial court erred in failing to sustain defendants’ objections to the substantial contributing factor jury instructions. We remand for further proceedings consistent with the multiple sufficient cause analysis.

Plaintiff must show that it is more likely than not that decedent’s alleged exposure to dust from Ford brakes occurred prior to the development of his cancer and was sufficient to cause his mesothelioma. Given that this approach differs from the one taken by the circuit court, we do not find it appropriate to rule on the sufficiency of the evidence at trial at this point. We also decline to reach the assignments of error relating to expert testimony.

Defendants also claim plaintiff failed to present evidence sufficient to show that their failure to warn was the proximate cause of decedent’s mesothelioma. Considering that decedent’s employment with the commonwealth required him to be present at inspections that included the blowing out of brakes, and testimony that defendants were aware at the time that compressed air was used to blow out brake dust, the jury was entitled to conclude decedent’s exposure to asbestos was foreseeable by defendant Bendix and Ford and that a person in his position should have been warned. A reasonable jury could have found that an eventual warning on brake boxes was inadequate as to decedent.

Ford Motor Co. v. Boomer, Adm’r (Millette) No. 120283, Jan. 10, 2013; Albemarle County Cir.Ct. (Higgins) J. Tracy Walker IV, Samuel L. Tarry Jr., Richard C. Beaulieu for appellant Ford; Stuart A. Raphael, William D. Bayliss, Lynn K. Brugh IV for appellant Honeywell/Bendix; Robert R. Hatten, William W.C. Harty, Gary W. Kendall, E. Kyle McNew, Nathan D. Finch for appellee; Emma Burton, Mark A. Behrens, Robin S. Conrad, Kathryn L.C. Todd for appellant amici; Julie S. Palmer, John R. Owen, Joseph A. Robinson for appellant amici VADA; Jonathan Ruckdeschel, William F. Etherington for appellee amicus Va. State Police Ass’n; Mary Lynn Tate, Jeffrey M. Summers for appellee amicus VTLA. VLW 013-6-007, 27 pp.

VLW 013-6-007

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