Ford Motor Co. v. Boomer

Citation: Not availableDocket: 120283

Court: Supreme Court of Virginia; January 9, 2013; Virginia; State Supreme Court

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The case involves appeals from jury verdicts against Honeywell International and Ford Motor Company for the wrongful death of James D. Lokey, who died from mesothelioma attributed to asbestos exposure from Bendix brakes. Ford challenges the circuit court on several points: the jury instructions regarding causation, the admission of expert testimony, the sufficiency of evidence linking Ford's failure to warn to the harm caused, and the determination of proximate cause despite alternative explanations. The Circuit Court of Albemarle County, presided over by Judge Cheryl V. Higgins, ruled against Ford and Honeywell, leading to this appeal.

Lokey, diagnosed with mesothelioma in 2005 and deceased by 2007, had testified before his death about his work as a Virginia State Trooper, where he frequently observed brake inspections that involved blowing out brake dust with compressed air. He reported being in close proximity to these inspections in numerous garages without proper protective gear or warnings regarding health risks. While he could not identify specific brake linings, circumstantial evidence was presented suggesting that Bendix manufactured the asbestos-containing brake linings used in the inspected vehicles. A former Bendix factory manager testified about the company's dominance in the brake lining market during the relevant time period, indicating that Bendix likely supplied the majority of brake linings for Ford and Oldsmobile vehicles. The court ultimately reversed the initial verdict and remanded the case for further proceedings.

Dr. John C. Maddox and Dr. Laura Welch, experts for Lokey's estate, testified that chrysotile asbestos found in brakes can lead to mesothelioma, asserting that exposure to dust from Bendix brakes and new Ford cars significantly contributed to Lokey's condition. They indicated that there is no safe level of chrysotile asbestos exposure above ambient background levels. Lokey, who worked as a pipefitter at the Norfolk Naval Shipyard in the early 1940s, acknowledged no personal knowledge of asbestos exposure there, despite working in a large warehouse with unknown conditions. 

Dr. David H. Garabrant, a defense expert, claimed that individuals working with asbestos-containing brakes do not face a higher mesothelioma risk than those who do not, while noting an increased risk for shipyard workers. Dr. Victor Roggli, another defense witness, found amosite asbestos fibers in Lokey's lungs and suggested that Lokey's exposure profile was more indicative of historical shipyard work than chrysotile brake products. Roggli also stated that any asbestos exposure above background levels is a substantial contributing factor to mesothelioma.

The jury was instructed on negligence and breach of warranty, ultimately ruling in favor of Lokey's estate and awarding $282,685.69 in damages. The trial court denied motions from Bendix and Ford to strike expert testimony or to set aside the verdict. The appeal raised issues regarding the jury instructions on causation, specifically the term "substantial contributing factor," which the defendants argued contradicted Virginia law. The circuit court defined proximate cause in a manner consistent with established legal definitions.

The first element of proximate cause, known as causation in fact, is characterized by the "but for" or sine qua non rule, which requires that negligent conduct must be a necessary antecedent to the damages incurred by another. However, if multiple causes independently contribute to an event, where each could have sufficed alone to produce the same result, the but-for rule has limitations. In such cases, Virginia law allows for liability if a defendant's negligence is among the concurrent causes of an injury, regardless of whether other parties are also negligent. This principle is reinforced by Virginia's model jury instructions, which state that if multiple parties are negligent and their actions are the proximate cause of the plaintiff's injury, each can be held liable for the full extent of the damages.

In mesothelioma cases, challenges arise due to the disease's signature association with asbestos exposure and its long latency period, which complicates pinpointing the timing and source of exposure. Not all individuals exposed to asbestos develop mesothelioma, and the reasons for this variability remain unclear. Consequently, courts face difficulties in identifying specific exposures as causative factors in cases involving multiple exposures over a lifetime. Nevertheless, Virginia law allows juries to determine liability based on indirect evidence in asbestos-related injury cases, including mesothelioma, thus permitting recovery for affected parties.

Code § 8.01–249(4) addresses the statute of limitations for latent mesothelioma cases. In Owens-Corning Fiberglas Corp. v. Watson, the Virginia Supreme Court upheld a mesothelioma verdict against the manufacturer of Kaylo, despite indirect evidence linking the injured party to the product. A key issue is whether the Commonwealth should modify its proximate cause standard to allow recovery in multiple-causation cases. The traditional but-for definition makes it nearly impossible for claimants to recover damages due to the challenge of proving a single exposure as the sole cause of mesothelioma amid multiple exposures.

To guide the jury, the circuit court introduced the term "substantial contributing factor" in its instructions. Plaintiffs must establish that exposure to asbestos products was a substantial contributing factor to their injury, that defendants knew or should have known of the risks, and that the failure to warn was also a substantial contributing factor. This language reflects a growing trend in other jurisdictions, such as Maryland, California, and Texas, which have embraced the substantial contributing factor standard in asbestos-related cases. However, this term is not rooted in Virginia jurisprudence, and the circuit court failed to define it adequately in jury instructions. This raises concerns about whether it modifies the proximate cause requirement and how "substantial contributing factor" could be interpreted.

The term "substantial" in the context of causation may create ambiguity regarding the required standard of proof, leading to varied interpretations among jurors. Some may view it as lowering the burden of proof, while others might see it as raising it. This inconsistency reflects the lack of a universally accepted definition of "substantial contributing factor," particularly in asbestos litigation across different jurisdictions. For example, Maryland requires specific tests related to exposure frequency and proximity, while California allows for risk-related definitions, and Texas necessitates defendant-specific evidence regarding dosage. The recent Restatement (Third) of Torts has intentionally omitted the substantial factor language found in the earlier Restatement (Second), which had been criticized for obscuring causation standards. Instead, the current Restatement emphasizes a but-for causation standard and allows for the identification of multiple sufficient causes without reliance on ambiguous terminology. This shift aims to provide clearer guidance for courts and jurors, highlighting that a defendant's act should not evade liability simply due to the existence of another sufficient cause. The new model reinforces the principle that each act contributing to harm should be recognized as a factual cause, promoting accountability for tortious conduct.

Recognition of the but-for standard as a method for identifying causes is important, but it is not the only approach for determining factual causation. Multiple sufficient causes can also be recognized as factual causes, aligning with common understandings of causation and fairness in assigning responsibility. This approach allows for joint and several liability among multiple tortfeasors. Some jurisdictions differentiate this concept with the term "concurrent causes." In cases involving multiple-exposure mesothelioma, the analysis of multiple sufficient causes applies, as each cause can independently lead to the same outcome. 

It is not necessary for a plaintiff to prove that a single act was the sole proximate cause of harm; concurrent negligence from two or more parties can collectively result in liability for a single injury. Cases with concurrent negligence where effects are inseparable result in all parties being jointly or severally liable for the total loss. Current jury instructions on concurring negligence may lack specificity, failing to adequately convey the necessary standard for causation. The appropriate standard requires that exposure to a defendant's product alone could likely have caused the harm, which is crucial for the cause-in-fact requirement in concurring cause situations.

The determination of liability rests with the factfinder, who assesses the evidence and medical testimony regarding the necessary exposure to cause mesothelioma. Despite the complexities surrounding mesothelioma causation, if jurors believe a negligent exposure likely triggered the harm, they may find the defendant liable, similar to scenarios involving clear-cut accidents. Established Virginia law affirms that concurring causes do not need to occur simultaneously, which may contrast with the latest Restatement language on multiple sufficient causes. Each act that independently could have caused harm is considered a factual cause under the Restatement.

The phrase "at the same time" modifies "factual cause of the physical harm," not "acts occur," indicating that concurrent acts are not necessary for liability; rather, they must be operating and sufficient to cause harm contemporaneously. In mesothelioma cases, harm is identified at the point when medical evidence confirms the cancer's existence, which can occur long after asbestos exposure. Although a discovery rule for asbestos-related diseases has been established, it does not alter the definition of harm or injury. Any exposure that contributes to the harm, regardless of its timing, can be considered a sufficient cause, and defendants are liable if they caused any sufficient exposure prior to the cancer's development, regardless of other innocent or negligent exposures. It is essential to have medical testimony to determine whether the timing of exposure could have caused the cancer. Defendants cannot be held liable for exposures occurring after the cancer has developed. 

An alternative causation approach exists for diseases, allowing liability if multiple exposures combine to reach a harmful threshold; however, this dose-related approach is not deemed appropriate for mesothelioma based on current medical understanding. The ruling establishes that the "sufficient"-to-have-caused standard is appropriate for defining the cause-in-fact element of proximate cause in concurring causation cases. While a model jury instruction for concurrent negligence exists, the multiple-sufficient-causes approach applies regardless of whether the causes are tortious or innocent. The trial court erred by not sustaining objections to substantial contributing factor jury instructions, leading to a remand for proceedings consistent with the multiple sufficient cause analysis.

Additionally, Ford contends that the evidence does not sufficiently link exposure to its brake dust with Lokey's mesothelioma, suggesting an earlier exposure to amosite asbestos as a more likely cause. The plaintiff must demonstrate that exposure to Ford brake dust precedes the development of Lokey's cancer and is sufficient to cause his mesothelioma.

The court declines to evaluate the sufficiency of evidence at trial due to the differing approach from the circuit court. It rejects the substantial contributing factor causation standard and, consequently, does not address the errors related to expert testimony from Bendix and Ford. Bendix argues that the trial court erred by allowing experts to state that "any exposure" to asbestos was a substantial contributing factor to mesothelioma, which the court finds moot since the causation standard is not permissible in the Commonwealth. Ford claims insufficient foundation for expert testimony but faces similar issues, as the testimony is linked to the rejected causation standard. Both defendants contest the sufficiency of evidence regarding their failure to warn as a proximate cause of Lokey's mesothelioma, arguing that there is no evidence that Lokey would have altered his behavior with proper warnings. The court acknowledges that Lokey, who passed before trial, could not provide direct evidence regarding his behavior, but asserts that reasonable inferences can be drawn from surrounding circumstances. Jurors may infer that a warning could have prevented Lokey's injury based on established facts and the general understanding of asbestos risks at the time.

The plaintiff provided expert testimony about the risks of asbestos exposure and evidence showing that Ford and Bendix had internal documents indicating that asbestos from brake linings was carcinogenic during Lokey's inspections. Lokey's son-in-law described him as meticulous and safety-conscious, suggesting that a reasonable individual in his position would have heeded a warning had one been issued. Ford and Bendix argued that warning labels on brake boxes during Lokey's last year of employment demonstrated that he would have ignored earlier warnings, claiming this negated proximate cause. However, under common law, a manufacturer can be liable for failing to warn about product dangers, regardless of who is injured. The jury could infer that Lokey's exposure to asbestos was foreseeable, and that he should have been warned given the nature of his inspections involving brake dust. Although there was evidence of warnings on new brake boxes, there was no proof that Lokey was aware of these warnings, as they were not seen by inspectors. Thus, a jury could conclude that the warning was inadequate for Lokey. If the warning was deemed insufficient, Lokey's unchanged behavior would not diminish the claim. The jury could reasonably infer that appropriate warnings would have led Lokey to take precautions against asbestos exposure. The circuit court's finding that the failure to warn was a proximate cause of Lokey's injury was upheld, leading to the reversal and remanding of both cases for further proceedings.