Given that this approach differs from that taken in the circuit court, we do not find it appropriate to rule on the sufficiency of the evidence at trial at this time. Established Virginia law indicates that in order for acts of negligence to constitute concurring causes, it is not necessary that concurring acts occur simultaneously. Ford Motor Company v. Dr. David H. Garabrant, expert for the defense, testified that people who work around asbestos-containing brakes are at no higher risk of developing mesothelioma than those who do not, but noted documented evidence of increased risk of mesothelioma for those who worked around shipyards, both directly with asbestos material and also in its vicinity. Ford closely guards its strategic, marketing, and product development plans. In Virginia, recently, the standard of proof in asbestos litigation shifted with the 2013 state supreme court decision of Ford Motor Co. v. Boomer. Bendix' assignment of error is worded as follows: 2. In light of our above holding rejecting substantial contributing factor causation, we also decline to reach the assignments of error relating to expert testimony. Lokey also testified that he worked as a pipefitter at the Norfolk Naval Shipyard for slightly over a year in the early 1940s. The circuit court instructed the jury on proximate cause but also on five occasions instructed the jury to determine whether Ford's or Bendix' negligence was a “substantial contributing factor” to Lokey's mesothelioma. The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. There is no question of degree for either of these concepts. Flores, 232 S.W.3d 765, 773-74 (Tex. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. In case of any confusion, feel free to reach out to us.Leave your message here. ed.2011). He also stated that he believed they had one hundred percent of the replacement market for brake linings for Oldsmobiles and Fords in the late 1960s. at 33–82, 33–84. The comment also specifically references the tendency of courts to at times interpret the language as either raising or lowering the factual causation standard, leading to inconsistent and inaccurate statements of law. 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. Sure, the boss Henry Ford … In the last several decades, with the rise of asbestos-based lawsuits, the “substantial contributing factor” instruction has become prominent in some other jurisdictions. at 852, 75 S.E.2d at 718 (internal quotation marks omitted). Before confirming, please ensure that you have thoroughly read and verified the judgment. Reasonable jurors are entitled to utilize their own experiences, as well as evidence as to the character of the injured party and the known asbestos dangers at the time the warning should have been given, in order to draw conclusions as to the content of an adequate warning and whether Lokey would have heeded such a warning. Bendix echoes the first three arguments. Ford Motor Co. v. Boomer, Record No. Virginia Supreme Court. Tortious conduct may also be a factual cause of harm under § 27. 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. Nor could anyone have spoken for [the injured party]. change. 736 S.E.2d 724 285 Va. 141. FORD MOTOR COMPANY v. Walter E. BOOMER, Administrator. The circuit court in this case gave almost an identical instruction in Jury Instruction Number 23. Record Nos. Virginia Supreme Court ... City of Modesto v. The Dow Chemical Co. Bradford v. CITGO Petroleum Corp. Honeywell International, Inc. v. Walter E. Boomer, Administrator. LA 2015); Bostic v. Georgia Pacific Corp., 439 SW3d 332 (Tex. In the last several decades, with the rise of asbestos-based lawsuits, the “substantial contributing factor” instruction has become prominent in some other jurisdictions. in the third district court of appeal of the state of florida northrop grumman systems corporation f/k/a northrop grumman corporation, as successor in interest to northrop Mesothelioma is a signature disease: it was uncontroverted at trial that the cause of mesothelioma is exposure to asbestos at some point during an individual's lifetime. 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. Causation in a mesothelioma case, however, presents a challenge for the courts beyond even our standard concurring negligence instruction. But frequently material facts are not proven by direct evidence. The circuit court now needs to consider the experts' opinions as to whether the exposures by Ford and Bendix were each more likely than not sufficient to have causedmesothelioma. Stuart A. Raphael, William D. Bayliss, Lynn K. Brugh, IV, Williams Mullen, Hunton & Williams, on briefs, for appellant Honeywell International, Inc. Movement through the Court System. Thus, in the context of a lifetime of potential asbestos exposures, designating particular exposures as causative presents courts with a unique challenge. In re: New York City Asbestos Litigation. 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. Lokey's son-in-law testified that Lokey was a “perfectionist,” a “by-the-book guy. The case was the first case to apply the Prior Restraint Doctrine to the internet. Walter Boomer, the administrator of Lokey's estate, filed wrongful death actions against Honeywell International, Inc., the successor-in-interest to Bendix, and Ford Motor Company, alleging that Lokey's mesothelioma was a result of exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles. This model, as explicated in the comments, is quite consistent with our statements in Wells regarding concurring causation. Get 1 point on adding a valid citation to this judgment. … j. Enc. Considering that his employment with the Commonwealth required him to be present at inspections which 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 that Lokey's exposure to asbestos was foreseeable by Bendix and Ford and that a person in his position should have been warned. This appears at first glance to be contrary to the language in the latest Restatement: If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each is regarded as a factual cause of the harm. These paired appeals arise out of a jury verdict against Honeywell International Incorporated and Ford Motor Company for the wrongful death of James D. Lokey, caused by mesothelioma resulting from exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles. He also recalled breathing in visible dust in the garages, which to his knowledge had no specialized ventilation systems. The factfinder is left, 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 caused the harm. i QUESTIONS PRESENTED 1. 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 and entered final judgment for the estate. Similar language was used as to the instruction on implied warranty theory in Instruction 14 and in the court's description of the availability of damages in Instruction 30 (“To recover damages, the plaintiff must show that Mr. Lokey was injured as a result of the defendant's [sic] negligence and/or their breach of certain implied warranties and that the conduct of either or both defendants was a substantial contributing factor in his disease.”). Despite this lack of certainty, we task juries with determining liability in multiple exposure mesothelioma cases. Lokey, deceased by the time of trial, was obviously unavailable for further questioning. After a jury trial, the trial court found in favor of the estate as to negligence and awarded damages in the amount of $282,685. ... Ford and Honeywell v. Boomer (NCLC Amicus Brief).pdf. We do not believe that substantial contributing factor 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. 2012) Williams v. Anderson, 2012 WL 5928644 (E.D. Open the PDF in a new window. Maddox and Welsh and in denying Ford's motion to strike the testimony. In this case, the plaintiff presented evidence through multiple expert witnesses of the dangers of asbestos exposure, as well as evidence that Ford and Bendix had internal corporate documents at the time Lokey was inspecting garages that indicated that asbestos exposure from brake linings had carcinogenic effects. Causation in a mesothelioma case, however, presents a challenge for the courts beyond even our standard concurring negligence instruction. There was no evidence presented, however, that Lokey knew of this warning or reasonably could have known of it: the warning was present only on new boxes of Bendix brakes, which inspectors or supervisors of inspections might reasonably have never seen. While we reject defendants' strict interpretation of sole but-for cause argued to the circuit court at trial, we nonetheless conclude. Given the current state of medical knowledge, we find the general approach described in comments a through e of section 27 to be more helpful in mesothelioma and more consistent with our case law. He passed away in 2007 due to complications related to his disease. Hawthorne v. VanMarter, 279 Va. 566, 586, 692 S.E.2d 226, 238 (2010). Given that this approach differs from that taken in the circuit court, we do not find it appropriate to rule on the sufficiency of the evidence at trial at this time. If facts are present from which proper inferences may be drawn this is sufficient. The Circuit Court erred in holding that there was sufficient foundation for the admission of the causation testimony of Plaintiff's expert witnesses Drs. As an initial matter, the circuit court in this case never defined the term “substantial contributing factor” in its jury instructions. Baxter v. Ford Motor Co Case Brief - Rule of Law: Representations set forth by a manufacturer whose falsehood cannot be readily detected by a buyer may be. Ford Motor Company v. Boomer, 736 S.E.2d 724 (Va. 2013), the court rejected the “substantial” causestandard that the parties had previously understood as controlling, and ruled instead that plaintiffs must demonstrate that exposure “ to the defendant’s product alone must have been ave caused the . The bases for the witnesses' opinions as to substantial contributing factor causation are now rendered moot. e. 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 that the cancer first exists and causes injury. 902, 904 (1916) (“ ‘To show that other causes concurred in producing, or contributed to the result is no defense to an action for negligence.... Where the negligence of two or more persons acting independently, concurrently results in an injury to a third, the latter may maintain his action for the entire loss against any one or all of the negligent parties....' ”) (quoting 21 Am. Explore hybrid & electric vehicle options, see photos, build & price, search inventory, view pricing & incentives & see the latest technology & news happening at Ford. Lokey had served as a state trooper, where his duties included observing vehicle inspections wherein mechanics used compressed air to blow out brake debris to allow for visual inspection of the brakes. Walter Boomer (plaintiff) filed a wrongful death suit against Ford Motor Company (Ford) and Bendix Corporation (Bendix) (defendants) on behalf of his father-in-law, James Lokey. See, e.g.,Code § 8.01–249(4) (addressing the statute of limitations for latent mesothelioma cases); see also Owens–Corning Fiberglas Corp. v. Watson, 243 Va. 128, 143–44, 413 S.E.2d 630, 639 (1992) (upholding a mesothelioma verdict against the manufacturer of Kaylo, an asbestos-containing product, despite only indirect evidence that the injured party worked with Kaylo). & Eng. at 903 (“[W]here there are several concurrent negligence causes, the effects of which are not separable, though due to independent authors, either of which is sufficient to produce the entire loss, all are jointly or severally liable for the entire loss.”). If the warning on the boxes was inadequate, the jury would have correctly disregarded the fact that Lokey's behavior remained unchanged. Following his analysis of Lokey's lung fibers, he 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. There was indeed evidence presented that the brake boxes eventually included a warning. Robinson (two cars collide and hit P) 17 Ford Motor Co. v. Boomer (asbestos - signature illness) 17 Wannall v. Honeywell International (asbestos - signature illness) 17 Alternative Causation 17 Summers v. Tice (hunting accident) 17 Sindell v. Abbott Labs (impact of prenatal meds on child) 18 2. The circuit court, in an admirable attempt to offer guidance to the jury as to this point, invoked a supplemental term in its jury instructions: “substantial contributing factor.” For example, in Instruction 16, the court stated: Before the plaintiff is entitled to recover from either defendant on the negligence theory, he must prove by a preponderance of the evidence each of the following elements against the defendant: Number 1, exposure to asbestos-containing products manufactured and/or sold by defendant was a substantial contributing factor in causing plaintiff's injury; Number 2, at the time of Mr. Lokey's exposure, defendants knew or had reason to know that its products could cause injury to persons when the product was being used in a reasonably foreseeable manner; Number 3, defendant failed to adequately warn of such a danger; and Number 4, defendants' failure to adequately warn of the danger was a substantial contributing factor in causing plaintiff's injury. It is a cause without which the accident, injury or damage would not have occurred. Ford Motor Co. v. Robert Lane, 67 F. Supp.2d 745 (1999) I represented a website owner who published information about Ford Motor Co. on his website, in the Eastern District of Michigan and in the Sixth Circuit. This legal principle can be found today in the Virginia model jury instruction providing the definition of concurring negligence: “If two or more persons are negligent, and if the negligence of each is the proximate cause of the plaintiff's injury, then each is liable to the plaintiff for his injury. Ford and Honeywell appealed. For the foregoing reasons, we reverse and remand for further proceedings. [1] See Comardelle v. Penn. Bendix and Ford have timely appealed. If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each is regarded as a factual cause of the harm. Compare Lohrmann, 782 F.2d at 1163 (holding that Maryland's substantial contributing factor standard required a “frequency, regularity and proximity test” to protect asbestos defendants from being held liable on insufficient facts), with Rutherford, 67 Cal.Rptr.2d 16, 941 P.2d at 1219 (defining substantial contributing factor in California to include exposures that increase the plaintiff's “risk” of developing cancer), and Flores, 232 S.W.3d at 773–74 (holding that defendant-specific evidence relating to dose was necessary to determine whether exposure from a defendant was a substantial factor in causing the disease in Texas). He had no personal knowledge of any exposure to asbestos in the shipyard. Genl. The Restatement (Third) of Torts relies instead on the combination of sections 26 and 27: Tortious conduct must be a factual cause of harm for liability to be imposed. The relevant facts as presented at trial were as follows: Lokey served as a Virginia State Trooper for 30 years. The jury found in favor of the estate as to negligence, Considering it now for the first time, we find several problems with the substantial contributing factor instruction. The circuit court defined proximate cause in Jury Instruction 19 as follows: A proximate cause of an injury, accident, or damage is a cause which in the natural and continuous sequence produces the accident, injury, or damage. The Supreme Court reversed and remanded, holding (1) the trial court erred in instructing the jury as to causation; and (2) there was sufficient evidence for a jury to find that Defendants' failure to warn was the proximate cause of Lokey's mesothelioma. Id. He testified that the garages he visited in these locations and others did both inspection work and regular mechanical work in adjacent bays, the details of which he was not aware. About Ford Motor Company. Ry., 119 Va. at 420, 89 S.E. Va. 2012) Saza, Inc. v. Zota, 2012 WL 527370 (E.D. Dr. Roggli admitted, however, that his investigation did not include the pleura of the lungs and that he opined that each and every exposure to asbestos above background level experienced by an individual is a substantial contributing factor in the development of mesothelioma. Ford® is Built for America. We therefore find no defect in the circuit court's conclusion that there was evidence sufficient for a jury to find that the failure to warn was the proximate cause of the injury. We note that, while the Commonwealth currently only offers a model jury instruction as to concurrent negligence, concurring causes are not so limited: use of the multiple-sufficient-causes approach remains appropriate whether the concurring causes are all tortious in nature or whether some are innocent. On appeal, Ford assigns error to: (1) the circuit court's jury instructions as to causation; (2) its admission of plaintiff's expert testimony; (3) the finding of evidence sufficient to show that Ford's failure to warn was the proximate cause of the harm; and (4) the finding of evidence sufficient to show proximate cause despite a more likely alternative. Recognizing that this date, if possible to isolate, may be decades after an injured party's exposure(s) to asbestos, id., it may often be the case that any exposure sufficient to cause harm that occurred prior to the development of the cancer may constitute one of multiple sufficient causes under the Restatement and a concurring cause in Virginia. 4.020, at 4–13 (repl. 120283 (Supreme Court of Virginia, January 10, 2013) | View pdf. Ford Motor Co. v. Boomer, 285 Va. 141 (2013) (Counsel for Amicus Curiae, Virginia Association of Defense Attorneys) Newman v. General Services Corp., 2012 WL 1882903 (E.D. 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., 16 Cal.4th 953, 67 Cal.Rptr.2d 16, 941 P.2d 1203, 1219 (1997) (approving the substantial contributing factor test in California); Borg–Warner Corp. v. Flores, 232 S.W.3d 765, 773–74 (Tex.2007) (permitting a substantial factor test in a Texas asbestosis case). at 622 n. 1, 151 S.E.2d at 428 n. 1 (emphasis added). 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 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. The witness testified that Bendix manufactured asbestos-containing friction products for brakes, including primary brake linings manufactured by Bendix that were approximately fifty percent asbestos material. [2] See Dixon v. Ford Motor Co., No. Lokey testified to standing within ten feet of the inspectors who were blowing out brake linings with compressed air, and that these blow outs were a fairly common practice in inspections at the time. Walter Boomer, the administrator of Lokey's estate, filed wrongful death actions against Honeywell International, Inc., the successor-in-interest to Bendix, and Ford Motor Company, alleging that Lokey's mesothelioma was a result of exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles. Here, for the first time, we are called upon to rule explicitly as to the causation standard appropriate for mesothelioma. Based on our holding above, the plaintiff must show that it is more likely than not that Lokey's alleged exposure to dust from Ford brakes occurred prior to the development of Lokey's cancer and was sufficient to cause his mesothelioma. 98, 2019 Court Below: The Superior Court of The State of Delaware C.A. Bendix and Ford emphasize the fact that boxes containing Bendix brakes were armed with warning labels during the final year of Lokey's employ as a garage inspector, and Lokey's behavior did not change. Although the General Assembly later established a discovery rule for asbestos-related diseases based on diagnosis, thus altering the statute of limitations, seeCode § 8.01–249(4), this does not redefine the definition of harm or injury for the Court. Because Ford’s history is as unique as a human fingerprint, we’ve come to expect things from Ford no other car company has ever done. Everything was to be done correctly.” The jury was provided with ample evidence to allow it to conclude that a reasonable person who was concerned for his or her safety and who, like Lokey, was inclined to follow recommended procedures and guidelines, would have heeded a warning had one been given. The trial court erred in permitting the Administrator's experts to opine that “any exposure” to asbestos above background levels was a substantial contributing factor in causing the decedent's mesothelioma because the [“]any exposure[”] theory was scientifically unreliable and was not based on an adequate factual foundation concerning the decedent's exposure to Bendix brakes. Dr. Victor Roggli, a pathologist presented by the defense, testified that he found amosite asbestos fibers in Lokey's lung tissue. We find this case to be precisely on point. 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. Section 27 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. A reasonable jury could thus have found, based on this evidence, that the warning on the boxes was inadequate as to Lokey. James Lokey passed away due to complications related to mesothelioma. Lokey was diagnosed with mesothelioma, a malignant cancer of the pleura of the lungs, in 2005. A proximate cause of an injury, accident, or damage is a cause which in the natural and continuous sequence produces the accident, injury, or damage. The acts themselves do not have to be concurrent, so long as they are “operating and sufficient to cause the harm contemporaneously.” Restatement (Third) of Torts § 27, cmt. Record No. 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 exposure(s). See id. 120283— Reversed and remanded. Get 2 points on providing a valid reason for the above Restatement (Third) of Torts § 27 (emphasis added). 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 exposure(s). Comments Off on 013-6-007 – Ford Motor Co. v. Boomer, Adm’r. Indeed, Lokey himself testified that he was never warned. The trial court instructed the jury on negligence and breach of warranty theories. Defendants with sufficient exposures that occur after the cancer has already developed cannot be held liable. No. Locke, 221 Va. at 957–58, 275 S.E.2d at 905. 120283, 120299. Tab Group. The question before us 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 latest revision of the Restatement, however, deliberately abandoned this language, explaining: [T]he substantial-factor rubric tends to obscure, rather than to assist, explanation and clarification of the basis of [causation] decisions. Beginning in 1965 or 1966, for approximately seven and a half to eight years, his 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 brakes. Restatement (Third) of Torts § 27, cmt. Only if all defendants are judgment-proof will a plaintiff be unable to recover anything. Other sufficient causes, whether innocent or arising from negligence, do not provide a defense. Subscribe to Justia's Free Summaries Perhaps most significant is the recognition that, while the but-for standard provided in § 26 is a helpful method for identifying causes, it is not the exclusive means for determining a factual cause. Whether under Ohiowa law, 1) an underage child, who uses a product that only adults can legally use 2) as though it were a toy, can recover under a theory of strict products Dr. John C. Maddox and Dr. Laura Welch, experts for Lokey's estate, testified that chrysotile asbestos, the type of asbestos found in brakes, can cause mesothelioma. Our concerns are bolstered by the fact that variant definitions have arisen across those jurisdictions invoking substantial contributing factor language in their asbestos litigation. Ford Motor Co. and Honeywell International Co. v. Boomer. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Restatement (Third) of Torts § 26, cmt. -------- Notes: Get 1 point on providing a valid sentiment to this 120299— Reversed and remanded. 013-6-007 – Ford Motor Co. v. Boomer, Adm’r. He also specifically remembered Oldsmobile dealers on his rotation. Co., 2015 WL 64279 (E.D. 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. Portion of the causation standard appropriate for mesothelioma ).pdf worked as a pipefitter at heart. Co. and honeywell International, Inc. v. Walter E. Boomer, 736 S.E.2d 724, 733 (,. Time, we can not be held liable Justia 's free Summaries of Supreme court of Virginia, 10. Motion to strike the testimony tab, you are expressly stating that you were one the! That Lokey was diagnosed with mesothelioma, a pathologist presented by the fact that Lokey a! 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