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Appellate Court Affirms in Part, Remands Trial Court’s Ruling Regarding Mask Manufacturer’s Negligence

Court of Appeals of Washington, Division One, May 9, 2022

In January 2020, the plaintiff, Larry Roemmich, sued 3M, among others, for product liability and negligence based on his diagnosis of mesothelioma, which he alleged was a result of his exposure to asbestos. The plaintiff worked at Puget Sound Naval Shipyard from 1968 to 1995 and alleged he was exposed to asbestos and asbestos-containing products as part of his work from 1968 until the early 1980s. The plaintiff wore 3M 8710 masks from 1972 until approximately 1980.

Before trial in October 2020, 3M moved in limine to exclude the testimony of the plaintiff’s experts, Dr. Jewson and Dr. Johnson, under Evidence Rule 702. The trial court granted the motion with respect to both experts, but allowed Dr. Johnson to testify on rebuttal regarding a NIOSH certification issue.

On October 28, before closing arguments, the plaintiff moved for judgment as a matter of law under Civil Rule 50 with respect to 3M’s superseding cause, contributory negligence, assumption of the risk, and failure to mitigate defenses. The court denied the motion.

The trial court granted 3M’s request to instruct the jury on both the substantial factor and “but-for” causation standards.

The jury returned a verdict for 3M. The jury found that 3M was negligent, but that such negligence was not a proximate cause of the plaintiff’s disease. The plaintiff appealed, arguing that the trial court abused its discretion by giving an erroneous proximate cause instruction and an unsupported superseding cause instruction, and by excluding their expert witnesses without a Frye hearing.

“Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law.” Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927 P.2d 240 (1996). A trial court may only give jury instructions that are supported by substantial evidence. State v. Douglas, 128 Wn. App. 555, 561, 116 P.3d 1012 (2005). Conversely, “[w]here substantial evidence supports a party’s theory of the case, trial courts are required to instruct the jury on the theory.” Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017).

To be liable for negligence, a plaintiff must show that a defendant’s actions were a proximate cause of the plaintiff’s injury. Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). “Proximate cause is composed of both cause in fact and legal cause.” Meyers v. Ferndale Sch. Dist., 197 Wn.2d 281, 289, 481 P.3d 1084 (2021). “[T]he cause in fact inquiry focuses on a ‘but-for’ connection, [while] legal cause is grounded in policy determinations as to how far the consequences of a defendant’s acts should extend.” Id.

“The ‘but-for’ test requires a plaintiff to establish that the act complained of probably caused the subsequent disability.” Id. But in cases involving multiple sources of toxic materials, plaintiffs need not prove individual causal responsibility. Hue, 127 Wn.2d at 91-92. Plaintiffs may instead prove causation using a substantial factor, rather than a “but-for” causation test.

The appellate court found that the evidence at trial established that 3M’s mask contributed at least partly to the plaintiff’s exposure and harm, regardless of the other exposures. Applying the “but-for” causation test would absolve 3M of responsibility despite this evidence. Accordingly, the court found that the trial court erred in giving an instruction combining the “but-for” and substantial factor causation tests.

An act generally is a proximate cause of an injury if it produces the injury. Crowe v. Gaston, 134 Wn.2d 509, 519, 951 P.2d 1118 (1998). But when a new, independent act breaks the chain of causation, it supersedes the original act as the proximate cause of the injury. Id. The Restatement of Torts defines “superseding cause” as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Restatement (Second) Of Torts § 440 (AM. LAW INST. 1965).

In determining whether an intervening act constitutes a superseding cause we consider “whether (1) the intervening act created a different type of harm than otherwise would have resulted from the actor’s negligence; (2) the intervening act was extraordinary or resulted in extraordinary consequences; [and] (3) the intervening act operated independently of any situation created by the actor’s negligence.” Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 812-13, 733 P.2d 807 (1987) (alterations in original) (citing RESTATEMENT § 442). The act has to be “so highly extraordinary or unexpected that [it] can be said to fall [ ] [out of] the realm of reasonable foreseeability as a matter of law,” and “[i]f the acts … are within the ambit of the hazards covered by the duty imposed upon the defendant, they are foreseeable and do not supersede the defendant’s negligence.” Cramer v. Dep’t of Highways, 73 Wn. App. 516, 521, 870 P.2d 999 (1994) (some alterations in original) (quoting Brashear v. Puget Sound Power & Light Co., 33 Wn. App. 63, 69, 651 P.2d 770 (1982), rev’d on other grounds, 100 Wn.2d 204, 667 P.2d 78 (1983)). Thus, “only intervening acts which are not reasonably foreseeable are deemed superseding causes.” State v. Frahm, 193 Wn.2d 590, 600, 444 P.3d 595 (2019) (quoting Crowe, 134 Wn.2d at 519).

Here, the plaintiff’s employer’s negligence in failing to train the plaintiff on the use of the 8710 mask was reasonably foreseeable, and therefore not an extraordinary act. Because the intervening act’s foreseeability established that the instruction was not appropriate, the superseding cause instruction was erroneous.

As for the preclusion of the plaintiff’s experts, the appellate court found that Dr. Jewson did not have scientific, technical, or other specialized knowledge that would have assisted the jury in understanding the evidence or determining the fact in issue. The court also found that Dr. Jewson did not qualify as an expert based on experience because he did not have any formal training in public-opinion surveys and had never submitted survey data in court. In addition, the court correctly excluded Dr. Johnson’s testimony under ER 702 as speculative, unreliable and not based on scientific, technical, or other specialized knowledge that would assist the jury in understanding the evidence, as well as the fact that the testimony was based on two undisclosed studies, and therefore, unfairly prejudicial.

Accordingly, the appellate court agreed that the trial court gave an erroneous proximate cause instruction when it combined the “but-for” causation standard with the substantial factor standard and that the court erred in giving the superseding cause instruction. Both errors prejudiced the plaintiff with respect to the negligence claim. The appellate court did not find that the trial court abused its discretion by excluding the expert witnesses’ testimony. Therefore, the appellate court affirmed the products liability verdict and reversed and remanded for a new trial on the negligence issue.

Read the full decision here