Missouri Court of Appeals Finds Totality of Circumstances Standard Sufficient to Prove Causation under Wisconsin Law Court of Appeals of Missouri, Eastern District, Division Three, March 28, 2017
Plaintiff Jean Urbach filed suit against 29 defendants on claims of negligence, strict liability, willful and wanton misconduct, and loss of consortium arguing that the defendants’ products caused her husband, Keith Urbach, to be exposed to asbestos, develop mesothelioma, and ultimately was the cause of his death. The plaintiff argues that Urbach was exposed to and inhaled friable asbestos fibers during his career as an electrician from 1963 to 2001. Urbach was diagnosed with mesothelioma in August 2011 and passed away in February 2012. The plaintiff specifically claimed that defendant Okonite’s asbestos fixture wires contributed to Urbach’s death.
Urbach passed away before he had the opportunity to testify regarding his exposures to asbestos-containing products. As a result, the plaintiff introduced product identification through the videotaped depositions of co-workers and union brothers. These depositions were the subject of several motions to strike, in which Okonite argued that portions of the testimony were improper because they were speculative and included opinion testimony by a lay witness. The trial court denied the motions, and the testimony was deemed admissible.
The case ultimately went to trial with Okonite as the last remaining defendant. Prior to the case being sent to the jury, Okonite filed a motion for directed verdict, which was denied. The jury returned a verdict in favor of the plaintiff in the amount of $4.1M, including an award of $1.8M for post-death loss of society and companionship. Okonite was apportioned 5 percent liability. Following the verdict, Okonite appealed and argued, among other things, that the trial court erred when it denied Okonite’s motion for directed verdict because the plaintiff’s evidence was insufficient to establish causation. Note that both parties agreed that Wisconsin substantive law applied to this case – including the sufficiency of evidence. [Citation Omitted].
In review of Okonite’s appeal, the Court of Appeals of Missouri, Eastern District, Division Three, outlined that the test for causation in Wisconsin is whether the defendant’s negligence was a substantial factor in contributing to the result. See Merco Distrib. Corp. v. Commercial Police Alarm Co., 84 Wis. 2d 455, 267 N.W.2d 652, 654 (Wis. App. Ct. 1978). The phrase “substantial factor” denotes that the defendant’s conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause. Id. There may be more than one substantial causative factor in any given case. Further, Wisconsin law requires a plaintiff to prove that the defendant’s asbestos-containing product was a cause, not the cause, of the decedent’s asbestos-related disease. Hart v. State, 75 Wis. 2d 371, 249 N.W.2d 810, 822 (Wis. 1977). With respect to pursuing this claim “without direct evidence”, or testimony from the Urbach himself, the plaintiff relied upon Zielinski v. A.P. Green Indus., Inc., 2003 WI App 85, 263 Wis. 2d 294, 661 N.W.2d 491, 497 (Wis. Ct. App. 2003), which refused to adopt a bright line rule for causation, and held that causation should be decided based on the totality of the circumstances. Id.
In opposition to Okonite’s appeal, the plaintiff argued that based on the testimony of Urbach’s co-workers and union brothers, regarding their experience as electricians on the same job sites as Urbach, a reasonable inference can be made that Urbach performed the same job duties and used the same products.
Relying upon the Zielinski totality of circumstances standard, this court agreed that the plaintiff presented sufficient evidence of causation under Wisconsin law, and affirmed the trial court’s ruling. Accordingly, Okonite’s appeal was denied (note that this Court of Appeals denied all of Okonite’s arguments on appeal).