One Defendant’s Negligence is Another Defendant’s Treasure

From the Desk of Brian Schiewe:

Proximate cause is an essential element to a negligence claim and can be hard to prove in asbestos-related cases. Thus, the jury instructions on causation are extremely important in making, or from a defendant’s position, breaking, a case.

Claims Pointer:

The Washington Court of Appeals broke down the differences between the substantial factor and but-for causation standards in this recent case. In doing so, the Court stated that for injuries like mesothelioma, which may have multiple causes, the substantial factor standard is the standard to apply. Additionally, the Court highlights that a defendant must show that an intervening act was not reasonably foreseeable in order for it to break the chain of causation.

Roemmich v. 3M Company, P.3d 306 (Wash. Ct. App. 2022).

Facts:

Larry Roemmich wore a 3M Company’s mask while working as an insulator at Puget Sound Naval Shipyard (PSNS) from 1972 to around 1980. While working at PSNS he was exposed to asbestos and asbestos-containing products. In 2019, after being diagnosed with mesothelioma, Roemmich and his wife filed a strict liability products claim and negligence claim against 3M. The Roemmichs alleged that the mask was not adequately designed and that 3M failed to provide adequate warnings.

At the end of trial, the trial court gave the jury a superseding cause instruction, as well as instruction on both the substantial factor and but-for causation standards. The jury found that 3M was negligent in its manufacturing and sale of the masks, but that negligence was not a proximate cause of Roemmich’s disease. On appeal, the Roemmichs asserted that the court failed to give adequate proximate cause instructions and incorrectly gave a superseding cause instruction.

Law:

But-for Cause vs. Substantial Factor

To be successful in a negligence claim a plaintiff must show that a defendant’s actions were a proximate cause of the plaintiff’s injuries. Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Proximate cause is composed of both legal cause and cause in fact. Cause in fact, the inquiry that is at issue in this case, focuses on a but-for connection. The but-for test requires a plaintiff to establish that the defendant’s actions probably caused the injury. Daugert v. Pappas, 104 Wn.2d 254, 260, 704 P.2d 600 (1985).

If there are multiple causes of an injury, for example, multiple sources of toxic materials, then a plaintiff may prove causation using a substantial factor test instead of a but-for test. Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 25, 935 P.2d 684 (1997). The substantial factor test requires a plaintiff to show that defendant’s actions contributed to the overall injury. Generally, the change from a but-for test to a substantial factor test is justified only when a plaintiff is unable to show that one action alone was the cause of the injury.              

In asbestos-related cases it is extremely difficult for a plaintiff to establish proximate cause, therefore the substantial factor test can be used where it is difficult to establish the exact event or party that caused the harm. Id.

Superseding Cause

If a new independent act breaks the chain of causation, it supersedes the original act as the proximate cause of injury. Crowe v. Gaston, 134 Wn.2d 509, 519, 951 P.2d 1118(1998). A superseding cause is “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 bring about.” Restatement (Second) of Torts §440.

To determine whether an intervening act is a superseding cause the court considers whether (1) the intervening act caused a different type of harm than otherwise would have resulted; (2) the intervening act was extraordinary, 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).   

Analysis:  

The Washington Court of appeals first addressed the proximate cause instruction given to the jury and found that because 3M did not provide sufficient evidence to warrant the but-for instruction, the substantial factor standard was the only correct proximate cause standard that should have been given. The Court reaffirmed that the substantial factor standard is the correct standard to use when the exact cause of harm cannot be determined. In coming to this conclusion, the Court noted that Roemmich was exposed to asbestos by several parties, so individual responsibility cannot be proven under the but-for test. Since the harm caused by 3M and other defendants lead to Roemmich developing mesothelioma the substantial factor test applies. The Court stated that while 3M’s mask was not the only cause of Roemmich’s mesothelioma, there was substantial evidence from which a jury could conclude that the mask was defective and contributed to Roemmich’s injury. Thus, the court erred in giving a combined but-for and substantial factor instruction.

Turning to the superseding cause instruction that was given to the jury the Court held that the superseding cause instruction was erroneous because it was not supported by substantial evidence. The Court reiterated that intervening acts which are not reasonably foreseeable are deemed to be superseding causes. The Court found that PSNS’s negligence in failing to train Roemmich in using the mask was reasonably foreseeable, and not an extraordinary act, thus, it was not a superseding cause. Additionally, PSNS’s negligence and 3M’s mask defect both lead to Roemmich’s mesothelioma. The Court held that both instructions given were erroneous and prejudicial to the Roemmichs, and thus, reversed and remanded for a new trial on negligence with the correct jury instructions.

The Big Picture:

A party must have substantial evidence to support their proposed jury instruction on causation. To ensure that the applicable jury instruction is given, parties must understand the differences between the two tests used in cause in fact inquiries. Additionally, defendants should consider whether someone else’s action could be considered a superseding cause as that would mean they could avoid liability. To prove a superseding cause, the defendant must be ready to provide substantial evidence to support that jury instruction.