Acosta v. Babcock & Wilcox

961 F.2d 533
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 26, 1992
DocketNo. 90-3714
StatusPublished
Cited by1 cases

This text of 961 F.2d 533 (Acosta v. Babcock & Wilcox) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acosta v. Babcock & Wilcox, 961 F.2d 533 (5th Cir. 1992).

Opinion

POLITZ, Chief Judge:

In these consolidated diversity jurisdiction actions for damages under Louisiana tort law, the plaintiffs appeal the rejection of their claims against various producers of asbestos products. Finding an error in the jury instruction on causation, we reverse and remand for a new trial.

Background

The plaintiffs-appellants seek damages resulting from lung cancer contracted by Alvin J. Acosta, Ottis King, and Jeff Turner. Plaintiffs in the three cases are Alvin J. Acosta; Mamie King, the widow of Ottis King, and their five children; and Estelle Turner, widow of Jeff Turner. During the course of their years of employment Acosta, King, and Turner were exposed to asbestos products. All three smoked cigarettes.

A jury trial on causation resulted in a verdict for the defendant-manufacturers of asbestos products.1 Plaintiffs’ theory of the case was that cigarette smoking and asbestos were concurrent causes of lung cancer. In Acosta’s case an expert had found asbestos fibers in his lung tissue and testified that he had the type of lung cancer associated with asbestos. The expert also testified that Acosta suffered from interstitial and pleural fibrosis, conditions associated with the inhalation of asbestos fibers. This expert testified that Acosta’s asbestos exposure was associated with his lung cancer and was a substantial contributing factor. He could not exclude the possibility that cigarette smoking had played a part in the development of the lung cancer.

The expert called to testify about King’s condition observed interstitial fibrosis, asbestosis, and asbestos bodies in King’s lung tissue, and testified that in all probability asbestos was a significant contributing cause of the cancer. He could not say, however, that he had found no effect of any other carcinogen. King’s treating physician testified that King’s occupational asbestos exposure was a significant contributing factor to his lung cancer. This physician also testified that if, hypothetically, King had not had any asbestos exposure, then he would have to conclude that the cancer was caused by cigarettes.

In Turner’s case, an expert testified that exposure to asbestos was one causal factor contributing to Turner’s lung cancer. Relative to asbestos exposure and smoking, the expert opined that the two causes multiplied the risks but he knew of no scientific way to proportion the relative contributions of the two causes.

Over the plaintiffs’ objections,2 the trial court gave the following instruction regarding causation:

An injury is caused by the defendant’s product when it appears that the exposure to asbestos contributed a substantial part in bringing about or actually causing the injury, disease or damage and that the injury, disease or damage was either a direct result of or the product of a natural and continuous sequence produced by the asbestos exposure.
This does not mean that the law recognizes only one proximate cause of an injury or damage, consisting of only one factor or thing or the conduct of only one person. On the contrary, many factors or things may operate at the same time, either independently or together, to cause injury or damage, and in such case, each may be a cause, so long as it can reasonably be said that, except for the asbestos exposure, the injury complained of would not have occurred.

(Emphasis added.) Apparently based on this instruction the jury concluded that as[535]*535bestos products did not cause the plaintiffs’ injuries; a verdict was returned finding for the defendants.

Notice of appeal was timely filed for: (1) Alvin J. Acosta; (2) Estelle P. Turner; and (3) Mamie King, et al. For the reasons discussed herein, we have appellate jurisdiction only over the claims of these three named appellants; we do not have jurisdiction over the claims of the King children.

Analysis

1. Jury Instructions

The plaintiffs’ theory of causation did not dispute that cigarettes alone may cause cancer; but, rather, they argued that together tobacco and asbestos concurrently and synergistically cause cancer, and that once the cancer was contracted, it was a medical impossibility to distinguish whether cigarettes alone or asbestos alone was the cause. Given this trial theory, the plaintiffs claim reversible error in the “but for” jury instruction, an instruction that effectively sealed the fate of their concurrent cause hypothesis.

Plaintiffs correctly note that Phillips Petroleum Co. v. Hardee, 189 F.2d 205 (5th Cir.1951), made manifest that a “but for” definition of causation is inappropriate in a concurrent cause Louisiana tort action.3 The defendants argue that the case at bar is not a concurrent cause case because, unlike the stereotypical examples, i.e. two converging fires or two fatal bullets, these facts do not impel the conclusion that either asbestos or tobacco independently would have caused the damage of which the plaintiffs complain. The defendants claim that the concurrent cause rule serves the goal of preventing tortfeasors from escaping liability with the excuse that independent extraneous events would have harmed the plaintiff anyway; under the defendants’ theory the rule is limited to this goal. Defendants posit, then, that a case cannot be a concurrent cause case unless the defendants’ actions alone could have caused the damage.

This argument misperceives Louisiana law. “[TJhere can be more than one cause in fact making both wrongdoers liable.” Hastings v. Baton Rouge General Hospital, 498 So.2d 713, 720 (La.1986) (citing Dixie Drive It Yourself Systems v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Anthony v. Hospital Service District No. 1, 477 So.2d 1180 (La.App.1985), cert. denied, 480 So.2d 743 (La.1986); Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972)). The long-recognized principle of Louisiana law that causation is not defeated by the possibility that the injury would have happened without the defendant’s involvement has never been relegated to only those cases in which a plaintiff first proves that the defendant alone would have caused the harm. See Wheat v. State Farm Fire and Casualty Co., 583 So.2d 1 (La.App.), cert. denied, 583 So.2d 1145 (La.1991) (citing Reynolds v. Texas & Pacific Ry. Co., 37 La.Ann. 694 (1884); Turner v. Safeco Ins. Co. of America, 472 So.2d 43 (La.App.1985)). We have abjured but for causation in the context of lung cancer injuries alleged to have been caused by asbestos. Petes v. Hayes, 664 F.2d 523 (5th Cir.1981). The Petes court ordered a new trial because a jury interrogatory wrongfully placed upon the plaintiff the burden of proving that the plaintiff’s disease “specifically” resulted from asbestos. We distilled the controlling Louisiana law thusly: “Many factors or things or the conduct of two or more persons or companies may operate at the same time either independently or together to cause injury and in such case may be a proximate cause.” 664 F.2d at 525 n. 1.

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961 F.2d 533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acosta-v-babcock-wilcox-ca5-1992.