Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J.
FORD MOTOR COMPANY
v. Record No. 120283
WALTER E. BOOMER, ADMINISTRATOR OPINION BY JUSTICE LEROY F. MILLETTE, JR. January 10, 2013 HONEYWELL INTERNATIONAL, INC.
v. Record No. 120299
WALTER E. BOOMER, ADMINISTRATOR
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Cheryl V. Higgins, Judge
These paired appeals arise out of a jury verdict against
Honeywell International Incorporated 1 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.
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
1 Honeywell, the successor-in-interest to Bendix, is referred to herein as Bendix. alternative. Bendix echoes the first three arguments. For the
reasons stated herein, we reverse and remand.
I. Background
Lokey was diagnosed with mesothelioma, a malignant cancer
of the pleura of the lungs, in 2005. He passed away in 2007
due to complications related to his disease. Lokey testified
at trial via a de bene esse deposition taken prior to his
death. His son-in-law, Walter Boomer, is the Administrator of
his estate. The relevant facts as presented at trial were as
follows:
Lokey served as a Virginia State Trooper for 30 years.
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. Lokey testified that, during these years, he observed
vehicle inspections in approximately 70 garages a month, for
five to six hours a day, ten days each month. 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. He
also recalled breathing in visible dust in the garages, which
to his knowledge had no specialized ventilation systems. He
2 testified that he was not provided protective clothing or masks
or warned that breathing brake dust was harmful to his health.
Lokey testified that his rotations included supervising
inspections at a Ford dealership and that he was sure he was
present when this process was being done on Ford cars. Due to
the time period in which he inspected cars, he testified that
the vast majority of the cars being inspected at the garages he
visited were American-made cars. He also specifically
remembered Oldsmobile dealers on his rotation. 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.
Lokey could not identify the type of brake linings being
inspected. The Administrator of Lokey's estate presented
circumstantial evidence as to the likely manufacturer of the
brake linings at trial based on the testimony of a former
assistant factory manager for Bendix in charge of "organic
products" (including asbestos products). 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.
He also testified that Bendix likely held one hundred percent
of the market for Oldsmobile up to the late 1960s or early
1970s, until front disc brakes were phased in. He testified
3 that they also began providing materials for Fords in 1955 and
had one hundred percent of the new Ford market share for the 15
years prior to 1983. 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.
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. 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. Maddox and Welch opined that the current medical
evidence suggests that there is no safe level of chrysotile
asbestos exposure above background levels in the ambient air.
Lokey also testified that he worked as a pipefitter at the
Norfolk Naval Shipyard for slightly over a year in the early
1940s. 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. He had no personal
knowledge of any exposure to asbestos in the shipyard. Lokey
admitted, however, that he worked in a large warehouse and was
unaware of all the work done and products used in the
warehouse, whether asbestos products were present, or whether
there was any ventilation.
4 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. Dr.
Victor Roggli, a pathologist presented by the defense,
testified that he found amosite asbestos fibers in Lokey's lung
tissue. 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. 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.
The trial court instructed the jury on negligence and
breach of warranty theories. The jury found in favor of the
estate as to negligence and awarded damages in the amount of
$282,685.69. 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. Bendix and Ford have timely appealed.
5 II. Discussion
A. Jury Instructions as to Causation
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. Defendants
challenge the use of the substantial contributing factor
language as contrary to prevailing Virginia law as to
causation. The determination of whether a jury instruction
accurately states the relevant law is a question of law that we
review de novo. Hawthorne v. VanMarter, 279 Va. 566, 586, 692
S.E.2d 226, 238 (2010).
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. It is a cause without which the accident, injury or damage would not have occurred.
This is a plain-language adaptation of the long-accepted
definition of proximate cause set forth by this Court in Wells
v. Whitaker, 207 Va. 616, 622, 151 S.E.2d 422, 428 (1966):
"The proximate cause of an event is that act or omission which,
in natural and continuous sequence, unbroken by an efficient
intervening cause, produces that event, and without which that
event would not have occurred."
6 We said in Wells that the first element of proximate
cause, causation in fact, is "often described as the 'but for' 2 or sine qua non rule." Id. We explained that "[t]o impose
liability upon one person for damages incurred by another, it
must be shown that the negligent conduct was a necessary
physical antecedent of the damages." Id.
The requirement of but-for causation came with a caveat,
however: "The 'but for' test is a useful rule of exclusion in
all but one situation: where two causes concur to bring about
an event and either alone would have been sufficient to bring
about an identical result." Id. at 622 n.1, 151 S.E.2d at 428
n.1 (emphasis added).
In such a scenario, our law provides a means of holding a
defendant liable if his or her negligence is one of multiple
concurrent causes which proximately caused an injury, when any
of the multiple causes would have each have been a sufficient
cause. Carolina, Clinchfield & Ohio Railway Co. v. Hill, 119
Va. 416, 421, 89 S.E. 902, 904 (1916) (" 'To show that other
causes concurred in producing, or contributed to the result is
2 We note that there are inconsistencies in the national legal nomenclature as to whether cause-in-fact is considered to be a subset of proximate cause or whether cause-in-fact, in addition to proximate cause (defined as additional legal restrictions as to liability), together create legal cause. We opt for the former nomenclature as it is the more widely used terminology in Virginia as well as the terminology used by the circuit court in this case.
7 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. & Eng. Enc.
of Law 495-96). 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. This is true even if the negligence of one is
greater than the negligence of the other [or others]."
1 Virginia Model Jury Instructions – Civil, No. 4.020, at 4-13
(repl. ed. 2011). The circuit court in this case gave almost
an identical instruction in Jury Instruction Number 23.
Causation in a mesothelioma case, however, presents a
challenge for the courts beyond even our standard concurring
negligence instruction. 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 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
8 exposure(s). See Locke v. Johns-Manville Corp., 221 Va. 951,
957-58, 275 S.E.2d 900, 905 (1981) (discussing the latency
period between the exposure to asbestos, the later onset of the
"harm" in mesothelioma cases — the development of the cancer –
and, finally, the development of noticeable mesothelioma
symptoms); see also Symposium, A Tribute to Professor David
Fischer: The Insubstantiality of the "Substantial Factor" Test
for Causation, 73 Mo.L.Rev. 399, 401-02 (2008).
Further complicating the issue, although numerous
individuals were exposed to varying levels of asbestos during
its widespread industrial use before safety measures became
standard, not all persons exposed developed mesothelioma.
5 Richard M. Patterson, Lawyers' Medical Cyclopedia of Personal
Injuries & Allied Specialties § 33.54, at 33-81 through 33-82
(6th ed. repl. ed. 2011). It is not currently known why some
are more susceptible than others to developing mesothelioma, or
why even low levels of exposure may cause mesothelioma in some
individuals while others exposed to higher dosages never
develop the disease. See id. at 33-82, 33-84. Thus, in the
context of a lifetime of potential asbestos exposures,
designating particular exposures as causative presents courts
with a unique challenge.
Despite this lack of certainty, we task juries with
determining liability in multiple exposure mesothelioma cases.
9 Virginia statutory and case law makes clear that the
Commonwealth permits recovery for parties injured by asbestos
exposure, including those with mesothelioma, even when a jury
must draw inferences from indirect facts to determine whether
an exposure was causal. 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). 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. Certainly, if the traditional but-for
definition of proximate cause was invoked, the injured party
would virtually never be able to recover for damages arising
from mesothelioma in the context of multiple exposures, because
injured parties would face the difficult if not impossible task
of proving that any one single source of exposure, in light of
other exposures, was the sole but-for cause of the disease.
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:
10 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.
(Emphasis added.) 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."). (Emphasis
added.)
In the last several decades, with the rise of asbestos-
based lawsuits, the "substantial contributing factor"
instruction has become prominent in some other jurisdictions.
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., 941 P.2d 1203, 1219 (Cal. 1997)
11 (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). "Substantial factor" language was also
utilized in the Restatement (First) and Restatement (Second) of
Torts. 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.
Considering it now for the first time, we find several
problems with the substantial contributing factor instruction.
As an initial matter, the circuit court in this case never
defined the term "substantial contributing factor" in its jury
instructions. 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. The term
substantial contributing factor could be construed to mean any
cause that is more than a merely de minimis factor.
Conversely, the invocation of the term "substantial" could be
interpreted to raise the standard for proof of causation beyond
a mere preponderance of the evidence to some more elevated
standard. In sum, some jurors might construe the term to lower
the threshold of proof required for causation while others
12 might interpret it to mean the opposite. 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.
Our concerns are bolstered by the fact that variant
definitions have arisen across those jurisdictions invoking
substantial contributing factor language in their asbestos
litigation. 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, 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).
Moreover, we agree with the explicit rejection of
substantial contributing factor language in the recent
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm (2010). The Restatement (Second) of Torts used
13 substantial factor language, stating that, absent an
independent but-for cause, "[i]f two forces are actively
operating . . . and each of itself is sufficient to bring about
harm to another, [one] actor's negligence may be found to be a
substantial factor in bringing it about." Restatement (Second)
of Torts § 432 (1965).
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. The element that must be established, by whatever standard of proof, is the but-for or necessary-condition standard of this Section. 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. There is no question of degree for either of these concepts.
Restatement (Third) of Torts § 26, cmt. j. 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. Id. If courts cannot be relied
upon to consistently construe the language, we cannot expect
lay jurors to accomplish the same task.
The Restatement (Third) of Torts relies instead on the
combination of sections 26 and 27:
14 § 26 Factual Cause
Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.
§ 27 Multiple Sufficient Causes 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.
This model, as explicated in the comments, is quite consistent
with our statements in Wells regarding concurring causation.
The rationale articulated in comment c of § 27 echoes the logic
behind our long history of recognizing concurring causes:
A defendant whose tortious act was fully capable of causing the plaintiff's harm should not escape liability merely because of the fortuity of another sufficient cause. . . . When two tortious multiple sufficient causes exist, to deny liability would make the plaintiff worse off due to multiple tortfeasors than would have been the case if only one of the tortfeasors had existed. 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. Multiple sufficient causes are also factual causes because we recognize them as such in our common understanding of causation, even if the but-for standard does not. Thus, the standard for causation in this Section comports with deep-seated intuitions about causation and fairness in attributing responsibility.
Restatement (Third) of Torts § 27, cmt. c. (emphasis added).
The multiple sufficient cause analysis allows multiple
tortfeasors to be found jointly and severally liable.
15 The Reporters Note to § 27, comment b, specifically
observes that some jurisdictions use the term "concurrent
causes" rather than multiple sufficient cause. Indeed,
multiple-exposure mesothelioma cases fit quite squarely with
our line of concurring cause cases, "where two causes concur to
bring about an event and either alone would have been
sufficient to bring about an identical result." Wells, 207 Va.
at 622 n.1, 151 S.E.2d at 428 n.1 (emphasis added). See also
Schools v. Walker, 187 Va. 619, 629-30, 47 S.E.2d 418, 423
(1948) ("It is not essential, therefore, for a plaintiff to
show that an act, claimed to have been the proximate cause
. . . was the only cause. . . . Where the concurring
negligence of the two produces a single injury and each is its
proximate cause they are both liable.") (internal quotation
marks and citation omitted); Carolina, C. & O. Ry., 119 Va. at
420, 89 S.E. 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.").
Unfortunately, our model jury instruction for concurring
negligence invokes only general language that each is a
"proximate cause" of the harm, rather than more specifically
articulating the standard indicated in Wells. The standard
16 that, in this case, exposure to the defendant's product alone
must have been sufficient to have caused the harm is both an
accurate articulation of our concurring cause law and perfectly
plain to the average juror. This standard constitutes the
cause-in-fact portion of the proximate cause requirement in
concurring cause cases. 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.
While it might be clearly seen in a car accident or
converging fires that both acts contributed in some degree to
the harm, the nature of mesothelioma leaves greater uncertainty
as to which exposure or exposures in fact constituted the
triggering event. 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.
Established Virginia law indicates that in order for acts
of negligence to constitute concurring causes, it is not
17 necessary that concurring acts occur simultaneously. Dickenson
v. Tabb, 208 Va. 184, 193, 156 S.E.2d 795, 802 (1967). This
appears at first glance to be contrary to the language in the
latest Restatement:
§ 27 Multiple Sufficient Causes
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.
Restatement (Third) of Torts § 27 (emphasis added). We note,
however, that the phrase "at the same time" is placed so as to
modify "factual cause of the physical harm" rather than "acts
occur." We thus read this to be consistent with our precedent.
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. 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. Locke, 221 Va. at 957-58, 275 S.E.2d at 905. 3
Recognizing that this date, if possible to isolate, may be
decades after an injured party's exposure(s) to asbestos, id.,
3 Although the General Assembly later established a discovery rule for asbestos-related diseases based on diagnosis, thus altering the statute of limitations, see Code § 8.01-249(4), this does not redefine the definition of harm or injury for the Court.
18 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.
The exposure must have been "a" sufficient cause: if more
than one party caused a sufficient exposure, each is
responsible. Other sufficient causes, whether innocent or
arising from negligence, do not provide a defense. 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.
Defendants with sufficient exposures that occur after the
cancer has already developed cannot be held liable.
It must be noted that there is a separate comment under
§ 27, entitled "Toxic substances and disease," that appears to
offer an alternative approach to causation specific to disease.
See Restatement (Third) of Torts § 27, cmt. g. This approach
allows for a finding of causation when multiple exposures
combine to reach the threshold necessary to cause a disease,
allowing parties who were responsible for some portion of that
threshold to be held liable. While it may be the case that
this dose-related approach to causation is indeed appropriate
for some cancers or diseases, we do not find it to be
necessarily appropriate for mesothelioma, in light of the
19 current state of medical knowledge. This comment assumes an
identifiable threshold level of exposure triggering a disease.
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.
Here, for the first time, we are called upon to rule
explicitly as to the causation standard appropriate for
mesothelioma. We find that in concurring causation cases, the
"sufficient"-to-have-caused standard as elaborated above is the
proper way to define the cause-in-fact element of proximate
cause. 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.
While we reject defendants' strict interpretation of sole
but-for cause argued to the circuit court at trial, we
nonetheless conclude that the trial court erred in failing to
sustain the defendants' objections to the substantial
contributing factor jury instructions. We remand for further
proceedings consistent with the multiple sufficient cause
analysis.
20 B. Alternative Causes
Ford alleges that the evidence presented was insufficient
to establish that exposure to brake dust from Ford products
proximately caused Lokey's mesothelioma when evidence
demonstrated a more likely alternative cause (specifically, the
earlier alleged exposure to amosite asbestos at the shipyard).
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. 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.
C. Expert Testimony
In light of our above holding rejecting substantial
contributing factor causation, we also decline to reach the
assignments of error relating to expert testimony.
Bendix' assignment of error is worded as follows:
2. 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.
21 As we have held that substantial contributing factor causation
is not a permissible standard for causation in the
Commonwealth, the above assignment of error is no longer
applicable. 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 caused
mesothelioma.
Ford's assignment of error is worded slightly differently:
4. The Circuit Court erred in holding that there was sufficient foundation for the admission of the causation testimony of Plaintiff's expert witnesses Drs. Maddox and Welsh and in denying Ford's motion to strike the testimony.
Despite the difference in language, Ford's assignment of error
suffers from the same infirmity. Ford alleges that the factual
foundation upon which the experts' causation opinions were
based was insufficient. This causation testimony was
inextricably linked to the substantial contributing factor test
for causation. 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. The
bases for the witnesses' opinions as to substantial
contributing factor causation are now rendered moot.
D. Failure to Warn and Proximate Cause
Both defendants allege that the plaintiff failed to
present evidence sufficient to show that their failure to warn
22 was the proximate cause of Lokey's mesothelioma. Specifically,
they allege the absence of evidence sufficient to show that
Lokey's behavior would have changed had the defendants offered
sufficient warnings. As a result, defendants argue that
plaintiff lacks sufficient evidence to find Ford or Bendix
liable. As this issue is both independent of the multiple-
sufficient-cause proximate cause analysis addressed in Part
II.A, supra, and would be dispositive if defendants were
correct, we will reach this assignment of error.
In his de bene esse deposition, Lokey was never asked if
his behavior would have been changed had he known that he was
inhaling a potentially fatal substance. Lokey, deceased by the
time of trial, was obviously unavailable for further
questioning. While Virginia does not observe a heeding
presumption, 4 we have clearly already ruled on this issue,
stating:
[The injured party], of course, was unable, because of his disability, to tell the jury whether, had a warning been provided, he would have heeded it in the manner suggested by [the expert witness]. Nor could anyone have spoken for [the injured party]. But frequently material facts are not proven by direct evidence. A verdict may be properly based upon reasonable inferences drawn from the facts. If facts are present from which proper inferences may be drawn this is sufficient. Here, from the circumstances
4 A heeding presumption is "a rebuttable presumption that an injured product user would have followed a warning label had the product manufacturer provided one." Black's Law Dictionary 1305 (9th ed. 2009).
23 that were proven below, and according to the ordinary experience of mankind, the jury was warranted in the conclusion that [the] injury would not have occurred had [a warning] been given.
Hoar v. Great E. Resort Mgmt., Inc., 256 Va. 374, 388, 506
S.E.2d 777, 786 (1998) (internal quotation marks and citations
omitted) (final modification in original).
We find this case to be precisely on point. 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.
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. Lokey's son-in-law testified that Lokey
was a "perfectionist," a "by-the-book guy. 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
24 inclined to follow recommended procedures and guidelines, would
have heeded a warning had one been given.
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. They argue that this evidence shows
that, even had an adequate warning been issued in the earlier
years of Lokey's inspection work, the warning would have been
ignored by Lokey and therefore could not have been the
proximate cause of the harm.
"At common law the liability of a manufacturer for failure
to adequately warn of the dangers incident to the use of his
product does not depend on whether the injury is to the person
using the product . . . or to persons . . . other than those to
which the product is to be applied." McClanahan v. California
Spray-Chemical Corp., 194 Va. 842, 853-54, 75 S.E.2d 712, 719
(1953). 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.
25 We have previously stated that "an insufficient warning is
in legal effect no warning." Id. at 852, 75 S.E.2d at 718
(internal quotation marks omitted). There was indeed evidence
presented that the brake boxes eventually included a warning.
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. Indeed, Lokey himself testified that he was never
warned. A reasonable jury could thus have found, based on this
evidence, that the warning on the boxes was inadequate as to
Lokey. If the warning on the boxes was inadequate, the jury
would have correctly disregarded the fact that Lokey's behavior
remained unchanged.
The jury was then left with evidence of the known dangers
of asbestos and could reasonably infer that Lokey, if properly
informed of these dangers at the time, would have taken
precautionary measures. 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.
26 III. Conclusion
For the foregoing reasons, we reverse and remand for
further proceedings.
Record No. 120283 – Reversed and remanded. Record No. 120299 – Reversed and remanded.