Lokey also testified that he worked as a pipefitter at the Norfolk Naval Shipyard for slightly over a year in the early 1940s. 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 exposure(s). 2012) Williams v. Anderson, 2012 WL 5928644 (E.D. 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. Defendants challenge the use of the substantial contributing factor language as contrary to prevailing Virginia law as to causation. See, e.g., Lohrmann v. “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). Lokey's son-in-law testified that Lokey was a “perfectionist,” a “by-the-book guy. Here, from the circumstances 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. He passed away in 2007 due to complications related to his disease. Boomer Journeyâ¦ Fordâs Controversial Mustang Mach-E is a Game Changer Fordâs sporty Mustang fun car has always been a trendsetter for the Ford Motor Company. Ford Motor Co. v. Boomer, Record No. 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. 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 current state of medical knowledge. Ford's assignment of error is worded slightly differently: 4. It is a cause without which the accident, injury or damage would not have occurred. Specifically, they allege the absence of evidence sufficient to show that Lokey's behavior would have changed had the defendants offered sufficient warnings. In the last several decades, with the rise of asbestos-based lawsuits, the “substantial contributing factor” instruction has become prominent in some other jurisdictions. 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. 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. Stuart A. Raphael, William D. Bayliss, Lynn K. Brugh, IV, Williams Mullen, Hunton & Williams, on briefs, for appellant Honeywell International, Inc. There is no question of degree for either of these concepts. 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. Walter Boomer, the administrator of Lokey's estate, filed wrongful death actions against Honeywell International, Inc., the successor-in-interest to Bendix, and Ford Motor Company, alleging that Lokey's mesothelioma was a result of exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles. The Reporters Note to § 27, comment b, specifically observes that some jurisdictions use the term “concurrent causes” rather than multiple sufficient cause. ed.2011). C. Expert Testimony. Nor could anyone have spoken for [the injured party]. Lokey had served as a state trooper, where his duties included observing vehicle inspections wherein mechanics used compressed air to blow out brake debris to allow for visual inspection of the brakes. 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.”). 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, 67 Cal.Rptr.2d 16, 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). Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013) (rejecting the substantial-contributing-factor test to prove causation in asbestos cases in favor of the more demanding sufficient-to-have-caused standard). 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. Because Fordâs history is as unique as a human fingerprint, weâve come to expect things from Ford no other car company has ever done. Ford Motor Co. and Honeywell International Co. v. Boomer. 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. Indeed, Lokey himself testified that he was never warned. Restatement (Third) of Torts § 26, cmt. 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. in the third district court of appeal of the state of florida northrop grumman systems corporation f/k/a northrop grumman corporation, as successor in interest to northrop Thus, the standard for causation in this Section comports with deep-seated intuitions about causation and fairness in attributing responsibility. 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). Lokey, deceased by the time of trial, was obviously unavailable for further questioning. 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). Important Paras. In re: New York City Asbestos Litigation. 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. The jury found in favor of the estate as to negligence, Considering it now for the first time, we find several problems with the substantial contributing factor instruction. Locke, 221 Va. at 957–58, 275 S.E.2d at 905. 902, 904 (1916) (“ ‘To show that other causes concurred in producing, or contributed to the result is 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. 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. j. Other sufficient causes, whether innocent or arising from negligence, do not provide a defense. ... Ford and Honeywell v. Boomer (NCLC Amicus Brief).pdf. 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. Ry., 119 Va. at 420, 89 S.E. Bendix' assignment of error is worded as follows: 2. 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. The determination of whether a jury instruction accurately states the relevant law is a question of law that we review de novo. 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. Outcome: $657,641 jury verdict. Ford Motor Co. v. Robert Lane, 67 F. Supp.2d 745 (1999) I represented a website owner who published information about Ford Motor Co. on his website, in the Eastern District of Michigan and in the Sixth Circuit. As a result, defendants argue that plaintiff lacks sufficient evidence to find Ford or Bendix liable. [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]. After a jury trial, the trial court found in favor of the estate as to negligence and awarded damages in the amount of $282,685. 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. Ford Motor Co. v. Boomer, 285 Va. 141 (2013) (Counsel for Amicus Curiae, Virginia Association of Defense Attorneys) Newman v. General Services Corp., 2012 WL 1882903 (E.D. i QUESTIONS PRESENTED 1. As an initial matter, the circuit court in this case never defined the term “substantial contributing factor” in its jury instructions. 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. 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. (Emphasis added.) 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. 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.  See Dixon v. Ford Motor Co., No. We remand for further proceedings consistent with the multiple sufficient cause analysis. Once you create your profile, you will be able to: Claim the judgments where you have appeared by linking them directly to your profile and maintain a record of your body of work. The Restatement (Second) of Torts used 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). 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. Recognizing that this date, if possible to isolate, may be decades after an injured party's exposure(s) to asbestos, id., 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. Bendix echoes the first three arguments. 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. Whether under Ohiowa law, 1) an underage child, who uses a product that only adults can legally use 2) as though it were a toy, can recover under a theory of strict products 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. In Ford Motor Company v. Boomer, Admâr., decided on January 10, 2013, the Supreme Court ruled a manufacturer of an asbestos containing product could be held liable for asbestos induced disease in a person who had experienced multiple exposures to asbestos from other sources each of which was sufficient to cause the disease. About Ford Motor Company. In the last several decades, with the rise of asbestos-based lawsuits, the “substantial contributing factor” instruction has become prominent in some other jurisdictions. Creating your profile on CaseMine allows you to build your network with fellow lawyers and prospective clients. Every Bundle includes the complete text from each of the titles below: PLUS: Hundreds of law school topic-related videos from Established Virginia law indicates that in order for acts of negligence to constitute concurring causes, it is not necessary that concurring acts occur simultaneously. at 33–82, 33–84. The cases are Ford Motor Co. v. Walter E. Boomer, case number 120283, and Honeywell International Inc. v. Walter E. Boomer, case number 120299, in the Supreme Court of Virginia. 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. 4.020, at 4–13 (repl. 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. 120283— Reversed and remanded. Ford Motor Co. v. Matthews Case Brief - Rule of Law: A manufacturer is not liable for injuries caused by abnormal or unintended use of its product, only if such Every Bundle includes the complete text from each of the titles below: 399, 401–02 (2008). 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). In sum, some jurors might construe the term to lower the threshold of proof required for causation while others might interpret it to mean the opposite. 120283, 120299. No. The term substantial contributing factor could be construed to mean any cause that is more than a merely de minimis factor. 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. 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. 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. Walter Boomer, the administrator of Lokey's estate, filed wrongful death actions against Honeywell International, Inc., the successor-in-interest to Bendix, and Ford Motor Company, alleging that Lokey's mesothelioma was a result of exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles. 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). While we reject defendants' strict interpretation of sole but-for cause argued to the circuit court at trial, we nonetheless conclude. 5 Richard M. Patterson, Lawyers' Medical Cyclopedia of Personal Injuries & Allied Specialties § 33.54, at 33–81 through 33–82 (6th ed. In light of our above holding rejecting substantial contributing factor causation, we also decline to reach the assignments of error relating to expert testimony. 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. (Emphasis added.). Honeywell, the successor-in-interest to Bendix, is referred to herein as Bendix. 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. 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. James Lokey passed away due to complications related to mesothelioma. Maddox and Welsh and in denying Ford's motion to strike the testimony. 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. Ford Motor Co. v. Boomer. Co., 2015 WL 64279 (E.D. 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. Please log in or sign up for a free trial to access this feature. FORD MOTOR COMPANY Defendant Below, Appellant v. PAULA KNECHT, Individually, and as Independent Executrix of the estate of LARRY W. KNECHT, deceased Plaintiff Below, Appellee.))))) His son-in-law, Walter Boomer, is the Administrator of his estate. Causation in a mesothelioma case, however, presents a challenge for the courts beyond even our standard concurring negligence instruction. This causation testimony was inextricably linked to the substantial contributing factor test for causation. Ford Motor Company v. Boomer, 736 S.E.2d 724 (Va. 2013), the court rejected the âsubstantialâ causestandard that the parties had previously understood as controlling, and ruled instead that plaintiffs must demonstrate that exposure â to the defendantâs product alone must have been ave caused the . 120299— Reversed and remanded. 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. Ford closely guards its strategic, marketing, and product development plans. Tommy Burgess hired our firm to enforce a written agreement he had reached with his employer, Ford Motor Company, to allow him to transfer from a management position with the company to an hourly job, where he intended to retire. Record No. 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. 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). Open the PDF in a new window. While Virginia does not observe a heeding presumption, we have clearly already ruled on this issue, stating: 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). But frequently material facts are not proven by direct evidence. Ford Motor Company v. ed.2011). Thus, in the context of a lifetime of potential asbestos exposures, designating particular exposures as causative presents courts with a unique challenge. Genl. Tab Group. contains alphabet). The Restatement (Third) of Torts relies instead on the combination of sections 26 and 27: Tortious conduct must be a factual cause of harm for liability to be imposed. change. Ford Motor Co. v. Boomer, Record No. Burgess v. Ford Motor Company. of Supreme Court of Virginia opinions. 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. Ford Motor Co. v. Boomer, Record No. The case was the first case to apply the Prior Restraint Doctrine to the internet. James Lokey passed away due to complications related to mesothelioma. Lokey could not identify the type of brake linings being inspected. Discover the latest lineup in new Ford vehicles! He also recalled breathing in visible dust in the garages, which to his knowledge had no specialized ventilation systems. , 232 ford motor co v boomer 765, 773-74 ( Tex in the garages, which to his disease warning on boxes. If all defendants are judgment-proof will a plaintiff be unable to recover anything State! In a mesothelioma case, however, presents a challenge for the first time, we task juries determining... Virginia law as to Lokey evidence, that the warning on the boxes was inadequate, the circuit court the... 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