The California Court of Appeal for the Second District recently held in an asbestos-related cancer case that the trial court properly admitted testimony that the decedent’s exposure to asbestos in brake linings was a substantial factor in contributing to his developing mesothelioma. It further held that the manufacturer was not entitled to a supplemental instruction regarding factors to determine whether a plaintiff’s exposure to a particular asbestos-containing product should be deemed a substantial factor in causing the cancer.
In Rutherford v. Owens-Illinois, Inc., the California Supreme Court addressed the plaintiff’s burden in an asbestos-related cancer case to prove that the defendant’s product was a legal cause of the plaintiff’s injuries. The California high court held that the plaintiff may prove causation by demonstrating that his exposure to defendant’s asbestos-containing product was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff ingested and hence to the risk of developing asbestos-related cancer. To meet this burden, plaintiffs tend to present testimony from medical experts adopting the theory that exposure to even low doses of asbestos contributes to the development of mesothelioma, an asbestos-related cancer.
In the recent case, plaintiff Nickole Davis presented expert testimony to support of her claim that her father’s exposure to asbestos in brake linings that he used when performing brake jobs was a substantial factor contributing to his developing mesothelioma. The jury found in plaintiff’s favor. Defendant Honeywell International Inc. appealed, contending that this opinion testimony—commonly referred to as the “every exposure” theory—should have been excluded pursuant to Sargon Enterprises, Inc. v. University of Southern California, because it is speculative and lacked support. The defendant also contended that the trial court erred in refusing to give Honeywell’s desired instruction regarding factors that may be relevant in determining whether a plaintiff’s exposure should be deemed a substantial factor in causing the cancer at issue.
Regarding the first issue – the admissibility of the expert’s testimony – the appeals court held that the lower court did not abuse its discretion in allowing plaintiff’s medical expert to testify. After reviewing all of the literature cited in support of and against the “every exposure” theory, the court ruled that the theory was the subject of legitimate scientific debate. Pursuant to Sargon, ruling on the admissibility of expert testimony, the trial court does not resolve scientific controversies. It was therefore the responsibility of the jury to resolve the conflict between “every exposure theory” and competing expert opinions. Thus, the the trial court did not abuse its discretion by allowing plaintiff’s medical expert to testify.
Regarding defendant’s second challenge – the denial of Honeywell’s desired jury instruction – the appeals court found no error. The court reasoned that Honeywell’s proposed instruction was unnecessary because it was not related to facts that the jury was tasked with deciding. While Honeywell was entitled to discuss during closing the factors in its proposed instruction as factors the jury might weigh in assessing the credibility of the expert’s testimony, instructing the jury on those factors was not required. The fact that the jury asked for further instruction on the meaning of “substantial” as it related to “a substantial factor in causing [plaintiff’s] mesothelioma” and asked whether it could strike the word “substantial” from the special verdict form did not demonstrate that the proposed instruction would have helped to avoid confusion. Instead, the jury’s questions merely indicated confusion regarding how significant a factor the plaintiff’s exposure to the brake linings needed to be in order to be deemed a “substantial” factor in causing his mesothelioma. Honeywell’s proposed instruction, however, did not address this uncertainty. Finding the jury was adequately instructed on causation, the court held that the trial court did not err in failing to give Honeywell’s proposed instruction.
The personal injury lawyers at the Neumann Law Group represent victims of accidents throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.
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