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Complaints Mask Attempt to Avoid Liability

Complaints About Jury Instructions Mask Attempt to Avoid Liability

As printed in DAILY JOURNAL NEWSWIRE
by Paul C. Cook and Michael B. Gurien

In a recent column (“Guiding Juries,” Nov. 8), Michael L. Fox outlined defense objections to existing CACI causation intruction in asbestos-related cancer cases and proposed revisions to those instructions. He claimed that neither the current instructions, nor the proposed revisions, “reflect the law.”

Since his article, the California Judicial Council has approved the proposed revisions. Contrary to Fox’s position, the now-approved revision to CACI 430 and 435 provide added clarity and more closely align the instructions to the causation standard for asbestos-related cases announced by the California Spreme Court in Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953 (Cal. 1997).

Under Rutherford, the standard for proving causation in an asbestos case takes into account two important principles: (1) a plaintiff need not prove that fibers from a particular defendant’s product were the ones, or among the ones, that “actually” caused the plaintiff’s disease; (2) the plaintiff is free to prove that exposure to asbestos from a product was a substantial factor by showing that it contributed to the aggregate does of the plaintiff’s exposure, increasing his risk of contracting asbestos-related disease. This is proven by the testimony of medical experts based on reasonable medical probability.

Revisions to CACI 430 and 435 were necessary because of confusion created when combining the instruction specific to asbestos cases (CACI 435) and the generally applicahble instruction on substantial factor causation (CACI 430), a combinaton that was recommended by the use notes. CACI 430 contains language that is contrary to the Rutherford causation standard and that has led to jury confusion.

For example, CACI 430 states that “[a] substantial factor in causing harm … must be more than a remote trivial factor.” This language is problematic and confusing as an instruction in an asbestos-related cancere case, because medical and scientific literature has shown that even relatively brief and intermittent exposures to asbestos can satisfy the Rutherford standard.

Asbestos fibers are microscopic and invisible, and low-does exposures have been shown to contribute to the aggregate dose and hence to increase risk. Nevertheless, a juror may be confused and find a low dose or intermittent exposure to be”trivial,” even though competent medical evidence shows in reasonable medical probability that it contributed to the aggregate dose and increased the plaintiff’s risk. The language of CACI 430 thus invited confusion and could lead to a failure to apply theRutherford standard.

Also problematic has been the optional bracketed language in CACI 430, which states: “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” Based on this language, defendants have argued that the plaintiff’s exposure to asbestos from its product was not a substantial factor in causing his or her asbestos-related cancer because the plaintiff was exposed to asbestos from other procducts and those other exposures were sufficient, on their own, to cause the plaintiff’s disease.

This is directly contrary to Rutherford. Under Rutherford, a plaintiff is only required to show that his exposure was a substantial factor in contributing to the aggregate dose of asbestos, and hence to the risk of cancer. If the plaintiff does so, then causation is established, regardless of whether there were other contributing exposures or whether those other exposures were sufficient, on their own, to cause the plaintiff’s disease. Allowing a defendant to use the bracketed language in CACI 430 to defeat causation by arguing that other exposures were independently sufficient to cause the plaintiff’s disease destroys the Rutherford causation standard.

CACI 430’s bracketed language was derived from Viner v. Sweet, 30 Cal. 4th 1232 (2003). Viner was a case alleging legal malpractice in a transactional setting, in which the California Supreme Court ruled “the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.”

In Jones v. John Crane, Inc., 132 Cal. App. 990 (2005), the defendant in an asbestos-related cancer case argued that Viner required the plaintiffs to show that he would not have contracted cancer “but for” the exposure to that particular defendant’s asbestos product. The appellate court rejected the defendant’s argument, holding that Viner did not address Rutherford and “did not alter the causation requirement in asbestos-related cases.”

Fox criticizes both the former and revised versions of CACI 435 because they “leav[e] the jury completely in the dark about what ‘substantial factor’ means.” Yet, CACI 435 is taken directly from Rutherford and the revision includes the language from CACI 430 that “[a] substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm” and “does not have to be the only cause of the harm.”

Moreover, in Rutherford, the Supreme Court recognized that “substantial factor” has not been judicially defined with specificity, and it is “neither possible nor desirable to reduce it to any lower terms.'” The Supreme Court cautioned that “[u]ndue emphasis should not be placed on the term ‘substantial,'” that the standard is a “relatively broad one,” and that the coontribution has to be more than “negligible or theoretical.” See also Bockrath v. Aldrich Chemical Co., 21 Cal. 4th 71, 79 (1999) (“a very minor force that does cause harm is a substantial factor”)

Fox views CACI 435 as an invitiation to “meritless and inadmissible expert testimony” on behalf of plaintiffs. He disagrees with the plaintiffs’ expert testimony that “any exposure above background levels” is a substantial factor in causing the plaintiff’s disease, and claims the testimony showing relatively brief and intermittent exposures as substantial is “unsupported by any published scientific literature.” The science, however, is overwhelmingly supportive of the plaintiffs’ experts.

Asbestos-related cancers are dose response diseases, meaning that each exposure to asbestos contributes to the disease’s causation by contributing to the total or aggregate dose. A relationship between increasing amounts of asbestos exposure and the development of asbestos-related diseases has been understood as scientific fact for over 70 years. Each exposure to asbestos contributes to the total dose and shortens the period for the disease to develop.

Peer-reviewed medical and scientific literature agree that there is no accepted threshold of exposure to asbestos above background that is incapable of causing asbestos-related cancers, including malignant mesothelioma. It is well settled that even brief and short-term exposures to asbestos have resulted in this fatal disease.

Moreover, while defendants often complain about expert testimony offered by plaintiffs in asbestos-related disease cases, in practice, defendants rarely present their own expert testimony in opposition. Instead, they rely on cross-examination and argument.

Those that disagree with the CACI instructions and their revisions are simply arguing against the state of the law in California as announced by the California Supreme Court. The Judicial Council cleared up unnecessary confusion created by the pre-revision iterations of CACI 430 and 435, and faithfully followed the Rutherfordstandard in approving the revisions.

Paul C. Cook is a partner and Michael B. Gurien is an associate at Waters Kraus & Paul in Los Angeles.

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