LOS ANGELES (Legal Newsline) - A California appeals court reversed a $5.5 million verdict awarded to the family of a pipefitter who died of mesothelioma, saying the trial judge improperly instructed jurors to apply California’s standard of proof in asbestos cases when they should have used the stricter Michigan standard.
The difference between the two states is subtle but important, the Court of Appeal for the Second District concluded. Under California law, plaintiffs merely have to show exposure to a defendant’s products increased the risk of asbestos-related disease, while in Michigan they must prove exposure was a substantial factor in causing the disease.
Robert Swanson was a Michigan native who served on a Navy ship in the early 1960s and later worked as a plumber in Michigan, where he installed residential boilers manufactured by a company now known as Marley-Wylain. He testified he used asbestos-containing powder to seal the exhaust pipe to chimneys, removed asbestos-containing gaskets on the boilers using a putty knife and a wire brush, and worked around drywallers who spread asbestos-containing dust from their joint compound.
Swanson later worked as a pipefitter in Michigan and California until he retired in 2005, where he was also exposed to asbestos. He was diagnosed with mesothelioma in 2014 and died of the disease two years later.
Swanson sued Marley-Wylain in 2015 and the company won an appellate order to apply Michigan law to its case, since the plaintiff’s exposure to its products occurred there.
A jury awarded $5.5 million to his family in 2018. Marley-Wylain appealed, arguing the plaintiffs failed to provide sufficient evidence to meet Michigan’s standard for but-for causation, and the trial judge excluded evidence that would have undercut Swanson’s testimony about his exposure to the company’s products.
The appeals court rejected the first argument, saying there was enough evidence to support the jury’s verdict. But because the judge’s instructions were incorrect, the appeals court sent the case back for a new trial.
The plaintiffs argued California and Michigan law are identical when it comes to causation, but the defense said California applies an “every exposure” rule while Michigan requires “but-for” causation. Under the “every exposure” theory, plaintiff experts are allowed to testify that any single asbestos fiber might be the trigger for mesothelioma. But-for causation requires a higher standard of proof: That the plaintiff wouldn’t have gotten sick without exposure to the defendant’s products.
The appeals court disagreed with both arguments. California has a stricter standard in asbestos cases requiring plaintiffs to show they suffered a threshold exposure to the defendant’s products and that there is a reasonable medical probability that particular exposure was a substantial factor toward increasing the risk of cancer, the court explained. Michigan law is slightly stricter, requiring the jury to conclude the exposure was a substantial factor in causing the disease, not merely increasing the risk.
The judge’s instructions to the jury improperly substituted the California rule, telling them to find liability if exposure to Marley-Wylain’s products was a “proximate cause contributing to . . . decedent’s risk of developing cancer.”
“The jury in this matter was repeatedly told that any exposure to asbestos was sufficient to increase a person’s risk of mesothelioma,” the appellate court concluded. “Had the jury been properly instructed, we believe it is reasonably probable that a jury could have concluded that Swanson had not met his burden of demonstrating the causal connection Michigan law requires—that the exposure was a substantial factor in producing the injury, rather than in merely increasing the risk of the injury.”