Earl v. Cryovac, A Div. of W.R. Grace Co.

• Decision Date: 05 April 1989
• Docket Number: No. 16982,16982
• Citation: 772 P.2d 725,115 Idaho 1087
• Parties: , Prod.Liab.Rep. (CCH) P 12,136 James EARL, Plaintiff-Appellant, v. CRYOVAC, A DIVISION OF W.R. GRACE COMPANY, a Corporation, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 725

772 P.2d 725

115 Idaho 1087, Prod.Liab.Rep. (CCH) P 12,136

James EARL, Plaintiff-Appellant, v. CRYOVAC, A DIVISION OF W.R. GRACE COMPANY, a Corporation, Defendant-Respondent.

No. 16982.

Court of Appeals of Idaho.

April 5, 1989.

Rehearing Denied May 17, 1989.

Roy E. Mosman, Moscow, for plaintiff-appellant.

Bruce R. McAllister, Quane, Smith, Howard & Hull, Boise, for defendant-respondent.

BURNETT, Judge.

This is a toxic tort case. James Earl has alleged that his lungs were injured when he was exposed at work to vapors emitted from a plastic film manufactured by the Cryovac division of W.R. Grace Company. He filed a worker's compensation claim against his employer and filed this tort action against Cryovac. The worker's compensation claim was settled. In this case, the district court entered summary judgment against Earl, holding that he had failed to establish any causal connection between his injury and Cryovac's product. Today, we vacate the summary judgment and remand the case.

In Part I of our opinion, we discuss the elements of a toxic tort action, the requirement of proximate cause, and the use of expert testimony to establish causation. In Part II, we focus on the issue of causation in the present case, summarizing the evidentiary facts and the opinions of expert witnesses. In Part III, we enunciate the standards governing summary judgments and explain why a summary judgment should not have been entered in this case.

I

When a plaintiff brings an action against the manufacturer of a product, seeking damages for negligence or for strict liability in tort, he carries the burden of showing (1) that he has suffered an injury, (2) that the product was defective or unsafe when it left the control of the manufacturer, and (3) that the plaintiff's injury was proximately caused by the product. E.g., Henderson v. Cominco American, Inc., 95 Idaho 690, 518 P.2d 873 (1973). If the product is alleged to be unsafe because it is toxic, the causation issue turns upon two subsidiary questions: (a) Did the product, or a substance in the product, have the capacity to cause the type of harm claimed by the plaintiff? (b) Was the plaintiff's exposure sufficient to produce a toxic effect? Farber, Toxic Causation 71 MINN.L.REV. 1219 (1987).

Because toxic torts typically involve a period of latency between exposure and manifestation of injury, the outcome of the litigation often will turn upon the issue of causation. This issue may be addressed by general or particular evidence. General evidence, derived from research in medicine, chemistry or other disciplines of science, may establish the toxic potential of a substance under certain conditions of exposure.. Particular evidence, arising from diagnosis and treatment of the plaintiff's ailment, may prove that an exposure has occurred and may demonstrate a manifestation of the product's toxic potential.

A

Both types of evidence, general and particular, are probative as to the legal requirement of proximate cause. Under Idaho law, proximate cause, in the sense of cause in fact, embraces two closely related elements:

First, an event is the cause in fact of a succeeding event only if the succeeding event would not have occurred "but for" the prior event. Thus, an act or omission is not the cause in fact of ensuing damage if the damage likely would have occurred anyway. The second element is a requirement that the first event be a "substantial factor" in producing the succeeding event. [Citation omitted.] Thus, a defendant's conduct is the cause in fact of an event only if it was a material element and a substantial factor in bringing it about. [Citation omitted.]

Edmark Motors, Inc. v. Twin Cities Toyota, Inc., 111 Idaho 846, 849, 727 P.2d 1274, 1277 (Ct.App.1986) (quoting Challis Irrigation Co. v. State, 107 Idaho 338, 343, 689 P.2d 230, 235 (Ct.App.1984)). However, a proximate cause need not be the sole or primary cause in fact. It may be concurrent with other causes which, in combination, cause the harm. Idaho Jury Instructions (IDJI) No. 230; Fouche v. Chrysler Motors Corp., 107 Idaho 701, 692 P.2d 345 (1984).

When a case goes to trial, the existence of proximate cause, like any other required element of the plaintiff's case, must be established by a preponderance of the evidence. The trier of fact must be persuaded that the plaintiff's claim of causation "is more probably true than not true." IDJI No. 112-1. By employing a probability standard, the law strikes a balance between plaintiffs' and defendants' rights. It avoids compelling a plaintiff to meet the virtually impossible burden of proving causation with certainty in order to obtain compensation for an injury. It also avoids compelling a defendant to pay damages when his connection with the plaintiff's injury is nothing more than a mere possibility. This balance reflects a value judgment based on our society's intuitive sense of civil justice. See generally Calabresi, Concerning Cause and the Law of Torts, 43 U.CHI.L.REV. 69 (1975). ¹

When doctors and scientists evaluate causation, however, they do not strike a value-based balance. In their work, they apply standards of greater or lesser rigor than probability. See generally Nesson, Agent Orange Meets the Blue Bus: Fact-Finding at the Frontier of Knowledge, 66 B.U.L.REV. 521 (1986) (hereafter cited as Fact-Finding at the Frontier of Knowledge ). In scientific research, where the replication of an observed event is the ultimate test of truth, the usual standard of causation is a high degree of certainty. Conversely, in diagnosis and treatment of a specific patient, where the objective is to find a cure or to prevent further harm, a doctor may ascribe causal significance to a possibility that falls short of a probability.

Accordingly, when the courts apply medical and scientific evidence to a question of causation, they must interpret the evidence carefully in light of the applicable standard. They may not assume that a causal relationship is probable merely because a physician deems it significant in his diagnosis and treatment of a patient's condition. Neither may they assume that a causal relationship is improbable merely because it has not been documented in a body of research literature where a high degree of certainty is demanded. These distinctions are particularly important in a toxic tort case where, as here, the issue of causation is framed by the expert opinions of scientists and treating physicians.

B

Causation is a question of fact for the jury to resolve. E.g., Nelson v. Northern Leasing Co., 104 Idaho 185, 657 P.2d 482 (1983). However, the admissibility of expert testimony on that subject is a question for the trial judge to decide. I.R.E. 104. The judge's decision rests on three criteria. First, the witness must be qualified as an expert who possesses "scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue...." I.R.E. 702. Second, if the qualified witness intends to give testimony containing an opinion or inference, and such testimony will be based on facts not otherwise in evidence or within the expert's personal knowledge, then the facts must be "of a type reasonably relied upon by experts in the particular field...." I.R.E. 703. Third, if the testimony is relevant and admissible under the foregoing criteria, it may nevertheless be excluded if its probative value would be "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence." I.R.E. 403.

In many toxic tort cases (including, as we shall see, the present case), the controversy over expert testimony arises from the second of these criteria. The question is whether the experts' opinions are based upon facts known to them or otherwise admitted in evidence--and, if not, whether the facts are "of a type reasonably relied upon by experts in the particular field," as required by Rule 703. In addressing these questions, a trial judge must take care not to allow his decision on the admissibility of expert testimony to be influenced by his perception of whether the testimony would be persuasive to a jury at trial. The weight given to expert testimony is to be determined by the jury. E.g., State v. Hopkins, 113 Idaho 679, 747 P.2d 88 (Ct.App.1987). In evaluating the facts upon which an expert bases an opinion, the judge must not "infringe upon the fact-finder's role in assessing the weight of the expert testimony." In re Agent Orange Product Liability Litigation, 611 F.Supp. 1223, 1244-45 (E.D.N.Y.1985).

It is particularly important in toxic tort cases, and in other litigation where highly technical issues are presented, that the judge not exclude expert testimony by second-guessing the facts upon which the experts choose to rely. "Judges, after all, are lay persons, no matter how well-read they are in science." Fact-Finding at the Frontier of Knowledge, supra, at 531. If an expert is qualified to render an opinion, based on his expertise in the subject, then he must be accorded substantial deference in the selection of data upon which he chooses to base his opinion. In re Japanese Electronic Products, 723 F.2d 238 (3d Cir.1983), reversed on other grounds sub. nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see generally Rheingold, The Basis of Medical Testimony, 15 VAND.L.REV. 473 (1962). With this constraint in mind, we now turn to the evidence adduced during the summary judgment proceedings in the present case.

II

On the causation issue, the plaintiff's case rested largely upon the testimony of three qualified expert witnesses. The first to be deposed was Charles E. Reed, M.D., the plaintiff's primary treating physician. Dr. Reed was, and is, board-certified in internal...