Ford Motor Co. v. Boomer

• Decision Date: 10 January 2013
• Docket Number: 120299.,Record Nos. 120283
• Citation: 736 S.E.2d 724,285 Va. 141
• Parties: FORD MOTOR COMPANY v. Walter E. BOOMER, Administrator. Honeywell International, Inc. v. Walter E. Boomer, Administrator.
• Court: Virginia Supreme Court

285 Va. 141

736 S.E.2d 724

FORD MOTOR COMPANY

v.Walter E. BOOMER, Administrator.

Honeywell International, Inc.

v.Walter E. Boomer, Administrator.

Record Nos. 120283, 120299.

Supreme Court of Virginia.

Jan. 10, 2013.

J. Tracy Walker, IV, Samuel L. Tarry, Jr., Richard C. Beaulieu, McGuire Woods, on briefs, for appellant Ford Motor Co.

Stuart A. Raphael, William D. Bayliss, Lynn K. Brugh, IV, Williams Mullen, Hunton & Williams, on briefs, for appellant Honeywell International, Inc.

Robert R. Hatten, William W.C. Harty, Gary W. Kendall, E. Kyle McNew, Nathan D. Finch, Patten Wornom Hatten & Diamonstein, MichieHamlett, Motley Rice, on brief, for appellee.

Amici Curiae, Virginia Chamber of Commerce, Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, American Chemistry Council, America Tort Reform Ass'n, American Ins. and NFIB Small Business Legal Center, Emma Burton, Mark A. Behrens, Robin S. Conrad, Kathryn Louise Comerford Todd, Crowell & Moring, Shook, Hardy & Bacon, National Chamber Litigation Center, on briefs, in support of appellants Ford Motor Co.

Amicus Curiae, Virginia Ass'n, of Defense Attys., Julie S. Palmer, John R. Owen, Joseph A. Robinson, Harman, Clayton, Corrigan & Wellman, on brief, in support of appellant Ford Motor Co.

Amicus Curiae, Virginia State Police Ass'n, Jonathan Ruckdeschel, William F. Etherington, Beale, Davidson, Etherington & Morris, on brief, in support of appellee.

Amicus Curiae, Virginia Trial Lawyers Ass'n, Mary Lynn Tate, Jeffrey M. Summers, on brief, on support of appellee.

Amicus Curiae, Virginia Ass'n of Defense Attys., Julie S. Palmer, John R. Owen, Joseph A. Robinson. Harman, Claytor, Corrigan & Wellman, on brief, in support of appellants Ford Motor Com., and Honeywell International, Inc.

Present: KINSER, C.J., LEMONS, MILLETTE, MIMS, McCLANAHAN, and POWELL, JJ., and KOONTZ, S.J.

Opinion by Justice LEROY F. MILLETTE, JR.

These paired appeals arise out of a jury verdict against Honeywell International Incorporated ¹ and Ford Motor Company for the wrongful death of James D. Lokey, caused by mesothelioma resulting from exposure to asbestos in dust from Bendix brakes installed in Ford and other vehicles.

On appeal, Ford assigns error to: (1) the circuit court's jury instructions as to causation; (2) its admission of plaintiff's expert testimony; (3) the finding of evidence sufficient to show that Ford's failure to warn was the proximate cause of the harm; and (4) the finding of evidence sufficient to show proximate cause despite a more likely alternative. Bendix echoes the first three arguments. For the reasons stated herein, we reverse and remand.

I. Background

Lokey was diagnosed with mesothelioma, a malignant cancer of the pleura of the lungs, in 2005. He passed away in 2007 due to complications related to his disease. Lokey testified at trial via a de bene esse deposition taken prior to his death. His son-in-law, Walter Boomer, is the Administrator of his estate. The relevant facts as presented at trial were as follows:

Lokey served as a Virginia State Trooper for 30 years. Beginning in 1965 or 1966, for approximately seven and a half to eight years, his duties required that he observe vehicle inspections wherein mechanics used compressed air to blow out brake debris (dust) to allow for a visual inspection of the brakes. 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. Lokey testified to standing within ten feet of the inspectors who were blowing out brake linings with compressed air, and that these blow outs were a fairly common practice in inspections at the time. He also recalled breathing in visible dust in the garages, which to his knowledge had no specialized ventilation systems. He testified that he was not provided protective clothing or masks or warned that breathing brake dust was harmful to his health.

Lokey testified that his rotations included supervising inspections at a Ford dealership and that he was sure he was present when this process was being done on Ford cars. Due to the time period in which he inspected cars, he testified that the vast majority of the cars being inspected at the garages he visited were American-made cars. He also specifically remembered Oldsmobile dealers on his rotation. 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.

Lokey could not identify the type of brake linings being inspected. 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). 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. He also testified that Bendix likely held one hundred percent of the market for Oldsmobile up to the late 1960s or early [285 Va. 149]1970s, until front disc brakes were phased in. He testified that they also began providing materials for Fords in 1955 and had one hundred percent of the new Ford market share for the 15 years prior to 1983. 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.

Dr. John C. Maddox and Dr. Laura Welch, experts for Lokey's estate, testified that chrysotile asbestos, the type of asbestos found in brakes, can cause mesothelioma. They opined that the exposure to dust from Bendix brakes and brakes in new Ford cars were both substantial contributing factors to Lokey's mesothelioma. 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.

Lokey also testified that he worked as a pipefitter at the Norfolk Naval Shipyard for slightly over a year in the early 1940s. Lokey testified that his own work and the work of those immediately around him involved packing sand into pipes so that the pipes could be bent to fit the ships. He had no personal knowledge of any exposure to asbestos in the shipyard. Lokey admitted, however, that he worked in a large warehouse and was unaware of all the work done and products used in the warehouse, whether asbestos products were present, or whether there was any ventilation.

Dr. David H. Garabrant, expert for the defense, testified that people who work around asbestos-containing brakes are at no higher risk of developing mesothelioma than those who do not, but noted documented evidence of increased risk of mesothelioma for those who worked around shipyards, both directly with asbestos material and also in its vicinity. Dr. Victor Roggli, a pathologist presented by the defense, testified that he found amosite asbestos fibers in Lokey's lung tissue. Following his analysis of Lokey's lung fibers, he opined that Lokey's profile was more consistent with a person who had exposure to amosite asbestos at a shipyard sixty years ago than a person exposed to chrysotile brake products. Dr. Roggli admitted, however, that his investigation did not include the pleura of the lungs and that he opined that each and every exposure to asbestos above background level experienced by an individual is a substantial contributing factor in the development of mesothelioma.

The trial court instructed the jury on negligence and breach of warranty theories. The jury found in favor of the estate as to negligenceand awarded damages in the amount of $282,685.69. 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. Bendix and Ford have timely appealed.

II. Discussion

A. Jury Instructions as to Causation

The circuit court instructed the jury on proximate cause but also on five occasions instructed the jury to determine whether Ford's or Bendix' negligence was a “substantial contributing factor” to Lokey's mesothelioma. Defendants challenge the use of the substantial contributing factor language as contrary to prevailing Virginia law as to causation. The determination of whether a jury instruction accurately states the relevant law is a question of law that we review de novo. Hawthorne v. VanMarter, 279 Va. 566, 586, 692 S.E.2d 226, 238 (2010).

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. It is a cause without which the accident, injury or damage would not have occurred.

This is a plain-language adaptation of the long-accepted definition of proximate cause set forth by this Court in Wells v. Whitaker, 207 Va. 616, 622, 151 S.E.2d 422, 428 (1966): “The proximate cause of an event is that act or omission which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces that event, and without which that event would not have occurred.”

We said in Wells that the first element of proximate cause, causation in fact, is “often described as the ‘but for’ or sine qua non rule.” ²Id. 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.

The requirement of but-for causation came with a caveat, however: “The ‘but for’ test is a useful rule of exclusion in all but one situation: where two causes concur to bring about an event and either alone would have been sufficient to bring about an identical result.” Id. at 622...