Roemmich v. 3M Co.

• Decision Date: 09 May 2022
• Docket Number: 82132-6-I
• Citation: 509 P.3d 306
• Parties: Larry L. ROEMMICH and Gloria Roemmich, husband and wife, Appellants/Cross-Respondents, v. 3M COMPANY, Respondent/Cross-Appellant, Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps, Inc.; Fraser's Boiler Service, Inc.; General Electric Company; IMO Industries, Inc., individually and as successor-in-interest to De Laval Turbine, Inc. ; Ingersoll-Rand Company; ITT LLC, as successor-in-interest to Foster Valves; Metropolitan Life Insurance Company; Mine Safety Appliances Company, LLC; North Coast Electric Company ; Pfizer, Inc.; P-G Industries, Inc., as successor-in-interest to Pryor Giggey Co., Inc.; Union Carbide Corporation ; ViacomCBS, Inc.; and Warren Pumps, LLC, Individually and as successor in interest to Quimby Pump Company, Defendants.
• Court: Washington Court of Appeals

509 P.3d 306

Larry L. ROEMMICH and Gloria Roemmich, husband and wife, Appellants/Cross-Respondents,

v. 3M COMPANY, Respondent/Cross-Appellant,Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps, Inc.; Fraser's Boiler Service, Inc.; General Electric Company; IMO Industries, Inc., individually and as successor-in-interest to De Laval Turbine, Inc. ; Ingersoll-Rand Company; ITT LLC, as successor-in-interest to Foster Valves; Metropolitan Life Insurance Company; Mine Safety Appliances Company, LLC; North Coast Electric Company ; Pfizer, Inc.; P-G Industries, Inc., as successor-in-interest to Pryor Giggey Co., Inc.; Union Carbide Corporation ; ViacomCBS, Inc.; and Warren Pumps, LLC, Individually and as successor in interest to Quimby Pump Company, Defendants.

No. 82132-6-I

Court of Appeals of Washington, Division 1.

FILED May 9, 2022

Chandler H. Udo, Brendan E. Little, Erica Lee Bergmann, Matthew Phineas Bergman, Bergman Draper Oslund Udo, PLLC, 821 2nd Ave. Ste. 2100, Seattle, WA, 98104-1516, for Appellant(s).

Nancy M. Erfle, Gordon Rees Scully Mansukhani, 1300 Sw 5th Ave. Ste. 2000, Portland, OR, 97201-5629, Sidney Charlotte Tribe, Carney Badley Spellman, 701 5th Ave. Ste. 3600, Seattle, WA, 98104-7010, L. Michael Brooks Jr., Wells Anderson & Race LLC, 1700 Broadway, Suite 1020, Denver, CO, 80290, Christopher S. Marks, Malika Johnson, Alice Coles Serko, Tanenbaum Keale LLP, 701 Pike St. Ste. 1575, Seattle, WA, 98101-3931, Erin Fraser, Rachel Tallon Reynolds, Lewis Brisbois Bisgaard & Smith LLP, 1111 3rd Ave. Ste. 2700, Seattle, WA, 98101-3224, George S. Pitcher, Jason Harris Daywitt, Lewis Brisbois Bisgaard & Smith LLP, 888 Sw 5th Ave. Ste. 900, Portland, OR, 97204-2023, Taryn Marie Basauri, Corr Cronin LLP, 1001 4th Ave. Ste. 3900, Seattle, WA, 98154-1051, Marissa Alkhazov, Buchalter, 1420 5th Ave. Ste. 3100, Seattle, WA, 98101-1337, John Krawczyk, The Myers Law Group, 8144 Walnut Hill Ln. Ste. 390, Dallas, TX, 75231-4334, Allen E. Eraut, Shaun Mary Morgan, JD, Rizzo Mattingly Bosworth PC, 1300 Sw 6th Ave. Ste. 330, Portland, OR, 97201-3530, Wendy E. Lyon, Fox Rothschild, 1001 4th Ave. Ste. 4500, Seattle, WA, 98154-1065, Richard George Gawlowski, Wilson Smith Cochran Dickerson, 1000 2nd Avenue, Ste. 2050, Seattle, WA, 98104, Ronald Clayton Gardner, Gardner Trabolsi & Mordekhov PLLC, 2200 6th Ave. Ste. 600, Seattle, WA, 98121-1849, Michael Edward Ricketts, Gordon Thomas Honeywell LLP, 520 Pike St. Ste. 2350, Seattle, WA, 98101-4006, James Browitt, Browitt Law Office, 1317 Prospect Ave., Lewiston, ID, 83501-2242, Kyle Anthony Jones, Davis Law Group, P.S., 2101 4th Ave. Ste. 1030, Seattle, WA, 98121-2317, Mark Bradley Tuvim, Kevin James Craig, Trevor J. Mohr, Esq., Gordon & Rees Scully Mansukhani, 701 5th Ave. Ste. 2100, Seattle, WA, 98104-7084, for Respondent(s).

PUBLISHED OPINION

Smith, A.C.J. ¶1 Larry Roemmich wore 3M Company's 8710 mask from 1972 to around 1980 while working as an insulator at Puget Sound Naval Shipyard (PSNS), where he was exposed to asbestos and asbestos-containing products. In 2019, after being diagnosed with mesothelioma from asbestos exposure, Roemmich and his wife Gloria Roemmich filed a strict products liability claim and negligence claim against 3M, alleging that the 8710 mask was not adequately designed and that 3M failed to provide adequate warnings. After a jury trial, the jury returned verdicts in favor of 3M. The jury found that 3M was negligent in the manufacture and sale of the 8710 mask, but that such negligence was not a proximate cause of Roemmich's disease. The jury also denied the Roemmiches’ strict liability claim, determining that 3M's 8710 respirator was reasonably safe in design and contained adequate warnings and instructions.

¶2 The Roemmiches appeal, asserting that the court failed to give an adequate proximate cause instruction and incorrectly gave a superseding cause instruction. They also claim that the court abused its discretion by excluding testimony from two of their experts. We conclude that the court did not abuse its discretion by excluding the expert testimony. However, the proximate cause jury instruction misstated the law and the superseding cause instruction was not supported by substantial evidence, and these erroneous instructions prejudiced the outcome of the trial on the issue of negligence. Therefore, we affirm in part, reverse in part, and remand for a new trial on the issue of negligence.

FACTS

¶3 In 1970, 3M obtained approval from the U.S. Bureau of Mines¹ for the single-use 8710 mask that protected against pneumoconiosis and fibrosis producing dusts, which include asbestos fibers. 3M directed its marketing for the 8710 mask at asbestos workers in the insulation trade. In 1973, 3M advertised the mask with the tagline "You don't have to work yourself to death," and claimed that the 8710 masks were protective against "Stonecutter's disease[,] Asbestosis [, and] Grinder's rot." Asbestos causes two types of harm to individuals, non-cancerous diseases including pleural plaques and asbestosis, and cancerous malignant harms including lung cancer and mesothelioma.² A dose of asbestos is sufficient to increase the risk of mesothelioma.

¶4 Larry Roemmich worked at PSNS from 1968 to 1995 and was exposed to asbestos and asbestos-containing products as part of his work from 1968 until the early 1980's. In the 1970's, PSNS began recommending the 8710 mask to its workers based on the Bureau of Mines approval. Roemmich wore the 8710 mask from 1972 until around 1980 while working with asbestos-containing products. In 1980, the National Institute for Occupational Safety and Health (NIOSH) warned 3M that single-use dust masks had the propensity to leak and should not be used to protect users against asbestos because of leakage from the face seal. But 3M continued to promote and sell its 8710 mask as protective against asbestos through 1986. In 2019, Roemmich was diagnosed with mesothelioma.

¶5 In January 2020, the Roemmiches sued 3M for product liability and negligence. 3M moved for summary judgment on all of the Roemmiches’ claims and the Roemmiches moved for partial summary judgment on 3M's affirmative defense that PSNS's negligence was a superseding cause of Roemmich's injuries. The trial court denied both motions, and the case proceeded to trial in October 2020.

¶6 At trial, the Roemmiches sought to introduce expert testimony from Dr. Dwight Jewson and Dr. James Johnson. They wanted Dr. Jewson to testify regarding consumer expectations about the 8710 mask. Specifically, Dr. Jewson would have testified that he conducted a package test poll to understand what potential users would believe about the 3M 8710 Respirator based on the information displayed on its packaging. The study demonstrated that the 3M brand name provided the advertised product credibility.

¶7 Dr. Johnson was prepared to testify about his opinion on the 3M 8710 mask based on his review of 3M documents. First, Dr. Johnson intended to testify at trial that the 3M 8710 mask would collapse and create the potential for a poorer fit and leakage; that the mask's leakage created lower levels of protection than advertised; and that the wearer would not be able to detect leaks caused by minor collapses in the masks, which would then become major collapses causing a poorer fit before completely collapsing. Second, Dr. Johnson would have testified that 3M documents showed that 3M had manipulated the NIOSH Silica Dust approval test with minimal and misleading supporting documentation to make the mask seem more effective.

¶8 3M moved in limine to exclude the expert testimony from Dr. Jewson and Dr. Johnson under Evidence Rule (ER) 702. The trial court granted the motion with respect to both experts, but allowed Dr. Johnson to testify on rebuttal regarding the NIOSH certification issue. Although the trial court stated that it would limit Dr. Johnson's testimony to issues related to the certification, Dr. Johnson was still able to incorporate his opinions about the fit and the imperceptible leakage over 3M's objections.

¶9 On October 28, before closing arguments, the Roemmiches moved for judgment as a matter of law under Civil Rule (CR) 50 with respect to 3M's superseding cause, contributory negligence, assumption of the risk, and failure to mitigate defenses. With respect to the superseding cause defense, the Roemmiches stated that 3M failed to show that PSNS knew that the NIOSH approval was not adequate and that the 8710 mask leaked in dangerous amounts, and that therefore the evidence was not sufficient to prove that PSNS had actual knowledge of the mask defects. The court denied the motion and gave a superseding cause jury instruction:

A superseding cause is a new independent cause that breaks the chain of proximate causation between a defendant's product liability and/or negligence and an injury.

If you find product liability and/or negligence of the defendant but that the sole proximate cause of the injury was a later independent intervening cause that the defendant, in the exercise of ordinary care, could not reasonably have anticipated, then any product liability and/or negligence of the defendant is superseded and such product liability and/or negligence was not a proximate cause of the injury. If, however, you find product liability and/or negligence and that in the exercise of ordinary care, the defendant should reasonably have anticipated the later independent intervening cause, then that cause does not supersede defendant's original product liability and/or negligence and you may find that the defendant's product liability and/or negligence was a proximate cause of the injury.

¶10 The trial court also granted 3M's request to instruct the jury on both the substantial factor and "but-for" causation standards. The resulting proximate cause instruction stated:

If two or more causes combine to bring about an injury, the term "proximate cause" means a cause that was a substantial factor in

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