Everyday LSAT: Causation in Multiple Exposure Mesothelioma Cases

    LSAT Prep

    describe the imageIn retrospect, beginning the title of this post with "Everyday LSAT" might be a little misleading, because there is no doubt that the subject matter is a bit on the heady side. But, students often wonder whether the difficulty of the argumentation they face on the LSAT has any real connection to the practice of law. This Supreme Court of Virginia opinion is a striking example of how the argumentation on the LSAT can be just the tip of the logical iceberg.

    If you're like me, you've seen a ton of television ads in recent years regarding mesothelioma, but probably never knew what the condition actually is. It turns out that malignant mesothelioma is a cancerous tumor of the tissue that lines your various internal organs. It typically results from breathing in asbestos particles, and it can take a long time for the disease to form after the causative exposure. 

    In the January 2013 case at issue, the estate of a Virginia State Trooper named James Lokey sued Honeywell and Ford Motor Company for Lokey's wrongful death, which the plaintiffs argued resulted from Lokey's exposure to asbestos in dust from Bendix brakes (a Honeywell product) installed in Ford (and other) vehicles. In the mid 1960s, and continuing for about eight years, Trooper Lokey was assigned to observe vehicle inspections as part of his normal duties. During these inspections, Lokey would observe, from a distance of about ten feet, while the inspectors used compressed air to blow out the cars' brake linings. He could see dust in the air, but hadn't been warned that breathing the brake dust, which contained asbestos particles, could be harmful to his health.

    Complicating the issue is that Trooper Lokey had previously worked as a pipefitter in the Norfolk Naval Shipyard for a little more than a year in the early 1940s. Some expert testimony at trial established that there is an increased risk of mesothelioma for people who worked around ship yards, whether they themselves actually worked with the materials containing asbestos, or merely worked in the vicinity of activies that produced airborne asbestos particles.

    As you can imagine, there were multiple legal issues at play in this case, but what I'd like to talk about briefly are the incredibly complicated issues of causation produced by this set of facts. To recap, Trooper Lokey was exposed to multiple sources of asbestos particles from mutliple manufacturers during multiple decades, with the disease not appearing until several years after the exposure. This is a causation nightmare.

    Not only that, the Court acknowledged that current medical knowledge regarding mesothelioma and causation is incomplete. As the Court put it:

    Further complicating the issue, although numerous individuals were exposed to varying levels of asbestos during its widespread industrial use before safety measures became standard, not all persons exposed developed mesothelioma...It is not currently known why some are more susceptible to developing mesothelioma, or why even low levels of exposure may cause mesothelioma in some individuals, while others exposed to higher dosages never develop the disease...Thus, in the context of a lifetime of potential asbestos exposures, designating particular exposures as causative presents courts with a unique challenge.

    So, imagine you're a juror asked to decide causation in this case! In fact, part of what brought this case to appellate review was the propriety of the jury instructions given by the trial court regarding causation. Ultimately, the trial court decided to grant a causation instruction that has some support in other jurisdictions, but had never before been granted in Virginia. The opinion refers to this as the "substantial contributing factor" instruction, and ultimately rejects its use in Virginia trials. In doing so, the Court gets into some very interesting discussion regarding what is required to prove causation in tort (i.e., civil wrongs resulting in harm).

    While the context of a blog post won't permit me to do justice to all of the complexities of the Court's analysis, the crux of the issue is how to consider the potential confluence of multiple concurrent sufficient causes of Trooper Lokey's mesothelioma. Let me break this down a bit.

    In order for Honeywell or Ford to be liable in tort for the harm to Trooper Lokey, the party must have done something wrong that is a "factual cause" of the harm. So, for example, the argument would be that Lokey's mesothelioma would not have occurred absent Honeywell's wrongful conduct in making and selling the brakes, knowing the health risks related to asbestos, without informing Trooper Lokey of the danger.

    But you can have more than one factual cause of the same harm. This gets into the idea of multiple sufficient causes. In this case, Trooper Lokey allegedly was exposed to asbestos sufficient to produce mesothelioma on multiple occassions, both while working as a pipefitter in the 1940s and while observing vehicle inspections on a routine basis in the late 1960s and early 1970s. Potentially, each time Lokey inhaled asbestos particles, whether from a Ford, a Chevrolet, a Honeywell brake or some other product, he was exposed to the same substance that causes mesothelioma.

    You can imagine that a defendant would seize on this multiplicity of potential alternate causes to say, "Wait a minute! How can you prove that it was asbestos from my brake that caused Trooper Lokey's mesothelioma, and not some other brake, or perhaps asbestos from the shipyard twenty years earlier?" To forestall this argument, the courts have reduced the burden on plaintiffs, such that they need prove only that:

    (t)he exposure [was] "a" sufficient cause: if more than one party caused sufficient exposure, each is responsible. Other sufficient causes, whether innocent or arising from negligence, do not provide a defense. Excluding other exposures from the pool of multiple sufficient causes will require competent medical testimony indicating whether the timing of exposure could possibly have caused the cancer. Defendants with sufficient exposures that occur after the cancer has already developed cannot be held liable.

    The opinion goes on to discuss the probability of alternative causes, the scientific reliability of expert testimony, and the connection between the failure to warn Trooper Lokey of the asbestos risk and the proximate causation of his disease.

    Like I said at the top, pretty heady stuff. But, at the same time, a fascinating glimpse into issues of causation that you certainly will encounter in law school and may encounter as an attorney. As you read this opinion, consider the similarities and differences between how causation is presented on the LSAT, and how the courts deal with the issue. 

    At very least, reading this opinion, and perhaps doing some additional research on causation in tort, will encourage you to probe further into issues of causation. Along this line, one additional link I think you might find interesting is this University of Texa law review article offering a critique of how the law deals with issues of causation. The article delves more deeply into the theories of causation discussed in the Virginia opinion.