Plaintiff, Roland Grenier, respectfully submits this trial brief in support of Plaintiff’s Proposed Jury Instruction on proximate causation. The standard of proximate cause in an indivisible injury/multi-cause case such as this is an issue of first impression in Rhode Island. Plaintiff accordingly submits this trial brief to explain why the “substantial factor” test is appropriate in this asbestos-injury case.

Introduction

In the Proposed Jury Instructions submitted to this Court, Plaintiff adopts verbatim all of the applicable instructions from the Rhode Island Model Civil Jury Instruction (2002), with one exception. Specifically, language in the model proximate cause instruction requiring that a cause be one “without which” plaintiff’s injury would not have occurred is simply not applicable in this case. As applied to an indivisible injury/multi-cause case, this language is at best equivocal, and at worst could wrongly be interpreted to require a showing of “but for” causation in an asbestos-injury case, even though Rhode Island has yet to consider this issue. Although this is an issue of first impression in Rhode Island, courts across the country have held that the “but for” test is inappropriate in a case such as this, where a plaintiff who has been exposed to asbestos products of different manufacturers contracts an asbestos-related disease. Thus, the proximate cause charge should be revised to clarify that a defendant’s conduct must be a “substantial factor” in causing plaintiff’s injuries.^[1]

Argument and Authority.

This is an Issue of First Impression in Rhode Island.

There are few asbestos-related cases in Rhode Island and none that rules on the appropriate proximate cause standard in this type of case. In the one asbestos-related personal injury case that mentions causation, the court suggests that the substantial factor test should apply: “[I]t is for a jury to determine whether the GE product was a substantial factor in causing Mr. Totman’s illness. While there may be several possible causes of Mr. Totman’s alleged injuries, a proximate cause need not be the sole and only cause if it concurs and unites with some other cause which, acting at the same time, produces the injury.” Totman v. A.C. and S., Inc., No. CIV.A. 00-5296, 2002 WL 393697, *4 (R.I. Super. Feb. 11, 2002) (cit. om., emph. supp.) (Ex. A).

In addition to the absence of pertinent asbestos cases in Rhode Island, there appears to be no other indivisible injury/multiple exposure personal injury case – such as injury from silica, benzene, DES, or other toxins – that mentions the proximate cause standard. In other asbestos litigation raising issues of first impression, Rhode Island courts have looked to the laws of other states. See, e.g., In re Asbestos Litig., Nos. 01-4147, 99-2703, 2002 WL 31332792, *5 (R.I. Super. Sept. 4, 2002) (Ex. B) (in case of first impression, court considers laws of California, Florida, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, Nebraska, North Carolina, North Dakota, Oklahoma, Tennessee, Texas). Accordingly, this Court should look to the laws of other states to ascertain an appropriate proximate cause charge.

B.The “Substantial Factor” Test is Applicable in Asbestos-Related Cases.

“At the most fundamental level, there is scientific uncertainty regarding the biological mechanisms by which inhalation of certain microscopic fibers of asbestos leads to lung cancer and mesothelioma.” Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1218 (Cal. 1997) (Ex. C). Given the current state of scientific knowledge, it is impossible to know exactly which asbestos fiber(s) caused an asbestos-related injury. See Borel v. Fibreboard Paper Prods., 493 F.2d 1076, 1094 (5th Cir. 1973) (Ex. D) (“it is impossible, as a practical matter, to determine with absolute certainty which particular exposure to asbestos dust resulted in injury to [plaintiff]”). Because the causative fibers cannot be ascertained, the manufacturer of such fibers is likewise unknown. Accordingly, “[c]ourts have not required plaintiffs to prove the unprovable: which asbestos exposures were the actual cause of plaintiff’s disease.” Restatement (Third) of Torts: Liability for Physical Harm §27, cmt. g (Final Draft No. 1, April 6, 2005). Rather, “courts have allowed plaintiffs to recover from all defendants to whose asbestos products the plaintiff was exposed.” Id.

Requiring plaintiffs who have contracted asbestos-related diseases to prove that a defendant’s product was a “but for” cause of the disease would effectively prohibit such plaintiffs from ever proving causation against any asbestos defendant, much less all such defendants. Accordingly, many courts that have considered this issue do not impose a “but for” test, but instead require a plaintiff to prove that he was exposed to the defendant’s asbestos-containing products, which exposure was a “substantial factor” in causing plaintiff’s illness. See, e.g., Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1223-23 (Cal. 1997) (Ex. B); In re Manguno, 961 F.2d 533, 535 (5th Cir. 1992) (Ex. E) (applying Louisiana law); Ingram v. ACandS, Inc., 977 F.2d 1332, 1340 (9th Cir. 1992) (Ex. F) (applying Oregon law); Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459, 463 (6th Cir.1982) (Ex. G) (applying Tennessee law); Borel v. Fibreboard Paper Prods., 493 F.2d 1076, 1094 (5th Cir. 1973) (Ex. D) (applying Texas law); Thacker v. UNR Indus., 603 N.E.2d 449, 455 (Ill. 1992) (Ex. H); Mavroudis v. Pittsburgh-Corning Corp., 935 P.2d 684, 689 (Wash. App. Div. 1 1997) (Ex. I); Eagle-Picher v. Balbos, 604 A.2d 445, 459 (Md. Ct. App. 1992) (Ex. J); O’Connor v. Raymark Indus., 518 N.E.2d 510 (Ma. Supr. Judicial Ct. 1988) (Ex. K); Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636-37 (Pa. Super. Ct. 1998) (Ex. L).

The “substantial factor” test is also favored because it prevents asbestos manufacturers from escaping liability solely because the plaintiff was exposed to other manufacturers’ products. “In products liability involving asbestos, where the plaintiff has sufficiently demonstrated both lung disease resulting from exposure to asbestos and that the exposure was to the asbestos products of many different, but identified, suppliers, no supplier enjoys a causation defense solely on the ground that the plaintiff would probably have suffered the same disease from the inhaling fibers originating from the products of other suppliers.” Eagle-Picher Indus. v. Balbos, 604 A.2d 445, 459 (Md. Ct. App. 1992) (Ex. J). See also Tragarz v. Keene Corp., 980 F.2d 411, 423-426 (7th Cir. 1993) (Ex. M) (applying Illinois law); Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1218 (Cal. 1997) (Ex. B); Kochan v. Owens-Corning Fiberglass Corp., 610 N.E.2d 683, 689 (Ill. Ct. App. 1993) (Ex. N) (“the fact that plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries”); Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 861 (Iowa 1994) (Ex. O) (“We hold that it is not necessary and indeed may be impossible to establish exactly how much one party’s asbestos product contributed to the resulting injury.”); Brisboy v. Fibreboard Corp., 418 N.W.2d 650, 653 (Mich. 1988) (Ex. P); Hollingsworth & Vose Co. v. Connor, 764 A.2d 318, 331-32 (Md. Ct. Spec. App. 2000) (Ex. Q) (approving an instruction stating: “Where a plaintiff has proved a disease resulting from exposure to asbestos products of different identified manufacturers or suppliers, no manufacturer or supplier has a defense solely on the ground that the plaintiff would probably have suffered the same disease from inhaling or ingesting fibers originating from the products of others.”); Mavroudis v. Pittsburgh-Corning Corp., 935 P.2d 684, 689 (Wash. App. 1997) (Ex. I) (holding that a defendant cannot avoid liability “solely on the ground that the plaintiff probably would have suffered the same disease from inhaling fibers originating from the products of other suppliers” ); Welch v. Keene Corp., 575 N.E.2d 766, 770 (Mass. App. Ct. 1991) (Ex. R); Elam v. Alcolac, Inc., 765 S.W.2d 42, 174 (Mo. Ct. App. 1988) (Ex. S).

Finally, the “but for” test is inappropriate in an asbestos-injury case because it suggests that the plaintiff must meet some threshold level of exposure to a particular defendant’s product. It is well established that relatively low exposures to asbestos can be significant. The accepted medical criteria for asbestos-related disease specifically recognize that “[a]n occupational history of brief or low-level exposure [to asbestos] should be considered sufficient for mesothelioma to be designated as occupationally related.” Consensus Report, Asbestos, Asbestosis, and Cancer: The Helsinki Criteria for Diagnosis and Attribution, Scand. J. Work Envtl. Health 23:311-316 (1997) (Ex. X). It is thus nonsensical to require a plaintiff to demonstrate a particular threshold level of exposure to a defendant’s asbestos product. Applying the “substantial factor” test in an asbestos case, one court explained that a plaintiff need not surmount a percentage threshold “before a jury will be permitted to rule in his favor.... In fact, defendants have been found to have been negligent, and their negligence to be a substantial factor in the plaintiff's harm, even though their negligence was relatively minor vis-a-vis other defendants . . . .” Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 636-37 (Pa. Super. Ct. 1998) (Ex. L). See also Fibreboard v. Pool, 813 S.W.2d 658, 687-88 (Tex. App. 1991) (Ex. T), cert. denied, 508 U.S. 909 (1993) (affirming verdict even though plaintiff’s exposure to asbestos from defendant’s product was relatively low, where “expert testimony [confirmed] that the cumulative exposure to asbestos causes asbestos-related diseases and that even the inhaling of small amounts of asbestos can contribute to the disease process.”).

C.The Substantial Factor Test is Consistent with Rhode Island Law.

Because Rhode Island courts have not yet defined proximate cause in an asbestos case, or any other indivisible injury/multiple exposure case, it is reasonable to apply the prevailing law of other courts that have analyzed this issue – the “substantial factor” test. This charge is in keeping with other Rhode Island law. For example, the Rhode Island Model Jury Instructions recognize that the “substantial factor” test applies to indivisible injuries: the charge regarding apportionment of damages between defendants for distinct harms provides that “[w]here two or more causes combine to produce such a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about the harm, arbitrary apportionment for its own sake is not proper.” See Rhode Island Model Charge 1004.1 (Apportionment of Damages Between Defendants – Distinct Harms, Successive or Separate Injuries). See also D'Ambra v. U. S., 396 F. Supp. 1180, 1187 (D.C.R.I. 1973) (Ex. U) (“Where two causes are substantial factors in producing a single indivisible result, each is charged with all of it.”).

The “substantial factor” test is also consistent with Rhode Island’s recognition of the fact that there may be more than one concurrent cause of a single injury. See, e.g., Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827, 830 (R.I. 1986) (relied on by drafters of Rhode Island model instruction on proximate cause) (Ex. V)(proximate cause “need not be the sole and only cause. It need not be the last or latter cause. It’s a proximate cause if it concurs and unites with some other cause which, acting at the same time, produces the injury of which complaint is made.”); S.M.S. Sales Co. v. New England Motor Freight, Inc., 340 A.2d 125, 127 (R.I. 1975) (Ex. W) (“It is fundamental that there may be concurring proximate causes which contribute to a plaintiff's injury and that a defendant's negligence is not always rendered remote in the causal sense merely because a second cause intervenes.”).

Finally, the Rhode Island Model Jury Instructions were not intended to be adopted wholesale, without any consideration of the facts and law surrounding a particular case. In the Statement of Purpose, the drafters explain that “[t]hese instructions have neither been adopted by nor received any formal approval of the Supreme or Superior Courts of Rhode Island. Thus, they represent only the subcommittee's research and analysis of what is current Rhode Island law.” Statement of Purpose to Rhode Island Model Jury Instructions (2002). The drafters emphasize that “the use of these instructions is not necessarily appropriate in all circumstances....” Id. “The subcommittee anticipates that lawyers will use these instructions as models and will adapt them as necessary to create proposed jury instructions that respond to the particular facts and circumstances of their case.” Id. (emph. supp.).

Conclusion

Rhode Island has yet to address the proximate cause standard in an asbestos-injury case. Analysis from cases in other states indicates that the “substantial factor” test is the appropriate standard in this type of case.

Date: February 23, 2007

1. ↑ Plaintiff’s proposed jury instruction regarding proximate cause, with revisions to the model charge indicated, is attached as Exhibit AA.