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From Products Liability Law Daily, September 12, 2018

Worker’s evidence fell short of the Kansas substantial causation standard in mesothelioma case

By Pamela C. Maloney, J.D.

Under Kansas law, which utilizes the substantial factor standard of causation, a service station worker who also had served in the U.S. Navy failed to provide sufficient evidence to prove that Bendix brakes had been a substantial factor in causing him to develop mesothelioma, a California appellate panel ruled in an unpublished decision affirming the trial court’s grant of the manufacturer’s motion for a nonsuit on the worker’s negligence and strict liability claims. In addition, the panel’s ruling on the issue of causation rendered moot the worker’s challenge to the trial court’s grant of summary judgment on the claim for punitive damages (Hake v. Allied Fluid Products Corp., September 10, 2018, Smith, W.).

The former service station worker and Navy seaman alleged that he had been exposed to asbestos when he assisted in the replacement of drum brakes and clutches while working after school and on weekends at the family-owned service station and while onboard naval vessels that were being overhauled. He also claimed that he had been exposed to asbestos while assigned to a naval shipyard which was contaminated with asbestos. Contending that this history of exposure caused him to develop mesothelioma, the worker filed negligence and strict liability claims against Honeywell International Inc., the manufacturer of the Bendix brakes used at the service station, as well as Borg Warner Morse TEC, LLC, and Allied Fluid Products Corp.

After determining that Kansas law governed the issue of causation, the trial court granted Honeywell’s motion for nonsuit and entered judgment in the company’s favor. The trial court also granted summary judgment favoring Honeywell on the worker’s claim for punitive damages, finding that there was no evidence that company management actually had known of and had consciously disregarded health risks associated with asbestos in its brake products during the time the worker allegedly had been exposed to asbestos in those products.

The worker moved for a new trial, arguing that the trial court misapplied Kansas law on causation by requiring him to prove "but for" causation, and that Washington law, not Kansas law, should have been governed the issues of noneconomic damages and causation.

Conflict of laws. Honeywell had requested that the trial court apply Kansas law to the issues of causation, noneconomic damages, and apportionment of fault. Claiming that Kansas had no interest in having its law applied because the cause of action arose in Washington, the worker argued in favor of the application of California law, where the lawsuit had been filed and where he had served while in the Navy. During the course of trial, however, the worker had made minor references to applying Washington law.

The appeals court began its analysis by recognizing the differences between California and Kansas laws, noting that the two states had conflicting laws regarding causation in asbestos cases. The California standard is whether the defendant’s conduct was a substantial factor in increasing the risk of developing mesothelioma, while the Kansas standard is whether the defendant’s act was a substantial factor in causing the disease. In addition, California allows joint and several liability and Kansas does not. Additionally, Kansas sets a $300,000 cap on noneconomic damages, while California has no cap.

Finding that the injury at issue had occurred in Kansas and that California had no interest in the case, the trial court determined that Kansas law should be applied. The trial court then denied the worker’s subsequent motion to apply Washington law to the issue of noneconomic damages, explaining that it was an unsupported motion for reconsideration of the court’s prior ruling on this issue.

On appeal, the panel found no support for the worker’s argument that he had raised the issue of applying Washington law to the issues of causation and noneconomic damages at numerous times during trial. Instead, the worker had maintained his position that California law applied and only had raised the argument that Washington law should apply after losing his argument that California law applied. Concluding that the worker had failed to properly present the issue of applying Washington law to the issues presented and, thus, had waived the issue on appeal, the appeals court affirmed the trial court’s application of Kansas law.

Causation. The worker argued that the Kansas Silica and Asbestos Claims Act codifies the substantial factor test that had been applied in many other states and in Kansas case law prior to the statute’s enactment. According to the worker, relevant Kansas case law has adopted the "de minimis rule," which requires proof of the frequency, proximity, and regularity of exposure in order to meet the substantial factor test. The worker further argued that the evidence he presented in this case was more than sufficient to prove causation under this test. Specifically, the worker pointed to the following evidence as sufficient to establish a link between asbestos exposure and his mesothelioma: (1) his 10-year work history at the family’s service station; (2) testimony by an industrial hygienist who had quantified the levels of asbestos released from the various activities the worker had performed at the service station and the worker’s level of exposure; and (3) medical testimony confirming that the worker’s exposure to Bendix brakes was sufficient, by itself, to have caused his mesothelioma. The worker also argued that the "but for" standard applied by the trial court had set an impossible standard because mesothelioma was a cumulative, dose dependent disease in which every exposure contributed to the injury.

On the basis of the medical expert’s testimony that all of the exposures to asbestos—including the exposure to Bendix brakes—had been a substantial factor in causing the worker’s mesothelioma, Honeywell countered that the worker had failed to prove causation under Kansas law because his evidence was based on the theory that every exposure to asbestos contributed to the development of his disease. According to Honeywell, the "every exposure" theory did not apply under Kansas law because that theory treated each exposure as increasing the risk of disease, thereby ignoring the requirements of frequency, proximity, and length of exposure necessary under the substantial factor test.

Noting that the substantial factor test was designed to root out harm that is not significant enough to result in legal responsibility, the court of appeal concluded that given the worker’s exposure to asbestos from several other sources in addition to Bendix brakes, it was impossible to isolate that exposure and find that the Bendix exposure was a substantial factor in causing the injury. The medical expert’s testimony cited by Honeywell—that every exposure or cumulative exposure caused the disease—made it impossible for the appellate panel to determine which exposure had been a substantial factor. Thus, the panel affirmed the trial court’s finding that although the worker had proven that Bendix products could have been a substantial factor in increasing his risk of mesothelioma (i.e., the California standard), the worker’s proof was insufficient under Kansas law to prove that those products had been a substantial factor in causing the disease.

The case is No. A150366.

Attorneys: Stephen Michael Tigerman (Levin Simes Abrams LLP) for Gerald Hake. Theodore Thomas Cordery (Imai, Tadlock, Keeney & Cordery, LLP) for Allied Fluid Products Corp. Mark A. Love (Selman Breitman, LLP) for BorgWarner Morse TEC Inc. David Raymond Ongaro (Ongaro PC) for Honeywell International Inc.

Companies: Allied Fluid Products Corp.; BorgWarner Morse TEC Inc.; Honeywell International Inc.

MainStory: TopStory CausationNews JurisdictionNews AsbestosNews CaliforniaNews KansasNews WashingtonNews

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