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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LARRY L. ROEMMICH and GLORIA
ROEMMICH, husband and wife, No. 82132-6-I
Appellants/Cross-Respondents, DIVISION ONE
v.
3M COMPANY, PUBLISHED OPINION
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-
ininterest 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.
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No. 82132-6-I/2
SMITH, A.C.J. — 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.
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.
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No. 82132-6-I/3
FACTS
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.
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
1 The Bureau of Mines later became a part of the National Institute for
Occupational Safety and Health (NIOSH).
2 Asbestosis and pleural plaques are non-cancerous conditions.
Asbestosis is scarring inside the lung tissue that can impact lung function, and
pleural plaques are scarring in the lining of the lungs that may not necessarily
impair lung function or cause cancer, but are a marker of significant asbestos
exposure. As for the cancerous diseases, mesothelioma is the cancer that forms
in the pleural lining around the lungs where the pleural plaques first form, and
lung cancer is a cancer of the parenchymal tissue of the lung.
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No. 82132-6-I/4
(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.
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.
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.
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
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No. 82132-6-I/5
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.
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.
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.
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No. 82132-6-I/6
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.
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 bringing about the injury even if the injury would have
occurred without that cause.
If two or more causes did not combine to bring about an
injury, the term “proximate cause” means a cause which in a direct
sequence unbroken by any superseding cause produces the injury
complained of and without which such injury would not have
happened.
There may be more than one proximate cause of an injury.
The jury returned a verdict for 3M. The jury found that 3M was negligent
but that such negligence was not a proximate cause of Roemmich’s disease.
The Roemmiches appeal.
ANALYSIS
The Roemmiches assert that the trial court abused its discretion by giving
an erroneous proximate cause instruction and an unsupported superseding
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No. 82132-6-I/7
cause instruction, and by excluding their expert witnesses without a Frye3
hearing. We agree that the trial court gave an erroneous proximate cause
instruction when it combined the “but-for” causation standard with the substantial
factor standard. And we agree that the court erred in giving the superseding
cause instruction. Both errors prejudiced the Roemmiches with respect to their
negligence claim. But the court did not abuse its discretion by excluding the
expert witnesses’ testimony. We therefore affirm the products liability verdict and
reverse and remand for a new trial on the negligence issue.
Jury Instructions
The Roemmiches contend that the court provided erroneous causation
instructions to the jury which prejudiced them.
“Jury instructions are sufficient when they allow counsel to argue their
theory of the case, are not misleading, and when read as a whole properly inform
the trier of fact of the applicable law.” Bodin v. City of Stanwood, 130 Wn.2d 726,
732, 927 P.2d 240 (1996). A trial court may only give jury instructions that are
supported by substantial evidence. State v. Douglas, 128 Wn. App. 555, 561,
116 P.3d 1012 (2005). Conversely, “[w]here substantial evidence supports a
party’s theory of the case, trial courts are required to instruct the jury on the
theory.” Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517
(2017).
3 Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
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No. 82132-6-I/8
We review a trial court’s decision whether to give a jury instruction “ ‘de
novo if based upon a matter of law, or for abuse of discretion if based upon a
matter of fact.’ ” Id. (quoting Kappleman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d 286
(2009)). “[A]n instruction’s erroneous statement of the applicable law is
reversible error where it prejudices a party.” Hue v. Farmboy Spray Co., 127
Wn.2d 67, 92, 896 P.2d 682 (1995). The party challenging the instruction bears
the burden of demonstrating prejudice. Albertson v. State, 191 Wn. App. 284,
296, 361 P.3d 808 (2015). “Even if an instruction is misleading, it will not be
reversed unless prejudice is shown.” Keller v. City of Spokane, 146 Wn.2d 237,
249, 44 P.3d 845 (2002). We presume prejudice if a jury instruction clearly
misstates the law. Id.
1. Proximate Cause Instruction
The Roemmiches assert that the court erred by giving a combined “but-
for” and substantial factor instruction to the jury and that this error was
prejudicial. Because 3M did not provide sufficient evidence to warrant the “but-
for” instruction, it was an abuse of discretion for the court to give the instruction.
The substantial factor standard is the correct proximate cause standard when the
exact cause of the harm cannot be determined.
To be liable for negligence, a plaintiff must show that a defendant’s
actions were a proximate cause of the plaintiff’s injury. Hartley v. State, 103
Wn.2d 768, 777, 698 P.2d 77 (1985). “Proximate cause is composed of both
cause in fact and legal cause.” Meyers v. Ferndale Sch. Dist., 197 Wn.2d 281,
289, 481 P.3d 1084 (2021). “[T]he cause in fact inquiry focuses on a ‘but-for’
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No. 82132-6-I/9
connection, [while] legal cause is grounded in policy determinations as to how far
the consequences of a defendant’s acts should extend.” Id.
“Traditionally, cause in fact has referred to the ‘but-for’ consequences of
an act—the physical connection between an act and an injury.” Daugert v.
Pappas, 104 Wn.2d 254, 260, 704 P.2d 600 (1985). “The ‘but-for’ test requires a
plaintiff to establish that the act complained of probably caused the subsequent
disability.” Id. But in cases involving multiple sources of toxic materials, plaintiffs
need not prove individual causal responsibility. Hue, 127 Wn.2d at 91-92.
Plaintiffs may instead prove causation using a substantial factor, rather than a
“but-for” causation test. Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22,
25, 935 P.2d 684 (1997). The substantial factor test requires plaintiffs “to show
that a portion of [the toxic material] became part of the total cloud” of toxic
materials that caused the damage. Id. at 30. The substantial factor test aids in
the disposition of three types of cases:
First, the test is used where either one of two causes would have
produced the identical harm, thus making it impossible for plaintiff
to prove the but-for test. In such cases, it is quite clear that each
cause has played so important a part in producing the result that
responsibility should be imposed on it. Second, the test is used
where a similar, but not identical, result would have followed
without the defendant’s act. Third, the test is used where one
defendant has made a clearly proven but quite insignificant
contribution to the result, as where [they] throw[ ] a lighted match
into a forest fire.
Daugert, 104 Wn.2d at 262. The change from the “but-for” test to the substantial
factor test is normally justified only when a plaintiff is unable to show that one
event alone was a cause of the injury. Id. The nature of asbestos products, as
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No. 82132-6-I/10
well as the development of asbestosis and asbestos-related diseases, makes it
extremely difficult for the plaintiff in an asbestos case to establish proximate
cause. Lockwood v. AC & S, Inc., 109 Wn.2d 235, 248, 744 P.2d 605 (1987).
Therefore, the substantial factor test should be used in cases where it is difficult
to establish the exact event or party that caused the harm. Mavroudis, 86 Wn.
App. at 31.
Roemmich was exposed to asbestos by a number of parties, so individual
responsibility for the harm cannot be proven under the “but-for” test. Daugert,
104 Wn.2d at 262. 3M asserts that the “but-for” test was appropriate because
the Roemmiches’ medical expert, Dr. Carl Brodkin, testified that Roemmich’s
exposure to asbestos from 1968 to 1972, before he had the 8710 mask, was a
significant enough dose to cause mesothelioma by itself. But Dr. Brodkin
explained that this was a hypothetical because mesothelioma is a dose-response
disease and it was also true that a worker like Roemmich, whose asbestos
exposure continued on for another eight years, would be at increased risk for
mesothelioma. He testified that it is an aggregate risk and that both of those
periods resulted in the aggregate dose that led to his mesothelioma. Ultimately,
he testified that all of Roemmich’s asbestos exposures contributed to his injury
and it was not possible to discern which specific exposure caused the injury.
Thus, regardless of whether 3M’s mask was the only reason for Roemmich’s
mesothelioma, there was substantial evidence from which the jury could
determine that the mask was defective and contributed to his injury. And
because the harm done by 3M and the other defendants was identical—
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No. 82132-6-I/11
Roemmich developing mesothelioma—the substantial factor test applies.
Therefore, the court improperly instructed the jury on the applicable law by giving
a combined “but-for” and substantial factor test instruction.
3M disagrees and contends that the rule from Mavroudis should not apply.
In Mavroudis, a jury found that an asbestos supplier was liable for Mavroudis’s
mesothelioma, and the supplier assigned error to the substantial factor jury
instruction, claiming that a “but-for” instruction should have been used instead.
Mavroudis, 86 Wn. App. at 25. A pathologist specializing in asbestos-related
disease testified that the asbestos included in the products that Mavroudis
handled could cause mesothelioma, that the scientific information indicated that
all of Mavroudis’s exposure to asbestos at the PSNS from 1957 to 1963 played a
role in causing the mesothelioma, and that he could not say which exposures
were, in fact, the cause of the condition. Id. at 27. The pathologist also testified
that as little as 10 percent of Mavroudis’s exposure was sufficient to cause
mesothelioma. Id. The Mavroudis court applied our Supreme Court’s finding
from Hue, stating that the asbestos supplier’s assignment of error was incorrect,
because where multiple sources of toxic materials exist, “the plaintiff only needed
to show that a portion of a defendant’s pesticide became part of the total cloud of
pesticide that caused the damage.” Id. at 30; Hue, 127 Wn.2d at 91-92.
3M specifically asserts that this case is distinguishable from Mavroudis
because here there are not multiple defendants whose products were
independently capable of causing harm and who could escape liability if a “but-
for” causation test was applied, 3M is a non-asbestos defendant, and the mask at
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No. 82132-6-I/12
issue is a non-harmful respirator because it did not contain asbestos. But here,
as in Mavroudis, experts testified that Roemmich’s mesothelioma was a
cumulative harm where the exact event or party that caused the harm could not
be identified. Although Roemmich’s exposure to asbestos varied over the years,
3M fails to point to a specific time or exposure that led to Roemmich’s injury.
Roemmich’s mesothelioma developed after his continued exposure to asbestos
at different sources. The evidence at trial established that 3M’s mask contributed
at least partly to Roemmich’s exposure and harm, regardless of the other
exposures. Applying the “but-for” causation test would absolve 3M of
responsibility despite this evidence. The court erred in giving an instruction
combining the “but-for” and substantial factor causation tests.
2. Superseding Cause Instruction
The Roemmiches next challenge the trial court’s superseding cause
instruction, asserting that the instruction was unsupported because any
negligence on the part of PSNS in failing to train Roemmich on the use of the
8710 mask was foreseeable, because there was no evidence in the record that
PSNS had actual specific knowledge of the defects, and because the instruction
failed to make 3M’s burden of proof clear. We agree.
An act generally is a proximate cause of an injury if it produces the injury.
Crowe v. Gaston, 134 Wn.2d 509, 519, 951 P.2d 1118 (1998). But when a new,
independent act breaks the chain of causation, it supersedes the original act as
the proximate cause of the injury. Id. The Restatement of Torts defines
“superseding cause” as “an act of a third person or other force which by its
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No. 82132-6-I/13
intervention prevents the actor from being liable for harm to another which his
antecedent negligence is a substantial factor in bringing about.” RESTATEMENT
(SECOND) OF TORTS § 440 (AM. LAW INST. 1965).
In determining whether an intervening act constitutes a superseding cause
we consider “whether (1) the intervening act created a different type of harm than
otherwise would have resulted from the actor’s negligence; (2) the intervening act
was extraordinary or resulted in extraordinary consequences; [and] (3) the
intervening act operated independently of any situation created by the actor’s
negligence.” Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 812-13, 733 P.2d
807 (1987) (alterations in original) (citing RESTATEMENT § 442). The act has to be
“ ’so highly extraordinary or unexpected that [it] can be said to fall [ ] [out of] the
realm of reasonable foreseeability as a matter of law,’ ” and “ ‘[i]f the acts . . . are
within the ambit of the hazards covered by the duty imposed upon the defendant,
they are foreseeable and do not supersede the defendant’s negligence.’ ”
Cramer v. Dep’t of Highways, 73 Wn. App. 516, 521, 870 P.2d 999 (1994) (some
alterations in original) (quoting Brashear v. Puget Sound Power & Light Co., 33
Wn. App. 63, 69, 651 P.2d 770 (1982), rev’d on other grounds, 100 Wn.2d 204,
667 P.2d 78 (1983)). Thus, “ ‘only intervening acts which are not reasonably
foreseeable are deemed superseding causes.’ ” State v. Frahm, 193 Wn.2d 590,
600, 444 P.3d 595 (2019) (quoting Crowe, 134 Wn.2d at 519).
Whether a third party’s intervening act rises to the level of a superseding
cause is generally a question of fact for the jury, but it may be determined as a
matter of law if reasonable minds could not differ as to the foreseeability of the
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No. 82132-6-I/14
act. Frahm, 193 Wn.2d at 601; Smith v. Acme Paving Co., 16 Wn. App. 389,
396, 558 P.2d 811 (1976).
Campbell and Albertson are instructive. In Campbell, the appellant
worked as a wireman for Snohomish County Public Utility District (PUD) and as
part of his job cleaned roof bushings located on top of metal-clad switchgears.
107 Wn.2d at 809. Electrical power was not supposed to be flowing through the
feeder lines on the bushings when they were cleaned, but because a “circuit
breaker on one of those feeder lines was closed to allow power to be
‘backfed’ . . . . [it] caused both the main bushings and the auxiliary bushings to be
energized while the initial maintenance was being performed.” Id. at 809-10.
When Campbell attempted to clean the bushings with the steel wool pad, he was
“jarred by a high-voltage surge of electricity” and was severely injured. Id.
at 810.
Campbell sued ITE Imperial, who manufactured the unusual wiring
configuration, “on theories of strict product liability, negligence, and breach of
warranty.” Id. at 811. At the end of testimony, “the trial court instructed the jury
that if [ ] PUD was negligent in failing to discover and warn of the defect and take
appropriate precautions and if PUD’s negligence was ‘so unanticipated that it can
be said to fall without the realm of reasonable foreseeability’ by the manufacture,”
then ITE would be relieved of liability because PUD’s negligence was a
superseding cause. Id. at 812. The jury returned a verdict in favor of ITE. Id.
On appeal, our Supreme Court concluded that PUD’s negligence did not
constitute a superseding cause. Id. at 815. It reasoned that because PUD’s
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No. 82132-6-I/15
intervening negligence did not create a different type of harm, PUD’s intervening
negligence did not operate independently of the danger created by ITE, nor did
PUD have actual or specific knowledge that the product was unreasonably
unsafe and failed to warn or protect. Id. at 817.
The court came to a similar conclusion in Albertson, where a newborn
suffered from abuse by a parent. After the infant’s first trip to the hospital, the
Child Protective Service (CPS) social worker assigned to the infant’s case
formulated a safety plan for the parents to follow. Albertson, 191 Wn. App. at
291. But the safety plan was not implemented, the parents did not participate,
the case worker failed to follow up, and the infant was abused again. Id. at 292.
The Department of Social and Health Services (DSHS) initiated a termination
petition, and after the trial court terminated parental rights, the infant’s guardians
sued DSHS for conducting a negligent investigation. Id. at 293.
The trial court instructed the jury that DSHS was claiming as a defense
that any injuries to the child were only caused by the parent. Id. at 293-94. It
gave an instruction defining proximate cause as “ ‘a cause which in a direct
sequence unbroken by any superseding cause produces the injury complained of
and without which such injury would not have occurred,’ ” and defined
superseding cause as well. Id. at 294 (emphasis in original). The jury found that
DSHS was negligent in its investigation but that its negligence was not a
proximate cause of the infant’s injury and entered judgment in favor of DSHS. Id.
at 295. The infant’s guardians appealed and claimed that the court erred in
instructing the jury on superseding cause in its proximate cause instructions
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No. 82132-6-I/16
because the instructions allowed DSHS to argue that the parent’s “subsequent
abuse of [the infant] . . . was ‘a superseding cause’ of [the infant’s] injuries and
broke the causal chain between DSHS’s negligence and [the infant’s] injuries,
even if the jury found, as it did, that DSHS was negligent.” Id. at 298.
The court held that because the abuse the infant endured was “precisely
the kind of harm that would ordinarily occur as a result of a faulty or biased
investigation of child abuse” and the parent’s abuse was foreseeable, the trial
court erred in instructing the jury on the issue of superseding cause and reversed
accordingly. Id. at 298-99.
Here, PSNS’s negligence in failing to train Roemmich on the use of the
8710 mask was reasonably foreseeable, and therefore not an extraordinary act.
There was no evidence presented at trial that PSNS had actual specific
knowledge of the defects that made the 8710 mask unsafe for asbestos use.
PSNS’s negligence and 3M’s mask defect both led to the same harm that
otherwise would have resulted from 3M’s failure to warn, which was exposure to
asbestos and the resulting mesothelioma. In addition, PSNS’s failure to train
Roemmich on proper mask usage did not result in any injury that was
extraordinary or different than the consequences of inhaling asbestos through a
defective mask. Finally, PSNS did not operate independently from the danger
that 3M created because 3M’s failure to warn of the mask leakage is the same
hazard that makes PSNS’s failure to train Roemmich on the mask use
unreasonably unsafe. Therefore, the superseding cause instruction was
erroneous because it was not supported by substantial evidence. Because the
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No. 82132-6-I/17
intervening act’s foreseeability establishes that the instruction was not
appropriate, we need not reach the failure to warn and the burden of proof
issues.
3. Prejudice
Both instructions misinformed the jury and prejudiced the Roemmiches.
Because the proximate cause instruction misstated the law, we presume it to be
prejudicial. Keller, 146 Wn.2d at 249. Furthermore, 3M explicitly relied on the
instruction during closing argument and the jury could have found that, although
negligent, 3M was not the proximate cause of Roemmich’s injury because he
would have developed mesothelioma from his other asbestos exposures
regardless of 3M’s negligent acts. Additionally, having been given the improper
superseding cause instruction, the jury could have found that 3M’s negligence
was the proximate cause of Roemmich’s injury, but still found 3M not liable
based on PSNS’s concurrent negligence. Therefore, we reverse and remand for
a new trial on negligence with the correct jury instructions.
Strict Product Liability and Expert Testimony
The Roemmiches contend that the trial court erred by excluding expert
testimony regarding consumer expectations and product defects for their strict
product liability claim. The Roemmiches claim that they were prejudiced
because the trial court should have conducted a Frye hearing instead of only
relying on ER 702. We conclude that the trial court did not err in excluding the
testimony and affirm the jury’s verdict on the strict product liability claim.
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No. 82132-6-I/18
“In Washington, expert testimony must satisfy both the Frye test and
ER 702.” State v. Arndt, 194 Wn.2d 784, 798, 453 P.3d 696 (2019). Under
ER 702, if “scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion.” Id. at 798 n.6. Decisions to admit or
exclude testimony under ER 702 are reviewed for abuse of discretion. Id. at 798.
In reviewing for abuse of discretion, “we may affirm the trial court on any basis
that the record supports.” Id. at 799. “ ‘A court abuses its discretion by issuing
manifestly unreasonable rulings or rulings based on untenable grounds.’ ” L.M.
v. Hamilton, 193 Wn.2d 113, 134, 436 P.3d 803 (2019) (quoting Lakey v. Puget
Sound Energy, Inc., 176 Wn.2d 909, 919, 296 P.3d 860 (2013)). “ ‘Unreliable
testimony does not assist the trier of fact.’ ” L.M., 193 Wn.2d at 137 (quoting
Lakey, 176 Wn.2d at 918).
1. Dr. Jewson’s Testimony on Consumer Expectations
The Roemmiches assert that it was legal error for the court not to hold a
Frye hearing before determining that Dr. Jewson’s methodology was speculative
and unreliable. They claim that the court erred in rejecting Dr. Jewson’s
testimony because it was based on methodologies that were generally accepted
and produced no novel evidence. The Roemmiches further claim that the trial
court’s conclusion that Dr. Jewson’s testimony would not have been helpful to the
jury is based on an incorrect understanding of product liability law because the
court believed that a manufacturer’s advertisements are not relevant to consumer
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No. 82132-6-I/19
expectations unless reviewed and relied upon by the injured plaintiff, Roemmich,
and cite to Rublee v. Carrier Corp., 192 Wn.2d 190, 204, 428 P.3d 1207 (2018)
in support of this claim. We disagree.
In Rublee, our Supreme Court stated that, “it is appropriate to assess
apparent manufacturer liability by considering all evidence relevant to reasonable
consumers of the product at issue, consistent with Washington’s ‘ordinary
consumer expectation’ approach.” Id. at 210. Under a reasonable consumer of
the product test, “the plaintiff is required to show that an ordinary, reasonable
consumer could have (1) inferred from the defendant’s representations in the
advertising, distribution, and sale of the product that the defendant manufactured
the product and (2) relied on the defendant’s reputation as an assurance of the
product’s quality.” Id. at 210-11.
Here, Dr. Jewson’s testimony did not involve novel scientific evidence
which required a Frye hearing and the court appropriately applied ER 702 in
determining whether the expert testimony should have been admitted. Though
3M’s advertisements did not specifically need to be reviewed by Roemmich for
testimony about an ordinary consumer’s reasonable expectations to be
admissible under Rublee, the court nonetheless correctly concluded that
Dr. Jewson’s testimony was speculative and unreliable. Dr. Jewson did not have
scientific, technical, or other specialized knowledge that would have assisted the
jury in understanding the evidence or determining the fact in issue. The court
found that Dr. Jewson did not qualify as an expert based on experience because
he did not have any formal training in public-opinion surveys and had never
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No. 82132-6-I/20
submitted survey data in court. Cf. Watness v. City of Seattle, 11 Wn. App. 2d
722, 751-52, 457 P.3d 1177 (2019) (An expert was qualified because of their
biomechanical engineer experience of 40 years combined with academic and
forensic experience). Additionally, evidence indicated that Dr. Jewson did not
follow well-established methodologies for consumer and public opinions polls.
The court did not abuse its discretion by excluding Dr. Jewson’s testimony under
ER 702.
2. Dr. Johnson’s Testimony on Product Defects
The Roemmiches assert that the trial court applied an incorrect legal
standard and abused its discretion in partially excluding Dr. Johnson’s testimony
without a Frye hearing and instead excluding it under ER 702. The Roemmiches
specifically claim that Dr. Johnson’s testimony was not speculative, it would have
assisted the jury, and that the court ignored legal key elements of the expert’s
claims. We disagree.
The trial court initially excluded Dr. Johnson’s testimony under ER 702 as
speculative, unreliable and not based on scientific, technical, or other specialized
knowledge that would assist the jury in understanding the evidence. The court
later indicated that testimony based on two undisclosed studies would be
excluded as unfairly prejudicial, but that Dr. Johnson might be allowed to testify
on rebuttal if 3M asserted or implied that the 8710 respirator was not defective
because of its NIOSH certification or its OSHA assigned protective factor of 10.
The trial court did not abuse its discretion by partially excluding Dr. Johnson’s
testimony under ER 702. Moreover, the court ultimately allowed Dr. Johnson to
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No. 82132-6-I/21
testify on the 8710 mask’s defects like pressure drop and leakage in rebuttal after
determining that 3M had opened the door to the testimony. In addition, another
expert witness of the Roemmiches, Darrell Bevis, had already testified on the
same topic as Dr. Johnson regarding the mask’s leakage. We conclude that the
court did not err in excluding Dr. Johnson’s testimony.
We affirm the jury verdict on the product liability claim and reverse and
remand for a new trial with regard to the negligence claim.
WE CONCUR:
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