“Lockwood established factors that a court should consider to determine whether sufficient evidence of causation exists.”
How later courts described this case
- “Lockwood established factors that a court should consider to determine whether sufficient evidence of causation exists.”
- “[T]he Department attorney’s theory of the case, as reflected in his closing argument . . . .” (emphasis added)
- “And that lung cancer, if that’s what you think he died of, was understood as caused by asbestos in the 1950’s.”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ERA CLEVENGER, as Personal ) No. 78504-4-I
Representative of the Estate of )
JAMES CLEVENGER, )
)
Appellant, )
)
v. )
) UNPUBLISHED OPINION
JOHN CRANE, INC., )
) FILED: March 16, 2020
Respondent. )
)
VERELLEN, J. — Era Clevenger, the surviving spouse of James Clevenger
and the personal representative of his estate, appeals the judgment in favor of
John Crane, Inc. (JCI).1 Era challenges the portion of the proximate cause
instruction that requires her to establish James’s exposure to JCI’s asbestos-
containing products was a substantial factor in “bringing about his mesothelioma.”
Consistent with the objection she raised in the trial court, Era argues her
theory of the case was that exposure to asbestos was a substantial factor in
causing either mesothelioma or an asbestos-related lung cancer. We agree that
an objective view of the pleadings, opening statements, evidence, and closing
1 For clarity, we refer to Era and James by their first names.
No. 78504-4-I/2
arguments reveals an overarching theory that exposure to asbestos was a
substantial factor in James’s death from an asbestos-related disease. Under the
substantial factor standard for proximate cause in asbestos cases and the facts of
this case, substantial evidence supported Era’s theory that either mesothelioma or
an asbestos-related lung cancer was a viable biological mechanism that resulted
in James’s asbestos-related tumor and his subsequent death. We conclude the
misleading instruction was prejudicial. We vacate the judgment and remand for a
new trial consistent with this opinion.
FACTS
Between 1974 and 2015, James was exposed to various forms of asbestos
while working as a boiler technician in the Navy, a maintenance mechanic at a city
water department, and a pipefitter. James also had a “30-year smoking history.”2
On March 31, 2016, James filed this lawsuit, alleging an asbestos-related disease.
James died on April 21, 2017. On June 8, 2017, Era converted the lawsuit to a
wrongful death action.
Trial occurred in February and March of 2018. By the end of trial, JCI was
the only remaining defendant. On March 15, 2018, the jury returned a verdict in
favor of JCI on all counts. In the special verdict form, the jury found James had an
“asbestos-related disease,” JCI’s product “was not reasonably safe as designed at
the time the product was sold,” and JCI’s product “was not reasonably safe
2 Report of Proceedings (RP) (Mar. 1, 2018) at 2098.
2
No. 78504-4-I/3
because adequate warnings or instructions were not provided.”3 But the jury
found neither “the unsafe condition” of JCI’s products nor “the lack of adequate
warning or instruction” on JCI’s products was “a proximate cause of injury to
James.”4
Era appeals.
ANALYSIS
Era seeks reversal and remand for a new trial based on either of two
instructional errors.
I. Jury Instruction 17
Era argues jury instruction 17 did not allow her to adequately argue her
theory of the case that exposure to JCI asbestos was a substantial factor in
James’s death from an asbestos-related disease, whether mesothelioma or lung
cancer. JCI contends the record does not adequately support the alternative
diagnosis of lung cancer and, as a result, Era is limited to mesothelioma only.
We review jury instructions de novo.5 In general, “‘[j]ury 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
3 Clerk’s Papers (CP) at 4349-50.
4 CP at 4350-51.
5
Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281
P.2d 289 (2012).
3
No. 78504-4-I/4
applicable law.’”6 “Each party is entitled to have the trial court instruct on its theory
of the case.”7
Here, jury instruction 17 provides:
The term “proximate cause” means a cause that was a
substantial factor in bringing about the injury, even if the result would
have occurred without it. To establish proximate cause, Plaintiff
must prove by a preponderance of the evidence that James
Clevenger’s exposure to asbestos fibers from products manufactured
or supplied by John Crane Inc. were a substantial factor in bringing
about his mesothelioma. A substantial factor is an important or
material factor that is not insignificant.
There may be more than one proximate cause of injury. It is
not a defense that the act of some other entity may have also been a
proximate cause.[8]
Era sought to change the second sentence of jury instruction 17 from
“mesothelioma” to “cancer.” The court denied the request. Later, Era objected to
the instruction:
[T]he jury is being handed a verdict form that asks them to determine
whether or not Mr. Clevenger had an asbestos-related cancer, . . .
yet being instructed [that] plaintiffs must prove that John Crane
products were a substantial factor in bringing about his
mesothelioma. There is evidence in this case that both lung cancer
and mesothelioma are caused by exposure to asbestos.[9]
6
Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)
(emphasis added) (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927
P.2d 240 (1996)).
7 Meredith v. Hanson, 40 Wn. App. 170, 174, 697 P.2d 602 (1985).
8 CP at 4178 (emphasis added).
9 RP (Mar. 13, 2018) at 3435-36.
4
No. 78504-4-I/5
To determine a parties’ theory of the case, we look at the pleadings, the
issues joined for trial, opening statements, the proof submitted at trial, and closing
arguments.10 The complaint lays out the parties’ claims and is the first opportunity
for the party to articulate its theory of the case. However, the exact issues raised
in the complaint may evolve leading up to and during trial.
Here, in the complaint, James and Era asserted several causes of action,
including a products liability claim. Generally, in a traditional products liability
case, “the plaintiff must establish a reasonable connection between the injury, the
product causing the injury, and the manufacturer of that product.”11 In the
complaint, James and Era alleged he “suffers from a condition related to exposure
to asbestos and asbestos-containing products.”12
In the opening statement, Era strongly emphasized evidence of
mesothelioma13 but also referred to lung cancer:
10DeKoning v. Williams, 47 Wn.2d 139, 141-42, 286 P.2d 694 (1955) (“We
therefore hold that the giving of a single general instruction on the emergency
doctrine did not adequately present to the jury the appellant’s sole theory of the
case, as alleged in the pleadings, and upon which theory the issues were joined
and proof was submitted at the trial.” (emphasis added)); see Price v. Dep’t of
Labor and Indus. of State of Wash., 101 Wn.2d 520, 529, 682 P.2d 307 (1984)
(“[T]he Department attorney’s theory of the case, as reflected in his closing
argument . . . .” (emphasis added)).
11 Lockwood v. AC & S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987).
12
CP at 8 (emphasis added). An exhibit to the complaint refers to
mesothelioma. See CP at 22.
13 “So this is a case about exposure to asbestos. . . . And this is a case
about Mr. Clevenger’s dose of asbestos from John Crane . . . and others, and
those doses being a substantial factor contributing . . . to the disease that
ultimately resulted in his death, . . . malignant mesothelioma.” RP (Feb. 13, 2018)
5
No. 78504-4-I/6
There’s going to be some dispute in this case about whether or not
Mr. Clevenger had a cancer of the lung or a cancer of the lining of
the lung. . . . [I]n either case, asbestos causes both lung cancer and
mesothelioma . . . . [W]hen you are dealing with a lung cancer, a
cancer of lung cells, not of mesothelial cells, that cigarettes can act
in concert, it’s called synergistically, to produce a cancer in
somebody who has also been exposed to asbestos.[14]
The evidence at trial established broad agreement by both plaintiff and
defense experts that James had a spindle cell neoplasm, a tumor.15 Some experts
placed the tumor in or near the pleura, but other experts read the scans as unclear
whether the tumor was in or near a lung. The evidence shows disagreement on
whether the tumor was localized or diffused and disagreement on the pathological
markers of his disease. But both sides embraced a broad differential diagnosis,16
narrowing the type of tumor to mesothelioma, sarcoma, or carcinoma. Defense
at 324-25. “Plaintiffs will prove to you that their products were a substantial factor
in causing Mr. Clevenger’s eventual death from mesothelioma.” Id. at 328.
14RP (Feb. 13, 2018) at 339; see also id. at 346 (“And that lung cancer, if
that’s what you think he died of, was understood as caused by asbestos in the
1950’s.”).
15 See RP (Mar. 1, 2018) at 2076 (A spindle cell neoplasm is a “malignant
tumor[ ] where the cells have an elongated shape.” There are three subclasses of
spindle cell neoplasms: sarcoma, carcinoma, and mesothelioma. A sarcoma is “a
tumor that arose from the soft tissue, like fat or fibrous tissue.” A carcinoma is “a
tumor arising from epithelial cells that are say in the lung or in the liver or
intestine.” A mesothelioma is “a tumor arising from the pleura, where there are
mesothelial cells.”)
16See In re Morris, 189 Wn. App. 484, 496, 355 P.3d 355 (2015) (“In
general, a ‘differential diagnosis’ is focused on diagnosing the disease.”); see also
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 28
reporters’ notes cmt. c(4) at 456 (AM. LAW INST. 2010) (“‘the distinguishing between
two or more diseases with similar symptoms by systematically comparing their
signs and symptoms’” (quoting MOSBY’S MEDICAL & NURSING DICTIONARY 347 (2d
ed. Walter D. Glanze et al eds., 1986))).
6
No. 78504-4-I/7
experts questioned mesothelioma but could not further categorize James’s
disease beyond the broad differential diagnosis because of the limited tissue
samples available for analysis. Plaintiff’s experts took the differential diagnosis a
step further and concluded it was most likely mesothelioma. There was evidence
that exposure to asbestos can be a substantial factor for mesothelioma or for lung
cancer, either in the form of a pulmonary carcinoma or a pulmonary sarcoma.
Specifically, Dr. Arnold Brody,17 a cellular biologist specializing in lung
biology and pathology of asbestos diseases, explained that there are three major
asbestos-related diseases: “There’s asbestosis, which is scar tissue in the lung.
And then there is lung cancer, which is in the airways . . . . And then
mesothelioma, which is this cancer . . . specific to asbestos exposure.”18
Dr. Joseph Ye, James’s treating oncologist, testified he first saw James on
January 27, 2016. At the time, James presented with shortness of breath and
cough. Dr. Ye ordered an X-ray and CT scan. “[H]e was found to have right-sided
pleural effusion, which was detected on X-ray, and confirmed by CT scan, showing
the right pleural-based lung mass, as well as the right pleural effusion.”19
17Era called Dr. Arnold Brody, Dr. Joseph Ye, and Dr. Richard Soboyna.
JCI’s experts included Dr. Alberto Marchevsky.
18 RP (Feb. 14, 2018) at 455.
19 RP (Mar. 7, 2018) at 2756 (“[P]leural effusion is the fluid—normally, we
have a small amount of fluid in the pleural space. So pleural space means
between the chest wall and the lung, has a small space, so has a little lubricating
fluid there to make the lungs expan[d]. When those amount of fluids increased
more than normal needed, it’s called pleural effusion.”).
7
No. 78504-4-I/8
Dr. Ye ordered a PET scan and a needle core biopsy. After receiving the
results of the scan and biopsy, Dr. Ye referred James’s chart to the University of
Washington’s multiple disciplinary review team because the “pathology [was] a
little atypical.”20
One of the team members entered the following clinic note:
Dr. Martins here indicates that he reviewed the images from the
patient’s PET scan, and that his tumor is all restricted to the pleural
space on the right side. He further indicates that he discussed this
case with Dr. Wood, and that they both agree that based on the
epidemiology, clinic presentation, and pathology, by far the most
likely diagnosis here is of a sarcomatoid mesothelioma.[21]
Dr. Ye agreed with this conclusion. In another note, one of the team
members “concurred with sarcomatoid mesothelioma” and identified the disease
was “pleural based.”22 In a third note, the team diagnosed James with a “pleural-
based mass with biopsy showing spindle cell neoplasm,[23] consistent with a
sarcomatoid mesothelioma.”24 The team also identified “spindle cell carcinoma or
sarcoma” as another possibility, “but given [James] has a history of exposure to
20 Id. at 2762.
21 Id. at 2777.
22 Id. at 2779.
23See RP (Mar. 1, 2018) at 2076 (A spindle cell neoplasm is a “malignant
tumor[ ] where the cells have an elongated shape.” There are three subclasses of
spindle cell neoplasms: sarcoma, carcinoma, and mesothelioma. A sarcoma is “a
tumor that arose from the soft tissue, like fat or fibrous tissue.” A carcinoma is “a
tumor arising from epithelial cells that are say in the lung or in the liver or
intestine.” A mesothelioma is “a tumor arising from the pleura, where there are
mesothelial cells.”).
24 RP (Mar. 7, 2018) at 2780.
8
No. 78504-4-I/9
asbestos, [it is] almost certain this is a presentation of the sarcomatoid
mesothelioma.”25
Dr. Alberto Marchevsky, a licensed pathologist, testified about the
pathology of James’s illness. Dr. Marchevsky agreed with the initial pathology
report that raised “a broad differential diagnosis that includes spindle cell
carcinoma, sarcomatoid mesothelioma, and sarcoma.”26 But unlike Dr. Ye and the
review team, Dr. Marchevsky was unable to provide a more definitive diagnosis
than the broad differential diagnosis. On cross-examination, Dr. Marchevsky
clarified, “We really don’t know which of those. It is possible it is a mesothelioma,
but we cannot say to a reasonable degree of medical certainty that it’s probable
mesothelioma.”27
He testified that James suffered from “recurrent pleural effusion” and that
symptom is “[c]lassic of mesothelioma and other conditions.”28 But he also
testified James’s tumor “seemed to appear like a more localized lesion than the
typical mesothelioma.”29 As to radiology, Dr. Marchevsky testified:
It is a bit uncertain, was the tumor in the pleura, was it in the lung.
Some imaging showed it was in the [space between the two lungs
and the heart] . . . .
....
25 Id.
26 RP (Mar. 1, 2018) at 2070.
27 Id. at 2091.
28 Id. at 2115.
29 Id. at 2082.
9
No. 78504-4-I/10
So in this case, we have another reason to make it more
complicated. And if it’s a tumor that is in the thorax, it could be
primarily the lung, it could be a lung cancer, or could it be
metastases from another site.
....
In this case, I think there was no image or evidence that the
patient had cancer elsewhere. So I think if it were a carcinoma, it
would be more likely a lung cancer, but we are speculating to some
degree.[30]
With regard to the pathology of the needle core biopsy, Dr. Marchevsky
testified that James did not have any positive mesothelioma markers.
At the conclusion of Dr. Marchevsky’s testimony, the court allowed the jury
to ask questions. Dr. Marchevsky is a co-author of a paper about differentiating
between tumors caused by mesothelioma and those caused by carcinomas of the
lung. A juror asked, “What are the key markers differing between a definitive
mesothelioma diagnosis and Mr. Clevenger’s diagnosis?”31 Dr. Marchevsky’s
answered:
So basically as we put in the guidelines, in general, it’s difficult to tell
a sarcoma mesothelioma from other tumors, which is why we went
through the trouble of putting together the paper and getting all these
people to agree to something.
So basically in a typical mesothelioma, you would like to have
the clinical image and findings that I tried to show in the photograph,
very diffuse tumor. Mr. Clevenger, the tumor presented a little
different. It was a big mass that the radiologists couldn’t tell for sure,
was it in the lung or the pleura. There were other nodules.
30 Id. at 2098.
31 Id. at 2140.
10
No. 78504-4-I/11
Maybe one could say that the tumor was somewhat diffuse
because of multiple nodules, but then if the patient had lung cancer,
for example, it would have been metastasis of the lung cancer and
different nodules. So the radiology is not against me. It’s not for me.
So it’s not finding that we can look at it as a slam dunk and say it’s a
classic mesothelioma. . . . So in my mind, you have radiology that
was not super typical, a biopsy that was not super typical.
I’m a pathologist, so what am I going to do, ask for more
tissue, which is what I did. Oncologists and surgeons may look at
this in a different way, but I know from my own experience that
sometimes they are wrong. When we do an autopsy, sometimes we
can see that what they do was not necessarily right.
That’s why, as a pathologist, I would have preferred in this
case to have a larger biopsy and/or an autopsy to be able to give you
a definitive diagnosis.[32]
The jury also heard testimony from Dr. Richard Sobonya, a licensed
pathologist specializing in pulmonary and cardiac pathology. Both Dr. Sobonya
and Dr. Brody testified about the two subtypes of mesothelioma, epithelioid and
sarcomatoid. Dr. Brody testified:
[T]here’s no relationship between mesothelioma and sarcoma [a type
of lung cancer]. Either you have a mesothelioma or you have a
pulmonary sarcoma.
Now, there is a subset of mesotheliomas called sarcomatous
mesothelioma. Now, that means—what that tells you is the cell type
from which the mesothelioma developed. So if it’s an epithelioid
mesothelioma, that means that the cancer, the mesothelioma, came
from the mesothelial cells themselves.
If it’s a sarcomatous mesothelioma, then it came from the
connective tissue cells that are part of the pleura that grow under
and around the mesothelial cells.[33]
32 Id. at 2140-41.
33 RP (Feb. 26, 2018) at 1061.
11
No. 78504-4-I/12
Dr. Sobonya studied James’s core biopsy sample and pleural fluid samples.
Dr. Sobonya opined that James suffered from sarcomatoid mesothelioma. And he
testified that it is not unusual to have a “sarcomatoid mesothelioma that presents
with a differential diagnosis.”34
Q: Would you expect in a lung cancer to see a diffuse tumor
growing along the pleura?
A: Occasionally, a lung cancer will do that. Yes.
Q: It’s pretty odd for a lung cancer to do that though, right?
A: Right. Those are reportable cases.
....
Q: . . . [W]hat you reviewed in this case, did Mr. Clevenger have
a localized tumor?
A: No.
Q: Okay. How would you describe the tumor that he had?
A: His tumor involves the pleura diffusely in multiple nodules. [35]
Dr. Sobonya testified that more pathology would be helpful to distinguish
between the types of mesothelioma:
Q: With respect to your opinions in this case though, Doctor,
would you like more pathology to distinguish between a lung
cancer and mesothelioma or would you like more pathology to
distinguish between the type of mesothelioma that he had?
A: It would be the latter. I would like to see—I would like to see a
bigger biopsy that would show the two components that each
separate pathology had indicated.
34 RP (Mar. 6, 2018) at 2403.
35 Id. at 2413-14.
12
No. 78504-4-I/13
Q: Okay.
A: But it’s mesothelioma[. T]hat’s not up to question. For sure
it’s mesothelioma.[36]
Experts on both sides recognized the impact of asbestos exposure on lung
cancer. Dr. Brody testified:
Q: If Mr. Clevenger has a sarcomatoid mesothelioma, cigarettes
played no part in causing his disease, correct?
A: Correct.
Q: Okay. If Mr. Clevenger has a . . . pulmonary sarcoma, a kind
of lung cancer, then cigarettes and asbestos would have
acted together to cause his disease, correct?
A: That’s correct, yes. Now, that’s where you get the synergy.
In other words, if it’s a pulmonary lung cancer of a sarcoma
variety, then yes, cigarette smoking plus asbestos can play a
role. In fact, you even get a multiplicative increase in the risk
if it’s a lung cancer.[37]
And Dr. Marchevsky acknowledged that asbestos “can contribute to the
causation of lung cancer.”38
During closing argument, Era’s counsel stated, “[W]e’re going to walk
through this and line up some of the evidence that you have heard and seen in this
case with respect to Mr. Clevenger’s disease and John Crane’s products and their
involvement in causing that disease.”39 Era’s counsel pointed to Dr. Ye’s
36 Id. at 2421.
37 RP (Feb. 26, 2018) at 1062.
38 RP (Mar. 1, 2018) at 2100.
39 RP (Mar. 13, 2018) at 3448.
13
No. 78504-4-I/14
testimony that the diagnosis from the review board “was that this gentleman had a
sarcomatoid type mesothelioma based on everything combined together.”40
But Era’s counsel also acknowledged JCI’s attempt to call into question the
mesothelioma diagnosis:
Defendants want you to believe in this case in order for you to
believe that Mr. Clevenger had anything other than a mesothelioma,
and we will talk about why it doesn’t even matter in this case if he
had a mesothelioma or not, because the alternative diagnosis is a
lung cancer, which is also caused by exposure to asbestos.[41]
Era’s counsel argued James had sarcomatoid mesothelioma. Immediately
after making this point, counsel stated,
But if by some reason you are persuaded that he had some
secondary cancer, the only evidence that the defendants have given
you is that it was either primary to his pleura or that he had a cancer
primary to his lung. He had a lung cancer.[42]
Era’s counsel reminded the jury about testimony from both plaintiff’s and
defense’s experts that “asbestos causes lung cancer as well.”43
If by some situation you conclude that the gentleman had a lung
cancer, then the only math that changes is that his smoking also
contributed with his asbestos exposure to cause it. That’s it. It
doesn’t preclude asbestos as a cause of his disease. . . .
When you talk about whether or not he had a sarcomatoid
mesothelioma, which should be clear at this point, all you do in that
math is take the cigarettes out. Cigarettes do not contribute to or
cause sarcomatoid mesothelioma. All of the defense experts agreed
40 Id. at 3450.
41 Id. at 3450-51.
42 Id. at 3452.
43 Id.
14
No. 78504-4-I/15
on that. All plaintiff’s experts agreed on that. So when you are
talking about whether or not this gentleman had an asbestos-related
disease, the clear answer is yes.[44]
During closing, JCI’s counsel emphasized “plaintiff chose to pursue this
mesothelioma route,” and “[t]hey have to actually prove it was mesothelioma.”45
But JCI also addressed Era’s secondary contention and argued, “If it was a
carcinoma or a sarcoma, it was caused by or likely caused by his cigarette
consumption.”46 And JCI emphasized the differential diagnosis: “It’s either a
spindle cell carcinoma, sarcomatoid mesothelioma, or a sarcoma.”47
Our review of the pleadings, opening statements, evidence, and closing
arguments reveals Era’s single theory of the case was that exposure to asbestos
was a substantial factor in James’s death from an asbestos-related disease, either
mesothelioma or an asbestos-related lung cancer.
JCI’s primary argument that the evidence necessarily limits Era to
mesothelioma only. Generally, a party is entitled to an instruction on their theory
of the case if there is substantial evidence to support it.48 JCI contends that
absent an absolute diagnosis of lung cancer or evidence that James’s disease
44 Id. at 3452-53.
45 RP (Mar. 14, 2018) at 3509-10.
46 Id. at 3504.
47 Id. at 3514.
48State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997); see
also Albin v. Nat’l Bank of Commerce of Seattle, 60 Wn.2d 745, 753-54, 375 P.2d
487 (1962).
15
No. 78504-4-I/16
was most likely lung cancer, Era was limited to mesothelioma only. The logical
extension of JCI’s argument is that a plaintiff with an atypical tumor that has been
narrowed to either mesothelioma or lung cancer is precluded from presenting the
jury with alternative diagnoses. This premise is not valid in this unique setting for
three reasons.
First, a different proximate causation analysis applies to asbestos litigation.
“[B]ecause of the peculiar nature of asbestos products and the development of
disease due to exposure to such products, it is extremely difficult” for the plaintiff to
establish proximate cause.49 As a result, our Supreme Court has applied “specific
rules . . . to determine whether a plaintiff has satisfied the standard of causation
with respect to an alleged asbestos exposure.”50 Under these rules, the plaintiff
establishes proximate cause if they show exposure to asbestos was a substantial
factor in the victim’s injury or death.51 The substantial factor causation standard
departs from the traditional but-for causation standard.52
Second, “[w]hether an asbestos plaintiff’s evidence states a prima facie
case is necessarily a fact-specific inquiry.”53 A fact-specific inquiry here reveals
49 Lockwood, 109 Wn.2d at 248.
50
16 W ASHINGTON PRACTICE: TORT LAW AND PRACTICE 5.12 , at 241 (4th ed.
2013) (WPI).
51 16 WPI 5:11, at 240.
52 16 WPI 5:11, at 239.
53
Montaney v. J-M Mfg. Co., Inc., 178 Wn. App. 541, 544-45, 314 P.3d
1144 (2013).
16
No. 78504-4-I/17
this case is unique in several regards. Here, the jury found James had an
asbestos-related disease. Both sides acknowledged a broad differential
diagnosis, narrowed to three asbestos-related diseases: mesothelioma, pulmonary
sarcoma, or pulmonary carcinoma. The uncertainty as to a final diagnosis largely
arises from the atypical presentation of James’s disease. Some indicators were
consistent with mesothelioma and some with lung cancer. Both sides agreed
James’s tumor was atypical in nature, location, and the pathological markers. But
most importantly, there is compelling expert testimony that James’s exposure to
asbestos was a substantial factor as to each of the three viable asbestos-related
diseases.
Third, the core causation question in this unusual setting is whether there
must be complete certainty as to the precise biological mechanism that resulted in
James’s asbestos-related tumor and subsequent death. The nuances of that
question in the complex and evolving area of toxic tort causation are beyond the
briefing on this appeal, but there is clearly support for the concept that some
uncertainty as to the exact biological mechanism resulting in an injury from
asbestos exposure does not bar recovery. 54 More fundamentally, concepts of
54 For example, one recognized factor in determining the causal relationship
between a toxic agent and a disease is whether the causation is biologically
plausible. An expert’s uncertainty as to the precise biological mechanism goes to
the weight, not admissibility, of such evidence. R. Jason Richards, Reflecting on
Hill’s Original Causation Factors, 52 NOV TRIAL 44, 47 (2016); Jennings v. Baxter
Healthcare Corp., 331 Or. 285, 309, 14 P.3d 596 (2000); Kennedy v. Eden
Advanced Pest Techs. 222 Or. App. 431, 450-52, 193 P.3d 1030 (2008).
17
No. 78504-4-I/18
causation largely turn on what reasonable inferences can be drawn from the facts
of a specific case. “As philosophers have taught, factual cause is not a
phenomenon that can be seen or perceived; instead, it is an inference drawn from
prior experience and some, often limited, understanding of the other causal
factors—the causal mechanism—required for the outcome. Thus, all causal
determinations require inferential reasoning.”55 Generally, the plaintiff can
establish proximate cause from inferences arising from circumstantial evidence.56
On these atypical facts and the existing briefing, we conclude there was a
reasonable nonspeculative inference that either mesothelioma or an asbestos-
related lung cancer was a viable biological source of James’s tumor and his
resulting death.57
Of course, as the jury instructions and special verdict questions recognized,
there are contributory negligence consequences based on James’s history of
55 See RESTATEMENT (THIRD) OF TORTS § 28, cmt. b.
56 Klossner v San Juan County, 21 Wn. App. 689, 692, 586 P.2d 899
(1978).
57 JCI cites Board of Regents of University of Washington v. Frederick &
Nelson, 90 Wn.2d 82, 85-86, 579 P.2d 346 (1978) for the proposition that a trial
court properly gave an instruction withdrawing arson as an alternative cause of a
fire when the evidence supported only a mere possibility of arson. The analogy is
not helpful here because Board of Regents involved the traditional but-for standard
of factual causation, and the experts “rejected [arson] as a cause because of
certain characteristics of the fire.” Here, the substantial factor standard of
causation applies, and the evidence did not rule out an asbestos-related form of
lung cancer.
18
No. 78504-4-I/19
smoking if the jury rejects mesothelioma, but that does not impact whether a
mesothelioma-only proximate cause instruction is appropriate.
We conclude, even though Era vigorously argued that mesothelioma was
the most likely biological source of James’s death, Era was entitled to argue her
theory that James’s exposure to JCI asbestos was a substantial factor in his
death, whether the asbestos-related disease he suffered was mesothelioma or a
lung cancer. Jury instruction 17 did not allow her to adequately argue her theory
of the case.
Other considerations are consistent with this conclusion. Here, the special
verdict form asked and the jury found that James had “an asbestos-related
disease.”58 Consistent with the broad differential diagnosis acknowledged by
experts for both sides, the jury was presented with evidence that exposure to
asbestos is a substantial factor in bringing about mesothelioma, pulmonary
sarcoma, or pulmonary carcinoma. The jury necessarily rejected any evidence
that James had some disease unrelated to asbestos exposure.
The special verdict form and jury instructions expressly anticipated that the
jury would entertain the broad theory that James’s asbestos-related disease could
be a form of lung cancer. Jury instructions 19 and 20 and the special verdict form
questions 9, 10, and 11 address contributory negligence. The only evidence of
contributory negligence is James’s history of smoking. And consistent with the
58 CP at 4349.
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No. 78504-4-I/20
evidence, instructions, and closing arguments, James’s smoking history is relevant
only if the jury finds he had lung cancer.59
JCI’s attorneys vigorously argued in closing that Era was limited to
mesothelioma and urged the jury to find that she could not recover because there
was no compelling evidence of mesothelioma. As instructed by the court and as
argued by JCI, the mesothelioma-only construct of jury instruction 17 was squarely
presented to the jury.
And the potential for confusion was amplified by the lack consistency in the
language of the special verdict form and other instructions, including references to
“asbestos-related disease” (question 1 of the special verdict form),60 “disease”
(jury instruction 18),61 “cancer” (jury instructions 22 and 23),62 “injury” (questions 3,
5, and 7 of the special verdict form),63 “injury or damages” (question 10 of the
special verdict form),64 and “death” (jury instruction 28).65
59See RP (Mar. 14, 2018) at 3525 (“Was Mr. Clevenger negligent? . . .
[T]he evidence in this case is that he smoked . . . . Dr. Brody testified that if this
case is not a mesothelioma, that smoking would be a central issue in the case.”).
60 CP at 4349.
61 CP at 4179.
62 CP at 4183, 4185.
63 CP at 4350-52.
64 CP at 4353.
65 CP at 4191.
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No. 78504-4-I/21
JCI’s other arguments are not compelling. We consider the instructions as
a whole.66 JCI contends jury instruction 17 is of limited consequence because jury
instructions 18, 22, and 23, listing the element of proximate cause, refer to “James
Clevenger’s cancer.”67 But it is also likely the jurors looked to jury instruction 17
for the definition of “proximate cause” when reading jury instructions 18, 22, and
23. Those instructions’ use of the word “cancer” does not immunize the
misleading nature of jury instruction 17 that limits “proximate cause” to
mesothelioma only.
A challenge to a misleading instruction requires a showing of prejudice.68
“An erroneous instruction is harmless if it did not affect the outcome of the case.”69
JCI contends there was no prejudice because Era was able to argue at closing
that even if James died of lung cancer, exposure to JCI’s asbestos-containing
products was the proximate cause of his cancer. But the opportunity to make an
argument contradicted by the jury instructions is pointless. As recognized in
Anfinson v. FedEx Ground Package System, Inc., “[i]t is no answer” that a party
“remained free” to raise an argument that was supported by the evidence at trial
but not appropriately reflected in the jury instructions.70
66 Lewis v. Simpson Timber Co., 145 Wn. App. 302, 318, 189 P.3d 178
(2008).
67 CP at 4179, 4183, 4185.
68 Afinson, 174 Wn.2d at 860.
69 Terrell v. Hamilton, 190 Wn. App. 489, 502, 358 P.3d 453 (2015).
70 174 Wn.2d 851, 876, 281 P.3d 289 (2012).
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No. 78504-4-I/22
Finally, JCI contends any error was harmless because the most likely
interpretation of the jury’s answers to the special verdict form questions was that
the jury accepted JCI’s argument that James received only a minimal dose of
asbestos from JCI’s products. We are not convinced. It is also likely the jury was
confused by jury instruction 17 and concluded Era could recover only for
mesothelioma and not any other asbestos-related disease. It is also troublesome
when an instruction defining proximate cause undercuts a party’s theory as
revealed by the pleadings, opening statement, evidence, and closing arguments.
Normally, a proximate cause definition is limited to a general articulation of the
legal standards related to the plaintiff’s “injury,” as in the first sentence of jury
instruction 17, and not a specific injury, as in the second sentence.71
The proximate cause jury instruction did not allow Era to adequately argue
her theory of the case.
II. Jury Instruction 18
Era also challenges jury instruction 18. She argues jury instruction 18 is
erroneous because it was misleading and inaccurately sets forth the law.
Although our conclusion on jury instruction 17 is dispositive, we address Era’s
challenge to jury instruction 18 to provide guidance to the trial court on remand.
“Legal errors in jury instructions are reviewed de novo.”72
71See 6 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS:
CIVIL 15.01, 15.02, at 193, 199 (2019).
72 Fergen v. Sestero, 182 Wn.2d 794, 803, 346 P.3d 708 (2015).
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No. 78504-4-I/23
Jury instruction 18 lays out factors the jury “should consider” when
determining proximate cause in an asbestos case.73 Era objected to jury
instruction 18 and argued, “[T]hese are factors for the court to consider with
respect to whether or not plaintiff may proceed with their case [and n]ot for jurors
to consider with respect to the substance of [the] substantial [evidence] factor.”74
The trial court denied the objection.
In Lockwood v. AC & S, Inc., our Supreme Court identified several factors
for a trial court to consider “when determining if there is sufficient evidence for a
jury to find that causation has been established”:
They should consider the evidence of plaintiff’s proximity to the
asbestos product when the exposure occurred and the expanse of
the work site where asbestos fibers were released. They should also
take into account the extent of time that the plaintiff was exposed to
the product . . . .
Courts should also consider the types of asbestos products to
which the plaintiff was exposed and the ways in which such products
were handled and used. . . .
73 “In considering whether a product was a proximate cause of Mr.
Clevenger’s disease, you should consider the following factors: 1. Plaintiff’s
proximity to a JCI’s product when the exposure occurred; 2. The expanse of the
work site where asbestos fibers were released; 3. The extent of time Mr.
Clevenger was exposed to the product; 4. What types of asbestos product Mr.
Clevenger was exposed to; 5. How Mr. Clevenger handled and used those
products; 6. Expert testimony on the effects of inhalation of asbestos on human
health in general and Mr. Clevenger in particular; 7. Evidence of any other
substances that could have contributed to Mr. Clevenger's cancer and expert
testimony as to the combined effect of exposure to all possible sources of the
disease.” CP at 4179.
74 RP (Mar. 13, 2018) at 3436 (emphasis added).
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No. 78504-4-I/24
In addition, trial courts must consider the evidence presented
as to medical causation of the plaintiff's particular disease. Such
evidence would include expert testimony on the effects of inhalation
of asbestos on human health in general and on the plaintiff in
particular. It would also include evidence of any other substances
that could have contributed to the plaintiff’s disease, and expert
testimony as to the combined effects of exposure to all possible
sources of the disease. . . .
. . . [T]he factors listed above are matters which trial courts
should consider when deciding if the evidence is sufficient to take
such cases to the jury.[75]
Era contends jury instruction 18 misstates the law because the Lockwood
factors are for the court to consider when addressing whether proximate cause
may go to the jury. Although no case prohibits a jury’s consideration of the
Lockwood factors,76 we question whether the factors are appropriate for a jury
instruction listing what the jury “should” consider to determine proximate cause.
We are concerned jury instruction 18 unduly restricts what the jury “may” consider
under the circumstances of a particular case. We do not endorse jury instruction
18. In this setting, when the proximate cause instructions are read together, Era
does not establish that jury instruction 18 was prejudicial and thus reversible error.
75109 Wn.2d 235, 248-249, 744 P.2d 605 (1987); see also Allen v.
Asbestos Corp., Ltd., 138 Wn. App. 564, 157 P.3d 406 (2007) (“Lockwood
established factors that a court should consider to determine whether sufficient
evidence of causation exists.”).
76See Barabin v. Albany Int’l Corp., 2009 WL 10725367, slip op. at 3 (“The
Lockwood court did not require the plaintiff to establish that the defendant’s
product alone would have caused the plaintiff’s injury. . . . Rather, it noted ‘a
number of factors’ a jury may consider in determining whether causation has been
established.”) (emphasis added).
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No. 78504-4-I/25
Therefore, because jury instruction 17 was reversible error, we vacate the
judgment and remand for a new trial consistent with this opinion.
WE CONCUR:
25