Client Alert: Washington Court of Appeals Overturns Defense Verdict in Asbestos Case

By Katie Johnson and Shaun Morgan

The Washington Court of Appeals has overturned a total defense verdict in Clevenger. The Plaintiff in this case was Era Clevenger on behalf of her husband, James Clevenger, who died from either lung cancer or mesothelioma. At trial, experts disagreed as to the type and location of Mr. Clevenger’s tumor, and both sides submitted evidence to support their position. Experts agreed that the decedent’s smoking would have also been a cause of lung cancer, but that asbestos could play a role in both forms of cancer. John Crane, Inc. (“JCI”) was the sole remaining defendant by the end of trial. The jury found that Mr. Clevenger an asbestos-related disease and that the JCI product was not reasonably safe. However, the jury found that the JCI product was not the legal (or “proximate”) cause of the injury.

At trial, a trial judge provides the jury with instructions on the law before the jury deliberates on the evidence. Appellate courts will vacate jury verdicts when jury instructions contain important errors. The Plaintiff in Clevenger appealed based on two jury instructions, and the Washington Court of Appeals agreed with the Plaintiff on at least one of the instructions and vacated the jury verdict.

Jury Instruction: Proximate Cause

In Washington asbestos cases, the trial judge instructs the jury that the plaintiff must prove that the defendant’s asbestos-containing product was a “substantial factor” in the plaintiff’s development of the disease in order to establish proximate cause. In Clevenger, the Plaintiff argued that the jury instruction on this case contained an important error. In particular, the instruction required the jury to find that the JCI product was “a substantial factor in bringing about [Mr. Clevenger’s] mesothelioma.” In its closing argument, defense argued that because mesothelioma had not been proved, proximate cause had also not been proved. However, on appeal, the plaintiff argued that its theory of the case in its pleadings, arguments, and evidence was that an “asbestos-related disease” caused the decedent’s death. Thus, the plaintiff contended, and the appellate court agreed, that the instruction should not have been limited to just mesothelioma.

Jury Instruction: Lockwood Factors

Plaintiff also argued that the Lockwood factors jury instruction was given in error. In 1987, the Washington Supreme Court decided Lockwood v. AC&S, which is a pivotal case for asbestos litigation in Washington. In Lockwood, the Court announced factors that should be considered in determining whether the plaintiff has presented evidence establishing whether exposure to a particular asbestos-containing material was a substantial factor in the development of an asbestos-related injury.

In Clevenger, the trial judge permitted a common instruction, which lists those factors from Lockwood. The Clevenger plaintiff argued that the Lockwood factors are only for the trial court to consider and not for the jury. The court responded as follows,

Although no case prohibits a jury's consideration of the Lockwood factors, we question whether the factors are appropriate for a jury instruction listing what the jury “should” consider to determine proximate cause. We are concerned [the] jury instruction … unduly restricts what the jury “may” consider under the circumstances of a particular case. We do not endorse [the] jury instruction….

Id. at *25-*26. The court vacated the judgment on the first instruction grounds. However, this statement may be taken as guidance by some trial courts that they should not provide the instruction. We have drafted a new version of the instruction that we hope will allow us to continue requesting this instruction. We will continue to follow this issue as it develops.

Both parties may decide to appeal this decision to the Washington Supreme Court.


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