A Washington state woman’s negligence claim against 3M has been revived after the Washington Court of Appeals said the trial court gave improper jury instructions.
Larry and Gloria Roemmich filed a strict product liability claim and negligence claim against 3M in January 2020 in King County Superior Court.
The couple alleged that Larry Roemmich’s 8710 mask was not adequately designed and said the company failed to provide adequate warnings while he worked as an insulator at Puget Sound Naval Shipyard in northwest Washington state from 1972 to about 1980, according to the appellate court’s May 9 opinion. He was exposed to asbestos and asbestos-containing products during his tenure, the opinion said.
Following trial, the jury returned verdicts in favor of 3M for both claims. The verdict said 3M was negligent in the manufacture and sale of the 8710 mask, but its negligence was not a proximate cause of Roemmich’s disease, according to the appeals court’s opinion.
But the appeals court reversed the portion of the verdict related to negligence after finding that the trial court gave a proximate cause instruction by combining the “but-for” causation standard with the substantial factor standard, and it erred in giving the superseding cause instruction. Both errors prejudiced their negligence claim, according to the court.
Attorney Chandler Udo of Bergman Draper Oslund Udo in Seattle represented the couple and said the team is pleased with the reversal and opportunity for a new trial.
“While the jury found 3M negligent in the first trial, they were unable to find causation under the now overturned jury instructions,” Udo said. “We look forward to presenting the case to the jury with the correct causation standard and demonstrating why 3M’s negligence was a cause of Larry Roemmich’s cancer.”
On appeal, the Roemmiches said the court failed to give an adequate proximate cause instruction, incorrectly gave a superseding cause instruction and abused its discretion when it excluded testimony from two of their experts.
“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,” Judge Lori Smith wrote for the panel. “The substantial factor standard is the correct proximate cause standard when the exact cause of the harm cannot be determined.”
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.
The court said the “but-for” test is normally justified when a plaintiff is unable to show that one event alone was a cause of injury, but the nature of the asbestos-related diseases makes it difficult for the plaintiff to establish proximate cause.
For Larry Roemmich, his exposure to asbestos through a number of parties means the individual responsibility for the harm cannot be proven under the “but-for” test, the court said.
“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,” Smith wrote. “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 agreed with Roemmich’s challenge about the superseding cause instruction because there was no substantial evidence in the record that the Puget Sound Naval Shipyard had actual knowledge of the defects and because the instruction failed to make 3M’s burden of proof clear.
Additionally, the shipyard’s negligence in failing to train Roemmich on the use of the 8710 mask was reasonably foreseeable and not an extraordinary act, the court said.
“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,” Smith wrote. “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.”
The court affirmed the products liability verdict and said the trial court did not abuse its discretion by excluding the expert witnesses’ testimony.
The Roemmiches told the appeals court that the two doctors’ expert testimony without a Frye hearing applied an incorrect legal standard. For Dr. Dwight Jewson, the appeals court agreed with the trial court’s findings that his testimony was “speculative and unreliable” and did not disclose novel scientific information that would assist the jury with its decision.
Dr. James Johnson, the couple’s other excluded expert, was also initially excluded for the same reasons as Jewson because his testimony about two undisclosed studies were unfairly prejudicial. He ultimately was allowed to testify about the 8710’s mask leakage in rebuttal after 3M opened the door to the testimony, court records show.
3M will continue to evaluate its further options after the recent ruling, a spokesperson for the company told Law.com.
The company said, “3M is disappointed in the decision and is evaluating its further options. We will continue to vigorously defend our record of providing high quality respiratory protection products in this litigation.”
Attorneys from Gordon Rees Scully Mansukhani; Carney Badley Spellman; Wells Anderson & Race; Tanenbaum Keale; Lewis Brisbois Bisgaard & Smith; Corr Cronin; and Buchalter, The Myers Law Group; Rizzo Mattingly Bosworth; Fox Rothschild; Wilson Smith Cochran Dickerson; Gardner Trabolsi & Mordekhov; Gordon Thomas Honeywell; Browitt Law Office and Davis Law Group represented 3M.