Judge Beryl A. Howell of the District of Columbia District Court issued a trial court opinion in May 2013 that, if followed by other circuit or state courts, could substantially impact the threshold for causation in multiple-exposure asbestos lawsuits. In Stephen A. Wannall v. Honeywell International, Inc., Case No. 10-351(BAH), USDC, D.C. Cir., the plaintiff claimed that the decedent’s mesothelioma was caused by exposure to asbestos from three different sources: (1) his service in the Navy, (2) his work as a trades helper at Fort Belvoir, and (3) as a shade tree mechanic. While the case was pending in the MDL, defendant Honeywell moved for summary judgment, arguing that the decedent’s use of Honeywell’s brakes while working as a shade tree mechanic was not a substantial factor in causing the decedent’s mesothelioma. The MDL court denied the motion, finding a genuine issue of material fact as to causation.
A few months later, the case was remanded to the D.C. court, and Honeywell requested that the D.C. court reconsider the motion in light of the recently decided case of Ford Motor Co. v. Boomer, 736 S.E.2d 774 (Va. 2013), in which the Supreme Court of Virginia abrogated the “substantial contributing factor” test and raised the threshold for plaintiffs so that they would now have to prove that a negligent asbestos exposure was more likely than not “sufficient” to have caused their cancer.
Interpreting and establishing this new sufficiency standard, the D.C. court found, “at a minimum, in order to survive summary judgment, a plaintiff must come forth with some medical or scientific evidence that exposure to the defendant’s product was sufficient, in and of itself, to trigger the injury.” And so, to overcome summary judgment under this standard, a plaintiff must have an expert opine on the threshold level of exposure to the defendant’s product that would cause cancer and whether the exposure levels in a particular case are sufficient to have done so.
The decisions of the Supreme Court of Virginia and the D.C. DistrictCourt are significant because their new causation standard requires a level of specificity that undercuts the standard of “substantial contributing factor,” which is all-too-often construed by other courts to mean any cause that is more than a de minimis factor, but is not, by definition, defined as to the level of exposure required to meet the causation threshold.