Out With The Old Prominent Maryland Standard of “Substantial Contributing Factor” and in with the Newly Adopted Standard “Sufficient to Have Caused the Harm” in Virgina’s Supreme Court.

Recently, Virginia Supreme Court, in Ford Motor Co. v. Boomer, adopted the causation standard “sufficient to have caused the harm” of the Restatement (Third) of Torts, and rejected Maryland’s standard of causation of “substantial contributing factor.” The Court held that in concurring causation cases “sufficient to have caused” standard is the proper way to define the cause-in-fact element of proximate cause to show negligence.

This case was concerning the alleged wrongful death of James D. Lokey who had been exposed to asbestos while working as a state trooper. For about eight years the decedent’s duties were to supervise and observe vehicle inspections particularly at the Ford dealership, where mechanics used compressed air to blow out brake debris. Mr. Lokey could not identify the type of break linings that were inspected, but his estate presented circumstantial evidence that Bendix was most likely the manufacturer of the break linings. Mr. Lokey also worked at the Norfolk Naval Shipyard for over a year in the early 1940, but had no personal knowledge whether he had been exposed to asbestos in the shipyard.

The Plaintiff’s expert testified that “the exposure to the dust from the break lining in new cars were both “substantial contributing factors” to Mr. Lokey’s mesothelioma. The Defendant’s expert conversely testified that people who work around asbestos- containing break are at no higher risk of developing mesothelioma than those who are don’t. Further the Defendant’s expert presented evidence of increased risk of mesothelioma for those who worked around shipyards directly or in the vicinity with asbestos material. The Defense also has pathologist Dr. Victor Roggloting that testify that Lokey’s case of mesothelioma was more consistent with a person who had exposure to amosite asbestos on a shipyard sixty years ago than the chrysolite brake products.

The trial judge gave the jury an instruction on negligence and breach of warranty, and the jury found in favor of Mr. Lokey awarding the plaintiff $282,685.69. The Defendant appealed arguing on the grounds that inter alia the lower court erred in its jury instruction as to causation. The Virginia Supreme Court agreed with the defendant, noting that the “substantial contributing factor” instruction was “prominent” in other jurisdictions such as Maryland. The Court found that the prominent standard caused several problems and had the potential to confuse the jury. The Court adopted the new standard of the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010) and held that the trial court erred in failing to sustain the Defendant’s objection to the “substantial contributing factor” and remanded the case.