The volume of reported case law in Kansas tends to be lower than in many other jurisdictions, sometimes resulting in the apparent novelty of legal issues that have long been settled elsewhere. The necessity of product identification is one area where there is a scarcity of reported case law, but clear indications that Kansas law requires plaintiffs to identify the specific product that caused their alleged harm. No reported Kansas case has ever adopted a “collective liability” theory like enterprise liability, alternate liability, or market share liability. We have also obtained summary judgment in favor of a product manufacturer on both enterprise and alternative liability theories.
Causation is an essential element of a product liability claim and a prerequisite to recovery, whether the claim sounds in negligence or in strict liability. Wilcheck v. Doonan Truck & Equip., Inc., 220 Kan. 230, 235, 552 P.2d 938, 942 (Kan. 1976). For plaintiffs to recover on a product liability claim, the defective product must be both the actual and proximate cause of the injury. Wilcheck, 220 Kan at 235, 552 P.2d at 942. Actual cause, or “cause-in-fact,” must be established. Stueve v. American Honda Motors Co., Inc., 457 F. Supp. 740, 759 (D. Kan. 1978) (applying Kansas law). “The mere fact that a person suffered injury while using a product is insufficient in itself to satisfy the requirement of proof that a defect in the product was a proximate cause of the injury.” Wilcheck, 220 Kan. at 235-36, 552 P.2d at 943.
Where a plaintiff fails to adduce sufficient evidence of causation, by linking a defect in the product to the plaintiff’s alleged injuries, plaintiff is not entitled to proceed to a jury on his claims and entry of summary judgment is proper. Wilcheck, 220 Kan. at 238-39, 552 P.2d at 945. The overwhelming majority of jurisdictions agree that, to prove actual and proximate causation of his injuries, a plaintiff must, at a minimum, identify the manufacturer of the allegedly defective product that is claimed to have caused his injuries. See, e.g., Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (D. Kan. 1999) (applying Kansas law).
The lead Kansas case on product identification is Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348, 360 (Kan. 1983). Mays involved product liability claims brought by a worker injured in an explosion of a gas pipeline. Id., 233 Kan. at 39-40, 661 P.2d at 350-51. Among the components of the gas pipeline system were fiberglass pipe and related products manufactured by defendant Ciba-Geigy, as well as numerous components engineered, manufactured and sold by entities other than Ciba-Geigy. See id. The Supreme Court affirmed the trial court’s grant of summary judgment to Ciba-Geigy on the grounds that the plaintiff in Mays failed to establish the essential elements of his case. The Supreme Court cited with approval the finding of the trial court that:
“plaintiff is unable to negate products by manufacturers other than Ciba-Geigy as being products where a failure occurred. Although there is a possibility that a Ciba-Geigy product failed, there is an equal possibility that a non-Ciba-Geigy product failed.”
233 Kan. at 54, 661 P.2d at 361.
Not specifically addressed by Mays is the circumstance in which plaintiffs seek to proceed on collective liability theories, naming numerous manufacturer defendants who marketed products of the type that caused injury to plaintiff. No reported Kansas case has adopted any of these theories, however, which have gotten stale with the passage of time.
Other jurisdictions that have considered cases where a plaintiff cannot identify the particular product that caused him injury have overwhelmingly held that such plaintiff’s product liability claims should be dismissed as a matter of law, because proof of the identity of the product that allegedly caused injury is a “fundamental principle” of product liability law and is necessary for plaintiff to prove cause-in-fact and proximate cause. See, e.g., Smith v. Eli Lilly & Co., 560 N.E.2d 324, 328 (Ill. 1990); Mathers v. Midland-Ross Corp., 532 N.E.2d 46, 49 (Mass. 1989); Case v. Fibreboard Corp., 743 P.2d 1062, 1064 (Okl. 1987); Abel v. Eli Lilly & Co., 343 N.W.2d 164, 170 (Mich. 1984); Namm v. Charles E. Frosst and Co., Inc., 427 A.2d 1121, 1125 (N.J. Super. App. Div. 1981); Roehling v. National Gypsum Co. Gold Bond Building Prods., 786 F.2d 1225, 1226 (4th Cir. 1986); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985) (applying Georgia law); Bryant v. Tri-County Elec. Membership Corp., 844 F. Supp. 347, 354 (W.D. Ky. 1994); Pipon v. Burroughs-Wellcome Co., 532 F. Supp. 637, 638 (D.N.J. 1982); Gray v. United States, 445 F. Supp. 337, 338 (S.D. Tex. 1978).
Arguing a combination of Mays and the abundant reported case law on product identification in other jurisdictions seems to be a winning formula. The Kansas courts have not adopted theories of enterprise, alternative, or market share liability, and at this time there is no indication that the courts would be inclined to accept such theories.
In asbestos litigation, the standard for determining whether a defendant manufacturer’s product proximately caused the plaintiffs’ injuries varies among the courts of different states, a factor that can strongly influence plaintiffs’ choice of venue.
Virginia recently rejected the commonly used standard of “substantially contributing factor” in favor of the standard advocated by the Restatement (Third) of Torts: Liability for Physical and Emotional Harm (2010). Ford Motor Co. v. Boomer, Nos. 120283, 120299, 2013 WL 119708 (Jan. 10, 2013). In rejecting the “substantially contributing factor” standard, the Virginia Supreme Court concluded that the language does not help juries understand the legal principles in play and that courts and jurors have differed as to whether they interpret the language to heighten or lower the standard of proximate causation.
The Restatement (Third) standard, and now Virginia’s new standard, finds proximate cause in asbestos litigation if the plaintiff’s injury would not have occurred absent exposure to the particular defendants’ product. Further, if exposure to multiple defendants’ products were independently sufficient to cause plaintiff’s injury, then both defendants’ products proximately caused the injury. The Virginia Supreme Court emphasized that the standard requires that the exposure to the defendant’s product alone was more likely than not sufficient to have caused the harm.
The Court rejected the alternate test proposed by Comment G to the Restatement (Third) of Torts § 27. This test allows for a finding of causation when multiple exposures combine to reach a threshold level of exposure necessary to cause a disease. Given the state of medical knowledge concerning mesothelioma, Virginia rejected this standard for asbestos cases.
The “sufficient-to-have-caused” standard adopted in Virginia should favor defendant manufacturers, as exposure must have been sufficient on its own, and not just when combined with other exposures, to cause the plaintiff’s injuries. Because this case changed the applicable legal standard, the Virginia Supreme Court declined to apply the new standard to the facts of the case before it, and will apply the standard to future cases. As courts and juries apply the new standard, parties will gain a better understanding of how this test of proximate cause alters the evidence necessary to recover for and defend against mesothelioma-related injuries.
The Ninth Circuit held that a district judge erred in admitting expert testimony by relying solely on evidence of prior admissions of the expert’s theory in other courts. Plaintiffs filed suit claiming that the husband’s mesothelioma was caused by workplace exposure to asbestos. They then sought to admit expert testimony on the common Plaintiff theory that any exposure to asbestos is sufficient to cause mesothelioma.
The district court initially excluded Plaintiffs’ expert testimony due to his “dubious” credentials and lack of familiarity with the workplace and product in question. The Plaintiffs requested that the Court reconsider its decision to exclude the testimony and presented the Court with evidence that their expert’s testimony had been admitted in several state court proceedings. Without conducting a Daubert hearing, the district court admitted the testimony. The jury ultimately returned a $10.2 million verdict for the Plaintiffs.
On appeal, the Ninth Circuit held that the district court could not merely rely on evidence that other courts had admitted the expert testimony. Instead, Federal Rule of Evidence 702 required that the district court conduct a Daubert hearing to test the relevance and reliability of the testimony. The Ninth Circuit vacated the judgment below and remanded the case for a new trial.
The defense bar is well acquainted with the protections that Rule 702 provides. This Ninth Circuit decision confirms that a Daubert hearing requires a meaningful review of an expert’s reliability, including examination of the methodologies employed, and that admission of the expert’s testimony in past cases is no substitute for a rigorous Daubert review. Barabin v. AstenJohnson, Inc., Nos. 10–36142, 11–35020, 2012 WL 5669685 (9th Cir. Nov. 16, 2012).
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The BSCR Product Liability Blog examines significant developments, trends, and topics in product liability law of interest to individuals and product manufacturers, distributors and sellers. Learn more about co-editors David E. Eisenberg and Allison Lee, and our Product Liability practice.
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