Virginia Rejects "Substantial Contributing Factor" Standard for Proximate Cause in Asbestos Cases

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.