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$5.5 Million Judgment Must Fall for Instructional Error—Court of Appeal
Chaney Says Judge Was Obliged to Apply Michigan Law, Not California’s
By a MetNews Staff Writer
The Court of Appeal for this district has reversed a $5.5 million judgment in a wrongful death case which the court previously declared to be triable under Michigan law because the judge gave an instruction on causation in asbestos cases pursuant to California law, with the justices rejecting the plaintiff’s contention that the law of the two jurisdictions is the same.
Justice Victoria Chaney of Div. One, in a closely reasoned unpublished opinion, pinpointed the differences, saying that asbestos exposure being a “substantial factor contributing to an increased risk of a plaintiff’s injury”—the California standard—“is not the same thing as a substantial factor in producing the injury,” required under Michigan law.
She continued:
“Consistent with our understanding of Michigan law, we conclude that to establish causation under Michigan law in a negligence cause of action for asbestos-related latent injuries, a plaintiff must establish and a jury must conclude that the defendant’s actions were a substantial factor in producing the plaintiffs injuries, and not merely in increasing the risk that the plaintiff would suffer the injury.”
Reversal Required
This does not mean that then-Los Angeles Superior Court Judge C. Edward Simpson (now retired) erred, as the plaintiff contends, in declining to give a “but-for” instruction, which was not warranted under Michigan law, Chaney said. It does mean, she continued, that he was mistaken in telling jurors that the plaintiff need only show that a “risk” of harm was created by exposure to asbestos.
It is “reasonably probable” that the jury would have found a lack ofliability had it been correctly instructed, she declared, requiring reversal.
The decision came in an action brought in 2015 by Robert Swanson, who had been diagnosed with mesothelioma in 2014. Swanson sued The Marley-Wylain Company which now owns the company that manufactured boilers with which he had contact while a plumber in in Michigan from 1969 to 1976.
Swanson died on March 2, 2016, and his son, Shawn Swanson, assuccessor-in-interest, amended the complaint to allege wrongful death.
The jury awarded $5,489,688.68.
Rothschild’s Opinion
The Court of Appeal on March 24, 2016, in an unpublished opinion by Presiding Justice Frances Rothschild of Div. One, granted a writ petition requiring that Michigan law—which, it was noted is materially different from California’s law on product liability and damages—be applied. Rothschild wrote:
“Michigan law, and not California law, applies where plaintiff Robert Swanson’s claims against The Marley-Wylain Company…arose in Michigan, where Swanson resided and where he was exposed to asbestos.”
Notwithstanding that decision, Shawn Swanson argued on appeal that the holding did not necessarily extend to the issue of causation. Chaney responded:
“Swanson is correct that California courts examine choice of law questions ‘with regard to the particular issue in question.’…Swanson extends that contention, however, to an untenable end—that the law of different states may govern different elements of a single cause of action in cases pending in California state courts; that each element constitutes a separate issue for purposes of a choice of law determination. We are aware of no authority that would support that proposition, and we reject that argument.
“There is nothing in our prior opinion that limits its application to the specific distinctions between California and Michigan law that drove our analysis and conclusion.”
The case is Swanson v. The Marley-Wylain Co., B294181.
Curt Cutting and Dean A. Bochner of the Burbank appellate firm of Horvitz & Levy joined with David M. Glaspy of Walnut Creek in arguing for reversal. Michael B. Gurien of the El Segundo form of Waters Kraus & Paul urged affirmance.
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