Products Liability Law Daily Worker’s reliance on ‘substantial contributor’falls short of establishing causation
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Friday, March 20, 2020

Worker’s reliance on ‘substantial contributor’falls short of establishing causation

By Pamela C. Maloney, J.D.

A worker could not rely on the substantial contributor standard of causation to prove that exposure to benzene-containing products manufactured by multiple companies caused him to develop a blood and bone-marrow disease.

A worker who had been exposed to benzene-containing products while laying carpets and flooring failed to raise a jury question regarding whether his injuries were caused by exposure to products manufactured by numerous companies under the "but for" causation standard, the Florida District Court of Appeal for the Fourth District ruled, granting the manufacturers’ motions for summary judgment. The appellate court rejected the worker’s reliance on the "substantial contributor" standard as an independent basis for causation (O’Donnell v. W.F. Taylor Co., Inc., March 18, 2020, per curiam).

A worker developed a blood and bone marrow disease allegedly as a result of exposure to benzene-containing products throughout his four decades of installing carpets and flooring. The worker filed negligence and product liability claims against the manufacturers of those products, alleging that each of their products had substantially contributed to his disease. Each of the manufacturers moved for and was granted summary judgment on the issue of causation. The worker appealed, arguing that the trial court incorrectly had applied the "but for" standard of causation, and also had erred in failing to apply the "substantial contributor" causation standard.

Causation standard.The worker’s argument that under the "substantial contributor" causation standard, he was only required to prove that each of the named manufacturer’s products had contributed substantially to his disease was rejected by the appellate court. Under Florida law, as outlined in its standard jury instructions, in order to succeed on their individual motions for summary judgment, each of the manufacturers had to prove that its product did not produce or contribute substantially to the worker’s disease. In addition, that proof must rise to level of establishing that no reasonable jury could find that regardless of the particular product’s defect or the manufacturer’s negligence, the worker still would have developed the alleged injuries, the court of appeal explained.

Each of the manufacturers had met the burden in this case, the court of appeal concluded. The worker had conceded that each of the manufacturer’s products had contributed only a small fraction of his lifetime exposure and the worker’s experts had testified that the fraction of exposure from each product fell far below the threshold amount likely to have caused his illness. In other words, none of the products had made a statistically significant difference in causing his blood and bone marrow disease.

The appellate court further found that the worker’s reliance on its decision in Cohen v. Philip Morris USA, Inc. [see Products Liability Law Daily’s September 8, 2016 analysis] was misplaced because the ultimate issue in tobacco cases was whether the smoker had demonstrated an addiction to nicotine-containing cigarettes and whether the addiction was a legal cause of the alleged injuries, not whether the smoker would have developed those injuries if she had not smoked a particular brand of cigarettes. In the case at bar, it was undisputed that the benzene-containing products did not contain any of the addictive qualities of cigarettes, nor had any of the manufacturers conceded that their products had caused the worker’s disease. Instead, each of the manufacturers had relied on the worker’s own experts who testified that their products contributed only a small fraction of the worker’s lifetime exposure and that exposure fell far below the threshold amount likely to have caused the worker’s disease. Based on that evidence, there was no genuine issue of fact as to whether exposure to each of the manufacturer’s products had reached a level necessary to establish causation under the "but for" standard of causation.

The case is No. 4D18-3772.

Attorneys: Lee B. Lesher (Allen Stewart, PC) and Sean Cox (Law Offices of Sean R. Cox) for Robert J. O’Donnell and Sandra O’Donnell. Walter G. Latimer (Fowler White Burnett, P.A.) for W.F. Taylor Co., Inc. Marie A. Borland (Hill, Ward & Henderson, P.A.) and J. Alan Harrell (Phelps Dunbar LLP) for Armstrong World Industries, Inc. Edward J. Briscoe (Fowler White Burnett, P.A.) for Roberts Consolidated Industries, Inc. Carol M. Rooney (Butler Weihmuller Katz Craig LLP) for DAP Products Inc. Mark A. Emanuele (Lydecker|Diaz) for Whitaker Oil Co.

Companies: W.F. Taylor Co., Inc.; Armstrong World Industries, Inc.; Roberts Consolidated Industries, Inc.; DAP Products Inc.; Whitaker Oil Co.

MainStory: TopStory ChemicalNews CausationNews FloridaNews

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