NJ “Substantial Factor” Sufficient Medical Causation Proof in Mesothelioma Suit

Mark Buttitta developed mesothelioma at age 49 years old and died a little more than one year later. In litigation filed on his behalf and pursued by his estate following his death, he alleged that he had been exposed to asbestos at a General Motors distribution warehouse where he worked as a “picker” filling orders for parts that included asbestos containing products. His direct exposure was limited to three summers and winter breaks during 1971-1973 when he was otherwise enrolled at Colgate University. He also claimed indirect exposure to asbestos fibers that his father and brother carried home from their work at GM.

While a number of defendants in the case settled, two defendants proceeded to trial including Borg-Warner, a clutch supplier, and Asbestos Corp. Ltd, a Quebec supplier of raw asbestos to GM. The jury returned a verdict in excess of $30 Million dollars.

At issue in the appeal was the legal standard of causation applied by the trial court. Generally a plaintiff in a product liability action must prove that the product was defective when it left the manufacturer’s control and that defect caused injury to a reasonably foreseeable user. In a toxic tort product liability action, the plaintiff must also prove medical causation, e.g. exposure to the defendant’s asbestos product caused an illness. For asbestosis and lung cancer cases, medical causation is proven on the basis of frequency, regularity, and proximity of exposure.

However, the court noted testimony that mesothelioma can develop from the cumulative effects of only minimal or infrequent exposure thereby challenging the rigid application of the medical causation standard generally applied. Hence, the appellate court approved of the trial judge’s application of a “substantial factor” test that required only that the plaintiff provide direct or circumstantial evidence from which a reasonable jury could conclude that at some point in his work history, Buttitta was exposed and in close proximity to the defendant’s product frequently and on a regular basis.

Although the defendants also challenged the trial court’s denial of a remittitur, the appellate division found that the verdict was not so disproportionate that it shocked the judicial conscience.

If you have any questions about this post, please email Denise Ricci at dricci@wcmlaw.com.

See Buttitta v. Allied Signal at http://www.judiciary.state.nj.us/opinions/a5263-07a5268-07.pdf