An Interesting Question From the Jury
In the recently decided Pennsylvania case of Hicks v. Dana Companies, LLC the appellate court considered whether the trial court had committed error in its handling of the following question posed by the jury after two-and-a-half hours of deliberations:
"Judge Lynn, can we please have verification as to what a 'factual cause' is? To determine such, do we consider each company's product individually or all collectively?"
Rather than answer the question, which actually got right to heart of the matter, the trial court read the following instruction:
"If you find that a defendant's asbestos-containing product was defective, the defendant is liable for all harm to the plaintiff caused by such defective condition. A defective condition is [sic] the defendant's asbestos-containing product is the factual cause of the mesothelioma suffered by the plaintiff if the mesothelioma would not have occurred without exposure to the defendant's defective product. That's factual cause."
Is it any wonder that jury questions are invariably found to be confusing and often result in jurors rendering verdicts they didn't mean or want to render?
Anyway, the jury's question was a profound one. In this age of peripheral defendants, typically none of whose products alone could have produced mesothelioma, is it fair to lay at any one defendant's feet "all harm to the plaintiff" when alone its product could have produced no harm at all?
The opinion is significant in at least two other respects. First it embraces the logical fallacy of conflating risk and causation by approving of causation testimony founded only on the observation that in a dose response disease each quantum of dose increases risk. Second it appears to support the contention that a defendant's application of a warning label to its product is a tacit admission that the product causes the harm warned of.
While the court goes out of its way to distinguish this case from the Pennsylvania Supreme Court's ruling in Gregg v. V-J Auto Parts Company it is difficult to see how it has in fact done anything other than accept the one fiber theory so long as plaintiff has an expert willing to swear to it.
