NJ Appellate Court Upholds $30 Million Award: Is a New Mesothelioma Exception to Traditional Causation Analysis Emerging?
In Buttitta v. Borg-Warner, et al a New Jersey appellate court appears to embrace the scientifically indefensible "no safe level" risk/causation conflation in upholding a huge award to a plaintiff with a lower asbestos burden than an average American; likely all of whom are exposed to chrysotile, a ubiquitous and naturally occurring mineral.
Clearly a new front in an old war has opened. Seemingly few are prepared for this post-epidemiological world.
Also of interest is the court's approval of prior decisions based on an Illinois appellate court's discussion of the substantial factor test:
"The substantial factor test is not concerned with the quantity of the injury-producing agent or force but rather with its legal significance... Where there is competent evidence that one or a de minimis number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury". Citing Wehmeier v. UNR Industries, Inc., 572 N.E.2d 320, 337 (Ill. Ct. App. 1991).
That's pretty much the essence of the "redistributive justice" view of tort law in which the actor's conduct is not at issue but rather whether it contributed, however infinitesimally, to the plaintiff's injury. Practically speaking the litigation then will remain focused not on whether a defendant committed a wrong but rather on which defendant is most able to pay since asbestos fibers have been found on just about every surface and in countless products.
