CACI 435 Causation for Asbestos-Related Cancer Claims

New September 2003; Revised December 2007, May 2018, November 2018, May 2020, November 2020

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This instruction is to be given in a case in which the plaintiff’s claim is that the plaintiff contracted an asbestos-related disease from exposure to the defendant’s asbestos-containing product or asbestos-related activities. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982–983 [67 Cal.Rptr.2d 16, 941 P.2d 1203]; Lopez v. The Hillshire Brands Co. (2019) 41 Cal.App.5th 679, 688 [254 Cal.Rptr.3d 377] [addressing causation standard for exposure to asbestos from a defendant’s property or operation when the defendant is not a manufacturer or supplier of asbestos-containing products]; but see Petitpas v. Ford Motor Co. (2017) 13 Cal.App.5th 261, 290 [220 Cal.Rptr.3d 185] [court gave CACI No. 435 with regard to premises liability defendant].) If the plaintiff’s claim is based on anything other than disease resulting from asbestos exposure, then this instruction is not to be given.

If the issue of medical causation is tried separately, revise this instruction to focus on that issue.

If necessary, CACI No. 431, Causation: Multiple Causes, may also be given.

•“In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant’s product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead, the plaintiff may meet the burden of proving that exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer. The jury should be so instructed. The standard instructions on substantial factor and concurrent causation remain correct in this context and should also be given.” (Rutherford, supra, 16 Cal.4th at pp. 982–983, original italics, internal citation and footnotes omitted.)

•“Squarely faced with the issue of CACI No. 435’s correctness for a non-manufacturer/non-supplier, we conclude that CACI No. 435 applied to plaintiffs’ asbestos-related claim, even though [defendant] is not a manufacturer or supplier of asbestos. [¶] CACI No. 435 was developed to address the special considerations that apply when the injury was allegedly caused by asbestos exposure. These include the long latency period, the occupational settings that often expose workers to multiple forms and brands of asbestos, and, in a case of exposure to asbestos from multiple sources, the difficulty of proving that a plaintiff’s or decedent’s illness was caused by particular asbestos fibers traceable to the defendant. These considerations are similar whether the defendant was a manufacturer/supplier or otherwise created the exposure to asbestos.” (Lopez, supra, 41 Cal.App.5th at p. 687, internal citation omitted.)

•“The term ‘substantial factor’ has not been judicially defined with specificity, and indeed it has been observed that it is ‘neither possible nor desirable to reduce it to any lower terms.’ This court has suggested that a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor. Undue emphasis should not be placed on the term ‘substantial.’ For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff’s injury but is nevertheless urged as an insubstantial contribution to the injury. Misused in this way, the substantial factor test ‘undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.’ ” (Rutherford, supra, 16 Cal.4th at p. 969, internal citations omitted.)

•“[A] very minor force that does cause harm is a substantial factor. This rule honors the principle of comparative fault.” (Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71, 79 [86 Cal.Rptr.2d 846, 980 P.2d 398], internal citation omitted.)

•“Contrary to defendant’s assertion, the California Supreme Court’s decision in Viner v. Sweet (2003) 30 Cal.4th 1232 [135 Cal.Rptr.2d 629, 70 P.3d 1046] (Viner) did not alter the causation requirement in asbestos-related cases. In Viner, the court noted that subsection (1) of section 432 of the Restatement Second of Torts, which provides that ‘the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent,’ ‘demonstrates how the “substantial factor” test subsumes the traditional “but for” test of causation.’ Defendant argues that Viner required plaintiffs to show that defendant’s product ‘independently caused [plaintiff’s] injury or that, but for that exposure, [plaintiff] would not have contracted lung cancer.’ Viner, however, is a legal malpractice case. It does not address the explicit holding in Rutherford that ‘plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.’ ” Viner is consistent with Rutherford insofar as Rutherford requires proof that an individual asbestos-containing product is a substantial factor contributing to the plaintiff’s risk or probability of developing cancer.” (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 998, fn. 3 [35 Cal.Rptr.3d 144], internal citations omitted.)

•“ ‘A threshold issue in asbestos litigation is exposure to the defendant’s product. … If there has been no exposure, there is no causation.’ Plaintiffs bear the burden of ‘demonstrating that exposure to [defendant’s] asbestos products was, in reasonable medical probability, a substantial factor in causing or contributing to [plaintiff’s] risk of developing cancer.’ ‘Factors relevant to assessing whether such a medical probability exists include frequency of exposure, regularity of exposure and proximity of the asbestos product to [plaintiff].’ Therefore, ‘[plaintiffs] cannot prevail against [defendant] without evidence that [plaintiff] was exposed to asbestos-containing materials manufactured or furnished by [defendant] with enough frequency and regularity as to show a reasonable medical probability that this exposure was a factor in causing the plaintiff’s injuries.’ ” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1084 [109 Cal.Rptr.3d 371], internal citations omitted.)

•“[G]iving CACI No. 430, which states that a factor is not substantial when it is ‘remote or trivial,’ could be misleading in an asbestos case, where the long latency period necessitates exposures will have been several years earlier. Jury instructions therefore should not suggest that a long latency period, in which the exposure was temporally ‘remote,’ precludes an otherwise sufficient asbestos claim. ‘ “Remote” often connotes a time limitation. Nothing in Rutherford suggests such a limitation; indeed, asbestos cases are brought long after exposure due to the long-term latent nature of asbestos-related diseases.’ It was not error for the court to give CACI No. 435 alone instead of CACI No. 430.” (Lopez, supra, 41 Cal.App.5th at p. 688, internal citation omitted.)

•“That the Use Notes caution against giving the more general CACI No. 430 in a mesothelioma case, when the more specific instruction CACI No. 435 is more applicable, does not support a conclusion that it was error to give both instructions. CACI No. 430 is a correct statement of the law relating to substantial factor causation, even though, as Rutherford noted, more specific instructions also must be given in a mesothelioma case. Because the more specific CACI No. 435 also was given, we do not find that the trial court erred by giving both instructions.” (Petitpas, supra, 13 Cal.App.5th at p. 299, original italics.)

•“Further, ‘[t]he mere “possibility” of exposure’ is insufficient to establish causation. ‘[P]roof that raises mere speculation, suspicion, surmise, guess or conjecture is not enough to sustain [the plaintiff’s] burden’ of persuasion.” (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 969 [180 Cal.Rptr.3d 382], internal citations omitted.)

•“[T]here is no requirement that plaintiffs show that [defendant] was the exclusive, or even the primary, supplier of asbestos-containing gaskets to PG&E.” (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 981 [227 Cal.Rptr.3d 321].)

•“[T]o establish exposure in an asbestos case a plaintiff has no obligation to prove a specific exposure to a specific product on a specific date or time. Rather, it is sufficient to establish ‘that defendant’s product was definitely at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it’ during his work there.” (Turley, supra, 18 Cal.App.5th at p. 985.)

•“To support an allocation of liability to another party in an asbestos case, a defendant must ‘present evidence that the aggregate dose of asbestos particles arising from’ exposure to that party’s asbestos ‘constituted a substantial factor in the causation of [the decedent’s] cancer.’ ” (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 205 [191 Cal.Rptr.3d 263].)

•“ ‘[G]iven the long latency period of asbestos-related disease, and the occupational settings that commonly exposed the worker to multiple forms and brands of asbestos products with varying degrees of toxicity,’ our Supreme Court has held that a plaintiff ‘need not prove with medical exactitude that fibers from a particular defendant’s asbestos-containing products were those, or among those, that actually began the cellular process of malignancy.’ Rather, a ‘plaintiff may meet the burden of proving that exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.’ ” (Izell, supra, 231 Cal.App.4th at p. 975, original italics, internal citation omitted.)

•“Many factors are relevant in assessing the medical probability that an exposure contributed to plaintiff’s asbestos disease. Frequency of exposure, regularity of exposure, and proximity of the asbestos product to plaintiff are certainly relevant, although these considerations should not be determinative in every case. [Citation.] Additional factors may also be significant in individual cases, such as the type of asbestos product to which plaintiff was exposed, the type of injury suffered by plaintiff, and other possible sources of plaintiff’s injury. [Citations.] ‘Ultimately, the sufficiency of the evidence of causation will depend on the unique circumstances of each case.’ [Citation.] ” (Paulus v. Crane Co. (2014) 224 Cal.App.4th 1357, 1363–1364 [169 Cal.Rptr.3d 373].)

•“In this case, [defendant] argues the trial court’s refusal to give its proposed instruction was error because the instruction set forth ‘the requirement in Rutherford that causation be decided by taking into account “the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, [and] any other potential causes to which the disease could be attributed.” ’ But Rutherford does not require the jury to take these factors into account when deciding whether a plaintiff’s exposure to an asbestos-containing product was a substantial factor in causing mesothelioma. Instead, those factors are ones that a medical expert may rely upon in forming his or her expert medical opinion.” (Davis v. Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 495 [199 Cal.Rptr.3d 583], internal citation omitted.)

•“Mere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure.” (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 252 [192 Cal.Rptr.3d 346].)

•“We disagree with the trial court’s view that Rutherford mandates that a medical doctor must expressly link together the evidence of substantial factor causation. The Rutherford court did not create a requirement that specific words must be recited by appellant’s expert. Nor did the Rutherford court specify that the testifying expert in asbestos cases must always be ‘somebody with an M.D. after his name.’ The Rutherford court agreed with the Lineaweaver court that ‘the reference to “medical probability” in the standard “is no more than a recognition that asbestos injury cases (like medical malpractice cases) involve the use of medical evidence.” [Citation.]’ The Supreme Court has since clarified that medical evidence does not necessarily have to be provided by a medical doctor.” (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 675 [156 Cal.Rptr.3d 90], internal citations omitted.)

•“Nothing in Rutherford precludes a plaintiff from establishing legal causation through opinion testimony by a competent medical expert to the effect that every exposure to respirable asbestos contributes to the risk of developing mesothelioma. On the contrary, Rutherford acknowledges the scientific debate between the ‘every exposure’ and ‘insignificant exposure’ camps, and recognizes that the conflict is one for the jury to resolve.” (Izell, supra, 231 Cal.App.4th at p. 977.)

•“[T]he identified-exposure theory is a more rigorous standard of causation than the every-exposure theory. As a single example of the difference, we note [expert]’s statement that it ‘takes significant exposures’ to increase the risk of disease. This statement uses the plural ‘exposures’ and also requires that those exposures be ‘significant.’ The use of ‘significant’ as a limiting modifier appears to be connected to [expert]’s earlier testimony about the concentrations of airborne asbestos created by particular activities done by [plaintiff], such as filing, sanding and using an airhose to clean a brake drum.” (Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1088 [217 Cal.Rptr.3d 147].)

•“Nor is there a requirement that ‘specific words must be recited by [plaintiffs’] expert.’ [¶] The connection, however, must be made between the defendant’s asbestos products and the risk of developing mesothelioma suffered by the decedent.” (Paulus, supra, 224 Cal.App.4th at p. 1364.)

•“We hold that the duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers. Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission. This duty also applies to premises owners who use asbestos on their property, subject to any exceptions and affirmative defenses generally applicable to premises owners, such as the rules of contractor liability. Importantly, we hold that this duty extends only to members of a worker’s household. Because the duty is premised on the foreseeability of both the regularity and intensity of contact that occurs in a worker’s home, it does not extend beyond this circumscribed category of potential plaintiffs.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1140 [210 Cal.Rptr.3d 283, 384 P.3d 283].)