Asbestos Appellate Update

Though the seminal asbestos appellate decision in Washington State has remained Lockwood v. AC & S, 109 Wn.2d 235, 744 P.2d 605 (1987) for the last thirty years, there have been significant appellate decisions shaping the landscape in the past year.  These decisions have included clarifications on causation jury instructions (Clevenger), reversal of the state’s largest-ever damages award (Coogan), and reviewing the sufficiency of expert causation evidence (Stephens).  Below, the products liability team at Bennett Bigelow & Leedom, P.S. provides an update detailing recent significant asbestos appellate decisions in Washington State.

I.       Hoffman v. Ketchikan Pulp Co., 2019 WL 3937413 (Wash. Ct. App. Aug. 20, 2019)

  1. Factual and Procedural Background

In Hoffman, plaintiff alleged her decedent husband faced take-home asbestos exposure from decedent’s father’s work at Ketchikan pulp mill from 1954-1966 and from decedent’s own work at mills from 1968 to 1970 and 1974 to 1978.  Id. at *1.  The original lawsuit was dismissed by the trial court after finding that Alaska law applied and the Alaska statute of repose barred plaintiff’s claims.  Id. Following a reversal and remand, the trial court granted summary judgment for defendant Ketchikan Pulp Company (“Ketchikan”), finding that there was no evidence that Ketchikan knew or should have known about the risks associated with take-home asbestos exposures at the time it employed decedent’s father in the 1950s and 1960s.  Id. at *3.  Plaintiff appealed.

  1. Appellate Court’s Decision

            Though plaintiff raised several arguments on appeal, a key holding of this case was that “[t]here is no evidence in the record that Ketchikan, or any other entity in Alaska, actually knew of the take-home dangers of asbestos in the late 1950s and early 1960s.”  Id. at *8.  One of plaintiff’s own experts, Barry Castleman, acknowledged that the link between asbestos and mesothelioma “had only recently been established” as late as 1973.  Id.  At most, plaintiff created an issue of fact that was relevant to ordinary negligence.  Id.  To meet an exception to Alaska’s statute of repose, however, plaintiff had to create an issue of fact as to gross negligence.  See id.  Plaintiff failed to do so, and the trial court’s dismissal was affirmed.  Id.

II.       CBS Corp. v. Ulbricht, 2020 WL 622940 (Wash. Ct. App. Feb. 10, 2020)

  1. Factual and Procedural Background

In CBS Corp. v. Ulbricht, plaintiff alleged asbestos exposure while working at the Texaco Oil Refinery in Anacortes from 1973-1999.  Id. at *1.  Defendant PM Northwest was the remaining sole defendant at trial, but its insurers declined to provide defense or indemnity.  Id. at *2.  To minimize risk, the parties reached a covenant judgment for $4.5 million.  Id.  The insurer intervened alleging that the trial court improperly considered previous asbestos verdict information and assigned error to a number of findings of fact.  Id. at *3.

  1. Appellate Court’s Decision

The appellate court cited Chausee v. Maryland Cas. Co., 60 Wn. App. 504, 509-10, 803 P.2d 1339 (1991) for the reasonableness factors concerning covenant judgments.  The appellate court found that the trial court had properly applied these factors, and that the finding and conclusions were appropriate given the evidence presented, including reviewing previous verdicts, and evaluating the “risks and costs” involved.  CBS Corp., 2020 WL 622940 at *4.

III.       Coogan v. Borg-Warner Morse TEC Inc., 2020 WL 824192 (Wash. Ct. App. Feb. 19, 2020)

  1. Factual and Procedural Background

Coogan v. Borg-Warner Morse TEC Inc. was brought as a wrongful death action after the plaintiff, Gerry Coogan, succumbed to peritoneal mesothelioma.  Id. at *1.  The jury found defendants Genuine Parts Company (“GPC”) and National Automotive Parts Association (“NAPA”) liable for decedent’s death, and entered an $81.5 million verdict:  $30 million to the decedent’s wife for loss of marital consortium, $30 million to the decedent’s estate for pain and suffering, $10 million to each of the decedent’s daughters for their damages, and $1.5 million for the loss of the decedent’s services.  Id.  Defendants appealed.

  1. Appellate Court’s Decision

The appeals court reversed different portions of the damages verdict on independent grounds.  Id.

It held that the trial court’s exclusion of expert medical opinion showing that the decedent had liver cirrhosis and a shorter life expectancy was erroneous, and that the trial court had acted as a trier fact rather than a gatekeeper.  Id. at *9.  The appeals court found this exclusion of testimony to be an abuse of discretion under ER 702.  Id.  Further, even though decedent’s history of alcohol consumption had the potential to be prejudicial, the trial court could have precluded the defense expert from referencing alcohol in his testimony, rather than exclude the opinion completely.  Id. at *10.

The appeals court affirmed the liability verdict against defendants but ordered a new damages trial on the loss of consortium and loss of service claims.  Id.  Additionally, the appeals court found that the $30 million verdict for pain and suffering was excessive.  Id. at *12.  Defendants argued that the liability verdict should have been reversed as well due to misconduct by the plaintiffs’ trial attorney.  Id.  While the appeals court agreed that there was some “improper” questioning by the plaintiffs’ attorney and conduct that violated the trial court’s pretrial ruling, it did not require a reversal of the liability verdict.  Id. at *13-14.  Of the three-judge appellate panel, one judge dissented and asserted that the court should have reversed the liability verdict due to misconduct by plaintiffs’ attorney.  Id. at *23.

IV.       Clevenger v. Crane, 2020 WL 1644345 (Wash. Ct. App. Mar. 16, 2020)

  1. Factual and Procedural Background

Clevenger was a wrongful death action brought by the widow and personal representative of decedent James Clevenger who allegedly died from mesothelioma or an asbestos-related cancer.  2020 WL 1644345 at *2.  Decedent alleged exposure to various asbestos-containing products between 1974 and 2015 while he worked as a boiler technician in the Navy, as a maintenance mechanic at a city water department, and as a pipefitter.  Id. at *1.  At trial, the jury found that decedent’s disease was “asbestos-related” and that defendant John Crane Inc.’s (“JCI”) product “was not reasonably safe as designed at the time the product was sold.”  Id.  Despite this finding, the jury found neither the unsafe condition of the defendant’s products nor their lack of adequate warning or instruction was the proximate cause of decedent’s injury.  Id.  Appeal followed, challenging the jury instruction addressing proximate cause.  Id.

  1. The Appellate Court’s Analysis and Decision

            The jury instruction in question required plaintiff to prove that JCI’s product was “a substantial factor in bringing about his mesothelioma.”  Id. at *2.  Plaintiff argued this was error and that her burden was to prove that exposure to JCI’s product resulted in an asbestos-related disease, be it mesothelioma or lung cancer.  Id.  The appeals court reasoned that plaintiff was entitled to argue her theory of exposure, whether the disease was mesothelioma or lung cancer, and plaintiff had alleged Mr. Clevenger suffered from a “condition related to exposure to asbestos and asbestos-containing products” referring to both mesothelioma and lung cancer at opening statements.  Id. at 2-3.  The appeals court recognized that “there is clearly support for the concept that some uncertainty as to the exact biological mechanism resulting in an injury from asbestos exposure does not bar recovery[,]” id. at *8 (citations omitted), and it found the jury instruction deficient.  Id. at *9-10.  The appeals court vacated the trial court’s decision and remanded for new trial.  Id. at *11.

The appeals court also considered a challenge to a jury instruction outlining the proximate cause factors the jury “should consider.”  Id. at *10.  The instruction identified the Lockwood factors.  Id. at n. 73; Lockwood, 109 Wn.2d at 248-49.  The appeals court recognized that while “no case prohibits a jury’s consideration of the Lockwood factors”, it was “concerned” that such an instruction “unduly restricts what the jury ‘may’ consider under the circumstances of a particular case.”  Id. at *11 (citing Barabin v. Albany Int’l Corp., 2009 WL 10725367 at *3 (W.D. Wash. Sept. 18, 2009)).  The court found that this instruction was not prejudicial, however, when the proximate cause instructions were read together and thus was not reversible error.  Id.

Despite this result, the court’s ruling is significant as a warning to counsel in future cases not to craft unduly restrictive proximate causation instructions.  Lockwood itself cautions that evidentiary sufficiency depends on the “unique circumstances” of a case and recognizes that the factors it outlines are not exclusive.  See Lockwood, 109 Wn.2d at 248-49.

V.       Stephens v. Union Pacific Railroad Company, 935 F.3d 852 (9th Cir. 2019)

  1. Factual and Procedural Background

Stephens v. Union Pacific Railroad Company was brought by the plaintiff against his father’s employers, alleging that he was indirectly exposed to asbestos from his father’s work place during the late 1940s to early 1950s.  Id. at 854.  The trial court granted summary judgment in favor of defendants, finding that plaintiff failed to introduce sufficient evidence to raise a genuine issue of material fact as to whether plaintiff was exposed to asbestos from defendant Union Pacific and whether any such exposure was a substantial factor in causing his disease.  Id.

  1. Appellate Court’s Decision

Under Idaho law, plaintiff had to demonstrate “a causal connection between the defendant’s conduct and the resulting injury.”  Id. at 855 (citation omitted).  Applying the substantial factor test, plaintiff needed to demonstrate that the injured person was substantially exposed to the relevant asbestos for a substantial period of time.  Id. at 856 (quoting McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1176 (9th Cir. 2016)).  Plaintiff’s experts, including Dr. William Longo and Dr. Andrew Churg, opined that plaintiff was “exposed to significant levels of airborne asbestos fibers[.]”  Id. at 856.

The court found that a “key premise” of their opinions was that plaintiff was frequently exposed to asbestos, but “both Dr. Longo and Dr. Churg admitted that they had no knowledge of the degree to which Stephens’ father was exposed to asbestos at work.”  Id. at 856-57.  Without that knowledge, experts’ opinions lacked foundation.  Id. at 857.  Testimony that “his father’s work clothes were dusty” did “not establish the frequency with which he was exposed to asbestos dust.”  Id. at 857 (emphasis in original).  Thus, there was no genuine issue of material fact and the trial court’s decision was affirmed.  Id. at 858.


If you have questions about this client alert or related topics, please feel free to contact Michael Madderra. 206.622.5511 or