Proximate Causation, Mitigation of Damages, and Avoidable Consequences

TRANSPORTATION

JUNE 2015

IN THIS ISSUE While transportation-related cases can be won or lost in the liability phase of the litigation, when preparing and trying these matters, good trial lawyers know the importance ofOctober preparing and 2014 presenting proximate cause and damage-related defenses. This article will serve as a reminder that some of the most compelling defenses can be found in facts that support proximate

cause, mitigation of damages, or avoidable consequences defenses.

Proximate Causation, Mitigation of Damages, and Avoidable Consequences

-- The Best Defense is a Good Offense --

ABOUT THE AUTHOR Roy Alan Cohen is a Principal at Porzio, Bromberg and Newman, P.C., in Morristown, New Jersey and, New York City. He is a senior trial lawyer with over 35 years of experience in litigating and trying a wide variety of product liability, toxic tort, construction, environmental and groundwater contamination, professional liability, premises liability, automotive and trucking, class action, and

business litigation matters. He leads trial teams in New Jersey and New York, often working collaboratively with other lawyers around the country. Mr. Cohen has been recognized by peers in numerous professional organizations in which he has served, including as Chair of the IADC’s Toxic and Hazardous Substances Litigation Committee, Chair of the ABA TIPS Commercial Transportation Litigation Committee, Self Insurers and Risk Managers Committee, and Products Liability Committee, and the New Jersey State Bar’s Product Liability and Toxic Tort Section. He has been certified and recertified multiple times since 1987 by the Supreme Court of New Jersey Board on

Trial Certification as a Civil Trial Attorney, and is a frequent author and lecturer on litigation and trial subjects. He can be reached at [email protected].

ABOUT THE COMMITTEE This IADC Committee was formed to combine practices of aviation, rail, maritime with trucking together to serve all members who are involved in the defense of transportation including aviation companies (including air carriers and aviation manufacturers), maritime companies (including offshore energy exploration and production), railroad litigation (including accidents and employee claims) and motor carriers and trucking insurance companies for personal injury claims, property damage claims and cargo claims. The Committee is dedicated to taking advantage of networking and referral opportunities as well as providing substantive knowledge to our members. Learn more about the Committee at www.iadclaw.org. To contribute a newsletter article, contact:

Dennis Woods Vice Chair of Publications and Newsletters Scheer & Zehnder LLP [email protected] The International Association of Defense Counsel serves a distinguished, invitation-only membership of corporate and insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit the civil justice system,

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Those of us who labor in the trenches of Once it is determined that the litigation and trial work often see our defendant’s conduct has been a cause adversaries and fellow defense counsel focus of some damage suffered by the most, if not all, of their attention on defending plaintiff, a further question may arise as the liability aspects of the case. While to the portion of the total damage transportation-related cases can be won or sustained which may be properly lost in the liability phase of the litigation, assigned to the defendant, as when preparing and trying transportation- distinguished from other causes. The related cases, good trial lawyers know the question is primarily not one of the fact importance of preparing and presenting of causation, but of the feasibility and proximate cause and damage-related proofs practical convenience of splitting up the and defenses. This article should serve as a total harm into separate parts which reminder that some of the most compelling may be attributed to each of two or defenses can be found in facts that support a more causes. Where a factual basis can proximate cause, mitigation of damages, or be found for some rough practical avoidable consequences defenses. apportionment, which limits a defendant’s liability to that part of the Apportionment of Damages Based on harm of which that defendant’s conduct Alternative Causes has been a cause in fact, it is likely that the apportionment will be made. Apportionment of damages among multiple Where no such basis can be found, the causes is a well-recognized tort principle courts generally hold the defendant for separate and apart from allocation of liability the entire loss, notwithstanding the fact among multiple parties. Restatement that other causes have contributed to it. (Second) of Torts § 433A (1965) provides in relevant part, that "damages for harm are to The Restatement and Prosser both recognize be apportioned among two or more causes that the concern in apportioning where: (a) there are distinct harms, or (b) responsibility is more practical than there is a reasonable basis for determining the theoretical: is there a “reasonable basis for contribution of each cause to a single harm.1 determining the contribution of each cause to Comment (a) to the Restatement indicates a single harm?” Restatement, supra § that “[t]he rules stated apply also where one 433A(1)(b) at 434. of the causes in question is the conduct of the plaintiff himself, whether it be negligent or The Dafler decision is a mainstay of New innocent.” Restatement, § 433A, Comment Jersey law on the apportionment of damages (a), at 435. Prosser and Keeton, Law of Torts based on alternative causes and provides the § 52 at 345 (5th ed. 1984), explain the issue as jury with the opportunity to examine causes follows: and apportion percentages between them, so that a defendant is not charged with the other causes. In Dafler, the plaintiff alleged that he

1 Restatement, § 433A at 434. See also Dafler v. 1992); Bednar v. Rosen, 247 N.J. Super. 219 (App. Div. Raymark Industries, Inc., 259 N.J. Super. 17 (App. Div. 1991).

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- 3 - TRANSPORTATION COMMITTEE NEWSLETTER June 2015 developed lung cancer only as a result of his The defense expert completely discounted asbestos exposure while working as a any role for asbestos in causing the plaintiff’s shipfitter in close proximity to pipefitters and lung cancer, emphasizing the role of cigarette pipe coverers. However, the evidence clearly smoking as the sole cause in the case and in showed that Mr. Dafler was also a long-term lung cancer in general. Neither plaintiff’s nor cigarette smoker whose lung cancer was also defendant’s expert offered any opinions on attributable to his heavy smoking. Dafler, 259 the percentage apportionment of causation N.J. Super. at 20-23. The plaintiff presented between employment-related exposure to two medical experts: Dr. Guidice, a pulmonary asbestos and long-term smoking. Regardless, specialist, and Dr. Stone, a pathologist. Dr. based on the epidemiological evidence Guidice explained that the cause of plaintiff’s presented, the jury seemed to have asbestosis and later developed lung cancer apportioned the damages for the lung cancer was his occupational exposure to asbestos. according to the relative risk factors for His opinion, and Dr. Stone’s on causation, asbestos (5:1 or 30%) and cigarette smoking created a jury question on the alleged (10:1 or 70%), and then found that plaintiff employment related cause of the cancer, contributed 70% to his lung cancer by which was disputed by defendant’s expert cigarette smoking and that defendant witness. Id. at 25-26. contributed 30% to the lung cancer through its supply of asbestos-products used in Plaintiff’s experts also testified on the connection with plaintiff’s employment. Id. at epidemiological aspects of asbestosis and 26-27. The damage verdict for lung cancer was cigarette smoking, explaining that there is a then molded to reflect this apportionment. “base line” relative risk of 11 cases of lung cancer per 100,000 persons in the general Plaintiff appealed contending that there was population per year. This “base line” is for insufficient evidence in the record to provide people in the general population who do not any basis for apportionment. The Appellate smoke and are not exposed to asbestos. The Division affirmed and held that there was relative risk of lung cancer with industrial ample evidence in the record to submit the exposure to asbestos, like plaintiff’s apportionment issue to the jury. The court occupational exposure, increases five-fold explained: (5:1), or to 55 cases per 100,000 of population per year. The relative risk with cigarette The extant legal precedent supports smoking increases ten-fold (10:1), or to 110 rational efforts to apportion cases per 100,000 of population per year. The responsibility in such circumstances relative risk of exposure to asbestos plus rather than require one party to absorb cigarette smoking is not additive, i.e., 10 + 5 or the entire burden. The jury obviously 15-fold, but becomes what Dr. Guidice accepted the epidemiological testimony described as “multiplicative or synergistic,” or based on relative risk factors, the 50 times (50:1) the “base line,” i.e. 550 cases smoking history over 45 years, and the per 100,000 of population per year. Id. substantial occupational exposure over six years. The synergistically resultant disease, lung cancer, was produced by a

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relative risk factor of 10:1 contributed liability that flows from tortious conduct.2 by plaintiff and 5:1 contributed by While definitions and approaches vary, what defendant. The jury probably shaded is important to know here is that courts do the apportionment slightly in allow for an allocation of either causation or defendant’s favor, 70% instead of two- damages based on alternative facts if the facts thirds, because of the strong emphasis of the case and the expert opinions warrant on cigarette smoking as the greatly application. predominant overall cause of lung cancer in this country. Damages Defenses

The result was rational and fair. We can In the damages end of the case, there are ask no more. This is fairer than defense strategies that include the concepts requiring defendant to shoulder the of speculative damages, apportionment to entire causative burden where its pre-existing injuries, and avoidable contribution in fact was not likely even consequences, all of which have real close to 100%. Or fairer, for certain, consequence in limiting damages in the right than no recovery at all for plaintiff who, case. while a victim of the disease of asbestosis which probably led in part to Speculative Proofs on Damages - An effective the lung cancer, confronts a reluctant defense strategy can often be presented by jury which might not want to saddle a showing that a plaintiff’s damages are so defendant with a 100% verdict in the speculative that they are unreliable and circumstances of a particular case. should be stricken. The law of most states, including New Jersey case law, clearly Id. at 30-32. establishes that damage awards cannot be hypothetical in nature.3 As the New Jersey While this is the approach by New Jersey Supreme Court stated, the “law abhors courts on alternative cause issues, the damages based on mere speculation.”®4 The proximate cause and damages apportionment fact finder “should not be allowed to concepts are difficult to define precisely speculate without the aid of expert testimony across all situations and jurisdictions, in large in any areas where laypersons could not be part because it is grounded in policy concerns expected to have sufficient knowledge or intended to place manageable limits on the experience.”5 Biunno, N.J. Rules of Evidence,

2 See for example, Derdiarian v. Felix Contractor 1987)). New Jersey has clearly defined standards Corp., 51 N.Y.2d 308, 314 (1980); 57A Am. Jur. 2d regarding the admissibility of expert testimony under Negligence § 411. New Jersey Rule of Evidence 702 and 703, which mirror 3 Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. the Federal Rules. A corollary to this well-established 1997). See for example, Derdiarian v. Felix Contractor tenet of jurisprudence is colloquially referred to as the Corp., 51 N.Y.2d 308, 314 (1980); 57A Am. Jur. 2d net opinion rule, “which forbids the admission into Negligence § 411. evidence of an expert’s conclusions that are not 4 Caldwell v. Haynes, 136 N.J. 422, 442 (1994). supported by factual evidence or other data.” State v. 5 Kelly, 300 N.J. Super. at 268 (quoting Lane v. Oil Townsend, 186 N.J. 473, 494 (2006). This rule Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. mandates that an expert “‘give the why and wherefore’

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- 5 - TRANSPORTATION COMMITTEE NEWSLETTER June 2015 comment 1 on N.J.R.E. 702 (2011); See also the alleged injury, then the jury will be Saifer v. Walder, Sondak, & Brogan, P.C., 2007 permitted to allocate a percentage of the N.J. Super. Unpub LEXIS 362 (App. Div. June damages to the pre-existing condition.7 The 22, 2007) (affirming the dismissal of a jury is told that the defendants are not malpractice claim when plaintiff’s expert responsible for any pre-existing injury and no “expressed merely a net opinion on the issue award can be made for damages attributable of damages.”). Accordingly, “the plaintiff solely to a preexisting condition. Plaintiff can ‘must prove damages with such certainty as only recover for the damages attributable to the nature of the case may permit, laying a the aggravation or worsening of a preexisting foundation which will enable the trier of the injury or condition. In these situations, facts to make a fair and reasonable plaintiff has the burden of proving what estimate.’”6 portion of his/her condition is due to the pre- existing injury. Pre-Existing Conditions - Whether it be a pre- existing condition or an aggravation of that Avoidable Consequences - In many states condition, New Jersey law provides the including New Jersey, a plaintiff who defense with an opportunity to allocate unreasonably fails to avoid the consequences damages accordingly. Where plaintiff has a and thereby mitigate damages will have his or previous injury or condition which is shown by her recovery reduced dollar for dollar the defense to have caused or contributed to accordingly. The doctrine of avoidable

of his opinion, rather than a mere conclusion.” net opinion rule, “which forbids the admission into Roseberg v. Tavorath, 353 N.J. Super. 385, 401 (App. evidence of an expert’s conclusions that are not Div. 2002). Therefore, if an expert’s opinion is supported by factual evidence or other data.” State v. unsupported by an evidentiary foundation or simply Townsend, 186 N.J. 473, 494 (2006). This rule consists of bare conclusions, it is inadmissible as a net mandates that an expert “‘give the why and wherefore’ opinion. In Taylor v. Delosso, 319 N.J. Super. 174 (App. of his opinion, rather than a mere conclusion.” Div. 1999), a professional liability case involving an Roseberg v. Tavorath, 353 N.J. Super. 385, 401 (App. architect’s preparation of a site plan, the Appellate Div. 2002). Therefore, if an expert’s opinion is Division overturned the verdict for the plaintiff due to unsupported by an evidentiary foundation or simply the inadequacy of plaintiff’s expert opinions. The court consists of bare conclusions, it is inadmissible as a net held plaintiff’s expert testimony was merely his opinion. In Taylor v. Delosso, 319 N.J. Super. 174 (App. personal opinion, “presented no authority to support Div. 1999), a professional liability case involving an his opinion,” and made no reference to “any written architect’s preparation of a site plan, the Appellate document, or even unwritten custom or practice. Id. at Division overturned the verdict for the plaintiff due to 180. Accordingly, the court concluded that because the inadequacy of plaintiff’s expert opinions. The court plaintiff’s expert testimony was an inadmissible net held plaintiff’s expert testimony was merely his opinion, defendant was entitled to a dismissal as a personal opinion, “presented no authority to support matter of law. Id. at 184. his opinion,” and made no reference to “any written 6 Kelly, 300 N.J. Super. at 268 (quoting Lane v. Oil document, or even unwritten custom or practice. Id. at Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 180. Accordingly, the court concluded that because 1987)). New Jersey has clearly defined standards plaintiff’s expert testimony was an inadmissible net regarding the admissibility of expert testimony under opinion, defendant was entitled to a dismissal as a New Jersey Rule of Evidence 702 and 703, which mirror matter of law. Id. at 184. the Federal Rules. A corollary to this well-established 7 Model Jury Instruction 8.11 F, entitled Aggravation of tenet of jurisprudence is colloquially referred to as the the Preexisting Disability.

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- 6 - TRANSPORTATION COMMITTEE NEWSLETTER June 2015 consequences can be utilized “when the exercising reasonable care are not the injured party’s carelessness occurs after the responsibility of the defendant.10 defendant’s legal wrong has been committed.”8 The doctrine does not impact Conclusion on liability; rather it impacts on the question of diminution of damages, proceeding on the While proving and defending the liability theory that a plaintiff cannot recover for any portion of a case is imperative, lessons portion of the harm that by the exercise of learned over the years show us that cases are ordinary care he could have avoided. So, the won or damages substantially reduced by jury is told that if plaintiff is entitled to attention to detail on causation and damages damages, then the jury should determine proofs, separate and apart from liability whether any of plaintiff's injuries could have proofs. Motions for directed verdict or to been avoided or alleviated by plaintiff's dismiss cases where the Plaintiff has failed to exercise of reasonable care to protect his/her present facts sufficient to prove these own health. It has long been a general rule essential elements must be part of the that a plaintiff has a duty to exercise defense arsenal. In these cases, proximate reasonable care to seek and submit to medical cause and mitigation of damages defenses will and surgical treatment in order to affect a likely yield excellent results when it comes cure and minimize damages. Failure or refusal time for jury deliberations. These elements to do so bars recovery for consequences and their proofs are as important to the which could have been avoided by the success of a trial as those involving liability exercise of such care.9 Damages that could and can ultimately win or lose the day. have been prevented by the plaintiff's

8 Model Jury Instruction 8.11B, entitled Duty to free from danger to life and health and extraordinary Mitigate Damages by Medical and Surgical treatment; suffering, and, according to the best medical or see also D’Aries v. Schell, 274 N.J. Super 349, 360 surgical opinion, offers a reasonable prospect of (App. Div. 1994) (quoting Ostrowski v. Azzara, 111 N.J. restoration or relief from the disability." Accord, 429, 437-38) (1988) (emphasis in original); see also Albert v. Monarch Federal Savings and Loan Assoc., Bryant v. Calantone, 286 N.J. Super. 362, 369 (App. 327 N. J. Super. 462 (App. Div. 2000). Div. 1996) (“ ‘Damages that might be avoided or 10 The Special Interrogatories provided to the jury on mitigated are . . . not recoverable.’”) (quoting Gideon this avoidable consequences issue will be read as v. Johns-Manville Sales Corp., 761 F.2d 1129, 1139 follows: (5th Cir. 1985)).  Did plaintiff contribute to his/her injury by 9 Plaintiff need not take unreasonable risks, nor take failing to return to the doctor's office or any risk to life, even slight, nor undergo great pain or otherwise failing to follow his/her doctor's other suffering to reduce injury inflicted by another. advice? Yes____ No___ If yes, then However, a refusal to follow surgical advice may be answer Question No. 2; if no, cease unreasonable if, for example, plaintiff refuses an deliberations. operation which offers a reasonable prospect of  Set forth in terms of percentages that aspect restoration or relief and poses no danger to life or of the plaintiff's whole injury that occurred as health. See also Budden v. Goldstein, 43 N.J. Super. a result of plaintiff's failure to follow 340, 350 (App. Div. 1957) which held that a refusal to [doctor's] advice. ______% undergo an operation is "not unreasonable and therefore unjustifiable in the legal sense, unless it is

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PAST COMMITTEE NEWSLETTERS

Visit the Committee’s newsletter archive online at www.iadclaw.org to read other articles published by the Committee. Prior articles include:

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