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Proximate Causation, Mitigation of Damages, and Avoidable Consequences

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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, the legal profession, society and our members. w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 2 - TRANSPORTATION COMMITTEE NEWSLETTER June 2015 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). w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 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 w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 4 - TRANSPORTATION COMMITTEE NEWSLETTER June 2015 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.
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