Mavroudis v. Pittsburgh-Corning Corp. (1997)

Our plain-English summary of Mavroudis v. Pittsburgh-Corning Corp. (Washington Court of Appeals, April 28, 1997).

Michael Mavroudis, Jr., a longtime Navy man, developed mesothelioma within months of retiring in 1993, at age 59. He and his wife sued several asbestos product makers. Mr. Mavroudis had worked for nearly four years on the conversion of the U.S.S. Wright at Puget Sound Naval Shipyard, removing old materials and handling new ones. Witnesses said Kaylo insulation, made by Owens-Corning Fiberglas (OCF), was one of only three insulation types used there and gave off large amounts of asbestos when cut. A jury found OCF liable on failure-to-warn theories and awarded over one million dollars. Eight other defendants had settled for $38,500 in total. OCF appealed. The Court of Appeals held that a substantial-factor causation instruction was proper, because the expert could not say which exposures caused the disease. It held that the state product liability act did not apply because exposure and tissue changes came before its 1981 effective date. It found one duty-to-warn instruction wrong but harmless, since the jury returned a single verdict that the strict liability claim also supported. It found no prejudice from the late settlement reasonableness hearing. The court affirmed.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Washington Court of Appeals, 1st Division
• Decided: April 28, 1997
• Citation: 935 P.2d 684
• Docket: No. 36279-8-I
• Stage: Appeal from judgment after trial
• State: Washington

Outcome. The Court of Appeals affirmed the judgment for the Mavroudis plaintiffs against Owens-Corning Fiberglas Corp. and affirmed the trial court's finding that the pretrial settlements were reasonable.

What the court held. In multi-supplier asbestos cases where the expert says all of the plaintiff's exposure probably played a role and the actual cause cannot be identified, a substantial-factor causation instruction is proper instead of but-for. A claim arises under the Washington Product Liability Act when the plaintiff is exposed to asbestos, not when the disease is discovered.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Failure to Warn, Trial Procedure and Discovery, Settlements and Releases.

Why this case is relevant

In this decision the Washington Court of Appeals took up a question it said no published Washington case had directly decided: whether substantial-factor causation instructions are proper in asbestos cases. It held that multi-supplier asbestos cases call for the substantial-factor test rather than the but-for test where the expert testifies that all of the plaintiff's exposure probably played a role and it is not possible to tell which exposures caused the disease. On the Washington Product Liability Act, the court applied what it called settled law: a claim arises when the plaintiff is exposed to asbestos, not when the disease is discovered.

Later decisions in our library cite it mainly for its causation rule. Washington Court of Appeals decisions and federal trial courts in the Western District of Washington have relied on it for the point that a defendant's product can be a proximate cause if it was a substantial factor, even if the injury would have occurred without it. The Washington Supreme Court has cited it on the Act's effective date and on common-law strict liability for earlier claims. One later appellate decision also cited its ruling that an instruction error was harmless because a single verdict rested on more than one claim.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Michael M. Mavroudis, Jr.: mesothelioma; died

Who	Work	Where	When	Products
Michael M. Mavroudis, Jr.	Navy; removing old materials from the ship and maintaining and distributing stocks of new materials (shipyards and maritime work)	Puget Sound Naval Shipyard, U.S.S. Wright conversion, Washington	1957-1963	pipe and block insulation, Kaylo (Owens-Corning Fiberglas)

The defendants

• Owens-Corning Fiberglas Corp. (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Brewer v. Fibreboard Corp. (Washington Supreme Court, 1995). The Washington Supreme Court affirmed that the $175,000 Manville Trust settlement was reasonable but held the setoff should be only the $21,000 actually received, and remanded for recalculation of the judgment against Fibreboard, Owens-Corning Fiberglas and Pittsburgh Corning at $290,643.56, a result favoring the Brewers.
• Eagle-Picher Industries, Inc. v. Balbos (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory judgments for the Balbos and Knuckles plaintiffs against Eagle-Picher and the other defendants, except that it reversed the Knuckles judgment against Porter Hayden for lack of proof, and it ordered a new trial on punitive damages against Owens-Illinois and Eagle-Picher.
• Thacker v. Unr Industries, Inc. (Illinois Supreme Court, 1992). The Illinois Supreme Court affirmed the appellate court, which had upheld the jury verdicts for plaintiff Lois Thacker and denied the Manville Fund's request for judgment n.o.v.
• Sofie v. Fibreboard Corp. (Washington Supreme Court, 1989). The Washington Supreme Court held the statutory cap on noneconomic damages (RCW 4.56.250) unconstitutional under the state jury-trial right, rejected the defendants' claims of trial error, and reinstated the jury's full award to the Sofies against the asbestos manufacturers.
• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.
• O'connor v. Raymark Industries, Inc. (Massachusetts Supreme Judicial Court, 1987). The court affirmed the judgment for Raymark Industries after a jury found O'Connor was exposed to Raymark's asbestos products but that the exposure did not cause his mesothelioma; the executrix lost.
• Murphree v. Raybestos-Manhattan, Inc. (U.S. Court of Appeals, Sixth Circuit, 1982). The Sixth Circuit reversed the jury verdict for defendant Raybestos-Manhattan and remanded for a new trial, ruling for the plaintiff widow on the limitations and causation-instruction issues.
• Viereck v. Fibreboard Corp. (Washington Court of Appeals, 1st Division, 1996). The Court of Appeals affirmed the judgment on the jury verdict for Virgil Viereck's estate and his wife Julia Viereck against Owens-Corning Fiberglas, holding that pre-WPLA law applied and that the evidentiary rulings were within the trial court's discretion.
• Krivanek v. Fibreboard Corp. (Washington Court of Appeals, 1st Division, 1993). The court affirmed the liability finding against Owens-Corning Fiberglas and the damages awards to Mr. Krivanek's estate and children, but reversed the denial of a new trial on Mrs. Krivanek's damages and remanded for retrial on her damages only.
• Koker v. Armstrong Cork, Inc. (Washington Court of Appeals, 1st Division, 1991). The court rejected most of Celotex's and Raymark's challenges but reversed the jury verdict for Lewis and Roberta Koker and remanded for a new trial because of an erroneous lost-chance-of-survival instruction.

Later decisions citing this one

21 later decisions in our library cite this one:

• Walston v. Boeing Company (Washington Supreme Court, 2014). The Washington Supreme Court affirmed the Court of Appeals and remanded for entry of summary judgment for Boeing, ruling against Walston and his estate.
• Lunsford v. Saberhagen Holdings, Inc. (Washington Supreme Court, 2009). The Washington Supreme Court affirmed the Court of Appeals, held that the trial court erred in dismissing the Lunsfords' strict product liability claims against Saberhagen Holdings, and remanded for further proceedings, so the Lunsfords won and Saberhagen lost.
• Sorrentino v. Ammco Tools, Inc. (Washington Court of Appeals, 1st Division, 2024). The Court of Appeals affirmed the judgment for Sorrentino's estate against Volkswagen AG and Volkswagen Group of America, upholding the denial of their JMOL motion, their three proposed jury instructions, and personal jurisdiction over VWAG.
• Holdsworth v. Scapa Waycross, Inc. (Washington Court of Appeals, 1st Division, 2023). The Court of Appeals affirmed the jury verdict of about $16.7 million for the Holdsworth estate and Sherrie Holdsworth against Scapa Waycross, and upheld the denial of Scapa's motions for judgment as a matter of law and for a new trial.
• Budd v. Kaiser Gypsum Company, Inc. (Washington Court of Appeals, 1st Division, 2022). The Court of Appeals affirmed the jury's $13,426,000 verdict for Raymond Budd against Kaiser Gypsum Company, rejecting all of Kaiser's challenges.
• Roemmich v. 3M Company (Washington Court of Appeals, 1st Division, 2022). The court affirmed the verdict for 3M on the strict products liability claim, but reversed and remanded for a new trial on the Roemmiches' negligence claim because of an erroneous proximate cause instruction and an unsupported superseding cause instruction.
• Estenson v. Caterpillar Inc. (Washington Court of Appeals, 1st Division, 2015). The Court of Appeals affirmed the judgment of about $4.5 million entered on the jury verdict for the Estate of Edwin Estenson against Caterpillar, upholding denial of summary judgment, a new trial, and vacatur of the verdict.
• Ehlert v. Brand Insulations, Inc. (Washington Court of Appeals, 1st Division, 2014). The Court of Appeals affirmed the judgment for Brand Insulations, upholding dismissal of the widows' strict liability claims, the general negligence instruction and exclusion of the newspaper articles, and did not reach Brand's cross appeal.
• Walston v. Boeing Company (Washington Court of Appeals, 2nd Division, 2013). The Court of Appeals reversed the trial court's denial of Boeing's summary judgment motion and remanded for entry of summary judgment for Boeing, ruling against Walston.
• Butler v. Amtico International Inc. (Washington Court of Appeals, 1st Division, 2008). The Court of Appeals reversed the trial court's summary judgment dismissing James and Kathleen Butler's claim against Domco Products, the successor to tile maker Azrock, finding enough evidence of exposure and cumulative causation for trial.
• Kimball v. Asbestos Corporation Ltd. (Washington Court of Appeals, 1st Division, 2008). The Court of Appeals reversed the trial court's summary judgment for Elliott Company and ruled for Ernest Kimball, finding enough evidence of exposure and causation for a jury; it did not review the order striking evidence.
• Taylor v. Union Carbide Corporation (Washington Court of Appeals, 2nd Division, 2008). The Court of Appeals reversed the summary judgment granted to Union Carbide and remanded for trial, ruling for David Taylor and his wife.
• Lunsford v. Saberhagen Holdings, Inc. (Washington Court of Appeals, 1st Division, 2007). The Court of Appeals reversed the trial court's partial summary judgment for Saberhagen, holding that strict product liability applies to Lunsford's 1958 exposure, and remanded the case.
• McPhee v. Ford Motor Company (Washington Court of Appeals, 1st Division, 2006). The Court of Appeals affirmed summary judgment for Ford Motor Company, rejecting Marvin McPhee's claim over his wife Elaine's fatal mesothelioma because his medical expert's declaration contradicted his deposition and was too conclusory to show causation.
• Perkins v. United States (U.S. District Court, Western District of Washington, 2024). After a bench trial, the court entered judgment for the United States and against the plaintiff, finding she did not prove that actionable Navy conduct caused Geraldine Perkins's mesothelioma.
• Clayton v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, 2019). The court granted Syd Carpenter's motion for partial summary judgment on the strict liability, conspiracy and breach of warranty claims, denied it on unspecified miscellaneous claims, and granted the Claytons' motion against Syd Carpenter's government contractor defense.
• Jack v. Dco, LLC (U.S. District Court, Western District of Washington, 2019). The district court granted DCo's and Ford's renewed motions for judgment as a matter of law on the plaintiffs' remaining post-sale failure-to-warn negligence theory and directed entry of judgment for the defendants.
• Barabin v. Scapa Dryer Fabrics, Inc. (U.S. District Court, Western District of Washington, 2018). The district court denied Geraldine Barabin's motion for a partial new trial on non-economic damages and denied Scapa Dryer Fabrics' renewed motion for judgment as a matter of law, leaving the jury's negligence verdict for the Barabins in place.
• Jack v. Borg-Warner Morse Tec, LLC (U.S. District Court, Western District of Washington, 2018). The court granted Union Pacific's summary judgment motion and granted in part and denied in part the motions of Ford and Borg-Warner, leaving Plaintiffs' exposure claims for removal of Borg-Warner clutches and for several Ford brake exposures for trial. It also granted Plaintiffs summary judgment on some defense claims, such as superseding cause, the sophisticated purchaser defense and, against Borg-Warner, failure to mitigate, and denied it on others.
• Botts v. US (U.S. District Court, Western District of Washington, 2013). The district court granted the United States' motion for summary judgment, ending Roger and Carol Botts' Federal Tort Claims Act suit over Mr. Botts' mesothelioma, because they could not show his Shipyard deliveries were a substantial factor in causing it.
• Stevens v. CBS Corporation (U.S. District Court, Western District of Washington, 2012). The district court denied the summary judgment motions of CBS Corporation (as Westinghouse's successor), Warren Pumps, LLC and Cleaver-Brooks, Inc., so Roland and Shirley Stevens' claims go forward.

Amounts in the opinion

• in excess of one million dollars (compensatory)
• $38,500 (settlement)

On our site

• Washington Mesothelioma Lawyer: Asbestos Claims, Deadlines & Compensation

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

935 P.2d 684 (1997)

86 Wash.App. 22

Denise J. MAVROUDIS, for herself and as Personal Representative of the Estate of Michael M.

Mavroudis, Jr., Deceased, Respondent,

v.

PITTSBURGH-CORNING CORP.; Armstrong Cork Co.; GAF Corp., individually and as successor in

interest to Ruberoid Co.; Owens-Illinois, Inc., a/k/a Owens-Illinois Glass Co.; Garlock, Inc.; T & N

plc, f/k/a Turner & Newall, PLC; Anchor Packing Co.; Foster-Wheeler Energy Corp.; E.J. Bartells

Co.; and Uniroyal, Inc., Defendants, and Owens-Corning Fiberglas Corp., Appellant.

No. 36279-8-I.

April 28, 1997.

Court of Appeals of Washington, Division 1.

[*685] Michael James Bond, Ronald Clayton Gardner, Seattle, Steven George Wraith, Philip B. Grennan, Lee, Smart, Cook, Martin & Patterson, Seattle, for Appellant.

Mark Leemon, William Rutzick, Schroeter, Goldmark & Bender, Seattle, for Respondent.

KENNEDY, Acting Chief Judge.

Owens-Corning Fiberglas Corporation (OCF) appeals the judgment in an asbestos-related product liability and negligence action that was entered following the jury's findings that OCF provided a product that was not reasonably safe in that adequate warnings of the dangerous aspects of the product were not given, that OCF negligently failed to warn of these dangers, and that OCF thereby proximately caused the plaintiff's decedent, Michael M. Mavroudis, Jr., to contract mesothelioma. OCF contends that the trial court misinstructed the jury by giving a "substantial factor" instruction in place of a "but-for" instruction with respect to proximate causation and by giving an instruction that the duty to warn attaches whenever a reasonable person using the product would want to be warned of the risk of harm, rather than an instruction that the duty to warn arises whenever a reasonably prudent manufacturer exercising ordinary care would warn. OCF also contends that the trial court erred by failing to apply the Washington Product Liability Act, in that the diagnosis of mesothelioma was made after the effective date of the Act. Finally, OCF contends that the trial court erred by entertaining [*686] a post-trial reasonableness hearing, by analyzing the pretrial settlements as of the date of the hearing rather than as of the date of the settlements, and by finding that the settlements were reasonable in the absence of substantial evidence. We conclude that the trial court properly gave a "substantial factor" instruction with respect to proximate cause. We also conclude that the trial court's misinstruction with respect to when the duty to warn arises was harmless error in light of the single verdict rendered with respect to both theories of liability. In accord with settled law, we also conclude that the trial court did not err by failing to apply the Washington Products Liability Act, in that both the injuryproducing event, exposure to asbestos, and the tissue changes that eventually led to the diagnosis took place before the effective date of the Act. We also conclude that OCF was not prejudiced by the delay in holding the reasonableness hearing, and that the trial court properly focused upon the reasonableness of the settlements in light of information available to plaintiff at the time the settlements were made. We decline to address OCF's challenge to the sufficiency of the evidence presented at the reasonableness hearing, due to inadequate briefing.

Accordingly, we affirm the judgment entered in favor of the plaintiff and affirm the trial court's reasonableness determination. DISCUSSION

Michael M. Mavroudis, Jr., had a long and successful career in the United States Navy before retiring in 1993. Twice he worked on ship conversions, once in Philadelphia in the early 1950s and again at the Puget Sound Naval Shipyard in the late 1950s and early 1960s. The work at the Puget Sound Naval Shipyard involved the conversion of the U.S.S. Wright.

That assignment lasted nearly four years, during which Mr. Mavroudis's duties included removing old materials from the ship and maintaining and distributing stocks of new materials for the ship. An asbestos-based product known as Kaylo and produced by OCF was one of only three types of insulation used on the U.S.S. Wright conversion project, according to a person who worked as an insulator on that project. This same witness testified that most of the insulation work done on the Wright was installing pipecovering. Mr. Mavroudis, too, recognized OCF as a major supplier to the U.S.S. Wright project, and testified that his time on the Wright project is when he had the most asbestos exposure. An industrial hygienist testified that Kaylo gave off very substantial amounts of asbestos when it was cut.

Within a few months after his retirement, Mr. Mavroudis discovered that he had mesothelioma. He was 59 years old at that time. Mr. Mavroudis is now deceased. Denise J. Mavroudis, his personal representative, has been substituted as a party plaintiff.

Dr. Samuel Hammar, a pathologist specializing in asbestos-related disease, testified that the asbestos included in the Kaylo product and the asbestos contained in other asbestos-based products handled by Mr. Mavroudis can cause mesothelioma. He also testified that scientific information indicated that all of Mr. Mavroudis's exposure to asbestos at Puget Sound Naval Station from 1957 to 1963 probably played a role in causing the mesothelioma, and that he could not say which exposures were, in fact, the cause of the condition. He also testified that as little as 10 percent of Mr. Mavroudis's asbestos exposure would have been sufficient to cause mesothelioma.

Dr. Hammar testified that the cellular changes which led to Mr. Mavroudis's mesothelioma began before 1981. Mr. Mavroudis and his wife brought this suit against OCF and others. The case was submitted to the jury with claims against OCF for (1) strict liability for selling a product not reasonably safe as designed, (2) strict liability for selling a product not reasonably safe in that adequate warnings were not given with respect to the dangers presented by the product, and (3) negligence in failing to warn of the danger of exposure to Kaylo. The jury rendered a verdict in favor of the Mavroudises on the warning and negligence theories, and against the Mavroudises on the not-reasonably-safe-as-designed theory. The [*687] jury entered a single damages award in a sum in excess of one million dollars.

CAUSATION

The trial court gave one proximate cause instruction for all theories of liability.[1] This instruction is commonly known as a "substantial factor" instruction. It relieved the plaintiff of proving that, but for the exposure to Kaylo, Mr. Mavroudis would not have contracted mesothelioma and instead allowed the plaintiff to establish causation by showing that the defendant's negligence or product was a substantial factor in bringing about the injury, even though the injury would have occurred without it:

The term "proximate cause" means a cause which in direct sequence, unbroken by a new independent

cause, produces the injury complained of.

There may be one or more proximate causes of an injury.

If you find that two or more causes have combined to bring about an injury and any one of them operating

alone would have been sufficient to cause the injury, each cause is considered to be a proximate cause of

the injury if it is a substantial factor in bringing it about, even thought the result would have occurred without it. A substantial factor is an important or material factor and not one that is insignificant.

If you find that the sole proximate cause of any injury to plaintiff was the act or omission of some other

person(s) or entity(ies) not party to this lawsuit, then your verdict should be for the defendant as to that injury. [2] OCF argues that the trial court erred by failing to require Mr. Mavroudis to prove that, without the exposure to Kaylo, he would not have contracted mesothelioma. OCF admits that in certain circumstances a substantial factor instruction is appropriate but argues that this is not such a case because Mr. Mavroudis failed to establish that he could not prove cause in fact. In addition, OCF argues that in cases in which the burden of proof is properly relaxed from but-for causation to the substantial factor standard, it follows as a matter of policy that liability should not be joint and several but rather should be apportioned in accord with the amount of risk created by each exposure. We will examine each of these contentions in turn.

Although we are aware that substantial factor causation instructions are commonly given in asbestos-injury cases tried in Washington, no published Washington case cited by the parties or found by this court through independent research directly addresses the propriety of substantial factor instructions in asbestos-injury cases.[3]

In a recent pesticide case, Hue v. Farmboy Spray Co., Inc., 127 Wash.2d 67, 896 P.2d 682,[4] the Supreme Court held that the trial court correctly determined that the plaintiffs did not have to prove or apportion individual causal responsibility, and that it was enough that plaintiff show the defendant's pesticide was contained in a mixture of [*688] pesticides that was applied by crop-dusting airplanes and was, therefore, "`part of a cloud that then was the proximate cause of damage.'"[5] Unlike Instruction 22 in the instant matter, Hue did not require a showing that an individual defendant's contribution to the pesticide cloud would have been sufficient to cause the injury. Professor Keeton recommends this rule. In Keeton's words: When the conduct of two or more actors is so related to an event that their combined conduct, viewed as a

whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause in fact of the event.[6]

In Hue, the plaintiff only needed to show that a portion of a defendant's pesticide became part of the total cloud of pesticide that caused the damage. Instruction 22 in the present case required that the jury find that the quantity of OCF's asbestos to which Mr. Mavroudis was exposed would have been a sufficient cause of the mesothelioma, standing alone, even if the injury would have occurred without exposure to that specific product. Hue arguably sets an easier standard for asbestos-injury plaintiffs to meet than instruction 22 because under the Hue approach, any contribution to the exposure, no matter how insignificant in relation to the overall exposure, apparently could be the basis for liability. By citing Lockwood in conjunction with Martin v. Abbott Laboratories[7], the case eliminating the need to show individual causal responsibility in DES cases, the Hue court certainly implied that asbestos-injury plaintiffs need not prove or apportion individual causal responsibility but need only show that the defendant's asbestos products were among those in the plaintiff's work environment when the injurious exposure occurred.

While the substantial factor test may be unclear with regard to an insubstantial cause that combines with other causes to produce an injury, we need not reach that issue in this case. If the substantial factor instruction in this case went further than the Supreme Court would require in an asbestos-injury case under the reasoning in Hue, the "error" was not prejudicial to OCF because it heightened Mr. Mavroudis's burden by requiring him to show that exposure to OCF's product, Kaylo, standing alone, would have been sufficient to cause Mr. Mavroudis's injury. Mr. Mavroudis met that standard in this trial by showing that Kaylo was one of only three asbestos-containing products used during the time that he was assigned to the U.S.S. Wright project, that Kaylo gave off very substantial amounts of asbestos when cut, and that as little as 10 percent of the asbestos exposure Mr. Mavroudis received would have been sufficient to cause his mesothelioma. Thus, regardless of the possible effect of Hue with respect to causation instructions in future asbestos-injury trials, it is enough to say, here, that the trial court did not err in giving Instruction 22, in that substantial evidence provided a basis for a rational jury to find that exposure to Kaylo, standing alone, would have been sufficient to cause Mr. Mavroudis to contract mesothelioma, even though he might have contracted the cancer from his exposure to the other asbestos-containing products used on the Wright project, instead of from Kaylo.

In Daugert v. Pappas[8], the Supreme Court observed that a change from the but-for [*689] to the substantial factor test for causation is normally justified only when a plaintiff is unable to show that one event alone was a cause of the injury: As noted by Dean Prosser, the substantial factor test aids in the disposition of three types of cases. First, the test is used where either one of two causes would have produced the identical harm, thus making it

impossible for plaintiff to prove the "but for" test. In such cases, it is quite clear that each cause has played so important a part in producing the result that responsibility should be imposed on it. Second the test is used where a similar, but not identical, result would have followed without the defendant's act. Third, the test is used where one defendant has made a clearly proven but quite insignificant contribution to the result, as

where he throws a lighted match into a forest fire. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and

Keeton on Torts § 41 (5th ed.1984).

OCF argues that this is not an appropriate case for application of the substantial factor test because Mr. Mavroudis failed to show that he could not prove that one event alone was the cause of the injury. We disagree with that view of the evidence in the record. Dr. Hammar testified that although all of Mr. Mavroudis's exposures to asbestos while working at the Puget

Sound Naval Station from 1957 to 1963 probably played a role in causing the mesothelioma, and that as little as 10 percent of the total exposure would have been sufficient to cause the injury, he could not say which exposures were, in fact, the cause of the mesothelioma. This is exactly the kind of situation that calls for application of the substantial factor test, in order that no supplier enjoy a causation defense solely on the ground that the plaintiff probably would have suffered the same disease from inhaling fibers originating from the products of other suppliers.[9] In sum, we conclude that multi-supplier asbestos-injury cases call for the substantial-factor test of causation rather than the but-for test, in cases such as this one, wherein the expert witness testifies, as did Dr. Hammar, that all of the plaintiff's exposure probably played a role in causing the injury and that it is not possible to determine which exposures were, in fact, the cause of the condition. Whether the form of the instruction should be similar to the one used in this case, or similar to the one seemingly approved by the Hue court is an issue that we need not reach, in that Instruction 22, even if more stringent in its requirement on plaintiffs than Hue would seem to require, falls well within the parameters of substantial factor causation theory.

OCF requests that we add a market share proportionality rule in cases where the substantial factor test is properly used, similar to that developed in the DES cases. To the extent that the Hue analysis may actually be applied to asbestos-injury cases in the future, OCF's argument is persuasive. However, the Hue standard was not applied in the instant matter. Moreover, the Legislature has specifically exempted causes of action relating to "hazardous wastes or substances" from the general restriction of joint and several liability contained in the 1986 tort reform act.[10] The Supreme Court has held that this exemption includes cases relating to asbestos-caused injuries.[11] OCF's argument is better addressed to the Legislature than to the courts.

In its reply brief, OCF argues for the first time that the instruction was erroneous because it did not require the jury to find that OCF asbestos fibers were "actively operating" such that they would be an actual cause rather than a potential cause. An issue raised for the first time in a reply brief [*690] will not be considered by the appellate courts.[12] WASHINGTON PRODUCT LIABILITY ACT

OCF next claims that the trial court erred by not applying the Washington Product Liability Act in that Mr. Mavroudis did not discover his injury until 1993, well after the effective date of the Act. The WPLA only applies to "claims arising on or after July 26, 1981."[13] In several prior cases we have held that a cause of action "arose" when the plaintiff was exposed to asbestos, not when he discovered his injury.[14] The issue is now settled as a matter of law, and we decline to re-examine it. Here, the record reflects that both the exposure and the tissue changes leading to the disease occurred well before the effective date of the Act.

DUTY-TO-WARN INSTRUCTION

OCF assigns error to jury instruction 16, and to the trial court's failure to give proposed instructions 48 and 49. All three instructions relate to the negligence claim only. Instruction 16, OCF argues, misstated the law and is confusing and misleading. Instruction 16 was as follows:

A manufacturer of products is under a duty to use ordinary care to test, analyze and inspect the products it sells, and is charged with knowing what such tests should have revealed.

A manufacturer has a duty to use ordinary care to keep abreast of scientific knowledge, discoveries,

advances and research in the field, and is presumed to know what is imparted thereby.

When a product manufacturer becomes aware or should have become aware of dangerous aspects of its

product, it has a continuing duty to warn of such dangerous aspects, even though the dangerous aspects are

discovered after the product has left its hands. In such a case, the manufacturer is under a duty to act with regard to issuing warnings or instructions concerning the danger in a manner that a reasonably prudent

manufacturer would act in the same or similar circumstances. This duty is satisfied if the manufacturer

exercises reasonable care to inform product users.

This duty to warn attaches, not when scientific certainty of harm is established, but whenever a reasonable person using the product would want to be informed of the risk of harm in order to decide whether to expose

himself to it.[15]

At trial OCF objected on the grounds that a reasonably prudent manufacturer standard was more appropriate.[16] In Stewart v. State,[17] the Supreme Court held that an objection must apprise the judge of the "precise points of law involved." The Stewart court found the objection inadequate where the objecting party cited "neither theory nor authority."[18] Here, although OCF cited theory, it failed to cite authority. Nevertheless, we hold that the objection was sufficient to preserve the issue for review.

Defendant's proposed instructions numbers 48 and 49 both differ from instruction 16 with respect to the final paragraph. Proposed instructions 48 and 49 each substituted a new paragraph for the final paragraph of instruction 16. The new paragraph changed the reasonable user theory of instruction 16 to a reasonable manufacturer theory: "This duty to warn attaches, not when scientific certainty of harm is established, but whenever [*691] a reasonably prudent manufacturer exercising ordinary care would warn."[[19]]

Our Supreme Court has described negligence analysis as a "seller-oriented" standard, and strict liability as a "buyer-oriented" standard.[20] Under the negligence test, the duty to warn does not attach until the risk becomes apparent to the manufacturer.[21] The final paragraph of Instruction 16 shifted the focus from what a reasonable manufacturer would do to what a reasonable consumer would want, without reference to whether the manufacturer is aware of the risk. We hold that the trial court erred with respect to the last paragraph of Instruction 16.

The trial court apparently relied on this court's opinion in Koker as authority for the final paragraph of the instruction. In Koker the trial court gave and this court quoted an instruction similar to that in this case, and including a final paragraph identical to that in instruction 16 of this case. The trial court's and the Mavroudises' reliance on Koker is misplaced because the appellant in Koker did not put that language at issue on appeal and this court did not consider the propriety of that language.[22] The Supreme Court has rejected use of the Koker instruction in a negligence case.[23]

We only reverse where an error is prejudicial, however.[24] Here, the error was harmless because the jury rendered a single monetary verdict on both the strict liability product-warning claim and the negligent failure-to-warn claim. Because we affirm the judgment with respect to the strict liability product-warning claim, a reversal of the negligent failure-to-warn claim would not affect the judgment.[25]

REASONABLENESS HEARING

RCW 4.22.060(1) provides in part that "A party prior to entering into a release, covenant not to sue, covenant not to enforce judgment, or similar agreement with a claimant shall give five days' written notice of such intent to all other parties and the court." Before trial, over a period of months between June 20, 1994, and January 4, 1995, eight defendants settled with the Mavroudises for a total of $38,500. Only one of the settling defendants gave notice of intent to settle; that notice was given two days after the trial started. No settling party requested a reasonableness hearing until after trial, when the Mavroudises requested one. A reasonableness hearing was held on February 24, 1995, the same date as the judgment presentation hearing. The trial court found the pretrial settlements reasonable and entered an order to that effect on the same day it entered judgment.

In a recent Supreme Court case, Brewer v. Fibreboard Corp., a majority of the justices agreed that timely notice of the intent to settle is important to the nonsettling party.[26] In Brewer, the plaintiff settled with the Manville Trust, a non-party, on November 7, 1991, for $175,000.[27] The jury returned a $372,300 verdict on July 7, 1992, against certain defendants.[28] After trial, on September 4, 1992, the plaintiff gave notice to all parties of intent to settle with certain other defendants.[29] [*692] The trial court found all settlements reasonable and judgment was entered on May 7, 1993.[30]

Relying upon Brewer, OCF argues that Mr. Mavroudis's failure to follow the statutory procedural requirements relating to reasonableness hearings prejudiced OCF because the trial court improperly relied upon evidence produced at trial in determining reasonableness of the pretrial settlements. The plurality in Brewer reasoned that despite the failure of notice with regard to the Manville Trust settlement, due process requirements were satisfied when, on August 21, 1992, the nonsettling defendants moved for a reasonableness hearing with regard to the Manville Trust settlement, a hearing was

held, and the trial court found the settlement reasonable.[31] The dissenting justices reasoned that the delayed notice and hearing was not per se prejudicial, but that it was prejudicial in that case because the trial court considered post-settlement information when determining reasonableness.[32]

Thus the plurality and the dissenters (a total of seven justices) agreed that the provision of post-settlement notice of intent to settle does not render invalid a finding of reasonableness where eventually such notice is provided and a hearing is held before entry of final judgment. Because untimely notice and hearing does not create prejudice per se, we must look to other sources of prejudice. Unlike the dissenting justices in Brewer, we are satisfied, here, based on the trial court's repeated references to the requirement that the reasonableness of the settlements must be considered in light of the posture of the case at the time the settlements were reached, that the trial court did not inappropriately consider post-settlement information when determining reasonableness.[33]

OCF also argues that Mr. Mavroudis's failure to follow the statutory procedural requirements relating to reasonableness hearings prejudiced OCF, in that it may have proceeded differently with regard to settlement if it had known about the other settlements. But OCF does not elaborate on how or why it may have acted differently. Neither does OCF point to any evidence in the record to support its claim that it may have acted differently if it had received timely notice of the settlements. Accordingly, we are unable to review this claim of prejudice.

OCF argues that even if the hearing were not fatally flawed by procedural violations, the trial court's determination of reasonableness is not supported by substantial evidence. Assuming that a reasonableness determination is a finding of fact reviewable for substantial evidence,[34] we decline to examine the sufficiency of the evidence in this case. We cannot ascertain from the briefing the nature of the evidence or the supposed inadequacies therein, with the single exception of one general objection based on hearsay contained in the declarations of counsel [*693] provided for use at the reasonableness hearing. Even that objection is not supported by authority stating that the court may not properly consider hearsay evidence that was relied upon by counsel in reaching the decision to recommend that the client settle a claim against a given party. An appellant who wishes to challenge the sufficiency of the evidence needs to outline the evidence in its brief, point to the deficiencies it contends exist, and cite to relevant authority. A bare conclusory allegation that the evidence is insufficient will not suffice, in that the appellate courts are not in the business of searching the record in an effort to determine the nature of any alleged deficiencies to which the challenger may be referring, and then to search the law for authority to support those same alleged deficiencies.

In conclusion, the only instructional error the trial court made in the course of the trial did not prejudice OCF. The Washington Product Liability Act was not applicable to this claim. OCF has failed to demonstrate prejudice arising from the delay in holding the reasonableness hearing. Accordingly, we affirm both the judgment and the trial court's reasonableness determination.

BAKER, C.J., and AGID, J., concur.

[1] Instruction 22, Clerk's Papers at 364.

[2] Instruction 22, Clerk's Papers at 364.

[3] In Lockwood v. AC & S, Inc., 109 Wash.2d 235, 744 P.2d 605 (1987) the trial court instructed the jury: "If you find two or more causes combine to produce a single result, incapable of division on any logical or reasonable basis, and each is a substantial factor in bringing about harm, each is charged with responsibility for the harm." The jury was further instructed that "[w]hen the concurring negligence and/or product liability of two or more defendants are each [a] proximate cause of an injury, each is liable regardless of the relative degree in which each contributes to the injury[.]" Lockwood, 109 Wash.2d at 246 n. 6, 744 P.2d 605.

Lockwood was a challenge-to-the-sufficiency-of-the-evidence case and not an instructionalerror case. However, the court's ruling that where the evidence showed exposure to the defendant's product and an expert testified that all exposure to asbestos has a cumulative effect in contributing to the contraction of asbestosis, the jury could reasonably find that exposure to the defendant's product was a proximate cause, Lockwood, 109 Wash.2d at 247, 744 P.2d 605, is consistent with the giving of the substantial factor instruction. [4] Hue v. Farmboy Spray Co., Inc., 127 Wash.2d 67, 896 P.2d 682 (1995).

[5] Hue, 127 Wash.2d at 91, 896 P.2d 682(quoting from the trial court's oral ruling, see 127 Wash.2d at 76 and n. 12, 896 P.2d 682) (citing Martin v. Abbott Laboratories, 102 Wash.2d 581, 689 P.2d 368 (1984) (eliminating individual causal responsibility in DES cases); Lockwood v. AC & S., Inc., 109 Wash.2d at 245, 744 P.2d 605 (plaintiff need only establish that defendant's asbestos products were among those in the plaintiff's work environment); City of Benton City v. Adrian, 50 Wash.App. 330, 342, 748 P.2d 679 (1988) (holding that where plaintiff

suffers indivisible damage caused by the combined flow of defendants' excess irrigation waters, it was error to dismiss action on ground that damages are not sufficiently individualized and traceable to each defendant and defendants have burden of proving their individual contributions); Phennah v. Whalen, 28 Wash.App. 19, 26-27, 621 P.2d 1304 (1980), review denied, 95 Wash.2d 1026 (1981)). [6] W. Page Keeton, etal., Prosser & Keeton on Torts § 41, at 268 (5th ed.1984).

[7] Hue, 127 Wash.2d at 91 and n. 22, 896 P.2d 682.

[8] 104 Wash.2d 254, 262, 704 P.2d 600 (1985).

[9] See, e.g., Eagle-Picher v. Balbos, 326 Md. 179, 604 A.2d 445, 459 (1992). Other cases around the country approve the use of the substantial factor test in asbestos-injury cases, including but not limited to O'Connor v. Raymark Indus., Inc., 401 Mass. 586, 518 N.E.2d 510 (1988); Thacker v. UNR Indus., Inc., 151 Ill.2d 343, 177 Ill.Dec. 379, 603 N.E.2d 449, 455 (1992). A number of cases also deal with claims of instructional error similar to that raised by OCF in this case. See, e.g., Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459, 463 (6th Cir.1982); In re Manguno, 961 F.2d 533, 535 (5th Cir.1992).

[10] RCW 4.22.070(3)(a).

[11] Sofie v. Fibreboard Corp., 112 Wash.2d 636, 667-69, 771 P.2d 711, 780 P.2d 260 (1989).

[12] Yakima County (West Valley) Fire Protection Dist. 12 v. City of Yakima, 122 Wash.2d 371, 397, 858 P.2d 245 (1993). [13] RCW 4.22.920.

[14] Koker v. Armstrong Cork, Inc., 60 Wash.App. 466, 471-72, 804 P.2d 659, review denied, 117 Wash.2d 1006, 815 P.2d 265 (1991); Krivanek v. Fibreboard Corp., 72 Wash.App. 632, 865 P.2d 527 (1993), review denied, 124 Wash.2d 1005, 877 P.2d 1288 (1994); Viereck v. Fibreboard Corp., 81 Wash.App. 579, 915 P.2d 581, review denied, 130 Wash.2d 1009, 928 P.2d 414 (1996).

[15] Clerk's Papers at 359.

[16] Clerk's Papers at 228, 233.

[17] Stewart v. State, 92 Wash.2d 285, 298, 597 P.2d 101 (1979).

[18] Stewart, 92 Wash.2d at 298, 597 P.2d 101.

[19] Clerk's Papers at 241.

[20] Estate of Ryder v. Kelly-Springfield Tire Co., 91 Wash.2d 111, 118, 587 P.2d 160, 16 A.L.R.4th 129 (1978). [21] Lockwood v. AC & S, Inc., 44 Wash.App. 330, 345, 722 P.2d 826 (1986), aff'd, 109 Wash.2d 235, 744 P.2d 605 (1987) [22] Koker, 60 Wash.App. at 478, 804 P.2d 659.

[23] Young v. Key Pharmaceuticals, Inc., 130 Wash.2d 160, 178, 922 P.2d 59 (1996).

[24] Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wash.2d 15, 36, 864 P.2d 921 (1993).

[25] We also believe that in some factual situations the final paragraph could be misleading and therefore prejudicial. See Smith v. City of Aberdeen, 7 Wash.App. 664, 668, 502 P.2d 1034 (1972).

[26] Brewer v. Fibreboard Corp., 127 Wash.2d 512, 528, 901 P.2d 297 (1995) (plurality opinion); Brewer, 127 Wash.2d at 539, 901 P.2d 297 (dissenting opinion).

[27] Brewer, 127 Wash.2d at 517-18, 901 P.2d 297.

[28] Brewer, 127 Wash.2d at 519, 901 P.2d 297.

[29] Brewer, 127 Wash.2d at 519, 901 P.2d 297.

[30] Brewer, 127 Wash.2d at 520, 528, 901 P.2d 297.

[31] Brewer, 127 Wash.2d at 529, 901 P.2d 297.

[32] Brewer, 127 Wash.2d at 539-40, 901 P.2d 297.

[33] We note that OCF improperly encouraged the court to find the settlements unreasonably small based on the size of the ultimate verdict against OCF.

[34] The parties urge no other standard. We have held that a trial court's reasonableness determination is a finding of fact that will not be disturbed if supported by substantial evidence. Pickett v. Stephens-Nelsen, Inc., 43 Wash.App. 326, 332, 717 P.2d 277 (1986); accord Brewer, 127 Wash.2d at 524, 901 P.2d 297 (plurality opinion). Both Pickett and Brewer rely on Glover v. Tacoma Gen. Hosp., 98 Wash.2d 708, 718, 658 P.2d 1230 (1983). But Glover only says that reasonableness involves factual determinations, and that factual determinations will not be disturbed if supported by substantial evidence. Glover does not say that the ultimate determination of reasonableness is itself a factual determination. A determination of reasonableness involves two steps: first, determining the historical facts giving rise to the settlement, and, second, deciding whether these historical facts make the settlement reasonable considering the relevant factors outlined in Glover. The second inquiry may be a mixed question of law and fact and should perhaps be reviewed de novo. Cf. Ornelas v. United States, ___, U.S. 690, ___ _ ___, 116 S.Ct. 1657, 1662-63, 134 L.Ed.2d 911 (1996). We need not resolve that question in this case, in that we decline to review the challenge to the sufficiency of the evidence.

Sources

• The opinion on Google Scholar
• Washington asbestos laws
• Washington asbestos exposure sites