Swanson v. The Marley-Wylain Co. CA2/1 ( 2021 )

Filed 6/4/21 Swanson v. The Marley-Wylain Co. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ROBERT SWANSON et al., B294181
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No. BC571451)
v.
THE MARLEY-WYLAIN
COMPANY,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, C. Edward Simpson, Judge. Reversed and
remanded.
Horvitz & Levy, Curt Cutting, Dean A. Bochner; Manning
Gross & Massenburg and David M. Glaspy for Defendant and
Appellant.
Waters Kraus & Paul and Michael B. Gurien for Plaintiffs
and Respondents.
____________________________
Robert Swanson worked as a plumber at Thomas Plumbing
& Heating in Michigan from 1969 to 1976. During that time, he
was exposed to asbestos when working with boilers manufactured
by Weil-McLain Company, Inc. (now a division of The Marley-
Wylain Company (MW)).1 Swanson’s occupational asbestos
exposure continued at other jobsites until he retired in 2005,
though after 1976 he was never again exposed to asbestos
supplied by or contained in products manufactured by Weil-
McLain. Swanson was diagnosed with mesothelioma in 2014. In
2015, he filed suit against a number of defendants, including
MW, for his injuries.2
Swanson’s exposure to asbestos supplied by or in products
manufactured by Weil-McLain occurred entirely in Michigan. On
that basis, MW moved the trial court for an order that Michigan
law applied to Swanson’s claims against MW. The trial court
denied MW’s motion. MW sought, and we granted, a peremptory
writ of mandate ordering the trial court to vacate its order
denying MW’s motion and to issue a new order granting the
motion. (The Marley-Wylain Co. v. Superior Court (Mar. 24,
2016, B267711) at p. 8 [nonpub. opn.] (MW I).)
1The Marley Company, LLC acquired Weil-McLain’s
successor, Wylain, Inc., in 1980. In discovery responses, Marley-
Wylain indicated that Weil-McLain is a division of The Marley-
Wylain Company, which is a wholly owned subsidiary of The
Marley Company, LLC.
2Swanson died on March 2, 2016. In an amended
complaint following Swanson’s death, his son, Shawn, identified
himself as Swanson’s successor-in-interest and added wrongful
death allegations.
2
Swanson’s claims against MW were tried to a jury in
August 2018. The jury concluded that Weil-McLain was
negligent and that its negligence was a proximate cause of
Swanson’s injuries. Based on the jury’s verdict, the trial court
entered judgment for Swanson against MW for $5,489,688.68.
The trial court denied post-judgment motions for judgment
notwithstanding the verdict and new trial.
MW contends that the judgment must be reversed because
the record contains insufficient evidence under Michigan law of a
causal link between Swanson’s exposure to asbestos supplied by
Weil-McLain and Swanson’s injury. MW alternatively contends
that it is entitled to a new trial based on trial court error
instructing the jury regarding causation under Michigan law.
Finally, MW contends that the trial court improperly precluded
evidence that would have impeached Swanson’s testimony
regarding his exposure to asbestos from Weil-McLain’s products.
The evidence of causation presented at trial would have
been sufficient under Michigan law to support the jury’s verdict.
But the trial court’s instructions to the jury regarding causation
reflected California law, not Michigan law. Because we conclude
that the trial court improperly instructed the jury on Michigan
law and that the error was prejudicial, we will reverse the
judgment and remand to the trial court for retrial. Based on our
conclusion that the judgment must be reversed, we do not reach
MW’s contention regarding the admissibility of precluded
evidence.
BACKGROUND
Robert Swanson was born in 1947 in Ishpeming, Michigan.
Swanson enlisted in the United States Navy on his 17th birthday
in November 1964. According to trial testimony, Swanson was
3
probably first exposed to asbestos during a two-year naval
assignment beginning in November 1966 aboard the U.S.S.
Theodore E. Chandler.
Swanson returned to Michigan after his discharge from the
Navy and began working as a plumber at Thomas Plumbing &
Heating (Thomas) in early 1969. Swanson’s work included
installing and servicing heating and plumbing systems in both
new constructions and existing homes and other buildings.
Swanson’s work at Thomas included installing and maintaining
boilers Weil-McLain manufactured. At his deposition, Swanson
estimated that he installed more than 20 (and possibly as many
as 100) Weil-McLain boilers (all but one in residences) during his
time at Thomas.
Weil-McLain manufactures boilers that provide “comfort
heat”—heat at a relatively consistent temperature—for buildings
of different sizes. All but one of the Weil-McLain boilers Swanson
installed were factory-assembled “packaged boilers.” Swanson
testified that during these installations he was exposed to
asbestos supplied by Weil-McLain in the form of a powder he had
to mix with water to make a paste to seal the area between a
boiler’s exhaust pipe and the chimney into which it was routed.
When he serviced a boiler, Swanson testified that he was
exposed to asbestos when he removed asbestos-containing
gaskets on the boilers. To remove the gaskets, Swanson
sometimes used a putty knife and a hand wire brush, and the
process generated dust that Swanson inhaled.
Swanson testified that he installed one Weil-McLain boiler
that was not a packaged boiler—at Michigamme High School in
the early 1970s. As part of that installation, Swanson testified
that he handled asbestos rope and gaskets containing asbestos.
4
Although Swanson’s work with Weil-McLain boilers ended
when he left Thomas, Swanson’s exposure to asbestos—even
while he was at Thomas—was not limited to Weil-McLain boilers.
Swanson performed maintenance work on other boiler brands,
and testified that he was exposed to asbestos as part of that
work. He also worked around drywallers, who removed and
installed drywall and insulation. The joint compound that
drywall workers sanded contained asbestos, and when asked
what the “dustiest” part of his job at Thomas was, Swanson
testified that it was “[w]hen the drywallers were cleaning up and
sanding their drywall compound.” Swanson was also exposed to
asbestos in drywall joint compound that he applied and sanded in
a home he built in 1974.
Swanson left Thomas in 1976. From 1976 to his retirement
in 2005, Swanson worked as a pipefitter. From 1976 to 1979,
Swanson worked at mining operations in Michigan. Swanson did
not believe he had been exposed to asbestos on the job from 1976
to 1979.
Swanson moved to California in 1979 and continued
working as a pipefitter, initially for a construction company and
later for a heating and air conditioning company called Air
Conditioning Company, Inc. (ACCO). ACCO installed heating
and air conditioning systems in commercial buildings. Swanson
testified that he was exposed to asbestos as part of his work at
ACCO.
Swanson was diagnosed with mesothelioma in 2014. In
February 2015, Swanson filed his original complaint against MW
and several other defendants, alleging under California law that
asbestos in the defendants’ products, including Weil-McLain’s
boilers, had caused Swanson’s mesothelioma.
5
In August 2015, MW moved the trial court for an order
declaring that, because Swanson’s exposure to asbestos from
Weil-McLain products occurred entirely within the State of
Michigan, Michigan law applied to Swanson’s claims against
MW. The trial court denied MW’s motion. MW petitioned this
court for a writ of mandate ordering the trial court to vacate its
order and issue an order granting MW’s motion. We granted
MW’s petition for writ of mandate and ordered the trial court to
apply Michigan law to Swanson’s claims against MW. (MW I,
supra, B267711 at p. 8.)
Swanson died on March 2, 2016. Swanson’s son, Shawn,
identified himself as Swanson’s successor-in-interest and
amended the complaint to include his own allegations against
Weil-McLain for his father’s wrongful death.
The matter was tried to a jury in August 2018; MW was the
only remaining defendant. After trial, the jury concluded that
Weil-McLain was negligent and that Weil-McLain’s negligence
was a proximate cause of Swanson’s mesothelioma. Based on the
jury’s verdict, the trial court entered judgment for Swanson
against MW for $5,489,688.68.
MW filed, and the trial court denied, motions for a new
trial and for judgment notwithstanding the verdict.
MW filed a timely notice of appeal.
DISCUSSION
MW contends we should reverse the trial court’s judgment
on three bases. MW’s primary contention is that Michigan law
applies to Swanson’s negligence claim against MW. MW argues
that under Michigan law, which MW contends requires evidence
of “but for” factual causation, the trial evidence regarding the
causal link between his exposure to asbestos from Weil-McLain
6
products and his mesothelioma is insufficient to support the
jury’s verdict. MW also contends that the trial court committed
instructional error by improperly instructing the jury regarding
causation. Finally, MW contends the trial court committed
prejudicial error by excluding admissible evidence that would
have impeached Swanson’s testimony regarding his exposure to
asbestos from Weil-McLain products.
As we explain below, we agree that Michigan law applies.
Based on what we understand Michigan law to require, the
evidence adduced at trial could support the jury’s verdict had the
jury been properly instructed. Nevertheless, the record
establishes that the jury was instructed on causation based on
the California standard, not Michigan’s. We will therefore
remand the case to the trial court for a new trial. Because MW is
entitled to reversal based on this contention, we do not reach
MW’s remaining contention.
A. Application of Michigan Law
In August 2015, MW moved the trial court for an order to
apply Michigan law to Swanson’s claims; the trial court denied
the motion. (MW I, supra, B267711 at p. 2.) MW petitioned this
court for a writ of mandate ordering the trial court to vacate its
order denying MW’s motion and enter a new order granting the
motion. (Id. at p. 8.) We granted MW’s petition. (Ibid.)
In our opinion granting MW’s petition, we explained that
“Michigan law, and not California law, applies where plaintiff
Robert Swanson’s claims against [MW] arose in Michigan, where
Swanson resided and where he was exposed to asbestos.” (MW I,
supra, B267711 at p. 2.) We “direct[ed] the superior court to
reverse its order denying the motion of [MW] to apply Michigan
7
law to Swanson’s claims and to grant the motion on Swanson’s
claims against [MW] only.” (Ibid., fn. omitted.)
MW contends that our opinion in MW I is the law of the
case and established that Michigan law applies to Swanson’s
claims against MW. “The law of the case doctrine states that
when, in deciding an appeal, an appellate court ‘states in its
opinion a principle or rule of law necessary to the decision, that
principle or rule becomes the law of the case and must be adhered
to throughout its subsequent progress . . . .’ ” (Kowis v. Howard
(1992) 3 Cal.4th 888, 892-893.) The doctrine does not extend to
summary denials of writ petitions. (Id. at p. 894.) But when “the
matter is fully briefed, there is an opportunity for oral argument,
and the cause is decided by a written opinion[,] [t]he resultant
holding establishes law of the case upon a later appeal from the
final judgment.” (Ibid.)
Swanson responds that neither MW’s trial court motion,
MW’s writ petition, nor our opinion granting MW’s writ petition
specifically mentions the application of Michigan law on
causation in negligence causes of action to Swanson’s claims.
Because nobody specifically mentioned causation, Swanson
argues, our prior opinion is not the law of the case regarding this
particular element of a negligence cause of action, and therefore
California law should apply. Choice of law, Swanson contends,
is analyzed on an issue-by-issue basis. MW’s failure to request
in its motion to apply Michigan law to Swanson’s claims that the
trial court apply Michigan causation law to Swanson’s
negligence cause of action is fatal to MW’s argument, according
to Swanson.
Swanson is correct that California courts examine choice of
law questions “with regard to the particular issue in question.”
8
(See McCann v. Foster Wheeler LLC (2010) 48 Cal.4th 68, 88,
quoting Kearney v. Salomon Smith Barney (2006) 39 Cal.4th 95,
107.) Swanson extends that contention, however, to an
untenable end—that the law of different states may govern
different elements of a single cause of action in cases pending in
California state courts; that each element constitutes a separate
issue for purposes of a choice of law determination. We are
aware of no authority that would support that proposition, and
we reject that argument.
There is nothing in our prior opinion that limits its
application to the specific distinctions between California and
Michigan law that drove our analysis and conclusion. MW’s
motion was premised on the fact that Swanson’s exposure to
Weil-McLain products occurred entirely in Michigan, that there
are “material differences in California and Michigan product
liability and damages laws,” that Michigan’s interest in applying
its own law to Swanson’s claims against Weil-McLain is superior
to California’s interest, and that Michigan’s interests would be
more impaired than California’s if California substantive law
applied to Swanson’s claims against MW. MW used examples of
differences between California and Michigan product liability
and damages laws. Those examples demonstrated that there
were differences between California and Michigan law that
warranted a judicial determination regarding which state’s law
should apply to Swanson’s claims. But MW’s moving papers and
request for writ relief and our opinion granting MW’s writ
petition all discussed the issue as whether Michigan law should
govern Swanson’s substantive claims against MW, not whether
Michigan law governed specific elements of individual causes of
action in Swanson’s complaint.
9
We recognize that Swanson opposed MW’s motion and writ
petition by arguing about whether there were specific differences
in various limited aspects of Michigan and California law. But
Swanson’s efforts to limit the relief requested or granted did not
change the relief MW requested or that we granted.
The issue in MW’s motion to apply Michigan law to
Swanson’s claims against MW and the subsequent writ petition
was whether Michigan law applied to Swanson’s claims against
MW. It was not whether Michigan law governed specific
elements of various causes of action. And our opinion in MW I
preclusively established for purposes of the litigation in the trial
court and this appeal that Michigan law governs Swanson’s
claims against MW.
B. Causation Under Michigan Law
Swanson contends that causation in asbestos cases is the
same in California and Michigan. MW contends it is different;
that factual causation (as distinguished from legal causation) in
California is governed by an “every exposure” theory, but
Michigan requires evidence of “but for” causation in all
negligence actions and that asbestos cases are no exception. We
do not agree with either Swanson or MW.
“ ‘The elements of an action for negligence [in Michigan]
are (i) duty, (ii) general standard of care, (iii) specific standard of
care, (iv) cause in fact, (v) legal or proximate cause, and (vi)
damage.’ ” (Ray v. Swager (2017) 501 Mich. 52, 63, fn. 13, italics
added, quoting Moning v. Alfono (1977) 400 Mich. 425, 437.)
“Proximate cause is an essential element of a negligence claim. It
‘involves examining the foreseeability of consequences, and
whether a defendant should be held legally responsible for such
consequences.’ Proximate cause is distinct from cause in fact,
10
also known as factual causation, which ‘requires showing that
“but for” the defendant’s actions, the plaintiff’s injury would not
have occurred.’ ” (Ray, at p. 63, fns. omitted.)
In California, “[i]n 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.” (Rutherford v. Owens-
Illinois, Inc. (1997) 16 Cal.4th 953, 982, original italics, fns.
omitted (Rutherford).) “[T]he 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.” (Ibid., italics
added.)
Michigan asbestos-specific negligence cases have not made
as distinct a division between proximate and factual causation as
other Michigan negligence cases that have expressly considered
the distinction between proximate and factual cause.
Nevertheless, Michigan’s asbestos cases instruct that “[t]here
may be more than one proximate cause of an injury” such that
multiple “causes frequently operate concurrently so that [they]
constitute a direct proximate cause of the resulting harm.” (Allen
v. Owens-Corning Fiberglas Corp. (1997) 225 Mich.App. 397,
401.) “[A] defendant cannot escape liability for its negligent
conduct simply because the negligence of others may also have
contributed to the injury suffered by a plaintiff. When a number
of factors contribute to produce an injury, one actor’s negligence
11
will be considered a proximate cause of the harm if it was a
substantial factor in producing the injury.” (Id. at pp. 401-402;
accord Brisboy v. Fibreboard Corp. (1988) 429 Mich. 540, 547
(Brisboy).)
That does not lead us, however, to conclude—as Swanson
would have us—that Michigan has adopted California’s
Rutherford causation standard. A substantial factor contributing
to an increased risk of a plaintiff’s injury is not the same thing as
a substantial factor in producing the injury. (See Davis v.
Honeywell Internat. Inc. (2016) 245 Cal.App.4th 477, 493.)
Consistent with our understanding of Michigan law, we conclude
that to establish causation under Michigan law in a negligence
cause of action for asbestos-related latent injuries, a plaintiff
must establish and a jury must conclude that the defendant’s
actions were a substantial factor in producing the plaintiff’s
injuries, and not merely in increasing the risk that the plaintiff
would suffer the injury.
1. Sufficiency of Swanson’s Causation Evidence
The record reflects that Swanson tried his case to the jury
as though the California causation standard was the proper
standard.
Swanson’s experts told the jury that “asbestos is the only
known environmental cause of mesothelioma. If a person has a
diagnosis of mesothelioma and an established asbestos exposure,
there’s no reason to talk about any other cause.” Dr. Arnold
Brody, an experimental pathologist and cell biologist, explained
that mesothelioma is a “dose response” disease, “meaning the
more a person’s exposed to [asbestos], the more likely they are to
get [the] disease.” Dr. Brody told the jury that “[t]hat doesn’t
mean you have to be exposed to huge amounts to get the disease.
12
It means the more you’re exposed to it, the more likely you are.
But some people have had really relatively low exposures and get
mesothelioma. It all depends on susceptibility.” But Dr. Brody
recognized that there are threshold levels of exposure below
which a person will not develop mesothelioma.
Perry Gottesfeld, an industrial hygienist, testified that he
was not familiar with “a minimum safe dose of exposure to
asbestos.” Gottesfeld testified that exposures as high as
Swanson’s likely exposure from the materials he was exposed to
working on Weil-McLain boilers “would increase one’s risk of
coming down with mesothelioma.”
Dr. Barry Horn, a board-certified pulmonologist and
critical-care specialist testified that Swanson’s mesothelioma was
caused by his exposure to asbestos. Swanson “was previously
exposed to asbestos because of multiple jobs that he had,” Dr.
Horn testified. “His risk of developing mesothelioma was dose
dependent. He had varying exposures. It was those exposures to
asbestos that ultimately resulted in him developing
mesothelioma.” Dr. Horn’s testimony made clear that
mesothelioma “is a dose dependent disease.” “The more exposure
you have,” he told the jury, “the greater your risk.” Dr. Horn
testified that Swanson’s exposure to asbestos while he was
onboard a Navy ship contributed to him getting mesothelioma,
and that Swanson “had other exposures to asbestos in the course
of his career working as a plumber. And they all contributed to
his risk for the development of mesothelioma. The Navy
exposure contributed to his risk, and his subsequent exposure to
occur as a plumber also contributed to his risk.” Dr. Horn told
the jury that neither he, nor anyone else, could tell the jury the
“tipping point,” or “what caused [Swanson] finally to tip over to
13
getting . . . asbestos-caused mesothelioma.” Dr. Horn’s testimony
continued in the same vein. He testified to the jury consistently
that every one of Swanson’s exposures to asbestos “contributed to
his risk because it’s a dose dependent disease. So, the more
exposures he had, the more likely he would develop
mesothelioma.”
The record details Swanson’s exposure to asbestos from the
time he was a teenager in the Navy in the late 1960s until he
retired from being a pipefitter in California in 2005. A significant
part of that, according to trial testimony, was his exposure to
asbestos from Weil-McLain boilers and related products from
1969 to 1976.
Nevertheless, in one question and answer, the record
discloses evidence that would have been sufficient to support the
jury’s verdict had the jury been properly instructed on causation.
Swanson’s counsel asked Dr. Horn whether it was his opinion
that Swanson’s “work with Weil-McLain boilers was a substantial
factor, proximate cause” of Swanson’s mesothelioma. Dr. Horn
replied “yes.” An expert witness in California may give testimony
that “ ‘embraces the ultimate issue to be decided by the trier of
fact.’ ” (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155,
1178, quoting Evid. Code, § 805.)
2. Instructional Error
MW contends that the trial court erroneously instructed
the jury regarding causation in two different ways. First, MW
contends that the trial court erred by not giving a special
instruction that MW requested, which would have instructed the
jury that Swanson had to prove that “but for” Weil-McLain’s
actions, Swanson would not have been injured. Second, MW
contends that the instruction the trial court did give was based
14
on California’s causation standard, which, as explored above, is
different from and more lax than Michigan’s causation standard.
Based on our conclusion regarding Michigan’s causation standard
that we explored above, we reject MW’s first contention. But we
agree with MW’s second contention.
We review a trial court’s instructions to the jury de novo.
(Alamo v. Practice Management Information Corp. (2013) 219
Cal.App.4th 466, 475.) In determining if any error was
prejudicial, we consider whether it is “reasonably probable” that
the party asserting error “would have obtained a more favorable
result in its absence.” (Soule v. General Motors Corp. (1994) 8
Cal.4th 548, 570 (Soule).)
a. MW’s Requested Special Instruction
MW requested that the trial court specially instruct the
jury regarding causation. MW’s requested special instruction
included the following language: “Asbestos exposure from a
defendant’s product can be considered a substantial factor in
causing a plaintiff injury if both (1) it is established that
plaintiff’s injury would not have happened but for his exposure to
asbestos from defendant’s product and (2) that the asbestos
exposure from defendant’s product had such an effect in
producing the plaintiff’s injury that a reasonable person would
conclude that this exposure was responsible for causing plaintiff’s
injury.”
“A party in a civil case is, upon request, entitled to correct
jury instructions on every theory of the case that is supported by
substantial evidence. [Citation.] ‘It is elementary that a court
may refuse a party’s request for a jury instruction that misstates
the law. “A trial court has no duty to modify or edit an
instruction offered by either side in a civil case. If the instruction
15
is incomplete or erroneous the trial judge may, as he did here,
properly refuse it.” ’ ” (Olive v. General Nutrition Centers, Inc.
(2018) 30 Cal.App.5th 804, 813.)
As we explored above, we do not agree with MW’s
contention that Michigan law requires a plaintiff to prove “but
for” causation, rather that the defendant’s actions were a
substantial factor in producing the plaintiff’s injury. Because the
jury instruction would have erroneously instructed the jury, the
trial court correctly refused the instruction.
b. The Trial Court’s Instruction
The trial court’s instruction to the jury contained the
following language: “[A] proximate cause in causing harm is a
factor that . . . a reasonable person would consider to have
contributed to the harm. It does not have to be the only cause of
harm. Plaintiff may prove that exposure to asbestos from . . .
Weil-McLain’s asbestos-containing product was a proximate
cause in causing decedent’s illness by showing through expert
testimony that there was a . . . reasonable medical probability
that the exposure was a proximate cause contributing to . . .
decedent’s risk of developing cancer.”
The trial court’s instruction reflects the law on causation in
California as articulated in the Rutherford case. In that case, our
Supreme Court explained that under California law, 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.” (Rutherford, supra, 16 Cal.4th at p. 982, italics added.)
The language in the trial court’s instruction, then, was lifted
directly from the Rutherford case and expressly instructed the
16
jury to consider the question using the California standard,
which we have explained is less stringent than the Michigan
standard.
The trial court’s instruction was incorrect.
Instructional error in a civil case, however, “generally does
not warrant reversal unless there is a reasonable probability that
in the absence of the error, a result more favorable to the
appealing party would have been reached.” (Soule, supra, 8
Cal.4th at p. 574.) “That assessment, in turn, requires evaluation
of several factors, including the evidence, counsel’s arguments,
the effect of other instructions, and any indication by the jury
itself that it was misled.” (Ibid.)
As we have discussed, and as the respondent’s briefing in
this court acknowledges, Swanson tried this case on the theory
that California’s causation standard applied to the negligence
cause of action the jury heard. At the very least, Swanson
argued, California and Michigan law on the question were
identical, and instructing the jury on California law was
appropriate. We have rejected that argument, but it highlights
that the overwhelming thrust of Swanson’s case in the trial court
was geared toward California’s causation standard, and not any
standard that would require a different or more stringent
quantum or type of evidence. And during argument to the jury,
Swanson argued relentlessly about Swanson’s “increased . . . risk
of developing mesothelioma” based on exposure to Weil-McLain
products.
The jury in this matter was repeatedly told that any
exposure to asbestos was sufficient to increase a person’s risk of
mesothelioma, and that to find MW responsible under a
negligence theory, Swanson needed only demonstrate that
17
exposure to asbestos in Weil-McLain boilers had increased his
risk of contracting the disease. Had the jury been properly
instructed, we believe it is reasonably probable that a jury could
have concluded that Swanson had not met his burden of
demonstrating the causal connection Michigan law requires—
that the exposure was a substantial factor in producing the
injury, rather than in merely increasing the risk of the injury.
DISPOSITION
The judgment is reversed. The matter is remanded to the
trial court for a new trial. Appellant is awarded costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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