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Horvitz & Levy is a solutions-based firm focused on appellate success. We are distinguished by our commitment to responsive service and on-going innovation in the areas of civil appellate litigation, amicus curiae support, and trial strategy consultation.

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Horvitz & Levy persuaded the Court of Appeal to overturn a $5.5 million judgment in an asbestos-injury case because the jury instructions misstated the standard for proof of causation.

Robert Swanson was exposed to asbestos while serving in the Navy and during a long career working as a pipefitter. He also claimed exposure to asbestos while installing boilers during a brief stint as a plumber in Michigan in the 1970s. Decades later, he was diagnosed with mesothelioma and brought a lawsuit in California against various defendants including The Marley-Wylain Company, a manufacturer of boilers. Robert Swanson died and his son Sean Swanson became the plaintiff as successor-in-interest.

Prior to trial, Marley-Wylain retained Horvitz & Levy to assist trial counsel in preserving the record and to handle the appeal in the event of an adverse judgment. At trial, the parties disagreed about how the jury should be instructed on the issue of causation. Marley-Wylain argued that the jury should be instructed solely on Michigan law, because all of Robert Swanson’s alleged exposures to Marley-Wylain’s boilers occurred in Michigan and the case was otherwise governed by Michigan substantive law. Plaintiff argued that Michigan law and California law are the same with respect to causation, and that the jury should therefore be instructed using both Michigan’s and California’s pattern instructions on causation. The trial court adopted plaintiff’s argument and instructed the jury using a combination of Michigan law and California law, including CACI No. 435, which sets forth California’s unique “contribution to risk” standard for proof of causation in asbestos-injury cases. A jury ruled in plaintiff’s favor and the trial court entered a judgment in excess of $5.5 million.

Marley-Wylain appealed, arguing that the jury instructions on causation were erroneous because the issue should have been governed solely by Michigan law, which follows traditional requirements for proof of causation and does not recognize California’s relaxed “contribution to risk” standard. The Court of Appeal agreed, reversing the judgment and ordering a new trial. The court held that Michigan requires plaintiffs to prove that a defendant’s conduct was a substantial factor in producing the plaintiff’s injury, which is a higher burden than CACI No. 435, which requires only that the defendant’s conduct be a substantial factor contributing to an increased risk of injury. The court also concluded that the error was prejudicial, because a properly instructed jury could have concluded that plaintiff had not met his burden of demonstrating the causal connection that Michigan law requires.