J-A30037-14
2015 PA Super 175
APRIL CZIMMER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JANSSEN PHARMACEUTICALS, INC.,
Appellant No. 459 EDA 2014
Appeal from the Judgment Entered January 2, 2014
in the Court of Common Pleas of Philadelphia County
Civil Division at No.: May Term 2011 No. 3459
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
DISSENTING OPINION BY PLATT, J.: Filed: August 20, 2015
I respectfully dissent from the decision of the learned Majority to
affirm the judgment. Because I believe that the trial court’s jury instructions
and jury interrogatory on substantial factor causation violated Virginia law
and constituted reversible error, I would vacate the judgment and remand
for a new trial.
As the learned Majority acknowledges, the trial court and the parties
agreed that Virginia law applied to the negligent failure to warn claim. (See
Majority Opinion, at 10). Appellant specifically objected to the use of
substantial factor language because Virginia has expressly rejected that
language, and requested that the court use factual cause language instead,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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as consistent with Virginia law. (See N.T. Charging Conference, 10/29/13,
at 34). The trial court refused this request, and used both terms
interchangeably, as detailed above by the Majority. (See Majority Opinion,
at 13-14).
In Boomer, supra, the Supreme Court of Virginia examined the
propriety of the use of substantial factor language and stated:
In the last several decades . . . the “substantial
contributing factor” instruction has become prominent in some
other jurisdictions. “Substantial factor” language was also
utilized in the Restatement (First) and Restatement (Second) of
Torts. The phrase “substantial contributing factor” is not
grounded, however, in the jurisprudence of this Court: we
have not, in the history of our case law, ever invoked this
language.
Considering it now for the first time, we find several
problems with the substantial contributing factor
instruction. As an initial matter, the circuit court in this case
never defined the term “substantial contributing factor” in its
jury instructions. It is not clear whether it was meant to alter
the proximate cause requirement in some way, such as reducing
the cause-in-fact requirement by referring to a “contributing”
factor rather than an independent but-for cause. The term
substantial contributing factor could be construed to mean any
cause that is more than a merely de minimis factor. Conversely,
the invocation of the term “substantial” could be interpreted to
raise the standard for proof of causation beyond a mere
preponderance of the evidence to some more elevated standard.
In sum, some jurors might construe the term to lower the
threshold of proof required for causation while others might
interpret it to mean the opposite. We do not believe that
substantial contributing factor has a single, common-sense
meaning, and we conclude that a reasonable juror could be
confused as to the quantum of evidence required to prove
causation in the face of both a substantial contributing factor and
a proximate cause instruction.
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* * *
Moreover, we agree with the explicit rejection of
substantial contributing factor language in the recent
Restatement (Third) of Torts: Liability for Physical and
Emotional Harm (2010). The Restatement (Second) of Torts
used substantial factor language[.] . . .
The latest revision of the Restatement, however, deliberately
abandoned this language, explaining:
[T]he substantial-factor rubric tends to
obscure, rather than to assist, explanation and
clarification of the basis of [causation]
decisions. The element that must be established,
by whatever standard of proof, is the but-for or
necessary-condition standard of this Section.
Section 27 provides a rule for finding each of two
acts that are elements of sufficient competing causal
sets to be factual causes without employing the
substantial-factor language of the prior Torts
Restatements. There is no question of degree for
either of these concepts.
Restatement (Third) of Torts § 26, cmt. j. The comment also
specifically references the tendency of courts to at times
interpret the language as either raising or lowering the factual
causation standard, leading to inconsistent and inaccurate
statements of law. Id. If courts cannot be relied upon to
consistently construe the language, we cannot expect lay jurors
to accomplish the same task.
The Restatement (Third) of Torts relies instead on the
combination of sections 26 and 27:
§ 26 Factual Cause
Tortious conduct must be a factual cause of harm for liability to
be imposed. Conduct is a factual cause of harm when the harm
would not have occurred absent the conduct. Tortious conduct
may also be a factual cause of harm under § 27.
§ 27 Multiple Sufficient Causes
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If multiple acts occur, each of which under § 26 alone would
have been a factual cause of the physical harm at the same time
in the absence of the other act(s), each is regarded as a factual
cause of the harm.
This model, as explicated in the comments, is quite consistent
with [Virginia Law regarding] causation.
Id. at 729-31 (case citations omitted, emphases added) (reversing and
remanding for further proceedings where trial court erroneously failed to
sustain defendant’s objections to “substantial contributing factor” jury
instructions).
In the instant case, the trial court equated the term “substantial
factor” with “factual cause” and used them interchangeably. (N.T. Trial,
10/30/13, at 135). It instructed the jury that the terms were
“synonymous.” (Id.). Under Virginia law, however, these terms are not
synonymous. In fact, the Virginia Supreme Court has expressly rejected the
use of substantial factor language in jury instructions based on its belief that
the term lacks “a single, common-sense meaning . . . [and] [t]he
substantial-factor rubric tends to obscure, rather than to assist, explanation
and clarification of the basis of [causation] decisions.” Boomer, supra at
730 (quoting Restatement (Third) of Torts § 26, cmt. J.). Thus, in the
instant case, the only causation question the jury was asked to decide on
the verdict form—“Was [Appellant’s] negligence a substantial factor in
bringing about Blake Czimmer’s cleft lip/cleft palate?”—was contrary to
Virginia law, which finds the term “substantial factor” confusing and easily
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capable of being misconstrued by both courts and jurors. (Verdict Sheet,
10/30/13, at 1); see also Boomer, supra at 730.
Under these circumstances, I would conclude that the trial court’s
charge as a whole was inadequate and had a tendency to mislead or confuse
rather than clarify a material issue, and that a new trial is therefore
warranted. See Passarello v. Grumbine, 87 A.3d 285, 296 (Pa. 2014)
(“Error in a charge is sufficient ground for a new trial if the charge as a
whole is inadequate or not clear or has a tendency to mislead or confuse
rather than clarify a material issue”) (citation omitted); see also Gorman v.
Costello, 929 A.2d 1208, 1213 (Pa. Super. 2007) (determining that jury
lacked essential tool needed to make informed decision based on correct and
complete legal principles where court failed to give accurate definition of
factual cause; judgment vacated and case remanded for new trial).
Accordingly, I respectfully dissent.
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