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.
J-A30037-14



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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J-A30037-14


                             *    *     *

     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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J-A30037-14


      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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J-A30037-14



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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