 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE

ERA CLEVENGER, as Personal                 )      No. 78504-4-I
Representative of the Estate of            )
JAMES CLEVENGER,                           )
                                           )
                      Appellant,           )
                                           )
           v.                              )
                                           )      UNPUBLISHED OPINION
JOHN CRANE, INC.,                          )
                                           )      FILED: March 16, 2020
                      Respondent.          )
                                           )

      VERELLEN, J. — Era Clevenger, the surviving spouse of James Clevenger

and the personal representative of his estate, appeals the judgment in favor of

John Crane, Inc. (JCI).1 Era challenges the portion of the proximate cause

instruction that requires her to establish James’s exposure to JCI’s asbestos-

containing products was a substantial factor in “bringing about his mesothelioma.”

      Consistent with the objection she raised in the trial court, Era argues her

theory of the case was that exposure to asbestos was a substantial factor in

causing either mesothelioma or an asbestos-related lung cancer. We agree that

an objective view of the pleadings, opening statements, evidence, and closing



      1   For clarity, we refer to Era and James by their first names.
No. 78504-4-I/2



arguments reveals an overarching theory that exposure to asbestos was a

substantial factor in James’s death from an asbestos-related disease. Under the

substantial factor standard for proximate cause in asbestos cases and the facts of

this case, substantial evidence supported Era’s theory that either mesothelioma or

an asbestos-related lung cancer was a viable biological mechanism that resulted

in James’s asbestos-related tumor and his subsequent death. We conclude the

misleading instruction was prejudicial. We vacate the judgment and remand for a

new trial consistent with this opinion.

                                          FACTS

       Between 1974 and 2015, James was exposed to various forms of asbestos

while working as a boiler technician in the Navy, a maintenance mechanic at a city

water department, and a pipefitter. James also had a “30-year smoking history.”2

On March 31, 2016, James filed this lawsuit, alleging an asbestos-related disease.

James died on April 21, 2017. On June 8, 2017, Era converted the lawsuit to a

wrongful death action.

       Trial occurred in February and March of 2018. By the end of trial, JCI was

the only remaining defendant. On March 15, 2018, the jury returned a verdict in

favor of JCI on all counts. In the special verdict form, the jury found James had an

“asbestos-related disease,” JCI’s product “was not reasonably safe as designed at

the time the product was sold,” and JCI’s product “was not reasonably safe



       2   Report of Proceedings (RP) (Mar. 1, 2018) at 2098.




                                            2
No. 78504-4-I/3



because adequate warnings or instructions were not provided.”3 But the jury

found neither “the unsafe condition” of JCI’s products nor “the lack of adequate

warning or instruction” on JCI’s products was “a proximate cause of injury to

James.”4

       Era appeals.

                                     ANALYSIS

       Era seeks reversal and remand for a new trial based on either of two

instructional errors.

I. Jury Instruction 17

       Era argues jury instruction 17 did not allow her to adequately argue her

theory of the case that exposure to JCI asbestos was a substantial factor in

James’s death from an asbestos-related disease, whether mesothelioma or lung

cancer. JCI contends the record does not adequately support the alternative

diagnosis of lung cancer and, as a result, Era is limited to mesothelioma only.

       We review jury instructions de novo.5 In general, “‘[j]ury instructions are

sufficient when they allow counsel to argue their theory of the case, are not

misleading, and when read as a whole properly inform the trier of fact of the




       3   Clerk’s Papers (CP) at 4349-50.
       4   CP at 4350-51.
       5
       Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281
P.2d 289 (2012).




                                             3
No. 78504-4-I/4



applicable law.’”6 “Each party is entitled to have the trial court instruct on its theory

of the case.”7

       Here, jury instruction 17 provides:

             The term “proximate cause” means a cause that was a
       substantial factor in bringing about the injury, even if the result would
       have occurred without it. To establish proximate cause, Plaintiff
       must prove by a preponderance of the evidence that James
       Clevenger’s exposure to asbestos fibers from products manufactured
       or supplied by John Crane Inc. were a substantial factor in bringing
       about his mesothelioma. A substantial factor is an important or
       material factor that is not insignificant.

              There may be more than one proximate cause of injury. It is
       not a defense that the act of some other entity may have also been a
       proximate cause.[8]

       Era sought to change the second sentence of jury instruction 17 from

“mesothelioma” to “cancer.” The court denied the request. Later, Era objected to

the instruction:

       [T]he jury is being handed a verdict form that asks them to determine
       whether or not Mr. Clevenger had an asbestos-related cancer, . . .
       yet being instructed [that] plaintiffs must prove that John Crane
       products were a substantial factor in bringing about his
       mesothelioma. There is evidence in this case that both lung cancer
       and mesothelioma are caused by exposure to asbestos.[9]




       6
       Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002)
(emphasis added) (quoting Bodin v. City of Stanwood, 130 Wn.2d 726, 732, 927
P.2d 240 (1996)).
       7   Meredith v. Hanson, 40 Wn. App. 170, 174, 697 P.2d 602 (1985).
       8   CP at 4178 (emphasis added).
       9   RP (Mar. 13, 2018) at 3435-36.




                                             4
No. 78504-4-I/5



       To determine a parties’ theory of the case, we look at the pleadings, the

issues joined for trial, opening statements, the proof submitted at trial, and closing

arguments.10 The complaint lays out the parties’ claims and is the first opportunity

for the party to articulate its theory of the case. However, the exact issues raised

in the complaint may evolve leading up to and during trial.

       Here, in the complaint, James and Era asserted several causes of action,

including a products liability claim. Generally, in a traditional products liability

case, “the plaintiff must establish a reasonable connection between the injury, the

product causing the injury, and the manufacturer of that product.”11 In the

complaint, James and Era alleged he “suffers from a condition related to exposure

to asbestos and asbestos-containing products.”12

       In the opening statement, Era strongly emphasized evidence of

mesothelioma13 but also referred to lung cancer:


       10DeKoning v. Williams, 47 Wn.2d 139, 141-42, 286 P.2d 694 (1955) (“We
therefore hold that the giving of a single general instruction on the emergency
doctrine did not adequately present to the jury the appellant’s sole theory of the
case, as alleged in the pleadings, and upon which theory the issues were joined
and proof was submitted at the trial.” (emphasis added)); see Price v. Dep’t of
Labor and Indus. of State of Wash., 101 Wn.2d 520, 529, 682 P.2d 307 (1984)
(“[T]he Department attorney’s theory of the case, as reflected in his closing
argument . . . .” (emphasis added)).
       11   Lockwood v. AC & S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987).
       12
        CP at 8 (emphasis added). An exhibit to the complaint refers to
mesothelioma. See CP at 22.
       13 “So this is a case about exposure to asbestos. . . . And this is a case
about Mr. Clevenger’s dose of asbestos from John Crane . . . and others, and
those doses being a substantial factor contributing . . . to the disease that
ultimately resulted in his death, . . . malignant mesothelioma.” RP (Feb. 13, 2018)



                                            5
No. 78504-4-I/6



       There’s going to be some dispute in this case about whether or not
       Mr. Clevenger had a cancer of the lung or a cancer of the lining of
       the lung. . . . [I]n either case, asbestos causes both lung cancer and
       mesothelioma . . . . [W]hen you are dealing with a lung cancer, a
       cancer of lung cells, not of mesothelial cells, that cigarettes can act
       in concert, it’s called synergistically, to produce a cancer in
       somebody who has also been exposed to asbestos.[14]

       The evidence at trial established broad agreement by both plaintiff and

defense experts that James had a spindle cell neoplasm, a tumor.15 Some experts

placed the tumor in or near the pleura, but other experts read the scans as unclear

whether the tumor was in or near a lung. The evidence shows disagreement on

whether the tumor was localized or diffused and disagreement on the pathological

markers of his disease. But both sides embraced a broad differential diagnosis,16

narrowing the type of tumor to mesothelioma, sarcoma, or carcinoma. Defense


at 324-25. “Plaintiffs will prove to you that their products were a substantial factor
in causing Mr. Clevenger’s eventual death from mesothelioma.” Id. at 328.
       14RP (Feb. 13, 2018) at 339; see also id. at 346 (“And that lung cancer, if
that’s what you think he died of, was understood as caused by asbestos in the
1950’s.”).
       15 See RP (Mar. 1, 2018) at 2076 (A spindle cell neoplasm is a “malignant
tumor[ ] where the cells have an elongated shape.” There are three subclasses of
spindle cell neoplasms: sarcoma, carcinoma, and mesothelioma. A sarcoma is “a
tumor that arose from the soft tissue, like fat or fibrous tissue.” A carcinoma is “a
tumor arising from epithelial cells that are say in the lung or in the liver or
intestine.” A mesothelioma is “a tumor arising from the pleura, where there are
mesothelial cells.”)
       16See In re Morris, 189 Wn. App. 484, 496, 355 P.3d 355 (2015) (“In
general, a ‘differential diagnosis’ is focused on diagnosing the disease.”); see also
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 28
reporters’ notes cmt. c(4) at 456 (AM. LAW INST. 2010) (“‘the distinguishing between
two or more diseases with similar symptoms by systematically comparing their
signs and symptoms’” (quoting MOSBY’S MEDICAL & NURSING DICTIONARY 347 (2d
ed. Walter D. Glanze et al eds., 1986))).




                                           6
No. 78504-4-I/7



experts questioned mesothelioma but could not further categorize James’s

disease beyond the broad differential diagnosis because of the limited tissue

samples available for analysis. Plaintiff’s experts took the differential diagnosis a

step further and concluded it was most likely mesothelioma. There was evidence

that exposure to asbestos can be a substantial factor for mesothelioma or for lung

cancer, either in the form of a pulmonary carcinoma or a pulmonary sarcoma.

       Specifically, Dr. Arnold Brody,17 a cellular biologist specializing in lung

biology and pathology of asbestos diseases, explained that there are three major

asbestos-related diseases: “There’s asbestosis, which is scar tissue in the lung.

And then there is lung cancer, which is in the airways . . . . And then

mesothelioma, which is this cancer . . . specific to asbestos exposure.”18

       Dr. Joseph Ye, James’s treating oncologist, testified he first saw James on

January 27, 2016. At the time, James presented with shortness of breath and

cough. Dr. Ye ordered an X-ray and CT scan. “[H]e was found to have right-sided

pleural effusion, which was detected on X-ray, and confirmed by CT scan, showing

the right pleural-based lung mass, as well as the right pleural effusion.”19



       17Era called Dr. Arnold Brody, Dr. Joseph Ye, and Dr. Richard Soboyna.
JCI’s experts included Dr. Alberto Marchevsky.
       18   RP (Feb. 14, 2018) at 455.
       19 RP (Mar. 7, 2018) at 2756 (“[P]leural effusion is the fluid—normally, we
have a small amount of fluid in the pleural space. So pleural space means
between the chest wall and the lung, has a small space, so has a little lubricating
fluid there to make the lungs expan[d]. When those amount of fluids increased
more than normal needed, it’s called pleural effusion.”).




                                           7
No. 78504-4-I/8



        Dr. Ye ordered a PET scan and a needle core biopsy. After receiving the

results of the scan and biopsy, Dr. Ye referred James’s chart to the University of

Washington’s multiple disciplinary review team because the “pathology [was] a

little atypical.”20

        One of the team members entered the following clinic note:

        Dr. Martins here indicates that he reviewed the images from the
        patient’s PET scan, and that his tumor is all restricted to the pleural
        space on the right side. He further indicates that he discussed this
        case with Dr. Wood, and that they both agree that based on the
        epidemiology, clinic presentation, and pathology, by far the most
        likely diagnosis here is of a sarcomatoid mesothelioma.[21]

        Dr. Ye agreed with this conclusion. In another note, one of the team

members “concurred with sarcomatoid mesothelioma” and identified the disease

was “pleural based.”22 In a third note, the team diagnosed James with a “pleural-

based mass with biopsy showing spindle cell neoplasm,[23] consistent with a

sarcomatoid mesothelioma.”24 The team also identified “spindle cell carcinoma or

sarcoma” as another possibility, “but given [James] has a history of exposure to


        20   Id. at 2762.
        21   Id. at 2777.
        22   Id. at 2779.
        23See RP (Mar. 1, 2018) at 2076 (A spindle cell neoplasm is a “malignant
tumor[ ] where the cells have an elongated shape.” There are three subclasses of
spindle cell neoplasms: sarcoma, carcinoma, and mesothelioma. A sarcoma is “a
tumor that arose from the soft tissue, like fat or fibrous tissue.” A carcinoma is “a
tumor arising from epithelial cells that are say in the lung or in the liver or
intestine.” A mesothelioma is “a tumor arising from the pleura, where there are
mesothelial cells.”).
        24   RP (Mar. 7, 2018) at 2780.




                                           8
No. 78504-4-I/9



asbestos, [it is] almost certain this is a presentation of the sarcomatoid

mesothelioma.”25

       Dr. Alberto Marchevsky, a licensed pathologist, testified about the

pathology of James’s illness. Dr. Marchevsky agreed with the initial pathology

report that raised “a broad differential diagnosis that includes spindle cell

carcinoma, sarcomatoid mesothelioma, and sarcoma.”26 But unlike Dr. Ye and the

review team, Dr. Marchevsky was unable to provide a more definitive diagnosis

than the broad differential diagnosis. On cross-examination, Dr. Marchevsky

clarified, “We really don’t know which of those. It is possible it is a mesothelioma,

but we cannot say to a reasonable degree of medical certainty that it’s probable

mesothelioma.”27

       He testified that James suffered from “recurrent pleural effusion” and that

symptom is “[c]lassic of mesothelioma and other conditions.”28 But he also

testified James’s tumor “seemed to appear like a more localized lesion than the

typical mesothelioma.”29 As to radiology, Dr. Marchevsky testified:

       It is a bit uncertain, was the tumor in the pleura, was it in the lung.
       Some imaging showed it was in the [space between the two lungs
       and the heart] . . . .

                  ....

       25   Id.
       26   RP (Mar. 1, 2018) at 2070.
       27   Id. at 2091.
       28   Id. at 2115.
       29   Id. at 2082.




                                           9
No. 78504-4-I/10



             So in this case, we have another reason to make it more
      complicated. And if it’s a tumor that is in the thorax, it could be
      primarily the lung, it could be a lung cancer, or could it be
      metastases from another site.

               ....

             In this case, I think there was no image or evidence that the
      patient had cancer elsewhere. So I think if it were a carcinoma, it
      would be more likely a lung cancer, but we are speculating to some
      degree.[30]

      With regard to the pathology of the needle core biopsy, Dr. Marchevsky

testified that James did not have any positive mesothelioma markers.

      At the conclusion of Dr. Marchevsky’s testimony, the court allowed the jury

to ask questions. Dr. Marchevsky is a co-author of a paper about differentiating

between tumors caused by mesothelioma and those caused by carcinomas of the

lung. A juror asked, “What are the key markers differing between a definitive

mesothelioma diagnosis and Mr. Clevenger’s diagnosis?”31 Dr. Marchevsky’s

answered:

      So basically as we put in the guidelines, in general, it’s difficult to tell
      a sarcoma mesothelioma from other tumors, which is why we went
      through the trouble of putting together the paper and getting all these
      people to agree to something.

              So basically in a typical mesothelioma, you would like to have
      the clinical image and findings that I tried to show in the photograph,
      very diffuse tumor. Mr. Clevenger, the tumor presented a little
      different. It was a big mass that the radiologists couldn’t tell for sure,
      was it in the lung or the pleura. There were other nodules.



      30   Id. at 2098.
      31   Id. at 2140.




                                          10
No. 78504-4-I/11



              Maybe one could say that the tumor was somewhat diffuse
      because of multiple nodules, but then if the patient had lung cancer,
      for example, it would have been metastasis of the lung cancer and
      different nodules. So the radiology is not against me. It’s not for me.
      So it’s not finding that we can look at it as a slam dunk and say it’s a
      classic mesothelioma. . . . So in my mind, you have radiology that
      was not super typical, a biopsy that was not super typical.

              I’m a pathologist, so what am I going to do, ask for more
      tissue, which is what I did. Oncologists and surgeons may look at
      this in a different way, but I know from my own experience that
      sometimes they are wrong. When we do an autopsy, sometimes we
      can see that what they do was not necessarily right.

             That’s why, as a pathologist, I would have preferred in this
      case to have a larger biopsy and/or an autopsy to be able to give you
      a definitive diagnosis.[32]

      The jury also heard testimony from Dr. Richard Sobonya, a licensed

pathologist specializing in pulmonary and cardiac pathology. Both Dr. Sobonya

and Dr. Brody testified about the two subtypes of mesothelioma, epithelioid and

sarcomatoid. Dr. Brody testified:

      [T]here’s no relationship between mesothelioma and sarcoma [a type
      of lung cancer]. Either you have a mesothelioma or you have a
      pulmonary sarcoma.

             Now, there is a subset of mesotheliomas called sarcomatous
      mesothelioma. Now, that means—what that tells you is the cell type
      from which the mesothelioma developed. So if it’s an epithelioid
      mesothelioma, that means that the cancer, the mesothelioma, came
      from the mesothelial cells themselves.

            If it’s a sarcomatous mesothelioma, then it came from the
      connective tissue cells that are part of the pleura that grow under
      and around the mesothelial cells.[33]


      32   Id. at 2140-41.
      33   RP (Feb. 26, 2018) at 1061.




                                         11
No. 78504-4-I/12



       Dr. Sobonya studied James’s core biopsy sample and pleural fluid samples.

Dr. Sobonya opined that James suffered from sarcomatoid mesothelioma. And he

testified that it is not unusual to have a “sarcomatoid mesothelioma that presents

with a differential diagnosis.”34

       Q:       Would you expect in a lung cancer to see a diffuse tumor
                growing along the pleura?

       A:       Occasionally, a lung cancer will do that. Yes.
       Q:       It’s pretty odd for a lung cancer to do that though, right?

       A:       Right. Those are reportable cases.

                ....

       Q:       . . . [W]hat you reviewed in this case, did Mr. Clevenger have
                a localized tumor?

       A:       No.

       Q:       Okay. How would you describe the tumor that he had?

       A:       His tumor involves the pleura diffusely in multiple nodules. [35]

       Dr. Sobonya testified that more pathology would be helpful to distinguish

between the types of mesothelioma:

       Q:       With respect to your opinions in this case though, Doctor,
                would you like more pathology to distinguish between a lung
                cancer and mesothelioma or would you like more pathology to
                distinguish between the type of mesothelioma that he had?

       A:       It would be the latter. I would like to see—I would like to see a
                bigger biopsy that would show the two components that each
                separate pathology had indicated.


       34   RP (Mar. 6, 2018) at 2403.
       35   Id. at 2413-14.




                                            12
No. 78504-4-I/13



      Q:       Okay.

      A:       But it’s mesothelioma[. T]hat’s not up to question. For sure
               it’s mesothelioma.[36]

      Experts on both sides recognized the impact of asbestos exposure on lung

cancer. Dr. Brody testified:

      Q:       If Mr. Clevenger has a sarcomatoid mesothelioma, cigarettes
               played no part in causing his disease, correct?

      A:       Correct.

      Q:       Okay. If Mr. Clevenger has a . . . pulmonary sarcoma, a kind
               of lung cancer, then cigarettes and asbestos would have
               acted together to cause his disease, correct?

      A:       That’s correct, yes. Now, that’s where you get the synergy.
               In other words, if it’s a pulmonary lung cancer of a sarcoma
               variety, then yes, cigarette smoking plus asbestos can play a
               role. In fact, you even get a multiplicative increase in the risk
               if it’s a lung cancer.[37]

      And Dr. Marchevsky acknowledged that asbestos “can contribute to the

causation of lung cancer.”38

      During closing argument, Era’s counsel stated, “[W]e’re going to walk

through this and line up some of the evidence that you have heard and seen in this

case with respect to Mr. Clevenger’s disease and John Crane’s products and their

involvement in causing that disease.”39 Era’s counsel pointed to Dr. Ye’s



      36   Id. at 2421.
      37   RP (Feb. 26, 2018) at 1062.
      38   RP (Mar. 1, 2018) at 2100.
      39   RP (Mar. 13, 2018) at 3448.




                                           13
No. 78504-4-I/14



testimony that the diagnosis from the review board “was that this gentleman had a

sarcomatoid type mesothelioma based on everything combined together.”40

       But Era’s counsel also acknowledged JCI’s attempt to call into question the

mesothelioma diagnosis:

       Defendants want you to believe in this case in order for you to
       believe that Mr. Clevenger had anything other than a mesothelioma,
       and we will talk about why it doesn’t even matter in this case if he
       had a mesothelioma or not, because the alternative diagnosis is a
       lung cancer, which is also caused by exposure to asbestos.[41]

       Era’s counsel argued James had sarcomatoid mesothelioma. Immediately

after making this point, counsel stated,

       But if by some reason you are persuaded that he had some
       secondary cancer, the only evidence that the defendants have given
       you is that it was either primary to his pleura or that he had a cancer
       primary to his lung. He had a lung cancer.[42]

       Era’s counsel reminded the jury about testimony from both plaintiff’s and

defense’s experts that “asbestos causes lung cancer as well.”43

       If by some situation you conclude that the gentleman had a lung
       cancer, then the only math that changes is that his smoking also
       contributed with his asbestos exposure to cause it. That’s it. It
       doesn’t preclude asbestos as a cause of his disease. . . .

              When you talk about whether or not he had a sarcomatoid
       mesothelioma, which should be clear at this point, all you do in that
       math is take the cigarettes out. Cigarettes do not contribute to or
       cause sarcomatoid mesothelioma. All of the defense experts agreed


       40   Id. at 3450.
       41   Id. at 3450-51.
       42   Id. at 3452.
       43   Id.




                                           14
No. 78504-4-I/15



       on that. All plaintiff’s experts agreed on that. So when you are
       talking about whether or not this gentleman had an asbestos-related
       disease, the clear answer is yes.[44]

       During closing, JCI’s counsel emphasized “plaintiff chose to pursue this

mesothelioma route,” and “[t]hey have to actually prove it was mesothelioma.”45

But JCI also addressed Era’s secondary contention and argued, “If it was a

carcinoma or a sarcoma, it was caused by or likely caused by his cigarette

consumption.”46 And JCI emphasized the differential diagnosis: “It’s either a

spindle cell carcinoma, sarcomatoid mesothelioma, or a sarcoma.”47

       Our review of the pleadings, opening statements, evidence, and closing

arguments reveals Era’s single theory of the case was that exposure to asbestos

was a substantial factor in James’s death from an asbestos-related disease, either

mesothelioma or an asbestos-related lung cancer.

       JCI’s primary argument that the evidence necessarily limits Era to

mesothelioma only. Generally, a party is entitled to an instruction on their theory

of the case if there is substantial evidence to support it.48 JCI contends that

absent an absolute diagnosis of lung cancer or evidence that James’s disease




       44   Id. at 3452-53.
       45   RP (Mar. 14, 2018) at 3509-10.
       46   Id. at 3504.
       47   Id. at 3514.
       48State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997); see
also Albin v. Nat’l Bank of Commerce of Seattle, 60 Wn.2d 745, 753-54, 375 P.2d
487 (1962).




                                         15
No. 78504-4-I/16



was most likely lung cancer, Era was limited to mesothelioma only. The logical

extension of JCI’s argument is that a plaintiff with an atypical tumor that has been

narrowed to either mesothelioma or lung cancer is precluded from presenting the

jury with alternative diagnoses. This premise is not valid in this unique setting for

three reasons.

       First, a different proximate causation analysis applies to asbestos litigation.

“[B]ecause of the peculiar nature of asbestos products and the development of

disease due to exposure to such products, it is extremely difficult” for the plaintiff to

establish proximate cause.49 As a result, our Supreme Court has applied “specific

rules . . . to determine whether a plaintiff has satisfied the standard of causation

with respect to an alleged asbestos exposure.”50 Under these rules, the plaintiff

establishes proximate cause if they show exposure to asbestos was a substantial

factor in the victim’s injury or death.51 The substantial factor causation standard

departs from the traditional but-for causation standard.52

       Second, “[w]hether an asbestos plaintiff’s evidence states a prima facie

case is necessarily a fact-specific inquiry.”53 A fact-specific inquiry here reveals




       49   Lockwood, 109 Wn.2d at 248.
       50
        16 W ASHINGTON PRACTICE: TORT LAW AND PRACTICE 5.12 , at 241 (4th ed.
2013) (WPI).
       51   16 WPI 5:11, at 240.
       52   16 WPI 5:11, at 239.
       53
        Montaney v. J-M Mfg. Co., Inc., 178 Wn. App. 541, 544-45, 314 P.3d
1144 (2013).




                                           16
No. 78504-4-I/17



this case is unique in several regards. Here, the jury found James had an

asbestos-related disease. Both sides acknowledged a broad differential

diagnosis, narrowed to three asbestos-related diseases: mesothelioma, pulmonary

sarcoma, or pulmonary carcinoma. The uncertainty as to a final diagnosis largely

arises from the atypical presentation of James’s disease. Some indicators were

consistent with mesothelioma and some with lung cancer. Both sides agreed

James’s tumor was atypical in nature, location, and the pathological markers. But

most importantly, there is compelling expert testimony that James’s exposure to

asbestos was a substantial factor as to each of the three viable asbestos-related

diseases.

       Third, the core causation question in this unusual setting is whether there

must be complete certainty as to the precise biological mechanism that resulted in

James’s asbestos-related tumor and subsequent death. The nuances of that

question in the complex and evolving area of toxic tort causation are beyond the

briefing on this appeal, but there is clearly support for the concept that some

uncertainty as to the exact biological mechanism resulting in an injury from

asbestos exposure does not bar recovery. 54 More fundamentally, concepts of



       54  For example, one recognized factor in determining the causal relationship
between a toxic agent and a disease is whether the causation is biologically
plausible. An expert’s uncertainty as to the precise biological mechanism goes to
the weight, not admissibility, of such evidence. R. Jason Richards, Reflecting on
Hill’s Original Causation Factors, 52 NOV TRIAL 44, 47 (2016); Jennings v. Baxter
Healthcare Corp., 331 Or. 285, 309, 14 P.3d 596 (2000); Kennedy v. Eden
Advanced Pest Techs. 222 Or. App. 431, 450-52, 193 P.3d 1030 (2008).




                                         17
No. 78504-4-I/18



causation largely turn on what reasonable inferences can be drawn from the facts

of a specific case. “As philosophers have taught, factual cause is not a

phenomenon that can be seen or perceived; instead, it is an inference drawn from

prior experience and some, often limited, understanding of the other causal

factors—the causal mechanism—required for the outcome. Thus, all causal

determinations require inferential reasoning.”55 Generally, the plaintiff can

establish proximate cause from inferences arising from circumstantial evidence.56

On these atypical facts and the existing briefing, we conclude there was a

reasonable nonspeculative inference that either mesothelioma or an asbestos-

related lung cancer was a viable biological source of James’s tumor and his

resulting death.57

       Of course, as the jury instructions and special verdict questions recognized,

there are contributory negligence consequences based on James’s history of




       55   See RESTATEMENT (THIRD) OF TORTS § 28, cmt. b.
       56   Klossner v San Juan County, 21 Wn. App. 689, 692, 586 P.2d 899
(1978).
       57 JCI cites Board of Regents of University of Washington v. Frederick &
Nelson, 90 Wn.2d 82, 85-86, 579 P.2d 346 (1978) for the proposition that a trial
court properly gave an instruction withdrawing arson as an alternative cause of a
fire when the evidence supported only a mere possibility of arson. The analogy is
not helpful here because Board of Regents involved the traditional but-for standard
of factual causation, and the experts “rejected [arson] as a cause because of
certain characteristics of the fire.” Here, the substantial factor standard of
causation applies, and the evidence did not rule out an asbestos-related form of
lung cancer.




                                         18
No. 78504-4-I/19



smoking if the jury rejects mesothelioma, but that does not impact whether a

mesothelioma-only proximate cause instruction is appropriate.

      We conclude, even though Era vigorously argued that mesothelioma was

the most likely biological source of James’s death, Era was entitled to argue her

theory that James’s exposure to JCI asbestos was a substantial factor in his

death, whether the asbestos-related disease he suffered was mesothelioma or a

lung cancer. Jury instruction 17 did not allow her to adequately argue her theory

of the case.

      Other considerations are consistent with this conclusion. Here, the special

verdict form asked and the jury found that James had “an asbestos-related

disease.”58 Consistent with the broad differential diagnosis acknowledged by

experts for both sides, the jury was presented with evidence that exposure to

asbestos is a substantial factor in bringing about mesothelioma, pulmonary

sarcoma, or pulmonary carcinoma. The jury necessarily rejected any evidence

that James had some disease unrelated to asbestos exposure.

      The special verdict form and jury instructions expressly anticipated that the

jury would entertain the broad theory that James’s asbestos-related disease could

be a form of lung cancer. Jury instructions 19 and 20 and the special verdict form

questions 9, 10, and 11 address contributory negligence. The only evidence of

contributory negligence is James’s history of smoking. And consistent with the



      58   CP at 4349.




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No. 78504-4-I/20



evidence, instructions, and closing arguments, James’s smoking history is relevant

only if the jury finds he had lung cancer.59

       JCI’s attorneys vigorously argued in closing that Era was limited to

mesothelioma and urged the jury to find that she could not recover because there

was no compelling evidence of mesothelioma. As instructed by the court and as

argued by JCI, the mesothelioma-only construct of jury instruction 17 was squarely

presented to the jury.

       And the potential for confusion was amplified by the lack consistency in the

language of the special verdict form and other instructions, including references to

“asbestos-related disease” (question 1 of the special verdict form),60 “disease”

(jury instruction 18),61 “cancer” (jury instructions 22 and 23),62 “injury” (questions 3,

5, and 7 of the special verdict form),63 “injury or damages” (question 10 of the

special verdict form),64 and “death” (jury instruction 28).65




       59See RP (Mar. 14, 2018) at 3525 (“Was Mr. Clevenger negligent? . . .
[T]he evidence in this case is that he smoked . . . . Dr. Brody testified that if this
case is not a mesothelioma, that smoking would be a central issue in the case.”).
       60   CP at 4349.
       61   CP at 4179.
       62   CP at 4183, 4185.
       63   CP at 4350-52.
       64   CP at 4353.
       65   CP at 4191.




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No. 78504-4-I/21



       JCI’s other arguments are not compelling. We consider the instructions as

a whole.66 JCI contends jury instruction 17 is of limited consequence because jury

instructions 18, 22, and 23, listing the element of proximate cause, refer to “James

Clevenger’s cancer.”67 But it is also likely the jurors looked to jury instruction 17

for the definition of “proximate cause” when reading jury instructions 18, 22, and

23. Those instructions’ use of the word “cancer” does not immunize the

misleading nature of jury instruction 17 that limits “proximate cause” to

mesothelioma only.

       A challenge to a misleading instruction requires a showing of prejudice.68

“An erroneous instruction is harmless if it did not affect the outcome of the case.”69

JCI contends there was no prejudice because Era was able to argue at closing

that even if James died of lung cancer, exposure to JCI’s asbestos-containing

products was the proximate cause of his cancer. But the opportunity to make an

argument contradicted by the jury instructions is pointless. As recognized in

Anfinson v. FedEx Ground Package System, Inc., “[i]t is no answer” that a party

“remained free” to raise an argument that was supported by the evidence at trial

but not appropriately reflected in the jury instructions.70


       66   Lewis v. Simpson Timber Co., 145 Wn. App. 302, 318, 189 P.3d 178
(2008).
       67   CP at 4179, 4183, 4185.
       68   Afinson, 174 Wn.2d at 860.
       69   Terrell v. Hamilton, 190 Wn. App. 489, 502, 358 P.3d 453 (2015).
       70   174 Wn.2d 851, 876, 281 P.3d 289 (2012).




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No. 78504-4-I/22



       Finally, JCI contends any error was harmless because the most likely

interpretation of the jury’s answers to the special verdict form questions was that

the jury accepted JCI’s argument that James received only a minimal dose of

asbestos from JCI’s products. We are not convinced. It is also likely the jury was

confused by jury instruction 17 and concluded Era could recover only for

mesothelioma and not any other asbestos-related disease. It is also troublesome

when an instruction defining proximate cause undercuts a party’s theory as

revealed by the pleadings, opening statement, evidence, and closing arguments.

Normally, a proximate cause definition is limited to a general articulation of the

legal standards related to the plaintiff’s “injury,” as in the first sentence of jury

instruction 17, and not a specific injury, as in the second sentence.71

       The proximate cause jury instruction did not allow Era to adequately argue

her theory of the case.

II. Jury Instruction 18

       Era also challenges jury instruction 18. She argues jury instruction 18 is

erroneous because it was misleading and inaccurately sets forth the law.

Although our conclusion on jury instruction 17 is dispositive, we address Era’s

challenge to jury instruction 18 to provide guidance to the trial court on remand.

       “Legal errors in jury instructions are reviewed de novo.”72



       71See 6 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS:
CIVIL 15.01, 15.02, at 193, 199 (2019).
       72   Fergen v. Sestero, 182 Wn.2d 794, 803, 346 P.3d 708 (2015).




                                            22
No. 78504-4-I/23



       Jury instruction 18 lays out factors the jury “should consider” when

determining proximate cause in an asbestos case.73 Era objected to jury

instruction 18 and argued, “[T]hese are factors for the court to consider with

respect to whether or not plaintiff may proceed with their case [and n]ot for jurors

to consider with respect to the substance of [the] substantial [evidence] factor.”74

The trial court denied the objection.

       In Lockwood v. AC & S, Inc., our Supreme Court identified several factors

for a trial court to consider “when determining if there is sufficient evidence for a

jury to find that causation has been established”:

       They should consider the evidence of plaintiff’s proximity to the
       asbestos product when the exposure occurred and the expanse of
       the work site where asbestos fibers were released. They should also
       take into account the extent of time that the plaintiff was exposed to
       the product . . . .

              Courts should also consider the types of asbestos products to
       which the plaintiff was exposed and the ways in which such products
       were handled and used. . . .




       73 “In considering whether a product was a proximate cause of Mr.
Clevenger’s disease, you should consider the following factors: 1. Plaintiff’s
proximity to a JCI’s product when the exposure occurred; 2. The expanse of the
work site where asbestos fibers were released; 3. The extent of time Mr.
Clevenger was exposed to the product; 4. What types of asbestos product Mr.
Clevenger was exposed to; 5. How Mr. Clevenger handled and used those
products; 6. Expert testimony on the effects of inhalation of asbestos on human
health in general and Mr. Clevenger in particular; 7. Evidence of any other
substances that could have contributed to Mr. Clevenger's cancer and expert
testimony as to the combined effect of exposure to all possible sources of the
disease.” CP at 4179.
       74   RP (Mar. 13, 2018) at 3436 (emphasis added).




                                          23
No. 78504-4-I/24



              In addition, trial courts must consider the evidence presented
       as to medical causation of the plaintiff's particular disease. Such
       evidence would include expert testimony on the effects of inhalation
       of asbestos on human health in general and on the plaintiff in
       particular. It would also include evidence of any other substances
       that could have contributed to the plaintiff’s disease, and expert
       testimony as to the combined effects of exposure to all possible
       sources of the disease. . . .

             . . . [T]he factors listed above are matters which trial courts
       should consider when deciding if the evidence is sufficient to take
       such cases to the jury.[75]

       Era contends jury instruction 18 misstates the law because the Lockwood

factors are for the court to consider when addressing whether proximate cause

may go to the jury. Although no case prohibits a jury’s consideration of the

Lockwood factors,76 we question whether the factors are appropriate for a jury

instruction listing what the jury “should” consider to determine proximate cause.

We are concerned jury instruction 18 unduly restricts what the jury “may” consider

under the circumstances of a particular case. We do not endorse jury instruction

18. In this setting, when the proximate cause instructions are read together, Era

does not establish that jury instruction 18 was prejudicial and thus reversible error.




       75109 Wn.2d 235, 248-249, 744 P.2d 605 (1987); see also Allen v.
Asbestos Corp., Ltd., 138 Wn. App. 564, 157 P.3d 406 (2007) (“Lockwood
established factors that a court should consider to determine whether sufficient
evidence of causation exists.”).
       76See Barabin v. Albany Int’l Corp., 2009 WL 10725367, slip op. at 3 (“The
Lockwood court did not require the plaintiff to establish that the defendant’s
product alone would have caused the plaintiff’s injury. . . . Rather, it noted ‘a
number of factors’ a jury may consider in determining whether causation has been
established.”) (emphasis added).




                                          24
No. 78504-4-I/25



      Therefore, because jury instruction 17 was reversible error, we vacate the

judgment and remand for a new trial consistent with this opinion.




WE CONCUR:




                                        25
