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RE: Landmark Defense Verdict in Favor of SCE in Wrongful Death
Hope this saves some folks the trouble of reading the whole thing.
Conrad Sherman
The opinion follows this short discussion:
The court said that the california jury instructions used for multiple
defendant toxic tort (asbestos) cases also apply to single defendants and to
radiation.
Further; the plaintiff correctly asked the trial court to apply a new jury
instruction; however the proposed instruction was exterme or overreaching,
and the trial judge did not allow it.
The appeals court said that the trial court was responsible for providing a
correct instruction, rather thasn dismissing the plaintiff's request
entirely.
The new test which a jury must decide according to the 9th circuit is:
Rather, it is to demonstrate that the exposure in reasonable medical
probability was "a substantial factor" in contributing to the risk of can-
cer. The omission of this modifier is essential to a proper instruction.
Landmark Defense Verdict in Favor of SCE in Wrongful Death Nuclear
Radiation Case Reversed
LOS ANGELES--(BUSINESS WIRE)--July 31, 2000--In a 20-page
opinion issued July 20, 2000, by Judge Michael Daly Hawkins, the
Ninth Circuit Court of Appeals reversed a judgment entered by U.S.
District Court Judge Napoleon A. Jones and ordered a new trial in
Joe Kennedy vs. Southern California Edison (C.C. No. 98-56157
and D.C. No. CV-95-03769-NAJ/RBB).
Kennedy and his four children filed a wrongful death suit against
Southern California Edison (SCE) and Combustion Engineering Inc.
(CE) in 1996, alleging that wife and mother, Ellen Kennedy's,
exposure to nuclear radiation from the San Onofre Nuclear
Generating Station (San Onofre) was the cause of her terminal
cancer at age 43. The Kennedy family is represented by Don
Howarth and Suzelle M. Smith with the Los Angeles law firm of
Howarth & Smith.
During the time Joe Kennedy worked at San Onofre, SCE operated
the plant with more than 100 defective fuel rods for more than two
years. From approximately 1984 to 1987, the defective fuel rods
produced contamination leaks and releases of contamination both
in the plant and off site. The Nuclear Regulatory Commission fined
SCE $100,000 for its violation of safety regulations.
"The Ninth Circuit found that the trial court improperly instructed
the jury on the key element of causation, which was prejudicial
error," explained Smith.
"The law in California recognizes that with cancer, no expert can
sort out which particular ray of radiation initiated the lethal process.
This is especially true since cancer takes 7-10 years to develop
after exposure. When the court refused to explain to the jury the
particular law of causation in a cancer case, it gave SCE an
unlawful defense and plaintiffs an impossible burden to prove.
"The law as set forth by the judge would never permit a plaintiffs'
verdict in a toxic tort cancer case, and this is not just."
"The Ninth Circuit's ruling is correct and fair," said Howarth. "Ellen
Kennedy's children will prove again that their mother was exposed
to the contamination from San Onofre, and this time SCE will not
be able to hide behind the limits of scientific knowledge to escape
responsibility for their wrongful conduct."
"The family looks forward to retrial," said Smith, "and presenting
their case on a level playing field. The first trial slanted the law
unfairly in favor of SCE. Its attorneys focused almost their entire
lengthy presentation on the fact that plaintiffs could not prove the
particular ray which caused the cancer.
"This case once again raises the question as to how many people
were really exposed to radioactive emissions from the San Onofre
plant that manifest 1-15 years later in deadly CML."
"We are particularly pleased with this opinion because it will affect
cases across the country," stated Howarth. "Power plants
operating negligently have been able to avoid their obligations by
using laws which were not designed for the complexities of cancer
in the toxic tort content. We cannot go back and correct the
wrongs done to the widows and orphaned children of the past, but
at least future cases will have a just standard."
"When the new trial begins," said Smith, "we hope that it will serve
to raise public awareness that while the production of nuclear
energy is beneficial, it is also dangerous, and that strict controls
must be exercised to prevent harmful emissions. The ultimate cost
in human suffering and life is just too high a price to pay for SCE's
increased profits."
Howarth & Smith represented R.C. Tang in Tang vs. SCE, the first
San Onofre case to be tried against SCE involving these defective
fuel rods. Tang worked for the Nuclear Regulatory Commission at
San Onofre for two years. Her trial before federal Judge Rudi
Brewster, which received national attention, resulted in a hung jury,
and the same legal standard, which has now been reversed, was
applied.
A confidential settlement was reached in Tang case close to the
date of retrial. All together, Howarth & Smith has filed seven
lawsuits against SCE with similar allegations.
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOE KENNEDY, as successor in
interest and a personal
representative of the Estate of
Ellen Marie Kennedy; SHAWN
KENNEDY; ERIC KENNEDY;
SHANNON KENNEDY, by and
through her parent and
No. 98-56157
guardian Joe Kennedy; and
D.C. No.
CHAD KENNEDY, by and
CV-95-03769-NAJ/RBB
through his parent and
guardian Joe Kennedy,
OPINION
Plaintiffs-Appellants,
v.
SOUTHERN CALIFORNIA EDISON
COMPANY; COMBUSTION
ENGINEERING, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
February 10, 2000--Pasadena, California
Filed July 20, 2000
Before: Robert Boochever, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Hawkins
8593
COUNSEL
Don Howarth and Suzelle M. Smith, Howarth & Smith, Los
Angeles, California, for the plaintiffs-appellants.
Ned N. Isokawa and John A. Reding, Paul, Hastings, Janofsky
& Walker, San Francisco, California, for the defendants-
appellees.
_________________________________________________________________
8598
OPINION
HAWKINS, Circuit Judge:
This appeal requires us to examine California tort and prod-
ucts liability law as made specifically applicable to actions in
federal court for claims of injury arising out of nuclear power
plant incidents. Specifically, we must decide whether the dis-
trict court erred in (1) refusing to give a jury instruction under
Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997),
in a case involving a single defendant who raises alternative
possible sources of the injury as a defense; and (2) dismissing
claims under California products liability law. For the reasons
set forth below, we reverse and remand the case for a new
trial.
BACKGROUND
Ellen Kennedy died in 1996 of chronic myelogenous leuke-
mia ("CML"), a rare form of cancer. She was 43 years old.
The plaintiffs/appellants are her husband, Joe, and their four
children (collectively referred to as "Kennedy"). From 1982
to 1990, Mr. Kennedy worked as machinist for Southern Cali-
fornia Edison Company ("Cal Edison") at the company's San
Onofre Nuclear Generating Station ("SONGS").
The plaintiffs sued Cal Edison in federal court, asserting
jurisdiction pursuant to the Price-Anderson Act, 42 U.S.C.
S 2011 et seq., and seeking damages for Ellen Kennedy's
wrongful death. The action alleged that her terminal CML
resulted from negligence on the part of Cal Edison that
resulted in her exposure to radiation from SONGS. Addition-
ally, Kennedy sued Combustion Engineering, Inc., under a
products liability cause of action, for the alleged faulty pro-
duction of nuclear fuel rods. The theory of the case was that
Joe Kennedy inadvertently brought home microscopic parti-
cles of radioactive material, known as "fuel fleas," from the
power plant on his clothing, hair, tools, etc. These fuel fleas,
8599
which according to Kennedy contained radiation dosages in
excess of the maximum allowable by federal regulations,
came in contact with Mrs. Kennedy and caused her fatal can-
cer.
On March 20, 1997, the district court granted Combustion
Engineering's motion to dismiss all the products liability
claims against it. The court reasoned that, inasmuch as Mrs.
Kennedy was not a user or consumer of the nuclear fuel rods
Combustion Engineering produced, Combustion Engineering
could not have reasonably foreseen that Mrs. Kennedy would
be injured by its product.
Kennedy initially sought a burden-shifting order stating
that once Kennedy made an initial showing of Mrs. Kenne-
dy's exposure to radiation from SONGS, Cal Edison and
Combustion Engineering would then bear the burden of prov-
ing their conduct was not a substantial factor in causing Mrs.
Kennedy's death. On April 2, 1997, the district court denied
this request.
In August 1997, the California Supreme Court issued its
opinion in Rutherford, a products liability action brought by
the estate of a worker who had been exposed to asbestos-
containing products and subsequently died of lung cancer.
The case, discussed infra, dealt in large part with the proper
jury instructions to be given on causation when multiple
potential causes of the injury exist. In light of the decision,
Kennedy requested a causation instruction "consistent with
Rutherford." On November 14, 1997, the district court denied
Kennedy's request. Kennedy requested a Rutherford instruc-
tion and submitted a proposal twice more before trial. Both
requests were again denied.
On March 6, 1998, after a fact-intensive, five-week trial,
the jury returned a unanimous verdict in favor of Cal Edison
and Combustion Engineering. On June 9, 1998, the district
8600
court denied Kennedy's motion for a new trial. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C.S 1291.
STANDARD OF REVIEW
Jury instructions challenged as a misstatement of the law
are reviewed de novo. See City of Long Beach v. Standard Oil
Co., 46 F.3d 929, 933 (9th Cir. 1995). We review de novo
both a dismissal without leave to amend and a dismissal with
leave to amend. See, e.g., San Pedro Hotel Co. v. City of Los
Angeles, 159 F.3d 470, 477 (9th Cir. 1998); Sameena Inc. v.
United States Air Force, 147 F.3d 1148, 1151 (9th Cir. 1998).
ANALYSIS
[1] As the case was filed in federal district court under the
Price-Anderson Act ("Price-Anderson" or the "Act"), our
decision is guided solely by the substantive law of California.
Price-Anderson provides federal jurisdiction over lawsuits for
injuries arising out of a "nuclear incident." 1 Under such "pub-
lic liability actions,"2 the "substantive rules for decision . . .
shall be derived from the law of the State in which the nuclear
incident involved occurs, unless such law is inconsistent with
the provisions of [section 2210]." 42 U.S.C. S 2014(hh).3
Enacted in 1957 during the fledgling days of the nuclear
power industry, Price-Anderson had a dual purpose:"to pro-
_________________________________________________________________
1 A "nuclear incident" includes "any occurrence . . . within the United
States causing . . . any sickness, disease, or death. . . ." 42 U.S.C.
S 2014(q). It is undisputed that Mrs. Kennedy's death constitutes a "nu-
clear incident" for purposes of Price-Anderson.
2 "Public liability" is defined as "any legal liability arising out of or
resulting from a nuclear incident." A "public liability action" is "any suit
asserting public liability." 42 U.S.C. SS 2014(w), (hh). It is undisputed
that Kennedy's lawsuit is a "public liability action."
3 Cal Edison and Combustion Engineering do not argue that this conclu-
sion is inconsistent with the purposes of Price-Anderson; rather, their
argument is based solely on the interpretation of California law.
8601
tect the public and to encourage the development of the
atomic energy industry." 42 U.S.C. S 2012(i); Duke Power
Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 64
(1978). The Act accomplishes this by providing certain fed-
eral licensees with a system of private insurance, Government
indemnification, and limited liability for certain nuclear tort
claims. See El Paso Natural Gas Co. v. Netzsosie , 136 F.3d
610, 616 (9th Cir. 1998), rev'd on other grounds , 526 U.S.
473 (1999); see also S.Rep. No. 218, 100th Cong., 1st Sess.
2 (1987), reprinted in 1988 U.S.C.C.A.N. 1424, 1476, 1477.
Before its amendment in 1988, Price-Anderson provided
the federal courts with original and removal jurisdiction only
when the accident at issue was "an extraordinary nuclear
occurrence" as defined by the Act. See 42 U.S.C. S 2014(j)
(defining "extraordinary nuclear occurrence"). Responding to
a flurry of lawsuits in federal and state courts generated by the
1979 nuclear accident at Three Mile Island, which was not
considered an extraordinary nuclear occurrence, Congress
added section 2014(hh) to the Act, thereby providing the fed-
eral courts with original and removal jurisdiction for the
broader category of "nuclear incidents." See Netzsosie, 526
U.S. at 477.
I. Rutherford Instruction
A. Background and Applicability
[2] The basic contours of California tort law, in the context
of medical injuries with multiple possible causes, are outlined
in Jones v. Ortho Pharm. Corp., 209 Cal. Rptr. 456 (Ct. App.
1985). Jones involved cancer allegedly induced as a result of
taking a contraceptive pill. The California Court of Appeal
stated:
The law is well settled that in a personal injury
action causation must be proven within a reasonable
medical probability based upon competent expert
8602
testimony. Mere possibility alone is insufficient to
establish a prima facie case . . . . A possible cause
only becomes "probable" when, in the absence of
other reasonable causal explanations, it becomes
more likely than not that the injury was a result of
its action. This is the outer limit of inference upon
which an issue may be submitted to the jury.
Id. at 460.
The Book of Approved Jury Instructions for California
("BAJI") provides two general instructions on causation for
cases involving injuries with multiple potential causes. It was
these two instructions -- BAJI 3.76 and 3.77 -- that the dis-
trict court provided to the jury, neither of which was objected
to by any of the parties. BAJI 3.76 provides a definition for
"cause": "The law defines cause in its own particular way. A
cause of injury, damage, loss or harm is something that is a
substantial factor in bringing about an injury, damage, loss or
harm." The other standard jury instruction, BAJI 3.77, per-
tains to multiple causation. It states:
There may be more than one cause of an injury.
When conduct of two or more persons or conduct
and a defective product contributes concurrently as
causes of an injury, the conduct of each is a cause of
the injury regardless of the extent to which each con-
tributes to the injury. A cause is concurrent if it was
operative at the moment of injury and acted with
another cause to produce the injury.
Rutherford addressed the adequacy of these instructions
and altered the landscape of California tort law, as it applies
to the burden of proof to establish causation for asbestos-
induced cancer, when it held that BAJI 3.76 and 3.77 must be
augmented by an additional instruction. See 941 P.2d at 1223.
Though the court reiterated traditional California tort princi-
ples on causation and cited Jones's "reasonable medical prob-
8603
ability" requirement with approval, see id . at 1214, 1219 n.1,
it cited four factors in asbestos-related cancer cases that
necessitated a departure from the standard jury instructions on
causation.
First, the court noted that "there is scientific uncertainty
regarding the biological mechanisms by which inhalation of
certain microscopic fibers of asbestos leads to lung cancer
. . . ." Id. at 1218. Second, it discussed the uncertainty that
"frequently exists" whether a plaintiff was even exposed to
dangerous asbestos fibers produced, distributed or installed by
a particular defendant. The court was particularly concerned
with the long latency periods of asbestos-related cancers and
the many different asbestos-containing products that may
have been used at the same time and in the same workplace.
See id. Third, the court stated that the "question arises
whether the risk of cancer created by . . . exposure to a partic-
ular asbestos-containing product was significant enough to be
considered a legal cause of the disease." Id. Finally, the court
noted the "impossibility" of proving "the unknowable path of
a given asbestos fiber." Id. at 1219.
Despite these difficulties of proof, the California Supreme
Court rejected the argument that the burden of proving causa-
tion should shift to the defendants after the plaintiffs had
proven exposure to asbestos-containing products. 4 The court
reasoned that the fundamental justification for a shifting of
the burden -- that without such a shift all defendants might
escape liability and the plaintiff be left "remediless" -- is
absent in asbestos-related cancer cases. Id. at 1220 (quoting
Summers v. Tice, 199 P.2d 1, 4 (Cal. 1948)). Moreover, the
court pointed out that in asbestos cases, unlike traditional
alternative liability cases, the complete set of possible tortfea-
_________________________________________________________________
4 At the underlying trial in Rutherford, the plaintiffs had originally
requested a burden-shifting instruction based on an alternative liability
theory that the California Supreme Court first approved in the celebrated
case of Summers v. Tice, 199 P.2d 1 (Cal. 1948).
8604
sors is not before the court, and that given the wide ranging
toxicities of different asbestos-containing products, the tort-
feasors that are before the court do not display the "same
symmetry of comparative fault or indivisible injury " that are
the trademarks of alternative liability cases. See id. (internal
quotations omitted). Having rejected burden-shifting, the Cal-
ifornia Supreme Court was presented with a Gordian knot of
its own making: traditional causation principles presented
asbestos-related cancer patients with insuperable barriers to
recovery, yet the court had rejected alternative liability as
being unsuited for these types of cases.
[3] Rutherford cut the knot by altering, rather than shifting,
the plaintiff's burden. The court held that
plaintiffs may prove causation in asbestos-related
cancer cases by demonstrating that the plaintiff's
exposure to defendant's asbestos-containing product
in reasonable medical probability was a substantial
factor in contributing to the aggregate dose of asbes-
tos the plaintiff or decedent inhaled or ingested, and
hence to the risk of developing asbestos-related can-
cer, without the need to demonstrate that fibers from
the defendant's particular product were the ones, or
among the ones, that actually produced the malig-
nant growth.
Id. at 1219 (footnote omitted).
The burden now established, the court turned to the stan-
dard jury instructions, BAJI 3.76 and 3.77, and found them
"insufficient for [the] purpose" of ensuring that jurors know
the "precise contours" of this newly-crafted burden. See id.
Specifically, the court found that BAJI 3.76 and 3.77
say nothing, however, to inform the jury that, in
asbestos-related cancer cases, a particular asbestos-
containing product is deemed to be a substantial fac-
8605
tor in bringing about the injury if its contribution to
the plaintiff or decedent's risk or probability of
developing cancer was substantial.
Without such guidance, a juror might well conclude
that the plaintiff needed to prove that fibers from the
defendant's product were a substantial factor actu-
ally contributing to the development of the plaintiff's
or decedent's cancer. In many cases, such a burden
will be medically impossible to sustain, even with
the greatest possible effort by the plaintiff, because
of irreducible uncertainty regarding the cellular for-
mation of an asbestos-related cancer.
Id. at 1219-20.
[4] To rectify these shortcomings of the standard instruc-
tions in asbestos-related cancer cases, the court then held that
in addition to BAJI 3.76 and 3.77, the jury must also be
instructed that
the plaintiff need not prove that fibers from the
defendant's product were the ones, or among the
ones, that actually began the process of malignant
cellular growth. Instead, the plaintiff may meet the
burden of proving that exposure to defendant's prod-
uct was a substantial factor causing the illness by
showing that in reasonable medical probability it
was a substantial factor contributing to the plain-
tiff's or decedent's risk of developing cancer.
Id. at 1203 (emphasis added). It is this passage upon which
Kennedy based his repeated requests for a Rutherford instruc-
tion.
[5] We must now decide whether Rutherford is applicable
to the instant case. We hold that it is.
8606
We begin by noting that the California Supreme Court has
applied Rutherford to claims involving exposure to substances
other than asbestos. In Bockrath v. Aldrich Chemical Co., 980
P.2d 398 (Cal. 1999), it applied Rutherford to a cancer claim
based on exposure to multiple workplace chemicals. Accord-
ingly, we find nothing in California's jurisprudence that
would exclude cases of CML after exposure to radioactive
particles from Rutherford's purview.5
The more difficult question is whether Rutherford is appli-
cable in single-defendant cases. For the reasons set forth
below, we hold that Rutherford does apply to single-
defendant hazardous substance cases where the defense of
alternative possible causes is raised.
The limited number of cases applying Rutherford have all
involved multiple defendants, and appellees argue that this is
a necessary requirement for a Rutherford instruction. We dis-
agree. We find little relevant distinction between a Rutherford
case with multiple defendants, each of whose products may
have been a substantial factor in causing the plaintiff's injury,
and a case in which a single defendant argues that the plaintiff
cannot show causation because there exist other potential
sources that may have been the legal cause of the harm.
[6] In both circumstances, the plaintiff is faced with the
same hurdles that the California Supreme Court identified as
making proof of causation, absent the Rutherford instruction,
nearly impossible. On a scientific level, the uncertainty
regarding the biological mechanisms by which asbestos leads
to lung cancer, see Rutherford, 941 P.2d at 218, parallel the
medical uncertainties surrounding the cause and effect rela-
tionship between CML and radiation. And, it is just as impos-
_________________________________________________________________
5 Indeed, like asbestos-related cancer, CML also has a long latency
period. Additionally, it is impossible to determine that a particular dose
of
radiation initiated the CML process, just as it is impossible to trace
asbestos-related cancer back to a given asbestos fiber.
sible to prove the course of radiation as it is to prove the
"unknowable path of a given asbestos fiber." Id. at 1219.
More importantly, by choosing to raise alternative sources
of the injury as a defense, a defendant creates the need for a
Rutherford instruction. Just as the presence of multiple defen-
dants in an asbestos-related cancer case raises the question of
"whether the risk of cancer created by . . . exposure to a par-
ticular asbestos-containing product was significant enough to
be considered a legal cause of the disease," id. at 1218, so too
does the proffering of alternative causes of CML by a single
defendant. In both scenarios a given defendant is making
essentially the same argument: the plaintiff cannot prove that
his injury came from a specific source (i.e. the defendant),
when multiple other potential sources exist, whether they be
another asbestos-related defendant or something altogether
different, such as cigarette smoking or radiation from the sun
in the case of CML.
[7] While the instant case has two defendants, neither
argued that the other was an independent source of causation.
Their defense raised other possible causes of Mrs. Kennedy's
CML, none of which was attributable to either of the defen-
dants. In essence, then, Cal Edison and Combustion Engineer-
ing operated as a single defendant with respect to the issue of
alternative causes of the injury.
B. Correctness of Proffered Instruction and Obligation of
the District Court
Having held that a Rutherford instruction was required, we
now turn to the specific instruction proffered by Kennedy. At
oral argument, appellees argued that the requested instruction
was not a proper Rutherford instruction. We agree.
On two occasions, Kennedy proposed the following
instruction, that was to be inserted between BAJI 3.76 and
BAJI 3.77:
In order to prove that radiation from the nuclear
power plant was a substantial factor, Plaintiffs do not
need to prove that it actually contributed to the
development of Ellen Marie Kennedy's cancer. If
exposure to radiation from the nuclear power plant
in reasonable medical probability contributed to her
risk of developing cancer then such exposure was a
substantial factor in causing her cancer.
[8] The proposed instruction leaves out a small, but critical,
phrase. It states that radiation from SONGS need only have
"contributed" to Mrs. Kennedy's risk of developing cancer.
We read Rutherford to require more. Kennedy's burden is not
to show that exposure to radiation in reasonable medical prob-
ability "contributed" to a risk of cancer. Rather, it is to dem-
onstrate that the exposure in reasonable medical probability
was "a substantial factor" in contributing to the risk of can-
cer. The omission of this modifier is essential to a proper
Rutherford instruction.
That the defendant's product must, in reasonable medical
probability, be a "substantial factor" in contributing to the risk
of cancer was reiterated as necessary to the instruction three
times by the Rutherford court. See id. at 1219 (stating that a
plaintiff may prove causation by showing that exposure to
defendant's asbestos-containing product "in reasonable medi-
cal probability was a substantial factor in contributing to the
. . . risk of developing asbestos-related cancer") (emphasis
added); id. at 1220 ("[T]he jury should be told that the plain-
tiff's or decedent's exposure to a particular product was a sub-
stantial factor in causing or bringing about the disease if in
reasonable medical probability it was a substantial factor con-
tributing to plaintiff's or decedent's risk of developing can-
cer.") (emphasis added); id. at 1223 ("In conclusion . . . the
plaintiff may meet the burden of proving that exposure to
defendant's product was a substantial factor causing the ill-
ness by showing that in reasonable medical probability it was
a substantial factor contributing to the plaintiff's or dece-
dent's risk of developing cancer. The jury should be so
instructed.") (emphasis added).
Our focus on the "substantial factor" language is not mere
quibbling over linguistic technicalities. Although "substantial
factor" has not been explicitly defined by the California
courts, Bockrath, quoting extensively from Rutherford, delin-
eated the broad outlines of the term:
The substantial factor standard is a relatively broad
one, requiring only that the contribution of the indi-
vidual cause be more than negligible or theoretical.
Thus, a force which plays only an "infinitesimal' "
or " `theoretical" part in bringing about injury, dam-
age, or loss is not a substantial factor, but a very
minor force that does cause harm is a substantial fac-
tor
Bockrath, 980 P.2d at 403 (internal citations and quotations
omitted). The omission of the "substantial factor " language
from Kennedy's requested instruction, therefore, would have
enabled the jury to have found that radiation from SONGS
was the legal cause (i.e., a substantial factor in bringing about
the injury, see supra BAJI 3.7
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