[Posted November 5, 2013] My work schedule has prevented me from posting commentary on a recent Supreme Court decision that deserved much more attention. The case is John Crane, Inc. v. Bristow, an appeal of a $9 million asbestos-related claim.

The justices handed down an unpublished order in this case on Friday, October 25. The order resulted in a procedural dismissal of the appeal. The news of that ruling has rocketed through the appellate community, and with good reason. Here’s the setup:

After suffering a $9 million judgment, the defendant filed a petition for appeal in June 2012. The issue on
appeal was causation, always a tricky problem in mesothelioma cases. Here’s the assignment of error, verbatim:

The trial court committed reversible error in permitting the implied warranty claim
to be tried under a ‘substantial contributing factor’ theory of causation, instead
of Virginia’s well-established ‘but for’ standard for causation.

From what I can tell on the court’s website, the appellee didn’t file a brief in opposition, despite having
all those millions at stake. The case languished on the Supreme Court’s docket for 9½ months before the justices granted John Crane a writ in April 2013.

In the interim, the Supreme Court handed down Ford Motor Co. v. Boomer in January 2013. Boomer was another mesothelioma case implicating the standard of causation. Here’s the key part of the ruling in Boomer:

Here, for the first time, we are called upon to rule explicitly as to the causation
standard appropriate for mesothelioma. We find that in concurring causation
cases, the sufficient-to-have-caused standard as elaborated above
is the proper way to define the cause-in-fact element of proximate cause.

Note that this is presented as a decision on a question of first impression: The litigants thus had no
advance notice of how the justices would resolve this issue.

A week and a half ago, the justices took the Boomer ruling and clobbered John Crane with it. They held that the appellant’s use of the phrase “instead of” in its assignment means that it could only advocate on appeal the but-for standard, one that had been rejected in Boomer. Since that was now an untenable option, the Supreme Court dismissed the Bristow appeal as having been improvidently awarded.

Why is this major appellate news? The Supreme Court held that John Crane’s language boxed it in, as far as this appeal is concerned. The court’s intervening Boomer ruling, handed down six months after the petition for appeal was filed, deprived John Crane of any meaningful chance to argue the correct issue. In effect, the justices shifted the legal landscape during the pendency of the appeal, and then dismissed this appeal for failing to anticipate this change in the law.

Do you see how scary that is? This is why every appellate lawyer with whom I’ve discussed this case – and I mean literally every one, on both sides of the litigation aisle – is aghast at this ruling. It contains the seeds of a malpractice claim against any of us, for circumstances that are effectively beyond our control.

So, what should have happened instead? For one thing, perhaps John Crane could have moved the court for leave to amend its assignment of error, to match the new legal standard. Modifying your assignment after a writ has been granted is generally forbidden, but not if the court grants you leave to do so. A suitable motion in a situation like this might well allow a litigant to avoid the unpleasant dismissal of a potentially meritorious claim.

In fairness to John Crane’s lawyers, they probably couldn’t have foreseen this problem. As the case has
been described to me, the justices asked both sides to re-brief the case in the wake of the
Boomer decision. I’ve been told that Bristow didn’t raise an argument based on the assignment’s wording; the court did that sua sponte, without any warning to John Crane. This lightning bolt came out of a clear sky.

There’s more. Justice McClanahan dissents, and she’s joined by Justice Goodwyn. The dissent points
out that the language in John Crane’s assignment in
Bristow matches up almost exactly with the language of the assignment in Boomer. So if the language was insufficient in Bristow, how was the court able to reach the merits of the issue in Boomer? Shouldn’t that case have been dismissed, too?

Well, perhaps not. After all, we needed to get at least one decision on the merits, in order to lay down
the court’s holding on the standard for proving causation. You could argue that subsequent cases are to be governed by the
Boomer ruling, and John Crane was merely the first victim of that new doctrine.

But that doesn’t seem fair to me; not at all in this setting. A dismissal is a particularly harsh ruling, no matter how many zeroes there are in the case. This is especially true when the court has effectively engineered the discrepancy during the pendency of the appeal.

What’s more, the justices occasionally do find it in their collective heart to allow an appellant to
slide just a tad with a defective assignment. They did so last week, in Amin v. Henrico County, where the
appellant assigned error to a ruling that the Court of Appeals clearly didn’t make. In ordinary situations, the justices won’t touch such an issue. See, e.g., Heinrich Schepers v. Whitaker, 280 Va. 507, 514 (2010) (“Heinrich’s assignment of error does not reflect the circuit court’s ruling, and hence, the assignment of error is barred by Rule 5:17(c) that requires an appellant to assign error to the specific ruling of the circuit court.”). But in Amin, a majority of the court voted to reverse anyway, overlooking the appellant’s imprecision in wording.

I believe that the justices could have, and should have, done so here, too. This case collapsed because of a fault that was not of John Crane’s making. Irrespective of the ultimate outcome of the case – an issue upon which I can express no view, because I haven’t seen the briefs and I don’t know the record – the litigant in this granted case should have had an opportunity to be heard on the merits.

In other essays like this, I’ve tried to give my readers a way to avoid the landmines that this kind of ruling illustrates; a way to shape your pleadings or to manage your practice so as to be safe from a similar unpleasant fate. But I have little comfort to offer you here. I don’t know of a way in which you can insulate yourself from the possibility of having your case dismissed for a problem that arises after you file your petition.

Once upon a time, the court cracked down on vagueness in assignments of error, going so far as to dismiss an appeal that used language (“The trial court erred in granting [the appellee’s] motion for summary judgment”) that had been the basis, just two years earlier, of a reversal. That crackdown ended within the ensuing year, but now Charybdis has arrived to take Scylla’s place: Bristow illustrates that you can lose if your assignments are too specific. I’ve discussed a problem like this recently (see this essay posted in August 2012), and have advised moderation; but that advice probably wouldn’t have made a difference in Bristow. I can tell you that in most instances, you must hew to a middle ground that I really can’t define well for you.

Ultimately, the solution to this problem may lie in the court’s abandoning the source of all these procedural violations: Binding assignments of error. In many other appellate courts, litigants file statements of the appellate issues, but they aren’t punished (or ignored) if they stray somewhat from those statements as the appeal unfolds. In federal appeals, for example, there are exceptions to FRAP 28(a)(5) for manifest injustice, substantial public interest, and questions of particular importance. In case you’re wondering, I really doubt that the Supreme Court of Virginia will make such a change anytime soon.