Co-authored by Brian Gross
The health hazards associated with asbestos have been documented, at least to some degree, for many years. Yet the litigation of asbestos injury claims is as robust and contentious as ever. Why? Well, much of it stems from the fact that there is controversy in the medical and scientific community as to whether all forms of asbestos – “amphibole asbestos” and “serpentine asbestos” – cause mesothelioma, a rare cancer found primarily in the pleura, or lining of the lung, and the peritoneum, or abdominal cavity. That issue is complicated even further by the fact that many asbestos plaintiffs allege exposure to asbestos from numerous products, and these alleged exposures differ in frequency, intensity, and duration. As such, one of the major issues in these cases surrounds the proof of which asbestos exposure was a substantial contributing factor to the plaintiff’s disease. As with most complex litigation, attorneys in asbestos cases must rely heavily on science, which can be a moving target at best and damaging at worst, especially if the findings are not scrutinized thoroughly to ensure a level playing field.
Take for example two friction defendants – Ford and Allied Signal – who recently contested the “every breath” or “every exposure” theory proffered by plaintiffs’ expert Dr. John C. Maddox to the Pennsylvania Supreme Court. This theory, in essence, claims that no matter how infinitesimal, every single exposure to an asbestos fiber – regardless of the fiber type, size, or chemical make-up – substantially contributes to the development of an asbestos-related disease.
According to Maddox, “each and every breath” of asbestos one takes is and should be considered a substantial contributing cause to the development of an asbestos-related disease.
His opinion is based on an extrapolation from high to low doses of asbestos and from one type of asbestos to another. Maddox posits that because the medical and scientific literature has demonstrated an association between high doses of amphibole asbestos (a more potent form of the mineral) and mesothelioma, low doses of the less potent chrysotile asbestos can as well. Undoubtedly such an opinion would allow plaintiffs to potentially hold liable any and all defendants who manufactured and/or sold an asbestos-containing product, no matter how infinitesimal the alleged exposure. During oral argument, however, Ford argued that the average person encounters about 100 million asbestos fibers over the course of his or her lifetime. Nonetheless, the vast majority of us are not at a high risk for developing mesothelioma from this “ambient” or “background” exposure to asbestos. This fact alone places serious doubts about the “every single breath” theory – both scientifically and from a legal causation analysis.
As evidenced by the Pennsylvania Supreme Court’s involvement in this issue, expert theories such as Maddox’s, for which there is no scientific basis, must be challenged. Judicial scrutiny of Plaintiffs’ expert opinions in the asbestos arena is crucial to maintain an even playing surface, and for many – such as Ford and Allied – this relief cannot come soon enough. Should the Pennsylvania Supreme Court exclude Maddox’s “any exposure” theory, it would join more than a dozen courts in multiple jurisdictions, such as Texas, Mississippi, Ohio, Washington, and Massachusetts which have excluded such opinion, finding that it has no basis in science.
For many years, courts have elected to treat asbestos cases differently than other types of product liability cases, and have failed to require plaintiffs’ experts to demonstrate that the evidence which forms the basis for their opinions meets the standard for reliability, and that their testimony is based upon a reliable foundation, and not speculation. This has allowed plaintiffs to prosecute claims against an ever increasing number of companies which may have incorporated a very small amount of asbestos into their products. Finally, it appears that the tide may be turning, and asbestos defendants may finally face a level playing field. We believe that the Pennsylvania Supreme Court will continue the trend of requiring asbestos plaintiffs’ experts to base their opinions on valid scientific evidence, not the lack thereof. Once they make their decision, we will be sure to post their decision.