October 2013

Judge's GavelCompanies around the country grapple with different standards of causation in different jurisdictions.  If recent trends continue, some jurisdictions may take a harder look at the “every exposure” theory of causation advanced by plaintiffs’ attorneys in asbestos litigation.

Pennsylvania has recently reaffirmed the “well established” concepts involving the requirements for substantial factor causation:

  • The each and every exposure theory may not be relied upon;
  • The plaintiff bears the burden of proof as to frequency, regularity, and proximity of alleged exposures
  • In cases involving dose-responsive diseases, expert witnesses must consider dose as a factor in their opinions;
  • De minimus exposure is not enough to establish substantial factor causation;
  • An individual analysis of the particular injured parties’ exposure history is required
  • Summary judgment is proper in light of de minimis exposures.

The recent Pennsylvania decision confirmed the Pennsylvania high court’s decision from 2012, in which the Court explained that

“Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive”.

As Bryan Redding noted on the LexisNexis Legal Newsroom Litigation Blog, the Pennsylvania Court found that the single fiber theory offers a broad-scale opinion on causation to anyone who inhaled a single asbestos fiber above background levels, and in doing do, the plaintiff’s pathologist “did not use the language of a methodology or standard applied in the field of pathology.  Maddox’s testimony makes it clear that his opinion was grounded in risk assessment” which is not typically within the field of expertise of pathologists.  As such, defense attorneys should be attuned to the qualifications of the experts who may offer every exposure-based testimony.

The rejection of the every exposure theory appears to be a growing trend.  As Arlow M. Linton noted, courts in Rhode Island and Utah have also rejected the every exposure approach to causation in the past year.

Texas has required an analysis of the frequency, regularity, and proximity with defendant-specific evidence relating to the dose to which the plaintiff was exposed for several years now. Borg Warner decision pdf download. Not all jurisdictions have required such a rigorous causation analysis.  For example, Illinois courts are also required to consider the frequency, proximity, and regularity, but the Illinois courts allow plaintiff’s experts to offer opinions that every exposure is a substantial factor. Noland decision pdf download.

Similarly, the Supreme Court of California has set forth a rule requiring that trial courts take frequency, regularity and proximity into account, but lower courts in California have often applied this standard in manner in essentially the same manner as in Illinois.  Rutherford decision pdf download. Hernandez decision pdf download.

Take Away

Courts seem to be increasingly skeptical about the every exposure theory.  However, even in jurisdictions where existing case law does not require a diligent analysis of causation based on the duration, frequency and proximity of the alleged exposures, the same basic principles can still assist in the defense of the case.  Thorough expert discovery in particular is crucial for the defense of these cases.  Determining whether the plaintiff’s expert witnesses have any education or training on which they base their opinions and exploring the internal consistency of their opinions and their methodology is of the utmost importance.  Even in jurisdictions that allow experts to offer generalized conclusions that a single exposure is a substantial factor, courts should still require those experts to have a proper basis for that opinion.

Companies and insurers involved in asbestos litigation should be willing to undertake serious expert witness discovery, both offensively and defensively.  A comprehensive evaluation of the medical and scientific bases of the plaintiff’s case is more important now in light of these trends.