March 2015

IL court rejects de minimis exposure to asbestos as ‘substantial
contributing factor

Asbestos Litigation

An Illinois federal judge recently barred expert testimony espousing the “Any Exposure” theory, which is also commonly referred to as the “Each and Every Exposure” theory and the “Single Fiber” theory.

In general, the “Any Exposure” theory is a causation theory that postulates that any exposure to asbestos, regardless of dose or amount, (excluding background exposure) is a cause of the injury to the person exposed. In Krik v. Crane Co. (N.D. Ill. Dec. 22, 2014), plaintiff, Charles Krik, filed suit against several defendants alleging he developed lung cancer from exposure to their asbestos-containing products.

Plaintiff sought to offer expert testimony of Dr. Arthur Frank and Dr. Arnold Brody on the issue of medical causation and Frank Parker regarding industrial hygiene. Specifically, these experts were expected to testify that each and every exposure to asbestos caused Mr. Krik’s lung cancer. Several defendants moved to bar such testimony as inadmissible and requested that it be excluded under Federal Rules of Evidence Rule 702 and Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579 (1993). After acknowledging that the Seventh Circuit has not opined on the admissibility of the “Any Exposure” theory in an asbestos matter, the court ruled that plaintiff failed to establish that the “Any Exposure” theory is sufficiently reliable to be admitted under Rule 702 and Daubert.

In reaching its conclusion, the court noted that plaintiff conceded that his experts believed asbestos-related lung cancer is a dose-responsive disease and yet plaintiff would have his experts testify that any asbestos exposure—regardless of dosage—is sufficient to cause asbestos-related lung cancer. The court also underscored plaintiff’s failure to offer any expert testimony regarding plaintiff’s exposure dose of asbestos, and whether that dose was sufficient to cause his lung cancer.

The opinion that plaintiff’s experts cannot rule out that a single dose of asbestos causes injury, and therefore any and all exposure to asbestos is harmful, “is not an acceptable approach for a causation expert to take.”

The court rejected the notion that de minimis exposure or a single exposure is sufficient to meet Illinois’ substantial contributing factor test. Rather, the correct statement of Illinois law is that more than de minimis exposure is required to prove causation. Moreover, the court found the “Any Exposure” theory was inadmissible because plaintiff’s experts failed to base their opinions on the facts specific to this case in violation of Rule 702(d).

Click here to read the Kirk Opinion in its entirety.