louisiana-890549_960_720Causation opinions from plaintiff’s experts in asbestos exposure cases have undergone a puzzling evolution as they continue to face successful challenges. From “every exposure” to “every exposure above background” and “every significant exposure,” each iteration has attempted to make the same end run around the plaintiff’s burden of proof by stating that all exposures in a lifetime work together to cause disease. A recent federal decision, however, struck another blow to the “every exposure” theory, adding to the growing case law debunking it as nothing more than junk science.

Under the “every exposure” theory advanced by plaintiff’s attorneys in asbestos litigation, each defendant whose product plaintiff may have worked with or around, no matter how infrequently, is equally liable. The theory claims that each exposure contributes to the development of disease, without making any attempt to quantify the specific exposures from various products. This is particularly problematic when you consider that exposures to asbestos from certain products may be so low that, taken individually, may not have resulted in disease. The “every exposure” theory glosses over these de minimis exposures with the opinion “each and every exposure” to asbestos contributes to the causation of disease.

Recently, federal courts have begun to critically analyze this “every exposure” theory, and to demand a more stringent causation analysis. In Smith v. Ford Motor Co, a Utah federal court found held that the “each and every exposure theory is based on a lack of facts and data.” Smith involved a plaintiff’s expert who opined that the plaintiff’s mesothelioma was caused by his total and cumulative exposure, with all exposures playing a contributory role. The court excluded that testimony, finding that the “every exposure” theory “asks too much from too little evidence as far as the law is concerned. It seeks to avoid not only the rules of evidence but more importantly the burden of proof.” Likewise, in Yates v. Ford Motor Co., a case out of the Eastern District of North Carolina, the court excluded testimony of another well-known plaintiff’s expert, finding that his adherence to the “each and every exposure” theory lacked a basis in supporting facts or data.

And most recently, in Bell v. Foster Wheeler Energy Corp., the Eastern District of Louisiana referenced the growing line of exclusionary opinions and stated that the “deficiencies of the “each and every exposure” theory of causation in asbestos exposure cases have been extensively discussed.” The court held that the theory is not an acceptable theory of causation because it amounts to “nothing more than the ipse dixit of the expert.” Though some state and federal courts continue to permit the “every exposure” theory, cases like Smith, Yates, and Bell add to the growing number of jurisdictions requiring plaintiffs to meet their burden of proof.
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The Maryland Court of Appeals unanimously ruled that Georgia-Pacific Corp. was not liable for illness involving a woman who was exposed to asbestos while doing her father’s laundry in the 1960s.

The Insurance Journal reported on the recent decision:

  • The Court of Appeals ruled that Georgia-Pacific Corp. was not obligated to warn relatives of the dangers of asbestos in the 1960s.
  • The hazard was not sufficiently known until federal regulations were issued in 1972 by the U.S. Occupational Safety and Health Administration.
  • The court’s ruling overturns a $5 million verdict.
  • Jocelyn Farrar had been exposed while doing laundry in the late 1960s and fell ill decades later.

In the decision, available on the website of the Maryland high court (pdf download), the Court explained that it rejected liability because:

  • There was no duty to warn persons such as Ms. Farrar, who was a “bystander of a bystander,” a person who never used the product and never directly came into contact with it.
  • The duty extends to those whom the supplier should expect to use the product or to third persons whom the supplier should expect to be endangered by its use.
  • Even if the danger was foreseeable, prior to 1972 OSHA regulations, it would have been difficult for the company to have provided a warning that could have avoided the danger.

The Maryland decision continues the recent trend in rejecting a duty in cases involving secondary exposure.  In 2012, California followed Ohio and joined the growing list of states which reject the defendant’s duty to an employee’s family member in “take home asbestos” cases. In an article featured in the DRI‘s Newsletter and published on May 9, 2014, co-authors Carter E. Strang and Karen E. Ross also noted the jurisdictions which have rejected secondary exposure claims.  Since their publication, California and Maryland have joined approximately nine other states in rejecting a duty in secondary exposure cases.  Another California court recently came to the same conclusion as the earlier California case in an unreported decision.

However, as Strang and Ross noted in their January 16, 2014 DRI article (pdf download), it is unclear how these cases will play out at the trial level, as a verdict of over $27 million was recently entered in California in a case involving take-home asbestos exposure.

As the National Association of Manufacturers noted, the Maryland Court of Appeals found:

“that there was skimpy knowledge at the time of the danger to household members from asbestos dust brought into the home, and that the company was unable to give warnings directly to such plaintiffs and the warnings would not have had any practical effect. “

Conclusion

Courts nationwide are increasingly rejecting the claims by plaintiffs and their attorneys that seek to impose duties far removed from the allegedly wrongful act.  Defense attorneys can and should seek to impose reasonable limits on the issue of duty to those instances in which harm is reasonably foreseeable to the alleged tortfeasor.  Raising appropriate
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Co-authored by Brian Gross

lungsThe 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.


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Co-authored by Brian Gross

Navy fighter ship Choice of law analyses can, at times, be complicated affairs.  That is particularly true in asbestos cases in which a plaintiff alleges exposure to numerous asbestos-containing products in multiple states over a prolonged period of years.  An additional layer of complexity is added when some or all of the plaintiff’s allegations relate to asbestos exposure on United States Navy ships.  The question of whether maritime law should apply in such instances has perplexed both state and federal courts for years – sometimes resulting in inconsistent decisions.

Recognizing the history of conflicting case law, Judge Eduardo Robreno – who currently presides over the federal asbestos MDL docket – recently brought some clarity to the maritime law question in a lengthy, 30-page opinion.  See Conner v. Alfa Laval, Inc., 2011 WL 3101810 (E.D. Pa.).  In Conner, Judge Robreno concluded that maritime law will apply to the claims of sea-based Navy servicemen where the allegedly defective product was produced for use on a vessel, but that maritime law will not apply to the claims of predominantly land-based Navy work, even if the allegedly defective product was produced for use on a vessel.  A detailed summary of the decision follows.


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