On August 31, 2017 the United States Court of Appeals for the Seventh Circuit affirmed the United States District Court for the Northern District of Illinois, Eastern Division’s decision in Charles Krik v. Exxon Mobil Corporation, et al. excluding the testimony of plaintiff’s expert Dr. Arthur Frank. Dr. Frank’s theory was based on a premise that each and every exposure to asbestos, including the first exposure, no matter how de minimis, is a substantial contribution to the cumulative total. U.S. District Judge Manish Shah concluded that Dr. Frank’s testimony was “not tied to the specific defendants, but was instead based on his medical and scientific opinion that every exposure is a substantial contributing factor to the cumulative exposure that causes cancer.” The principle behind the “each and every exposure” theory and the cumulative exposure theory is the same.
Judge Shah noted, “To find a defendant liable, plaintiff must prove causation attributable to that defendant. It would be misleading and confusing for an expert to opine- particularly using the legal terminology of ‘substantial contributing factor’- that plaintiff’s cancer was caused by defendants when the foundation for the opinion was that every exposure (without regard to dosage) contributes to cause cancer.” The law of causation requires the plaintiff to prove that the defendants’ acts or products were a “substantial contributing factor” to plaintiff’s illness. Asbestos induced lung cancer is dosage dependent. The risk of contracting lung cancer from asbestos depends on the length of time of exposure and the amount of exposure. Therefore, to determine whether any exposure constitutes a substantial contributing factor, one would have to understand the timing and amount of exposure.
The United States Court of Appeals for the Seventh Circuit affirmed the decision noting “just like each and every exposure, the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.” “The ultimate burden of proof on the element of causation remains with the plaintiff. Requiring a defendant to exclude a potential cause of the illness improperly shifts the burden to the defendants to disprove causation and nullifies the requirement of the ‘substantial factor’ test.” The Sixth and Ninth Circuits have likewise excluded cumulative and/or “each and every exposure” theories for similar reasons.