The “any exposure” theory:
An unsound basis for asbestos causation and expert testimony.
The authors of this published article, Mark A. Behrens and William L. Anderson, raise many questions and make relevant observations on the evolving trends in litigation activities in the United States courts which are of great interest.
In the last three years, more than a dozen courts in multiple jurisdictions have excluded or criticized any exposure causation testimony, either as unscientific under a Daubert/Frye analysis or as insufficient to support causation. This pattern of decisions includes:
- the Texas Supreme Court in a mechanic/asbestosis case, rejecting the testimony of Dr. Barry Castleman and another expert that mere proof of exposure is sufficient for causation;
- a Texas appellate court in a mesothelioma case, rejecting the testimony of Dr. Samuel Hammar that any dry wall exposures above 0.1 fibers/cc year would be a substantial contributing factor,
- the Texas Multi-District Litigation ("MDL") court, rejecting the testimony of Dr. Eugene Mark in a friction product case and other experts in an electrician/dry wall exposure case,
- the Pennsylvania Supreme Court in a mesothelioma case against an auto parts company, rejecting the position espoused
in affidavits by Drs. Richard Lemen, James Girard, and Arthur Frank,
- an Ohio federal district court and the Sixth Circuit Court of Appeals in a gasket and packings case, rejecting the testimony of Drs. Arthur Frank and Yasunosuki Suzuki,
- three Pennsylvania state trial courts, rejecting the any exposure testimony of Drs. John Maddox, Eugene Mark, William Longo, Jonathan Gelfand, and Arthur Frank in friction product cases and criticizing the theory's application in a pleural disease case;
- a federal bankruptcy court in litigation involving asbestos in vermiculite insulation, rejecting Dr. Henry Anderson's any exposure approach,
- a Mississippi appellate court, rejecting a medical monitoring class for persons allegedly exposed in a school building; and
- two Washington State trial court decisions by different judges, rejecting the opinions of Drs. Samuel Hammar and Carl Brodkin in heavy equipment mechanic cases.
These are not insignificant courts-they include two state supreme courts, one federal appellate court, a federal bankruptcy court, and state appellate and trial courts in several jurisdictions. In addition, the breadth of alleged exposures and diseases covered by these cases demonstrates that the any exposure theory is failing across the spectrum of asbestos cases, regardless of diseases and type of exposure. Perhaps most remarkably, the experts whose testimony is being excluded are veterans in the litigation who have supported plaintiff cases for many years with little or no interference from the judiciary. The rejection of these experts' causation testimony, while a significant departure from past practice, reflects the sound application of standard causation rules of asbestos testimony -something that should have happened years ago and is finally gaining traction. These rulings also likely reflect a growing skepticism of many asbestos claims in the wake of findings of massive fraud in federal court silica litigation.
This Article discusses the underpinnings of the any exposure causation theory and why recent courts that have examined the theory more carefully have decided to reject it. These decisions reflect a proper assessment of the dose requirement of toxicology. On the other hand, courts that continue to allow any exposure testimony to proceed unchallenged run the risk of encouraging a flood of speculative or trivial claims at a time when the litigation environment for asbestos claims appears to be regainig some semblance of control. Such an outcome would reflect poor science and even poorer public policy.
(End of excerpt)
Additional information regarding the complete article can be obtained from:
Mark A. Behrens & William L. Anderson: The “any exposure” theory: An unsound basis for asbestos causation and expert testimony; 37 Sw. U.L. Rev. 479-510(2008). (Sw. U.L. Rev. = Southwestern University Law Review)