A common refrain from plaintiffs’ experts in the asbestos litigation is that “each and every exposure” to asbestos fibers was a substantial contributing cause of a plaintiff’s asbestos-related disease. Under this theory, it makes no difference whether a plaintiff was exposed to millions of asbestos fibers from a defendant’s product or just one. In plaintiffs’ experts’ eyes, the result is the same: the inhalation of a single asbestos fiber from a defendant’s product was equally as causative in the development of disease as the millions of asbestos fibers inhaled by the plaintiff from products for which the defendant has no liability.
Courts in recent years have taken a close look at whether plaintiffs’ experts’ opinions regarding the “each and every exposure” theory are both scientifically and legally sound. In the recent 7th Circuit decision of Charles Krik v. Exxon Mobil Corp., et al., (case number 15-3112, U.S. Court of Appeals for the Seventh Circuit), the U.S. Court of Appeals upheld the lower court’s adherence to the increasing trend of precluding the “each and every exposure” theory as impermissible junk science.
In Krik, the plaintiff alleged that his lung cancer was caused by exposure to asbestos manufactured or supplied by various defendants during his Navy service and during his work at an Exxon refinery. A federal court jury found in favor of Exxon and an insulation manufacturer, finding that plaintiff’s 30 year smoking history of a pack-and-a-half per day of cigarettes was the sole cause of his lung cancer.
On appeal, plaintiff argued that he was denied a fair trial for two reasons – (1) that the lower court erred in blocking the testimony of plaintiff’s medical causation expert, Dr. Arthur Frank, who intended to testify that “each and every” exposure to asbestos fibers can cause disease and (2) the jury was tainted, as Exxon hired a private investigator to secretly conduct an interview of a juror’s acquaintance to verify information revealed by the juror. The Court of Appeals rejected both arguments.
Notably, the lower court rejected Dr. Frank’s “each and every exposure” theory, holding that it was not sufficiently reliable to pass muster under the U.S. Supreme Court’s Daubert test for admissibility of expert testimony. After the ruling, the case was transferred to another judge for trial. Plaintiff called Dr. Frank to testify at trial regarding what Dr. Frank dubbed the “cumulative exposure theory” of causation. However, the trial judge precluded the testimony, ruling that the opinion was not tied specifically to defendants, but rather was based on Dr. Frank’s opinion that every exposure to asbestos is a cause of disease. On appeal, plaintiff argued that the “cumulative exposure theory” was not the same as the “each and every exposure theory” and should therefore have been allowed. The appellate court, though, upheld the lower judges’ rulings.
CMBG3 Law LLC has represented clients in toxic torts matters, especially with respect to asbestos, for many years. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information, please contact John Gardella (email him or 617-936-4353).