Academic journal article Defense Counsel Journal

The Any Exposure Theory Round III: An Update on the State of the Case Law 2012-2016

Academic journal article Defense Counsel Journal

The Any Exposure Theory Round III: An Update on the State of the Case Law 2012-2016

Article excerpt

IN 2006 a Pennsylvania state court judge unleashed, probably unwittingly, a dramatic change in the course of U.S. asbestos litigation by excluding the testimony of an asbestos plaintiff causation expert. (1) The expert intended to testify that "each and every exposure" in a workplace or other environment was a cause of asbestos disease, specifically mesothelioma, and that the actual extent of exposure or "dose"' did not matter. (2) The trial judge dissected that testimony, exposing its logical fallacies and scientific unreliability. (3) Since that ruling, later upheld by the Pennsylvania Supreme Court in Betz v. PneumoAbex, LLC, (4) dozens of courts nationwide have excluded or rejected various versions of the any exposure theory. (5) In some states, such as Texas, those rulings have significantly reduced dockets or even turned the course of the litigation. (6)

Plaintiffs have responded to these setbacks in two ways. First, over the last few years plaintiffs have had their own success in obtaining a series of rulings admitting any exposure opinions, in the face of defense motions and in contradiction to the many courts that have excluded this testimony. Second, in part to avoid exclusion, many testifying experts for plaintiffs have stopped describing their theory as each and every exposure, and now call it the cumulative exposure theory. Some courts have treated this as more than a change in name and denied defense motions based on any exposure testimony as moot. The battle thus remains joined, but the science is unchanged and still fully supports defendants--the cumulative exposure theory is every bit as unscientific and illogical as the any exposure theory. (8) Expert or sufficiency of evidence challenges to any or cumulative exposure testimony still remains a critical aspect of the current trend toward low exposure cases.

In two prior articles, we have described the fallacies in the any exposure approach and the state of the case law. (9) This article will not retrace that ground but instead provides an update since 2012 on the course of these decisions, shifts in plaintiffs' theory, and court rulings that defendants will need to confront. Defendants continue to win more of these motions than not, but they need to address the new rulings favoring plaintiffs and changes in the approach these experts have adopted.

I. The Flawed Approach of the Any Exposure Theory

The causation theory originally known as the single fiber theory and later as the any exposure theory is based on the assumption that no amount of workplace asbestos exposure is too small to be excluded from causation. Plaintiffs' experts who embrace their theory typically testify that "each and every exposure to asbestos other than background exposures is cumulative and thus a substantial factor in causing mesothelioma." (10) The theory would thus capture, at its broadest use, virtually any contact with asbestos in a workplace or para-occupational activity (e.g., hobbies, home brake jobs, or home remodeling), regardless of how limited or small the exposure was. Some experts have no qualms in so applying the theory to causation opinions in cases involving a handful of gasket removals, a few backyard brake jobs, or walking by someone performing joint compound sanding, among other scenarios. (11) Cases involving tearing dental tape and stripping asbestos insulation off electric wires--trivial exposures if ever there were any--can easily go to trial. One such case produced a $3 million verdict in New Jersey. (12)

These experts--and the stable includes virtually every plaintiff-side causation and risk expert--argue that no work or product related asbestos exposure can be excluded because it is the cumulative dose of asbestos that causes the ultimate disease and all such exposures contribute to the cumulative does. A commonly used analogy notes that every drop of water contributes to filling the glass. To the contrary, the human body actually discharges many asbestos fibers, especially the much easier to manage chrysotile form of fiber. …

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