Category Archives: Asbestos

THE “EVERY EXPOSURE” THEORY IS ACCEPTED IN CALIFORNIA

EveryExposure

Many substances are harmless if you do not ingest a sufficient dose or amount of it. Asbestos is arguably one of those substances, see “Every Exposure, Thresholds and Low Doses” Toxic Torts and Environmental Law Newsletter, ABA Litigation Committee (Fall 2015), but some courts say “every exposure” to asbestos is harmful and causes mesothelioma.

On March 6, 2016, a California appellate court in Nickole Davis, et al v. Honeywell International, Inc., 199 Cal. Rptr. 3d. 583 (Court of Appeal of the State of California, Second Appellate District, Div. 4, 3/3/16), affirmed the trial court’s denial of the defendant’s motions in limine to exclude the “every exposure” theory testimony of plaintiff’s experts. In doing so, the court held that the “every exposure” theory is a subject of legitimate scientific debate, and the jury should decide if it is credible.

The deceased in Davis was exposed to asbestos in Bendix-brand brake linings when he did one or two brake jobs on autos every day for about fifteen years in the 1960s – 1970s. By weight, half of the brake lining material plaintiff used was made up of asbestos fibers.

Defendant Honeywell, the successor to Bendix, filed a motion in limine to preclude plaintiff’s expert from testifying that every exposure to asbestos by plaintiff above background levels contributed to the deceased’s mesothelioma. Plaintiff’s experts relied on three studies dealing with harm caused by low exposure to asbestos and mesothelioma, along with an article published in the American Journal of Industrial Medicine on brake lining workers’ exposure to asbestos. Based upon this evidence, the appellate court concluded:

These studies and article belie Honeywell’s assertion that [plaintiff’s expert] Dr. Strauchen admitted there are no studies of the association between mesothelioma and the kind of low dose exposure Davis experienced from Bendix brake linings… In short, Honeywell’s assertion that Dr. Strauchen’s testimony was not supported by materials he relied upon is not correct. Although Honeywell – and others – may disagree about the methods used in those materials or the conclusions Dr. Strauchen drew from them…many members of the scientific community do not.

*     *     *

“…If…the expert testifies that asbestos exposure is cumulative because the fibers remain in the lungs for a long period of time, it is not illogical to conclude that each exposure, when added to other exposures, can result in a cumulative exposure sufficient to cause mesothelioma or other asbestos-related diseases, and therefore each exposure is a substantial factor in contributing to the disease.” (Emphasis added).

Davis, 245 Cal. App. 4th.

The Davis court declined to follow cases from other jurisdictions that have rejected the “every exposure” theory of causation, including Betz v. Pneumo Abex, LLC, 615 Pa. 504 (Pa. 2012); Bostic v. Georgia-Pacific Corporation, 439 S.W.3d 332 (Tex. 2014); and Moeller v. Garlock Ceiling Technologies,LLC, 660 F.3d 950 (6th Cir. 2011) (applying Kentucky law).

Davis may be distinguished from case law in other jurisdictions based upon the controlling burden of proof in asbestos-related cancer cases in California, Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997), under which a plaintiff:

“may prove causation…by demonstrating that the plaintiff’s exposure to defendant’s asbestos-containing product in a reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.” (Emphasis in original).

Id. at pp. 976-977 fn omitted. Thus, under California law, a plaintiff may prevail by demonstrating that the defendant’s product was a substantial factor in contributing to the risk of developing asbestos-related cancer. Id. In any event, Davis is a significant victory for those who subscribe to the every exposure theory and stands in stark contrast to the Bostic case in Texas.

“EVERY EXPOSURE” THEORY IS REJECTED BY ALL LOUISIANA FEDERAL COURTS, ACCEPTED BY SOME STATE COURTS

NoEveryExposure

All federal courts in Louisiana that have considered the “every exposure” theory under Louisiana law have rejected it. See Davidson v. Georgia Pacific, LLC, No. 12-1463, 2014 WL 3510268 at *3-6 (W.D. La. July 14, 2014); Comardelle v. Pennsylvania General Insurance Co., 76 F.Supp.3d 628 (E.D. La. Jan. 5, 2015); Vedros v. Northrop Grumman Shipbuilding, Inc., 119 F.Supp.3d 556 (E.D. La. Aug. 4, 2015).

The Louisiana Supreme Court has not expressly spoken on the “every exposure” theory in mesothelioma cases. In its last major mesothelioma case, Rando v. Anco Insulations, 2008-1163 (La. 5/22/09), 16 So.3d 1065, the court stated that every non-trivial exposure to asbestos contributes to and causes mesothelioma. See Id. at 1091; see also, Landry v. Avondale Industries, Inc., 111 So.3d 508, 511 (La. App. 4th Cir. 2013).

The Louisiana Fourth Circuit in Oddo v. Asbestos Corp., 2014-0004 (La. App. 4 Cir. 8/20/15), 173 So.3d 1192, considered the trial court’s rejection of the every exposure theory, but did not rule on it. Instead, it affirmed the trial court’s adoption of the theory that every above-background exposure to asbestos contributes to the development of mesothelioma (which the defendant’s expert agreed was a valid, reliable theory).

The Louisiana First Circuit in Robertson v. Doug Ashy Building Materials, 2014-0141 (La. App. 1 Cir. 12/23/14), 168 So.3d 556 reversed the trial court’s rejection of the every exposure theory plaintiffs’ expert called his “special exposure” theory. The court held that a plaintiff is not required to prove his “quantitative level of exposure,” and endorsed, as reliable, the plaintiff’s expert opinion that if “there was a scientific reason to believe that the form of the exposure…would be expected to increase one’s risk of developing mesothelioma,” the plaintiff had a substantial exposure to asbestos.

“EVERY EXPOSURE” TO ASBESTOS,NO MATTER HOW LITTLE….

“EVERY EXPOSURE” TO ASBESTOS – NO MATTER HOW LITTLE – EQUALS AN ISSUE OF FACT FOR TRIAL AND WILL RESULT IN DENIAL OF A MOTION FOR SUMMARY JUDGMENT ON CAUSATION IN AN ASBESTOS CASE IN LOUISIANA STATE COURTS

Security risk protection safety shield

Many defendants in asbestos-exposure cases have very little involvement in causing plaintiff’s asbestos-related illness. At the close of fact discovery, they often rely on a “no evidence” motion for summary judgment in Louisiana state courts to force plaintiff to show he had a harmful exposure to asbestos for which the defendant moving for summary judgment is allegedly liable to the extent it was a substantial factor in bringing about his injury. Rando v. Anco Insulations, Inc., 2008-1163, p. 35-36 (La. 5/22/09), 16 So.3d 1065, 1091; Oddo v. Asbestos Corp., 2014-0004 (La. App. 4 Cir. 8/20/15), 173 So.3d 1192.

Recent Louisiana appellate decisions arguably send a message that “every exposure” to asbestos will defeat a no-evidence motion for summary judgment in an asbestos exposure case. This trend will force more defendants to pay cost-of-defense (or higher) settlements. See: Alberes v. Anco Insulations, Inc., 2013-1549 (La. App. 4 Cir. 12/10/14), 156 So.3d 795 (5 day exposure in a fifty-year exposure period is an issue for trial); Francis v. Union Carbide Corp., 2012-1397 (La. App. 4 Cir. 5/8/13), 116 So.3d 858 (the conduct of asbestos insulation work while the deceased was at the refinery creates a dispute issue of material fact for trial); but see, Landry v. Avondale Industries, Inc., 2012-0950 (La. App. 4 Cir. 3/6/13), 111 So.3d 508 (partial summary judgment on liability in favor of plaintiff reversed because of disputed fact about the quantity of asbestos to which plaintiff was exposed by defendant).

Texas Supreme Court Rejects the “Any Exposure” Theory to Prove Causation in a Mesothelioma Case

asbestosThe “any exposure” theory goes like this:

  • Every exposure to a single fiber of asbestos could cause mesothelioma;
  • Therefore, a plaintiff only needs to prove one fiber of asbestos from a defendant was inhaled by the plaintiff to prove the defendant caused the plaintiff’s mesothelioma.

On July 11, 2014, the Supreme Court of Texas rejected the “any exposure” theory of causation in mesothelioma cases. See Bostic v. Georgia-Pacific Corp., No. 10-0775, 2014 WL 3797159, *2-5 (Tex. July 11, 2014).

In Bostic, the deceased died of mesothelioma. His estate sued Georgia-Pacific and thirty-nine other defendants alleging they caused Mr. Bostic’s mesothelioma by exposing him to asbestos in the workplace and elsewhere over decades.

Plaintiffs alleged that as a child and teenager, Mr. Bostic was exposed to asbestos while using Georgia-Pacific drywall joint compound. All defendants except Georgia-Pacific settled before trial. The jury found that plaintiffs proved causation against Georgia-Pacific and awarded $6.8 million in compensatory damages and $4.8 million in punitive damages.

Georgia-Pacific argued on appeal that Plaintiffs’ evidence of causation against it was legally insufficient. The Texas Supreme Court agreed:

  • It ruled a plaintiff in a mesothelioma case loses if he only proves a defendant caused him “some exposure” or “any exposure”:

“With both asbestosis and mesothelioma, the likelihood of contracting the disease increases with the dose . . . and in today’s case, plaintiffs’ experts consistently testified that all asbestos-related diseases are dose-related.” Id. at *2.

  • The court rejected the “any exposure” theory based upon its reasoning that:

“If any exposure at all were sufficient to cause mesothelioma, everyone would suffer from it or at least be at risk of contracting the disease . . .” Id. at *3.

“More fundamentally, if we were to adopt a less demanding standard for mesothelioma cases and accept that any exposure to asbestos is sufficient to establish liability, the result essentially would not be just strict liability but absolute liability against any company whose asbestos-containing products crossed paths with the plaintiff throughout his entire lifetime.” Id.

“We fail to see how the [any exposure] theory can, as a matter of logic, exclude the higher than normal background levels [of asbestos] as the cause of plaintiffs’ disease, but accept that any exposure from an individual defendant, no matter how small, should be accepted as a cause in fact of the disease.” Id. at *5.

  • The Texas Supreme Court declined to require that plaintiffs prove “but for causation,” i.e., but for Bostic’s exposure to Georgia-Pacific’s drywall compound in his youth, he would not have contracted mesothelioma. The court explained that due to the nature of mesothelioma’s disease process, which can occur over decades and involve multiple sources of exposure, “but for” causation was too high a burden of proof for plaintiffs exposed to asbestos to carry. Id. at *5-*6.
  • Relying on toxic tort cases, the Bostic court concluded that “. . . [in] the absence of direct proof of causation, establishing causation in fact against the defendant in an asbestos-related disease case, requires scientifically reliable proof that the plaintiff’s exposure to the defendant’s product more than doubled his risk of contracting the disease. A more than doubling of the risk must be shown through reliable expert testimony that is based on epidemiological studies or similarly reliable scientific testimony.” Id. at *11

The Bostic case “raises the bar” that plaintiffs must clear to prove causation for mesothelioma cases in Texas. The decision also provides powerful persuasive authority for courts in other states wrestling with the “any exposure” or “every exposure” theory of causation in mesothelioma cases and the sufficiency of scientific evidence necessary to prove causation in asbestosis and mesothelioma cases.

Note: A Louisiana federal court interpreting Louisiana law rejected the “every exposure” theory in interpreting Louisiana law in Davidson v. Georgia Pacific, LLC, No. 12-1463, 2014 WL 3510268, at *3-6 (W.D.La. July 14, 2014).