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.
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“…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.