California appellate court bucks national trend, allows plaintiff experts to opine that “every asbestos exposure is a substantial factor”

Courts from around the country have rejected efforts by plaintiff experts to testify that every asbestos exposure is a substantial factor in causing disease. On March 3, 2016, California’s second appellate district went the other way, and held in Davis v. Honeywell International, Inc. that the controversial “every exposure counts” theory is admissible under governing expert witness law.   Thus, although trial courts are supposed to play a “gatekeeper” role in keeping out unreliable expert evidence (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747), Davis breaks the gate wide open in allowing a jury, not the trial court in its “gatekeeper” role, to decide whether to accept the theory.

Davis was aGATEPICTURE wrongful death case.  Sam Davis  worked as an auto mechanic and home remodeler from approximately 1963 to 1979.  He performed “one or two” brake jobs per day, and always used Bendix brake linings (for which defendant Honeywell was responsible). These linings contained 50 percent chrysotile asbestos by weight.  He was also allegedly exposed to asbestos as a result of his home remodel work.

Prior to trial, Honeywell filed a motion in limine to preclude plaintiff from presenting expert opinion testimony that every exposure to asbestos above background contributed to decedent’s disease. The motion was denied, and plaintiff’s pathologist (James A. Strauchen, M.D.) and pulmonologist (William Rom, M.D.) were permitted to testify and advance the theory. Ultimately, the jury found for plaintiffs, and Honeywell appealed.

Honeywell’s primary basis for appeal was that the “every exposure counts” testimony of Dr. Strauchen should have been excluded. Honeywell advanced four arguments:  (1) the testimony was speculative and illogical; (2) the regulatory standards Strauchen relied upon cannot establish causation; (3) no appropriate scientific literature supports the theory; and (4) the theory is contrary to California causation law espoused in Rutherford v. Owens Illinois (1997) 16 Cal.4th 953, which held that not every exposure to asbestos is a “substantial factor” in causing disease.

Davis rejected each of Honeywell’s arguments. “Having reviewed much of the commentary and scientific literature cited in support of and against the ‘every exposure’ theory, we conclude that the theory is the subject of legitimate scientific debate.   Because in ruling on the admissibility of expert testimony the trial court ‘does not resolve scientific controversies (Sargon), it is for the jury to resolve the conflict between the every exposure theory and any competing expert opinions.”  The court focused largely on the mere existence of evidence that supported the “every exposure counts” theory, and declined to weigh the evidence or any competing inferences.   “While Honeywell is generally correct that in many (or even most) instances epidemiological studies provide the best evidence of causation, its implied argument that it is improper for an expert to rely upon any other tools to determine causation, such as case reports, is not universally accepted.”  As to Honeywell’s argument that “every exposure” contravenes Rutherford, Davis  interpreted Rutherford as not requiring a “dose level estimation,” instead issuing a sweeping statement interpreting Rutherford as supporting the conclusion that even a very small “dose” could increase the risk of asbestos-related cancer.  Davis distinguished the many cases from other jurisdictions rejecting this argument, including Betz v. Pneumo Abex, LLC (2012) 615 Pa. 504, Bostic v. Georgia-Pacific Corp. (Tex. 2014) 439 S.W.3d 332 and Moeller v. Garlock Sealing Technologies, LLC (6th Cir. 2011) 660 F.3d 950. “[W]e simply disagree” that the “every exposure” theory could not be “reconciled with the fact that mesothelioma and other asbestos-related diseases are dose-dependent.”

The Davis court did state, however, that “[w]e caution that our discussion of the materials Dr. Strauchen relied upon should not be seen as approval of either side in that scientific dispute.  Rather, we rely upon the rule of Sargon that although trial courts ‘have a substantial ‘gatekeeping’ responsibility,’ in evaluating proposed expert opinion . . . the gate tended is not a partisan checkpoint . . . If the opinion is based on materials on which the expert may reasonably rely in forming the opinion, and flows in a reasoned chain of logic from those materials rather than from speculation or conjecture, the opinion may pass, even though the trial court or other experts disagree with its conclusion or the methods and materials used to reach it.  (emphasis added)

Further, although much of the discussion relates to the “any exposure” theory, Davis pointed out that the case did not hinge on that theory.  “In this case, Dr. Strauchen was presented with a hypothetical based on the facts surrounding Davis’ exposure to dust from his work on Bendix brake linings, and testified as to estimates of the amount of asbestos fibers contained in visible dust. Therefore, his conclusion that Davis’ exposure to Bendix brake linings was a substantial factor in contributing to the risk of mesothelioma was not based simply on “any exposure” to asbestos, but instead related to an estimate of actual exposure.”

The decision is not yet final. It is still subject to a petition for rehearing, which could result in a change in the opinion, and to either or both a request for depublication and a petition for review to the California Supreme Court, either of which if granted would make this decision uncitable in California courts, though not necessarily elsewhere.

Whodunit? Plaintiffs set up showdown between tobacco and asbestos defendants

On June 10, 2015, two well-known “asbestos” plaintiff firms, The Shepard Law Firm and Levy Konigsberg, LLP, together filed a complaint in the Superior Court of the Commonwealth of Massachusetts on behalf of plaintiffs Louis and Joanna Summerlin. Mr. Summerlin’s claimed injury is lung cancer, while Mrs. Summerlin’s claim is for loss of consortium. However, this is not a run-of-the-mill asbestos lawsuit. Rather, the plaintiffs have named more typical asbestos and big tobacco defendants Philip Morris USA and RJ Reynolds Tobacco Company in a clear effort to potentially pit asbestos against tobacco in a “whodunit” battle over what caused Mr. Summerlin’s cancer. Time will tell if this tactic will be successful.

cigaretteAsbestos cases generally fall into three categories: 1) mesothelioma claims; 2) non-malignant asbestosis claims/pleural disease; and 3) lung cancer claims. While categories (1) and (2) involve injuries commonly associated with asbestos exposure, lung cancers claims are not generally associated with asbestos, especially when the person with lung cancer smoked cigarettes for decades. That is, lung cancer claims are generally attributed to smoking and, absent very specific underlying diagnoses and smoking histories, are heavily contested by defendants in the asbestos litigation.

The normal defense in a case like this is the obvious one: the plaintiff’s lung cancer was caused by smoking cigarettes. Here, Mr. Summerlin was a two pack per day smoker of six decades (1950’s – 2009). Given the lengthy, heavy, and recent smoking history of Mr. Summerlin, the expected and obvious defense of the defendants sued for asbestos exposure would be that Mr. Summerlin’s lung cancer was caused by smoking cigarettes. While it is unclear from his complaint as to whether Mr. Summerlin alleges any markers of asbestos exposure, the assertion that Mr. Summerlin’s lung cancer was caused by smoking cigarettes would likely be accepted by any medical professional, thereby calling into question plaintiff’s claim that asbestos exposure is a contributing cause of Mr. Summerlin’s cancer. This is especially true given Mr. Summerlin’s work as an automotive mechanic, which the defense has successfully argued on many occasions that the epidemiological evidence does not support a conclusion that an individual in the trade is at any increased risk of developing an asbestos-related disease.

This is where the plaintiffs’ firms in Mr. Summerlin’s case appear to have taken a unique approach in New England in the pursuit of a lung cancer claim: they have sued both asbestos and tobacco defendants and alleged that exposure to both carcinogens acted as “concurrent” causes of Mr. Summerlin’s lung cancer. Specifically, the plaintiffs allege that “[c]igarette smoking and asbestos exposure act ‘synergistically’ and in combination to cause lung cancer in persons, such as Mr. Summerlin, who regularly smoked cigarettes and were regularly exposed to asbestos.” For years, plaintiffs in the asbestos litigation have made this claim in the face of the smoking defense. Here, they make the claim with big tobacco in the room. Regardless of the outcome, it is guaranteed that counsel on both sides will closely monitor the success – or failure – of this strategy.

National Trends Driving Asbestos Litigation in 2013-2014 (3 of 3): Low-Dose Defendants Remain Targets

3.  Low-Dose Defendants Continue to Be “New” Target Defendants

A review of the defendants against whom plaintiffs’ attorneys are litigating and taking to verdict in 2013 demonstrates the ongoing trend of focusing on low-dose chrysotile defendants such as gasket friction-product and joint compound manufacturers. Most of the amphibole asbestos product defendants are no longer in the litigation, leaving an ever-creative plaintiffs’ bar to seek out additional sources of potential exposures from low-dose chrysotile products such as cosmetic talc, HVAC, and electrical products and distributors. Additionally, plaintiffs’ firms are spending millions of dollars to advertise on television and the Internet in search of individuals on whose behalf they can file mesothelioma claims. “Mesothelioma settlement,” “mesothelioma asbestos attorney,” “asbestos attorney” and “asbestos law firm” are the top four most expensive Google AdWords, commanding between $107 and $142 per click.

Given the media blitz, it is no wonder that almost all Americans diagnosed with mesothelioma will file lawsuits. Yet, it is estimated that 10-20 percent of all mesothelioma cases are caused by something other than asbestos. Causal factors under consideration include genetics, carbon nanotubes, taconite, ionizing radiation, talc, vermiculite contaminated with tremolite and erionite.

The best defense as to pursuit of “low dose” defendants remains battles over product ID and asbestos content issues. To that end, the Gordon & Rees defense team continues its efforts to carefully evaluate plaintiffs’ claims, investigate prior medical and exposure histories, retain and work closely with highly skilled experts in the medical and industrial hygiene fields, and file and win dispositive motions.

View part 1 and part 2 of this series.