Women’s Lunch at Perrin National Asbestos Litigation Conference

Beverly Bond
Stephanie Jones
Women’s Lunch at Perrin National Asbestos Litigation Conference

MONDAY, SEPTEMBER 27 · 12:15 P.M.
THE FAIRMONT SAN FRANCISCO HOTEL

Join hosts Beverly Bond and Stephanie Jones
at the Women’s Lunch as part of the
Perrin National Asbestos Litigation Conference.

We look forward to seeing you there!

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A Return to the Hotel California: Out of State Plaintiffs Must Bring Their Causation “Baggage” With Them

Out of state plaintiffs flock to California courts to take advantage of its laws, including its more relaxed causation standard for asbestos injuries. However, a recent California appellate decision highlighted the fact a plaintiff may not evade the application of his own state’s causation standard when his asbestos exposure occurred entirely in that state – notwithstanding a California venue.1

Swanson v. The Marley-Wylain Company held the trial court erred by permitting a causation instruction based on California law, when Michigan’s causation standard properly applied. Swanson involved a Michigan-based plumber who, from 1969 to 1976, was allegedly exposed to asbestos while working on boilers manufactured by a Marley-Waylain (“MW”) subsidiary. He moved to California in 1979, was diagnosed with mesothelioma in 2014, and filed suit in California for his injury. Swanson’s exposure to MW’s product took place entirely in the state of Michigan, and given there was conflict between Michigan’s stronger “but for” standard of proximate cause test and California’s “substantial factor” test, MW asked the trial court to order Michigan’s causation standard applied. Although the trial court denied MW’s motion, the Court of Appeal issued a writ of mandate ordering Michigan’s causation law applied. The case proceeded to trial. Plaintiffs persuaded the court to issue a jury instruction setting forth California’s substantial factor test; the trial court ultimately instructed the jury the plaintiff “may meet the burden of proving exposure to defendant’s product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.” The jury returned a verdict against MW.

On appeal, MW argued the jury had been improperly instructed under California law, and there was insufficient evidence under Michigan law of a causal link between plaintiff’s exposure and his disease. Although the court found the causation evidence could have been sufficient to support the jury’s verdict under Michigan law, it found that the trial court committed prejudicial error by instructing the jury on California’s “substantial factor” test and reversed the judgment and remanded the matter to the trial court for retrial.

The Swanson decision is important for multiple reasons, particularly its affirmation that the location of a plaintiff’s exposure properly frames the applicable causation standard. Even the fact that plaintiff moved to California in 1979 and was a California resident for 35 years before his diagnosis did not compel a different result. California law requires an issue by issue and defendant by defendant choice of law analysis. When, as here, such analysis mandates the application of out-of-state law, a plaintiff may not bypass that mandate with creatively fashioned jury instructions, or through a court’s prejudicial error by so instructing a jury.

The key takeaway for those defending California cases with plaintiffs whose exposure took place entirely out of state is to evaluate and seek to apply the causation standard of the locus of exposure. Even when a plaintiff is a California resident, the “issue by issue” evaluation process mandates application of the causation standard from the state where the exposure occurred.
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1 This follows on the heels of other California cases seeking to rein in forum shopping by enterprising plaintiff’s lawyers, such as this one which sought to limit the use of “nominal” or “sham” defendants to defeat forum non conveniens motions.

California highlights burden on defendants seeking to apportion liability to co-defendants and non-parties

A California Court of Appeal has rejected a defense challenge that the defendant was assigned too high a percentage of liability (60%), because the defendant did not introduce enough evidence about other parties’ liability. The court also rejected a defense claim that the $25 million noneconomic damage award was excessive, even though it was “well beyond the normal range of awards in similar cases for similar injuries” per a survey of similar verdicts.

Phipps v. Copeland Corporation LLC was an asbestos personal injury case in which plaintiff alleged that his mesothelioma resulted from asbestos exposure during his three years in the U.S. Navy and during his subsequent career as an HVAC technician. Copeland Corporation was one of four compressor manufacturers plaintiff sued by plaintiff, along with many other defendants. Plaintiff proceeded to verdict against Copeland only.

Although plaintiff’s medical and causation experts acknowledged during trial at all of plaintiff’s asbestos exposures contributed to his overall dose, they specifically (and expectedly) amplified the exposures to the asbestos-containing gaskets contained within Copeland’s compressors in an effort to maximize Copeland’s share.

The jury found for plaintiff, and ultimately apportioned 60% liability to Copeland, of 15 parties and nonparties on the verdict form. Copeland argued that the evidence could not support “assigning twenty times more fault to Copeland than to any of the other compressor manufacturers, and more fault than all other entities combined.”

The court, however, disagreed. “[A]s the party with the burden to establish the percentage of comparative fault attributable to others [citations omitted], Copeland, to obtain a reversal, must show the evidence compelled a verdict in its favor on apportionment as a matter of law.” Copeland argued that the apportionment was “illogical” because it found Copeland more responsible than any other compressor companies. However, the court pointed out there was no evidence “to compel a finding that William replaced fewer Copeland gaskets than he did Carrier, Trane, or York gaskets.” In reaching this conclusion, the court found that there were sufficient, uncontroverted facts to establish that plaintiff would have worked with far fewer asbestos-containing components from the other equipment manufacturers than from Copeland. In the court’s view, Copeland failed to proffer sufficient evidence of the frequency, intensity and duration of plaintiff’s exposure to the products of other defendants, including the HVAC defendants, and so could not show that the jury’s 60% liability finding was improper.

“The second reason Copeland has failed to demonstrate the evidence compelled a verdict in its favor on apportionment as a matter of law is that ‘the jury was permitted to consider the relative culpability of the parties in assessing comparative fault.’” That culpability need not rise to the level of that required for punitive damages, as here the defense had won summary adjudication nixing punitive damages from the case.

Copeland also argued that the noneconomic damages award was excessive. In support, Copeland submitted to the trial court “a spreadsheet labeled “Plaintiff Verdict Amounts in Asbestos/Mesothelioma Cases.” An accompanying declaration explained that the spreadsheet was the result of “a process for obtaining comparative verdicts in cases that, similar to this one, involved allegations of asbestos exposure leading to mesothelioma,” based on “Lexis Advance® Verdict Analyzer.” Neither the trial court nor the Court of Appeal was moved by this use of technology.

“The trial court did not abuse its discretion in refusing to consider Copeland’s survey of awards in other cases because, if for no other reason, sections 657 and 658 prohibited the court from considering such material:” the statutes require motions to be made on “the minutes of the court.” Accordingly, and because the award was supported by substantial evidence, the judgment and denial of new trial was affirmed.

This case serves as a critical cautionary tale to defendants at trial of the importance of introducing evidence of the liability of others. While California’s Proposition 51 imposes several liability only for non-economic damages, the burden of proving these “alternate shares” lies exclusively with the defendant. The Phipps court made clear that, in its discretion, Copeland simply did not do enough to make a showing that the jury’s apportionment of responsibility was improper. In light of Phipps, a defendant should consider introducing evidence such as:

  • Quantitative assessments of the likely doses of asbestos from the products of others and any possible exposures from one’s own products, including dose reconstructions from experts when possible;
  • Medical causation evidence regarding the relative carcinogeneity of fiber type; and
  • Documentary, “hard” evidence of a co-defendant’s liabilities.

When there are multiple defendants at trial, the plaintiff will make some of this case. Where, as here, there is only a single defendant, this will be more onerous and time-consuming.

Pain and suffering may become awardable in California wrongful death cases.

California may be joining the majority of the country by making pain and suffering damages available in wrongful death cases. Under current law, pain and suffering is only available in personal injury cases. Senator Laird introduced Senate Bill 447 in February 2021, which would allow the survivor of a deceased plaintiff to recover damages for the pain and suffering of the deceased. The senator premised the need for this change on COVID delaying the courts and preventing trials, and to that end amended the original proposal so that it would apply only where the pain and suffering accrued before January 1, 2026.

Although Senator Laird had originally asserted the need for this change because COVID 19 was depriving some plaintiffs of their day in court, supporters of the bill have voiced more general concerns, such as the notion that the current law allows defendants to “get away with” paying less damages simply because the plaintiff dies before trial, and deprives the victim’s family of the additional compensation. Supporters of the bill include the Consumer Attorneys of California, the Consumer Federation of California, and various unions. Opponents include the California Defense Counsel, California Justice Association, California Medical Association, the California Chamber of Commerce, and associations of health facilities and assisted living facilities.

If this bill is passed, it will make wrongful death cases more expensive to settle. No matter whether the death had anything to do with the underlying suit.

The bill has been sent to the Assembly to weigh in on this change.

Iowa Court of Appeals Bars Claims Against Asbestos Defendants for Products Made or Sold by Third Parties

The Iowa Court of Appeals affirmed a district court’s decision that Iowa’s Section 686B.7(5), enacted in 2017, barred claims against a premises owner and installer of asbestos products. The statute provides: “A defendant in an asbestos action or silica action shall not be liable for exposures from a product or component part made or sold by a third party.

In Beverage v. Alcoa, Inc., decedent worked many years inside an asbestos-containing aluminum plant. Decedent’s family brought asbestos-related claims against premises owner Alcoa Inc. and insulation contractor Iowa-Illinois Taylor Insulation, Inc. Both defendants filed motions for summary judgment arguing that Section 686B.7(5) provided them immunity.

The District Court focused on whether the asbestos-containing insulation used at the premise and any component parts were “made or sold by a third party.” The court noted that the premises defendant never manufactured, produced, or sold an asbestos-containing product or component part, it was merely a consumer of asbestos insulation provided by a third party (the insulation contractor). And while the insulation contractor sold products containing asbestos, the insulation contractor purchased these asbestos products from other sources. Because any asbestos-containing products the insulation contractor installed at the premise or sold to the premise were products or component parts made or sold by third parties, Section 686(B).7(5) granted the defendants immunity, and the court dismissed the claims against them.

On appeal, Plaintiffs argued that the district court misinterpreted Section 686(B).7(5).

First, Plaintiffs argued that the word “defendant” in Section 686(B).7(5) does not mean “any entity sued in an asbestos suit,” but rather “one that makes or sells an asbestos product.” The court disagreed, holding that the words of Section 686(B).7(5) show the legislature’s clear intention to limit asbestos litigation by immunizing a substantial range of defendants, not all of whom manufacture anything.

Plaintiffs next argued that Section 686(B).7(5) established a “bare metal defense,” a common defense raised by manufacturers of equipment that used asbestos, and that because the bare metal defense applies to product manufacturers, the district court should have interpreted Section 686(B).7(5) to only protect product manufacturers. The court disagreed, holding that the immunity available under Section 686(B).7(5) is not the same as that available under “bare metal” defenses, and that if the legislature intended merely to codify the common law defenses, it would have so stated.

Plaintiffs also argued that Section 686(B).7(5) should only apply to product manufacturers because, under the district court’s interpretation, Section 686(B).7(5) would eliminate the liability of premises owners and product suppliers, and interpretation that is “absurd in the extreme.” The court disagreed, pointing out that Section 686(B).7(5) did not create a general grant of immunity for either group. The court further held that it saw nothing absurd with asbestos litigation refocusing on culpable targets, such as asbestos manufacturers.

Full disclosure: GRSM’s Beverly Bond served as national counsel for Alcoa in this matter.

While this decision is welcome news for many asbestos defendants in Iowa, the debate over the bare metal defense’s viability remains alive and well at the state court level in other jurisdictions as we advance into 2021.

California Limits Punitive Damages Against Corporations

Last week, a California appellate court limited punitive damages against corporations. By statute, punitive damages can be awarded against a corporation only if the acts were taken or approved by an “officer, director, or managing agent.” Yet courts regularly allow plaintiffs to tar the entire organization without such specific proof. Morgan v. J-M Manufacturing Co. rejected that standard plaintiff position, re-affirmed the statutory restriction, and reversed a $15 million punitive damages award in an asbestos case.

Defendants will be able to use this decision to ward off punitive damages claims, including at the summary adjudication stage, for lack of sufficient evidence. Plaintiffs’ counsel will likely cite this decision to support discovery and deposition demands about specific individuals from corporate defendants. Even such more robust discovery may not uncover witnesses or other evidence to support a punitive damages claim, particularly in cases involving asbestos or other materials that have not been used for decades.

Some highlights from the decision:

The primary focus of J-MM’s argument is that there is no evidence in the record that a J-MM officer, director, or managing agent authorized or ratified any conduct. J-MM contends that at trial, Morgan “treated J-MM as a monolithic entity” and referred to the company—in its entirety—as “they,” without ever identifying who “they” referred to. “[O]f the few J-MM employees whose conduct was specifically identified at trial,” J-MM argues, “none even qualified as officers, directors or managing agents of J-MM during the relevant time period.”

Morgan does not argue that there is evidence identifying any act of any particular J-MM officer, director, or managing agent. Morgan’s argument is that “the entire organization was involved in the acts giving rise to malice,” and therefore it need not introduce clear and convincing evidence that any particular officer, director, or managing agent had the requisite state of mind.

“[i]t is difficult to imagine how corporate malice could be showing in the case of a large corporation except by piecing together knowledge and acts of the corporation’s multitude of managing agents.” … It may be that J-MM’s officers, directors, and managing agents acted with the requisite state of mind to support an award of punitive damages in an appropriate case. A plaintiff may be able to provide evidence at trial to “piec[e] together knowledge and acts of [J-MM’s] multitude of managing agents.” But that did not happen here.

That the defendant is a large company does not relax a plaintiff’s burden of proof . . .

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The decision changed from unpublished, which could not be cited to California courts, to published and therefore citable. I joined in a successful publication request.

Supreme Court of Pennsylvania To Address Whether Registration of Out-of-State Businesses Creates General Jurisdiction

Pennsylvania’s unique corporate registration statute may be on the chopping block after a three-judge Superior Court panel in Mallory v. Norfolk Southern Railway agreed to transfer a jurisdictional dispute to the Commonwealth’s Supreme Court pursuant to a provision in the Pennsylvania Judiciary Code that gives the Supreme Court exclusive jurisdiction over any appeal from a trial court decision finding that a statute is “repugnant to the Constitution.” 42 Pa. C.S. § 722(7).

The key issue in Mallory v. Norfolk Southern Railway is whether Pennsylvania courts may constitutionally exercise general personal jurisdiction over out-of-state corporations simply because they register to conduct business in the Commonwealth of Pennsylvania. Pennsylvania law provides that a foreign corporation may not do business in the Commonwealth until it registers with the Pennsylvania Department of Business pursuant to 15 Pa.C.S.A. § 411. The Pennsylvania long-arm statute provides that general personal jurisdiction may be exercised over a foreign corporation in three circumstances: (1) incorporation under or qualification as a foreign corporation; (2) consent; and (3) the carrying on of a continuous and systematic part of its general business in Pennsylvania. 42 Pa. C.S. § 5301(a)(2). These statutes construed together appear to require foreign corporations to submit to the court’s general jurisdiction as a condition for doing business in Pennsylvania.

This is a hotly contested issue in Pennsylvania, and courts have struggled to reach a consensus as to whether the corporate registration and long-arm statutes comport with the U.S. Supreme Court’s holding in Daimler, which mandates that an out-of-state corporation is not subject to general jurisdiction unless it is registered to conduct business in or has its principal place of business in the forum.

In Mallory, the plaintiff (a resident of Virginia) filed suit in the Philadelphia Court of Common Pleas against his employer Norfolk Southern Railway (Virginia corporation with its principal place of business in Virginia) alleging violations of the Federal Employers’ Liability Act after allegedly being exposed to carcinogens while working at Norfolk’s locations in Ohio and Virginia. Norfolk filed Preliminary Objections seeking to dismiss the complaint for lack of personal jurisdiction. Plaintiff argued that Norfolk consented to general personal jurisdiction pursuant to 42 Pa.C.S.A § 5301 by registering to do business in Pennsylvania.

Judge Arnold New granted Norfolk’s Preliminary Objections for two reasons. First, he found that the Pennsylvania corporate registration statute does not comport with federal due process because it allows Pennsylvania to exert general jurisdiction over out-of-state entities that are not “at home” in the Commonwealth. This unique rule creates a federalism issue because it allows Pennsylvania courts to interfere with the right of other states to render verdicts against their own corporate citizens. Second, the corporate registration statute compels out-of-state entities to subject themselves to general jurisdiction as a condition of doing business in Pennsylvania. Judge New reasoned that this is contrary to U.S. Supreme Court law, which “made clear that a state cannot claim general jurisdiction over every corporation doing business within its borders… By wrapping general jurisdiction in the cloak of consent, Pennsylvania’s mandated corporate registration statute attempts to do exactly what the United States Supreme Court prohibited in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011), BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (U.S. 2017) and Daimler AG v. Bauman, 571 U.S. 117 (U.S. 2014).”

Judge New’s ruling is consistent with an overwhelming majority of courts throughout the country that have considered this same issue. See, e.g., Brown v. Lockheed Martin Corp., 814 F.3d 619, 636 (2d Cir. 2016) (“[T]he analysis that now governs general jurisdiction over foreign corporations…suggests that federal due process rights likely constrain an interpretation that transforms a run-of-the-mill registration and appointment statute into a corporate ‘consent’” to general jurisdiction); Lanham v. BNSF Ry. Co., 939 N.W.2d 363, 371 (Neb. 2020) (“[T]reating BNSF’s registration to do business in Nebraska as implied consent to personal jurisdiction would exceed the due process limits prescribed in [Goodyear and Daimler]”); Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, 164 A.3d 435, 444 (N.J. Super. Ct. – App. Div. 2017) (“We now join the many courts that have circumscribed the view of general jurisdiction post-Daimler.”).

Pennsylvania law is unique in that it permits courts to exert general jurisdiction over out-of-state defendants solely on the basis that those entities registered to conduct business in Pennsylvania. Product defendants in Pennsylvania have for several years urged the appellate courts to align Pennsylvania law with U.S. Supreme Court law by overturning the relevant business registration and long arm statutes because those laws improperly compel foreign companies to consent to general jurisdiction though they are not “at home” in Pennsylvania. The Superior Court’s decision to transfer Mallory to the Supreme Court is a big step that we hope signals a change in controlling Pennsylvania law.

From a practical standpoint, Philadelphia has long been viewed around the country as a plaintiff-oriented jurisdiction that is a favorable forum to prosecute product liability and mass tort litigation. The Supreme Court’s ruling in Mallory has the potential to end such blatant forum shopping.

California continues on the PFAS regulatory vanguard by banning PFAS in Cosmetics

On October 1, 2020, California passed a law identified as the Toxic Free Cosmetics Act. The Act will prohibit, beginning on January 1, 2025, the manufacturing or selling of any cosmetic product with any intentionally added amount of 24 specified chemicals. The specific list of chemicals includes certain phthalates, formaldehyde, mercury, and PFAS (certain per- and polyfluoroalkyl substances). Although some states have previously passed legislation banning some of the specified chemicals in cosmetic products (e.g., in children’s products), California is the first state to pass such a broad band as to cosmetics in general, and specifically to PFAS.

This is not the first time the cosmetics industry has had to respond to environmental regulatory developments in California. Under California’s Proposition 65 law (“Prop 65”), cosmetics have been a frequent target for consumer bounty hunter actions. The cosmetics industry has generally taken steps to comply with Prop 65 by reducing the concentrations of Prop 65 chemicals or providing the required Prop 65 warnings under law. Nevertheless, the Toxic Free Cosmetics Act will no longer allow the option of a Prop 65 warning, which will require the cosmetics industry to now eliminate (not reduce) the 24 listed chemicals (excepting unavoidable trace quantities).

The inclusion of PFAS on the list of 24 chemicals is of particular interest, as California has also been on the forefront of other environmental regulatory actions concerning PFAS. PFAS includes over 5000 different compounds that have been used in a wide variety of industries. PFAS has recently been reported by the US Department of Health and Human Service’s Agency for Toxic Substances and Disease Registry (“ATSDR”), based on various publications, as potentially causing reproductive and developmental effects in animals, and the EPA has identified limited epidemiological findings concerning possible immune system and thyroid disruption, as well as cancer. Nevertheless, the epidemiological evidence concerning PFAS is very limited and currently developing.

PFAS has been used in many common consumer and industrial products, such as carpet, paints, food packaging, stain resistant sprays, and non-stick cookware. PFAS was also used as a fire-fighting compound in aqueous film forming foam, which served as a very effective fire extinguisher, and has been widely used by the military, airports, and other firefighters throughout the country. The broad uses of PFAS has resulted in detections in soil and drinking water aquifers throughout the United States.

The regulatory framework for addressing PFAS is evolving rapidly. For better or worse, California has stepped to the forefront. For example, on September 29, 2020, California passed a law banning the manufacture, sale and use of PFAS firefighting foam in most applications starting on January 1, 2022. In July 2020, the California Department of Toxic Substances Control released a proposal to regulate plant fiber-based food packaging containing PFAS and has been holding public workshops to develop such regulations.

California’s aggressive regulation of PFAS has also extended to the environmental presence of PFAS in drinking water. The EPA has not yet set a maximum contaminant level (“MCL”) in drinking water for PFAS. Instead of setting MCLs, EPA established health advisory levels for PFAS, which equate to 70 parts per trillion (ppt) in drinking water. As the threshold is advisory, it is not mandated; however, many states have adopted the EPA’s advisory level of 70 ppt.

California, nevertheless, stepped out in front of both the EPA and all other states. In February 2020, California’s State Water Resources Control Board reduced the response levels for PFOA and PFOS to 10 ppt and 40 ppt, respectively. Response levels are advisory levels above which California recommends taking a water source out of service. As day follows night, the removal of drinking water sources from service has resulted in environmental litigation concerning the recovery of associated costs, as a wave of PFAS litigation concerning both environmental releases and products liability is beginning to roll across the country.

The Absurdity of Prop. 65 – Something Fishy

Two recent events reminded me of the absurdity of California’s “Proposition 65” cancer warnings. You are all familiar with this regulatory scheme that started as a valid public health initiative that quickly became a boon for lawyers on both sides of the bar. What may be considered as a prime example of how this good idea has gone astray is the final resolution of a 10-year long court battle regarding the cancer risks purportedly associated with drinking coffee.

Ten years ago a “nonprofit organization” represented by plaintiffs’ attorney Raphael Metzger began a case against Starbucks and many others alleging that since roasted coffee beans contain acrylamide, a listed carcinogen with the state of California, coffee retailers should be fined for not including a Prop. 65 warning with the morning Joe they routinely sell to thousands of customers in the state. The case was assigned to Judge Elihu Berle, who you might recognize as the trial judge on the seminal O’Neil case that led to the “bare metal” defense for asbestos defendants in California.

The case did not proceed well for the coffee vendors, and several settled for amounts reported to be in the millions of dollars. No doubt vast amounts were spent with numerous high profile defense firms, but ultimately they achieved a favorable result. Perhaps unexpectedly, the California Office of Environmental Health Hazard Assessment recently rewrote their regulations concluding that acrylamide in coffee does not pose a cancer risk. Judge Berle has ordered the case dismissed. But only after 10 years of litigation and millions spent by settling defendants.

Trying to ease my mind from the vicissitudes of Prop 65 litigation, I decided to relax with some fishing. But even on a pier in the SF Bay, I could not escape yet another example of an absurd application of Prop 65. See the attached three photos. If you do not recognize it, that is a net fishermen use to raise up to the pier the big ones they have hooked (I say this only from having watched others as I never catch a big one). Notice the close up photo of the float on the net. It has a Prop 65 warning! How on earth could anyone ever sustain any type of exposure from that float that would actually enhance their risk of any type of cancer? But companies selling products into California have become so concerned with Prop 65 litigation that they now put warnings on everything. This type of over warning surely cannot be beneficial.

These are just a few examples of the ongoing excessive application of Proposition 65 that makes one wonder whether its requirement for warnings is actually benefitting California consumers.

EPA Draft Risk Assessment on Asbestos Flawed and could be Problematic for Automotive Friction Defendants

The United States Environmental Protection Agency (“EPA”) is currently conducting a chemical risk evaluation of asbestos. The EPA’s 310-page Draft Risk Evaluation for Asbestos (the “Draft”) identified risks for a variety of potential asbestos exposures. The Draft found that acceptable cancer risks were exceeded for much work with automotive brakes and clutches. If these findings are adopted in the final evaluation, defendants can expect asbestos plaintiffs’ counsel to trumpet the evaluation to juries, even though (as described below and detailed in the attached article) the analysis is flawed and inconsistent with both the scientific literature and legal standards regarding cancer causation.

The Draft looked at exposures to occupational mechanics, bystanders, and do-it-yourself mechanics. The only asbestos fiber type the EPA evaluated was commercial chrysotile, and the only potential causative diseases the EPA evaluated were mesothelioma and lung cancer. The EPA chose to evaluate acceptable cancer risks to individuals based on an Inhalation Unit Risk of 0.16 per fiber/cc.

The Draft found that acceptable cancer risks were exceeded for brake and clutch installation and removal for occupational mechanics at both high-end and central tendency exposure levels and for occupational non-users at all high-end levels. For brake repair and replacement performed indoors with compressed air, the Draft found that acceptable risk levels were exceeded for do-it-yourself mechanics and bystanders of do-it-yourself mechanics at high-end and central tendency levels. For brake work performed outdoors, the Draft found that acceptable risks levels were exceeded for do-it-yourself mechanics at high-end tendency levels when mechanic work was performed 30 minutes per day with 62 years of cumulative exposure starting at age 16. Contact the best Asbestos testing in Edmonton and get your issue fixed now.

While the final risk assessment has not been published, the conclusions found in the current Draft lead to concern that these findings will cause confusion or even improperly influence jurors in future asbestos trials. A finding by the EPA that working with and around asbestos-containing brakes and clutches leads to an unacceptable risk of mesothelioma and lung cancer would be used in the opening statements of every asbestos plaintiffs’ attorney in the country. Although the assessment is based on many assumptions that are not realistic, excludes large swaths of relevant scientific and medical studies, and makes conclusions regarding cancer causation that are entirely out of line with all current legal standards, it would be complicated and difficult to explain in necessary detail to a jury. It would simply be another factoid that will be used to persuade jurors that there is no safe level of chrysotile asbestos exposure and that all exposures cause disease. Surely, many hours of drafting and many tons of ink will be spilt in attempts to keep the findings of the EPA out of the courtroom through pre-trial motions to exclude and motions in limine. This is a future that will soon become all too real if there are not considerable changes made between the current Draft and the EPA’s final risk evaluation.