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.

Asbestos 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.