“Every Exposure” Theory of Causation Rejected by Georgia Supreme Court

The highest court in Georgia recently excluded a standard plaintiff argument that “every exposure” to asbestos causes mesothelioma. In Scapa Dryer Fabrics, Inc. v. Knight, the court overturned a plaintiff verdict and reversed both the trial court and intermediate appellate court, holding that a medical expert’s opinion that “every exposure above background contributed to cause plaintiff’s mesothelioma” is legally unsound and “does not ‘fit’ the legal standard for causation”, which requires that an exposure be more than de minimis or trivial. The Georgia Supreme Court reversed, resulting in judgment for the defendant.

7-11The defendant, a textile manufacturer in the late 60’s and early 70’s, produced dryer felts. Some felts contained asbestos that was released into the air during manufacture, at a facility where some of the pipes were insulated with material containing asbestos. Plaintiff was an outside sheet-metal contractor who worked at defendant’s facility on multiple occasions over a four-year period. Plaintiff was sometimes present when the manufacturing process was underway, worked in ventilation ducts that had collected dust, and on one occasion cut into pipe insulation and breathed that dust.

Over defendant’s objection, the trial court allowed plaintiffs’ expert pathologist, Dr. Jerrold Abraham, to testify to the following syllogism: “background asbestos is not known to cause mesothelioma;” “the precise point at which cumulative exposure is sufficient to cause any particular person to develop mesothelioma is not scientifically knowable;” “when a person has mesothelioma, it can only be attributed to his cumulative exposure as a whole;” “each and every exposure to respirable asbestos in excess of the background contributes to the cumulative exposure;” therefore, “each exposure in excess of background is a contributing cause of the resulting mesothelioma, regardless of the extent of each exposure.” Dr. Abraham went so far as to testify that “a causal connection would be lacking only if ‘there was no asbestos exposure’ attributable to [defendant]’, that “one fiber [of asbestos] above ambient levels would be causative for someone who had  mesothelioma”, that “he did not need to determine the extent of [plaintiff’s] exposure, but only need to know that the exposure was more than ‘zero’”, and that “if someone gets the disease from a trivial exposure, it is still asbestos-related.’”

This is a common position taken by plaintiffs’ experts in toxic tort litigation. It is known by many names: “single fiber,” “any exposure,” “every exposure” or, in this case, the “cumulative exposure” theory of causation. The theory has been rejected by the supreme courts of Pennsylvania and Texas and many other courts; a recent California appellate court, in dicta, refused to reject this theory outright, but affirmed the plaintiff’s burden as requiring proof that the defendant’s product “was a substantial factor in contributing to the risk of developing asbestos-related cancer.” (See our earlier post on the California case.)

The jury in Scapa assessed 40% fault to the defendant and awarded plaintiffs $4 million.

The Supreme Court of Georgia analyzed this issue first by examining the relevant standards for admissibility of expert testimony. It noted that the question of admissibility of expert testimony is a question “committed to the sound discretion of the trial court.” However, using language much like the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1999), the court held that it is incumbent upon the trial court to “act as a ‘gatekeeper’ to ensure the relevance and reliability of expert testimony.” Dr. Abraham’s qualifications were not in dispute. Instead, the defendant challenged his “single fiber” theory as “junk science”, and also argued that the testimony was not relevant because it did not “fit” the legal standard for causation under Georgia law. The court agreed with the second point (and hence did not reach the question whether the “cumulative exposure” theory is scientifically valid), holding that because this opinion “does not ‘fit’” the legal standard for causation, and for that reason, the admission of his testimony … was not helpful to the jury and amounted to an abuse of discretion.”

To prove causation in an asbestos personal injury case under Georgia law, a plaintiff must therefore show that an exposure was a “contributing factor” in bringing about the disease. It need not be “substantial”, but it must be “meaningful” and not “de minimis.”

Though the court recognized that the plaintiffs in that case “may well have presented evidence of more than a de minimis exposure” at defendants’ facility, defendants presented evidence to the contrary. But by admitting the opinion of Dr. Abraham that “any asbestos above background … was a contributing cause of the mesothelioma” (i.e., even a de minimis exposure), the trial court allowed the jury to resolve this dispute in a manner inconsistent with Georgia law.

The court cautioned: “That is not to say that expert testimony premised upon a cumulative exposure theory could never be relevant to causation.” But the court held fast to the notion that de minimis or trivial exposures are not causative. Had Dr. Abraham also presented reliable evidence that the exposures in question were “more than de minimis,” and had he based his ultimate causation opinion on exposures that were more than de minimis, “the opinion then might ‘fit’ the pertinent causation inquiry, notwithstanding that the extent of exposure is disputed.” The court pointed out that in other cases Dr. Abraham’s “cumulative exposure” theory has been allowed when coupled with a review of the evidence of the extent of exposure and of studies showing such exposures present an increased risk of developing mesothelioma.

While a precise quantitative exposure analysis is not required, a qualitative assessment is. Thus, an opinion that a “de minimis” or “any” exposure could cause mesothelioma is inadmissible (at least in Georgia), while an opinion that each “significant” or “sustained” exposure to asbestos” is a cause would be admissible.

California Court of Appeal: Intentional Tortfeasor Barred From Apportioning Liability for Noneconomic Damages Under Proposition 51

California’s Proposition 51 limits a defendant’s share of liability for non-economic damages (like pain and suffering) to the “defendant’s percentage of fault” for the injury, effectively allocating to other tortfeasors liability for the rest of the noneconomic damages. A recent decision, Burch v. CertainTeed, has ruled that Proposition 51 does not apply to intentional torts. The ruling magnifies a split in California appellate authority which is expected to be resolved in another case that is already before the California Supreme Court.

Plaintiffs sued defendant CertainTeed and others claiming that work with asbestos-containing underground pipes caused Mr. Burch’s mesothelioma. The jury returned a verdict for plaintiff on his claim for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation. The jury awarded $776,201 in economic damages and $9.25 million in noneconomic damages. The jury apportioned 62% of the fault to CertainTeed (the only remaining defendant), with the remaining 38% allocated to various manufacturers and employers. The trial court ruled that under Proposition 51 (codified in Civil Code § 1431.2), CertainTeed, while liable for 100% of the economic damages, was liable for only 62% of the noneconomic damages.

Plaintiffs appealed, arguing that Proposition 51 does not apply to an intentional tortfeasor such as CertainTeed, so that CertainTeed should have been liable for 100% of both the economic and noneconomic damages, even though it was only 62% responsible.

The Burch court acknowledged the split of authority on the question whether the several liability provision of Proposition 51 for noneconomic damages applies to an intentional tortfeasor. In B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, a different court of appeal concluded that Proposition 51 mandates several liability for noneconomic damages in direct proportion to even an intentional tortfeasor’s direct percentage of fault. That case is presently before the California Supreme Court.

The court in Burch, however, sided with another case, Thomas v. Duggins (2006) 139 Cal.App.4th 1105, which came to the opposite conclusion. The court in Burch offered a two-part analysis why Proposition 51 should not apply to an intentional tortfeasor. First, at the time Proposition 51 passed, the rules of equitable reimbursement (equitable indemnity, equitable contribution) and comparative fault did not allow an intentional tortfeasor to seek such reimbursement from a negligent third party (or seek a reduction in damages based on a plaintiff’s or third party’s comparative negligence), based on “policy considerations of deference and punishment for intentional torts.”

Second, the court in Burch turned to the statute itself: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several only and shall not be joint”,so for people having issues such as this, the use of a wrongful death lawyer could be of real help, and you can Check This Out for all the best options for this. Focusing on the italicized phrase, the court reasoned this language had to mean that Proposition 51 incorporated those laws or principles of comparative fault that existed at the time it was enacted — which included the law that prohibited an intentional tortfeasor from seeking equitable indemnity, contribution, and apportionment. (The court also drew a similar inference from Proposition 51’s ballot materials, though these materials make no mention of the rules of comparative fault as they applied to intentional tortfeasors.)

B.B v. County of Los Angeles relied on DaFonte v Up-Right, Inc. (1992) 2 Cal.4th 593, in which the California Supreme Court held that Proposition 51 applied to the fault of all joint tortfeasors, even one who was statutorily immune from suit (in that case, the plaintiff’s employer). The Burch court stated that DaFonte “had no occasion to consider” whether Proposition 51 allowed an intentional tortfeasor to apportion noneconomic damages according to its percentage of fault. Interestingly, though, the Court in DaFonte expressly rejected the argument, similar to the one advanced by the court in Burch, that preexisting law imposed various constraints on the application of Proposition 51. Thus, the reasoning in Burch – and in Thomas — that Proposition 51 “must have incorporated [prior] judicially-construed principles” of equitable reimbursement is flatly inconsistent with DaFonte.

In the wake of Burch, the Supreme Court in B.B v. County of Los Angeles will likely address, among other issues:

  • Does the concept of “fault” in Proposition 51 include all torts and theories of liability, or, for policy reasons, will an exception be made for intentional torts?
  • Which of Burch or B.B. is more consistent with prior decisions holding Proposition 51 applies not only to negligence claims, but also to strict liability, and holding that tortfeasors immune from suit should also be allocated a share of the fault?
  • Of what relevance are earlier rules for equitable reimbursement from solvent tortfeasors, to the issues of apportioning fault among all tortfeasors, and limiting a defendant’s liability for noneconomic damages to its proportionate share of the overall fault?
  • Does Proposition 51 only apply, as suggested by the court in Burch, to “situations in which defendants who bore only a small share of fault for an accident could be left with the obligation to pay all or a large share of the plaintiff’s damages if other more culpable tortfeasors were insolvent”?

Until B.B is decided by the Supreme Court, trial courts in California are free to follow either of the two contrary strands of appellate authority on this issue. In the meantime, plaintiffs have even more reason to allege an intentional tort claim and hope to make it stick.

Stay tuned.