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.

Multiple trial courts toss out “single fiber” causation theory under both Federal and state law

Since the first asbestos filing by a plaintiff’s lawyer, plaintiff medical experts in mesothelioma cases have infamously opined that every exposure to asbestos by a plaintiff – including exposure to a single asbestos fiber – is sufficient to cause disease. Not only does this type of expert testimony ease the connecting of the causation dots, but it permits the recycling of generalized and “boilerplate” expert reports. Recently, however, court rulings have given hope to defendants in the litigation that plaintiffs may now have to put considerably more time and effort into developing their expert opinions by precluding those experts from advancing the “single fiber” theory.

In January 2013, asbestos-fibresthe District Court of Utah rejected plaintiff’s attempt to use “single fiber” expert testimony. Smith v. Ford Motor Co., D. Utah, No. 2:08-cv-630, 1/18/13. In Smith, Ford moved to dismiss the “single fiber” testimony of plaintiff’s medical expert, arguing that the theory was speculative and without scientific foundation. As a result, it was inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). The district court agreed and found that the pathologist’s opinion was wholly “unsupported by sufficient or reliable scientific research, data, investigations or studies.” The court elaborated that this testimony did “virtually nothing to help the trier of fact decide the all-important question of specific causation” and is based solely on the belief that any exposure should not be ruled out as a contributing cause. Finally, the court pointed out that the fact that this type of testimony survived Daubert challenges in the past was an “aberration.”

In December 2014, the Northern District of Illinois similarly found that this theory was inadmissible under Daubert and Rule 702. In Krik v. Crane Co., No. 10-cv-7435, N.D. Ill. December 12, 2014 (Doc. # 314), the Northern District analyzed the opinions of plaintiff’s medical experts and industrial hygienist, finding that these opinions indeed espoused  the “single fiber” theory. In holding that single fiber causation is “not an acceptable approach for a causation expert to take,” the court noted that “single fiber” causation was inconsistent with Illinois’ express adoption of the “frequency, regularity and proximity” causation test in Thacker v. UNR Industries, Inc., 603 N.E.2d  449, 457. Further, the “any exposure” theory was also inadmissible given plaintiff”s experts’ “wholesale failure to based their opinions on facts specific to this case.” In fact, the court specifically pointed out that plaintiff’s experts admitted in their depositions that they had  not considered any case-specific facts in formulating their opinions.

In April 2015, a New York court also rejected the single fiber theory, finding that plaintiff’s theory of cumulative, unquantifiable exposure did not pass muster under New York’s rules of evidence. Juni v. A.O. Smith Water Products, No. 19031/12, 2015 WL 1623788 (N.Y. Sup. Ct., N.Y. County Apr. 13, 2015). Specifically, the court found that the “every exposure” testimony was insufficient to prove that any specific exposure was a significant contributing factor to causing the disease. The result? An $11 million verdict against Ford was overturned.

These most recent rejections of the “every exposure” theory are significant victories for defendants because they add to the accumulation of similar rulings across the country. After years of accepting the “every exposure” theory, courts are now requiring that both plaintiff and defense expert opinions be based on case-specific facts grounded in science.

Support for the Friction Defense in the Federal Register

The Federal Register is the official publication of the U.S. government, for which judicial notice may be appropriate in many instances. It is in this record that the Occupational Safety and Health Administration, the Environmental Protection Agency, the Consumer Product Safety Commission and others have made their case for regulatory control of potential exposure to asbestos. There are many entries in this record that provide support to arguments of friction defendants in asbestos personal injury litigation matters. This post will focus on consistent regulatory findings that the exposures for automotive mechanics are very modest and routinely well below the applicable regulatory limits in place at any given time.

It is important to place the OSHA regulations in context. It is not uncommon for plaintiffs’ counsel to argue that the exposure limits established by OSHA were not meant to guarantee a “safe” workplace, and that it is not determinative to demonstrate that exposures for automobile repair workers were within the regulatory limits, on the rationale that  the regulatory limits allowed for residual risk for some workers. Such an argument, however, assumes that OSHA regulators ignored their own mandate. “[I]n promulgating standards dealing with toxic materials or harmful physical agents under this subsection, [the secretary of labor] shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” 29 U.S.C. §651 and §655) (b) (5) [OSHA].

Thus, if OSHA does its job in accord with its mandate, it is promulgating standards such that no employee would suffer material impairment as a result of a lifetime of exposure. In OSHA’s submission to the Federal Register in Nov. of 1983 in support of its proposed emergency temporary standard to reduce the permissible exposure limit from two fibers per cc as a time-weighted average (TWA) to 0.5 fibers per cc as a TWA (48 Fed. Reg. 51086), OSHA notes that it is relying on government contractor reports, various studies in the reported literature, National Institute for Occupational Safety and Health (NIOSH) Health Hazard Evaluations, and OSHA compliance data and field inspection experience to estimate exposure (48 Fed. Reg. 51092).  The table created by OSHA to detail the estimated exposure to various occupations describes the exposure for brake repair work done in garages and brake repair shops to be 0.15 fibers per cc on an eight-hour TWA, and similar exposure in “gasoline stations” to be less than 0.1 fibers per cc on an eight-hour TWA (48 Fed. Reg. 51093). Thus, the extensive information accumulated by OSHA, and modified by OSHA’s own field experience, indicates that the anticipated exposures for automotive mechanics was already well below the emergency temporary standard proposed for enactment.

In June 1986, OSHA made its record regarding amendments to its present standard for regulating occupational exposure to asbestos. The new standard was set at 0.2 fibers per cc as an eight-hour TWA, with an “action level” of 0.1 fibers per cc as an eight-hour TWA, the level above which employers must initiate certain compliance activities (51 Fed. Reg. 22612). OSHA’s submission in support of this new standard is massive, comprising more than 120 pages in the record. There is a wealth of information, including several entries regarding the anticipated exposures for automotive mechanics, which are not entirely consistent. In particular, at page 22662, OSHA submits that it has relied upon its own MIS compliance database and a November 1982 study by the National Institute of Occupational Safety and Health, which in turn contained 47 observations for the period of 1979 through 1984. Those observations of automotive brake and clutch repair facilities showed a mean eight-hour TWA exposure of 0.03 fibers per cc. Just three pages later, at 22665, OSHA inserts into the record a table estimating the occupational exposure to asbestos in the general industry for 1984, and describes automotive repair as having a level of exposure of 0.06 fibers per cc.

Whether one adopts the 0.03 fiber per cc figure or the 0.06 fiber per cc figure, both are well within the proposed new standard of 0.2 fibers per cc.

In September 1988, OSHA submitted into the record an amendment to its rules establishing a short-term exposure limit (STEL) of 1 fiber per cc averaged over a sampling period of 30 minutes. This was in addition to the previously announced reduction of the PEL to 0.2 fibers per cc over an eight-hour TWA.

OSHA admits it has no specific data regarding short-term exposures for automotive mechanics (53 Fed. Reg. 35613). Nevertheless, with little explanation, OSHA indicates that it has “estimated” that 5 percent of the population of automotive repair workers may have exposures exceeding the 1 fiber per cc STEL. OSHA goes on to suggest that by utilizing a particular dust suppression technique (the use of solvent spray to remove brake drum dust), the eight-hour TWA exposure for mechanics could be reduced from approximately 0.13 fibers per cc to 0.06 fibers per cc (53 Fed. Reg. 35615). The source of this figure of 0.13 fibers per cc is not entirely clear, and is not consistent with OSHA’s “estimates of occupational exposure” for automotive repair services at 0.06 fibers per cc as articulated in 1986 (51 Fed. Reg. 22665). Regardless, it appears that OSHA is indicating that 95 percent of the mechanics’ population is already achieving exposures less than 0.13 fibers per cc, and that the remaining 5 percent can easily do so by simply using solvent spray bottles. Indeed, OSHA concludes that should this offending 5 percent portion of the population of mechanics adopt appropriate precautions, the entire industry would be in compliance with the newly announced reduced PEL and the proposed STEL.

The EPA again takes a position regarding the potential exposure of automotive mechanics in its July 1989 proposal, which would prohibit the future manufacture, importation, processing and distribution of asbestos in almost all products (54 Fed. Reg.  29460).  In a curious twist, the EPA elects to describe exposures in terms of millions of fibers breathed per year (106 fiber per year). The EPA notes that assuming an eight-hour workday, with 250 days of work per year and a breathing rate of 1.3 meters cubed per hour, 100 million fibers breathed per year equals an exposure of 0.038 fibers per cc (54 Fed. Reg. 29475). Using this scale, the EPA then inserts into the record a table wherein it has “estimates” of occupational exposures (54 Fed. Reg.  29475).  The EPA estimates that the exposure associated with the repair and disposal of drum brake linings is 376 million fibers per year. A similar number for working upon disc brake pads on lightweight and medium-weight vehicles is 386 million, for disc brake pads on heavy vehicles 390 million, and for brake blocks 388 million fibers per year. Thus, if 100 million fibers per year equals 0.038 fibers per cc on an eight-hour TWA, then 376 million fibers per year equates to a TWA exposure of 0.143 fibers per cc. Why the EPA elected to utilize these “estimates” rather than the hard data previously accumulated and commented upon by OSHA and NIOSH remains unexplained. Nevertheless, this estimated number remains well within the then-applicable OSHA PEL of 0.2 fibers per cc, while admittedly exceeding the OSHA “action” level of 0.1 fibers per cc.

However, the validity of this estimate is immediately called into question by additional language from the EPA. In this same submission, the EPA states, “The 8 hour TWA exposure level for the servicing of disc and drum brake systems is estimated to average 0.05 fibers per cc” (54 Fed. Reg. 29492). In support of this estimate, the EPA cites its own “Asbestos Exposure Assessment, Revised Report”(March 21, 1988).  Again, if the EPA was already in possession of its assessment report describing exposures from servicing disc and drum brake linings as averaging 0.05 fibers per cc, why would the EPA find it necessary to create an alternative scale of potential exposure that erroneously suggests much higher levels? Clearly, the more reliable number is that supported by the “Asbestos Exposure Assessment, Revised Report” quantifying average exposures for automotive mechanics at 0.05 fibers per cc. Perhaps such inconsistent logic helps explain why the EPA’s proposed ban on asbestos-containing products was struck down by the court in Corrosion Proof Fittings v. EPA (5th Cir. 1991, 947 F.2d 1201).

OSHA confirms yet again its position regarding potential exposures for automotive mechanics in July 1990 when it enters a submission in the record with regard to a supplemental rulemaking for occupational exposures to asbestos. OSHA then proposes lowering the PEL to 0.1 fibers per cc as a TWA (55 Fed. Reg. 29712).  In this submission, OSHA specifically addresses the question of whether it should adopt an action level of 0.05 fibers per cc. OSHA specifically rejects this possibility as “OSHA does not believe that more than a de minimis benefit would result from a 0.05 fiber per cc action level. . . .” OSHA goes on to explain that it “does not believe that a reduction of the action level would lead to an expansion of the training for brake repair workers, because based on OSHA’s data most such workers have exposures below 0.05 fibers per cc” (55 Fed. Reg. 29722).  Thus, OSHA is supporting the contention that the exposure for most brake mechanics is not more than 0.05 fibers per cc, which would be consistent with the 1988 “Asbestos Exposure Assessment” of the EPA.

OSHA goes on to describe that its assessment of the potential exposure for automotive mechanics is based upon its own MIS compliance database and from a November 1982 study by NIOSH. As discussed above, the OSHA data contained 47 observations of asbestos fiber release resulting from brake servicing operations with a mean eight-hour TWA exposure of 0.03 fibers per cc for the time period from 1979 through 1984. An analysis of additional OSHA data collected from 1986 to 1989 yielded a mean of 0.012 fibers per cc as an eight-hour TWA in those samples in which any fiber was detected (55 Fed. Reg. 29722).  OSHA goes on to estimate the “current occupational exposure estimates for general industries” as reflected in Table 1 at page 29734, describing the estimated mean exposure level for “Auto Repair: Dry Mechanical” to be 0.015 fibers per cc.

In summary, over the years OSHA and the EPA have considered automotive brake mechanic work to create a potential for exposure. Both have consistently lobbied for ever-increasing restrictions on the potential exposures for mechanics. However, at the same time, the exposure data collected by these two regulatory agencies and their own estimates of potential exposures consistently have indicated that mechanics confront only modest potential exposures, routinely within the regulatory limits that have applied over the years.