Are Survival Times for Mesothelioma Improving? The Impacts of Improved Survival for Mesothelioma Patients on Recent California Cases

The anticipated period of survival for a patient after a diagnosis of mesothelioma is of great significance in any mesothelioma lawsuit. Beyond the significance to the patients themselves, a predicted short life expectancy can dramatically impact the pace of litigation. For example, cases in California and Illinois may receive a “preference” or “expedited” trial date to accelerate litigation when the plaintiff can produce evidence raising substantial medical doubt that the plaintiff is unlikely to live more than six months. It has long been assumed that the prognosis for all mesothelioma patients is dire, even more so for pleural mesothelioma than peritoneal mesothelioma, but there is evidence that a significant percentage of mesothelioma patients live longer than 12 to 21 months from diagnosis.

Trends of Increased Survival for Mesothelioma Patients

The prognosis for mesothelioma patients varies by the location of the cancer, the cell type of the cancer, and the “stage” assigned to the cancer. The general statement is that life expectancy is between 12 and 21 months. Patients with peritoneal mesotheliomas tend to do better, and with surgery, they often have life expectancies greater than five to seven years.

The American Cancer Society approaches the issue differently by discussing the likelihood of achieving a five-year relative survival rate. Relying on surveillance, epidemiology, and end results (“SEER”) data, which tracks mesothelioma cases around the world, the American Cancer Society says only 12 percent of all cases have five-year relative survival rates. [1]  However, the same data showed that for mesotheliomas that were considered “localized, ” the prognosis was the best with 24 percent of those cases having a five-year relative survival rate.[2]

A 2022 epidemiological analysis revealed a stable overall incidence of malignant peritoneal mesothelioma (“MPM”) but improved recognition of epithelioid histology. [3] Survival improved over time and was associated with cancer-directed surgery, suggesting that accurate diagnosis of epithelioid histology, or tissue and skin cancer, may lead to more patients being considered for appropriate multimodal treatment and contribute to improved overall survival. Although the overall age-adjusted incidence of MPM remained stable from 2000 to 2018, there has been an increase in cancer-directed surgery and a concurrent improvement in MPM survival over time. This contemporary analysis of MPM survival reflects trends after the increased adoption of effective therapies for MPM, including cytoreductive surgery (“CRS”) and hypothermic intraperitoneal chemotherapy (“HIPEC”).

Other research has also analyzed how the number of mesotheliomas among men and women has changed in the decades since asbestos regulations came into effect in the 1970s. These analyses have all shown much more significant declines in cases among males, while incidences among females have remained relatively stable. [4]

Physicians continue to develop their understanding and differential diagnoses of mesotheliomas and have found that some peritoneal mesothelioma patients have life expectancies more than five years after treatment, depending on the particular cell type and origin of disease. In one study of 164 female patients with peritoneal mesothelioma, 85.3 percent lived more than five years after treatment![5]  Other studies have made preliminary showings that patients with a BAP1-related mesothelioma can have a much longer survival rate of five to seven years for the median, with 26 percent of patients living more than 10 years. This is much longer than the average of 11 months reported in the international SEER database.[6]

Much of the research and scientific study on mesothelioma patients is affected by the monetary value of a case in which the plaintiff is alleged to have a terminal, incurable illness. This monetary influence is even affecting the decisions of treating doctors not directly involved in the litigation. Even though genetic testing is “standard practice,” some patients are being advised by their oncologists to seek information about the genetic component of their mesotheliomas through research studies or decline testing altogether to keep this information out of their litigation.[7]

Long-term Survival of Mesothelioma Plaintiffs in Recent California Cases

The case of “Decedent A” is particularly notable. In 2010, Decedent A filed a personal injury–asbestos action after being diagnosed with peritoneal mesothelioma in 2009. Decedent A moved for a preference trial date asserting that their survival beyond six months was unlikely. The court granted a preference trial date within three months after Decedent’s motion was heard, and litigation pursued.

However, Decedent A survived for 12 years and passed away in 2021. Decedent A’s 2009 diagnosis was made without the benefit of more recent diagnostic and therapeutic tools. Decedent’s death certificate asserted the immediate causes of death were coronary artery disease, atrial flutter, congestive heart failure, and peripheral artery disease. Mesothelioma and Type 2 Diabetes were additionally named as other significant conditions in Decedent’s death. Decedent’s heir has now filed a wrongful death action.

“Plaintiff L” is also a long-term mesothelioma survivor. Plaintiff L was diagnosed with pleural mesothelioma in January 2021. Since their diagnosis, Plaintiff L has filed two separate asbestos personal injury actions. The first lawsuit was filed in May 2021. Similar to Decedent A, Plaintiff L also moved for a preference trial date due to their medical condition. The court granted Plaintiff’s motion, and ultimately this lawsuit resolved at trial.

It has been two years since Plaintiff L’s mesothelioma diagnosis. In fact, Plaintiff L has recently filed a second separate personal injury lawsuit for the same disease but has now named different defendants. Unlike their first lawsuit, there is no preference trial motion pending. The court has taken notice that the “expert” declarations submitted in Plaintiff L’s first lawsuit moving for preference have been shown to be unduly pessimistic in regard to Plaintiff L’s survival.

As survival rates for peritoneal mesothelioma patients continue to increase, it is clear that the landscape of asbestos litigation will also develop. As seen with Decedent A, although medical evidence was presented to support the court’s finding for an expeditious trial date, they lived far beyond the assumed six months. With Plaintiff L, their increased survival allowed them the opportunity to bring a second separate lawsuit against different defendants but may have also barred them from seeking a second potential preference trial date. In many of our cases, the defense bar is continuing to resist requests for preference trial dates with some success. As more instances are reported of cases involving survival well beyond the oft-quoted rates, perhaps there will be more such successes in the future.

[1] Survival Rates for Malignant Mesothelioma | American Cancer Society <>

[2] Id.

[3] Calthorpe, et al. 2022, Contemporary Trends in Malignant Peritoneal Mesothelioma: Incidence and Survival in the United States, Cancers 2023, 15, 229.

[4] Price 2022, Projection of future numbers of mesothelioma cases in the US and the increasing prevalence of background cases: an update based on SEER data for 1975 through 2018, Critical Reviews in Toxicology, 52:4, 317-32

[5] Malpica 2022, Peritoneal Mesothelioma – An Update, Adv. Anatomic Pathology 2022; Malipca et al. 2021, Malignant mesothelioma of the peritoneum in women: a clinicopathologic study of 164 cases Am. J. Surg. Pathol. 2021: 45-48.

[6] Pastorino S, Yoshikawa Y, Pass HI, et al: A subset of mesotheliomas with improved survival occurring in carriers of BAP1 and other germline mutations. J Clin. Oncol 36:3485-3494, 2018. See also Carbone M, Pass HI, Ak G, et al: Medical and surgical care of patients with mesothelioma and their relatives carrying germline BAP1 mutations. J Thorac Oncol 17:873-889, 2022.

[7] Hathaway 2023, Family Matters: Germline Testing in Thoracic Cancers, American Society of Clinical Oncology Educational Book.

Connecticut Supreme Court Rules That Plaintiff Must Use Expert Testimony To Prove That Work With Defendant’s Product Can Create Respirable Dust

In Bagley v. Adel Wiggins Grp., No. 19835, 2017 Conn. LEXIS 304 (Nov. 7, 2017) Connecticut’s Supreme Court directed the trial court to grant defendant’s directed verdict where there was no expert testimony that decedent’s work with defendant’s adhesive can create respirable asbestos fibers. Both negligence and strict liability claims failed because plaintiff did not prove that the subject product, an adhesive used in the manufacture of helicopter blades, was unreasonably dangerous or that the adhesive was the legal (proximate) cause of plaintiff’s decedent’s mesothelioma. The court required that plaintiff use admissible expert testimony to prove that the adhesive emitted respirable asbestos fibers, and that without such evidence a direct4ed verdict for the defense was proper.

In Bagley, the plaintiff executrix of decedent’s estate sought damages pursuant to Connecticut’s Product Liability Act (§ 52-572m et seq.) (the “CPLA”) for inter alia, wrongful death of the decedent under both negligence and strict liability theories. The evidence at trial showed that, for approximately ten (10) months in 1979 and 1980, the decedent worked as a manufacturing engineer at Sikorsky. Plaintiff’s decedent’s office was on a mezzanine above the helicopter blade shop where defendant’s adhesive, FM-37, was used to bind together interior parts of the blades. The evidence further showed that FM-37 contained 8.6% asbestos and was chiseled or sanded off if it ended up on unwanted portions of the blades. Decedent was diagnosed with mesothelioma in 2011 but acknowledged, to his medical providers before his death, that he had been exposed secondarily to asbestos through his father’s work at a shipyard.

The plaintiff called multiple witnesses during trial, including a former co-worker of the decedent and three experts. It was established at trial that the decedent was exposed to dust from the sanding of FM-37, that FM-37 contained 8.6% asbestos and that the inhalation of asbestos fibers is a cause of mesothelioma. At the close of plaintiff’s evidence, the defendant moved for a directed verdict, which was denied by the trial judge. The jury subsequently returned a verdict of $804,777 for the plaintiff on the strict liability, negligence, and loss of consortium claims. Following the jury verdict, the defendant filed a motion to set aside the verdict and for judgment notwithstanding the verdict, which was again denied by the trial court.

The Connecticut Supreme Court agreed with the defendant. Because the plaintiff failed to prove that respirable asbestos fibers were released from defendant’s adhesive, there was insufficient evidence to show either that the adhesive was dangerous, or that it was the legal cause of the decedent’s mesothelioma. Therefore, the court reasoned that the trial court improperly denied both the defendant’s motion for directed verdict and motion to set aside the verdict for motion notwithstanding the verdict. Moreover, the court directed the trial court to grant the defendant’s motion for directed verdict.

The court reasoned that, while one of the plaintiff’s experts opined that the defendant’s product could have caused the decedent’s mesothelioma, the expert’s opinion was not based on any evidence specific to defendant’s product. In this regard, none of the experts or witnesses performed any testing or examination of defendant’s or any similar product to establish that respirable asbestos fibers may be emitted when the product is sanded. The court reasoned that there was also no evidence presented that plaintiff’s causation expert had any specialized knowledge concerning how modified epoxy adhesives behave under the conditions in the Sikorsky blade shop. Because of these gaps in the evidentiary record, the court found that the jury could not have relied on this expert opinion to find that the decedent had been exposed to respirable asbestos fibers from defendant’s product.

The Bagley decision is undoubtedly a victory for defendants in the Connecticut asbestos litigation. In particular, the court made it more difficult (and more costly) for plaintiffs to pursue newer asbestos defendants or to pursue new product lines. This is especially true where plaintiffs’ experts have yet to test the new product for creation of respirable asbestos fibers during work allegedly performed by their plaintiffs. Defendants in the Connecticut asbestos litigation should be aware of the Bagley decision and the requirement for specialized testing or knowledge regarding release of asbestos fibers from a particular type of product.

A link to the Connecticut Supreme Court’s decision is available here:

How Perilous are Consolidated Trials?

We recently were involved in two living mesothelioma cases consolidated roughly one month before trial in Solano County, CA. The cases were fully resolved after plaintiffs’ opening statement. So how adversely, if at all, were the defendants affected by the consolidation?

Some of my friends and colleagues have tried consolidated cases in the past, but I have not. This was my first experience with such a process, and I offer some observations for those of you who may have to face this in the future.

When the cases were consolidated, there were many defendants in each of the two cases and expert discovery was underway. We proceeded through hearings on motions in limine, took literally a week to pick a jury and proceeded to opening statement. Along the way many defendants dropped out. Plaintiff counsel gave his opening statement with only two defendants left in the proceedings, both of them involved in the same single case.

Since the consolidation was ordered after we had already submitted motions in limine, this meant that we needed to reconsider our filed motions in limine. For example, the claimed exposures in the two cases arose from the same worksite, but with different durations. So our motion in limine re: excluding evidence of post-sale conduct had a much different potential impact in one case than the other. And the arguments to be made in favor of it in one case were stronger than in the other. Having the motion heard in both cases at the same time had the effect of reducing our chances of success in either of them.

In expert discovery our work was made more difficult. We had to consider that something said by an expert in one case might have an adverse impact, intended or unintended, in the other. This meant attending more expert depositions and reviewing more expert reports and notes. The same applied to coworkers identified in one case, but not the other. The court made an order that a witness identified only in one case could not testify in regards to the other, and adopted a “limiting instruction” meant to clarify things for the jury. That alleviated our concerns to some extent, but did not eliminate them. How were we to prepare for testimony by a coworker for whom we did not participate in his deposition and who had not been questioned about the products of our client?

We never reached the point of writing a verdict form, or forms, but can only think that asking one jury to decide two cases simultaneously could only increase the risk of jury confusion or error.

We did pick a jury, and that was difficult indeed. Since we were to try two cases simultaneously, the court provided our prospective jurors an extra-lengthy time estimate. This meant that many on our panel sought a “hardship” excuse. We spent more than a day dealing with hardship requests. Many, many prospective jurors were excused. This effectively eliminated from our jury pool many people that a defense attorney would be happy to see.

Voir dire was equally challenging. Once the jurors understood how one might be excused for cause, it was remarkable how many professed to be unable to be fair for one reason or another.

And throughout the voir dire there were repeated references to the fact that the jurors would be listening to evidence about two men, with the same cancer, each alleging it came from exposures at the same work site. Since we were dealing with exposures at a U S Navy shipyard, it was never contemplated that the defendants would argue there was no exposure, but it still left us to worry how the jury might be impacted by hearing about two soon-to-be-fatal cancers at the same time. And as noted above, by the time plaintiff opened, there were only two defendants left, and they were both in the same single case. So we picked a jury telling them that they would hear the cases of two men with fatal cancers, and would be in the court for many, many weeks, only to have one case settle and plaintiff open for only one case that would clearly take much less time. Many of our prospective jurors had been excused based upon a trial estimate that would have proved to be much longer than what was actually needed.

Our client resolved the case during opening statements, with the final defendant doing likewise immediately thereafter. So we will never learn how the case may have been presented and decided. But we saw enough to know that orders consolidating cases for trial make a defense lawyer’s work much more challenging.

Barred: Illinois Supreme Court Holds That Plaintiffs May Not File Common Law Claims Against Employers, Even After Statutory Periods Have Expired

11-18On November 4, 2015, the Supreme Court of Illinois issued an opinion in Folta v. Ferro Engineering, 2015 IL 118070, which provided much needed clarification to the application of the “exclusive remedy” provisions of the Illinois Workers’ Compensation Act and Occupational Diseases Act in the context of long-latency asbestos-related diseases. Before Folta, several courts have ruled that employees were allowed to file civil lawsuits against their employer, if the 25-year statute of repose for workers’ compensation claims had expired. Folta went the opposite way, reinforcing the longstanding rule that an employee’s exclusive remedy for damages sustained in the course of employment is through the Illinois Workers’ Compensation Commission, regardless of whether any statutory time periods for workers’ compensation claims have expired.

Decedent James Folta worked for Ferro Engineering from 1966-1970 as a direct employee. Forty-one years later, in May 2011, Folta was diagnosed with mesothelioma. He thereafter filed a civil lawsuit in Cook County, Illinois against various defendants, including his former employer, Ferro Engineering, to recover damages. Defendant Ferro Engineering filed a motion to dismiss, alleging that Folta’s claims were barred by the exclusivity provision of the Illinois Workers’ Compensation Act (820 ILCS 305/5) and the Occupational Diseases Act (820 ILCS 310/5). In response, Folta argued that his symptoms did not manifest until 40 years after his last exposure to asbestos from Ferro Engineering and, accordingly, he was unable to file a workers’ compensation claim due to expiration of the 25-year statute of repose included in the Acts. Folta further argued that since the statute of repose had expired, his claims were “non-compensable,” which is one of four exceptions to the exclusivity mandate contained in the Acts.

The trial court granted Ferro Engineering’s motion to dismiss, finding that the action was indeed barred by the exclusivity provision of the Acts. Specifically, the trial court found that expiration of the applicable statute of repose period did not render the cause of action “non-compensable” under the Acts and that his exclusive remedy was still with the Illinois Workers’ Compensation Commission. Folta appealed the lower court’s decision and the appellate court reversed and remanded. The appellate court found that Folta’s injury was not compensable under the Act, because his disease did not manifest until after the statute of repose expired and he had no opportunity to seek compensation under the Acts. Therefore, the court reasoned, that the workers’ compensation exclusivity provision did not bar his suit against his former employer.

The Illinois Supreme Court reversed, ruling that the exclusivity provisions of the Illinois Workers’ Compensation Act and the Illinois Occupational Diseases Act bar an employee’s cause of action against an employer to recover damages for a disease resulting from asbestos exposure which arose out of and in the course of employment even though no compensation is available under those Acts due to statutory time limits on the employer’s liability.

Both the Workers’ Compensation Act and the Occupational Diseases Act provide that compensation provided therein for workplace injuries represent the full and complete remedy to an employee and no other remedy under common law or statutory law is available. 820 ILCS 310/5(a) and 820 ILCS 310/11. As with every rule, however, there are exceptions. Illinois courts have carved out four scenarios in which the exclusivity provisions of the Acts do not apply: (1) the injury was not accidental; (2) the injury did not arise from the employee’s employment; (3) the injury was not received during the course of employment; and (4) the injury is not compensable under the Acts. For the purposes of this analysis, the only relevant exception is the “noncompensability” exception, which is further outlined below.

The Folta decision reviewed a plethora of cases that specifically addressed the compensability of certain injuries under the Acts. In particular, the decision honed in on three cases wherein the plaintiffs sought to recover for injuries such as severe emotional shock and emotional distress that were incurred during employment. Pathfinder Co. v. Industrial Comm’n, 62 Ill.2d 556 (1976); Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237 (1980); Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (1990). Folta ruled that these three cases stood for the proposition that whether an injury is compensable is related to whether the type of injury categorically fits within the purview of the Act. Contrarily, they do not stand for the proposition that whether an injury is compensable is defined by an ability to actually recover benefits for a particular injury sustained by an employee. Asbestos-related injuries, such as asbestosis or mesothelioma, fall within the purview of the Acts and are specifically addressed by each Act, and are, therefore, compensable.

Folta then ruled that such claims remain compensable despite the expiration of a limitations period on the employer’s liability. The court relied heavily upon Moushon v. National Garages, Inc., 9 Ill. 2d 407 (1956) and Duley v. Caterpillar Tractor Co., 44 Ill. 2d. 15 (1969) in analyzing the efficacy of the exclusivity provisions of the Acts in cases where little or no compensation was received. In Moushon, a workplace accident caused the employee to become permanently impotent. The employer provided medical, surgical, and hospital services for the underlying injury; however, the plaintiff thereafter filed a civil action seeking damages for his impotence that resulted from the workplace accident. Despite the fact that no compensation was available specifically for the injury of impotence, the court held that his claims were barred by the exclusivity provision of the Acts. Mouson, 9 Ill. 2d at 418. Likewise, in Duley, the spouse of a deceased employee who was fatally injured in a workplace accident brought a civil lawsuit against the employer for wrongful death. Although the spouse received nominal reimbursement for funeral expenses, the court found that plaintiff’s wrongful death claims were barred by the exclusivity provisions of the Acts because he was not a dependent of his deceased wife. Duley, 44 Ill. 2d. at 18.

The Illinois Supreme Court agreed that Folta’s injuries are indeed barred by the 25-year statute of repose contained in each of the Acts. This did not, however, mean that exclusivity disappeared over time. “To construe the scope of the exclusive remedy provision to allow for a common-law action under these circumstances would mean that the statute of repose would cease to serve its intended function, to extinguish the employer’s liability for a work-related injury at some definite time.”

The Folta decision is significant for Illinois based employer-defendants in cases involving diseases with long latency periods, such as mesothelioma. It is also significant to insurers. The Illinois Supreme Court has made it clear: the Workers’ Compensation Act and Occupational Diseases Act are the full relief afforded to employees for injuries sustained in the course of employment, to the exclusion of any civil litigation, regardless of an expired statutory time period or whether an employee actually recovers compensation.

Mesothelioma Linked to Therapeutic Radiation

In the first study of its kind, a cohort analysis using data from the US Surveillance, Epidemiology, and End Results (SEER) Database reports that men who have undergone radiation therapy for prostate cancer are at an increased risk for developing mesothelioma. Specifically, the study concluded that use of external beam radiotherapy, the most common treatment for prostate cancer, provides a “small but detectable risk factor for mesothelioma” and that “[p]atients should be advised of the risk of radiation-induced second malignancies.” (A Farioli, F. Violante, S. Mattioli, S. Curti, D. Kriebel, Risk of mesothelioma following external beam radiotherapy for prostate cancer: a cohort analysis of SEER database, Cancer Causes Control (2013) 24: 1535 – 1545)

ETT BLOG_External beam radiotherapyA causal link between radiation and mesothelioma has been documented in numerous studies over the past decade.  Until now, however, no study has specifically analyzed the causal link between radiation therapy for a specific disease and the development of mesothelioma. According to the study, the incidence rate ratios (IRR) for development of mesothelioma was increased for subjects who underwent the radiotherapy treatment when compared to non-irradiated patients, and that the IRR increased with the latency period. The study found an IRR of 1.08 for irradiated patients 0 – 4 years after treatment, an IRR of 1.31 for irradiated patients 5 – 9 years after treatment, and an IRR of 1.59 for patients irradiated 10 years or more after treatment.

The significance of this link is especially important given that both prostate cancers and mesotheliomas are most common in older men. The study notes that “mesothelioma typically presents in the fifth to seventh decades,” and the American Cancer Society notes that prostate cancer is the second most common cancer in men (after skin cancer), with 6 in 10 prostate cancers being diagnosed in men age 65 and older and the median age of diagnosis being 66. Thus, it is not uncommon to see men diagnosed with mesothelioma also having undergone treatment for prostate cancer.

Importantly, the study’s findings note an increased risk of both pleural and peritoneal mesothelioma. Though the lungs may be located outside the irradiated field, “even organs far from the irradiated field can still be significantly exposed due to scattered radiation, as well as leakage from the radiation source.”  Moreover, three-dimensional conformal radiation, used frequently during the 1990’s, can expose the pleura to an equivalent radiation dose up to 25 mSv, a dose “far from insignificant if we consider that the effective dose for a standard chest radiograph ranges between .05 and .24 mSv.” Solid cancers are expected to begin forming as early as 5 years after radiation therapy.

This study provides additional reason for defense lawyers to focus on medical issues during depositions of mesothelioma plaintiffs, obtaining complete medical histories on any radiation exposures and on prostate cancer treatments in particular. This is especially important given the substantial increase in so-called “low dose” exposure cases in recent years, involving men in their 70’s or 80’s with little to no known history of asbestos exposure and no markers for such exposure on x-ray or HRCT.

Texas Supreme Court Reaffirms Standard of Proof in Mesothelioma Cases: Bostic v. Georgia-Pacific

On July 11, 2014, the Texas Supreme Court released an opinion of major importance in Bostic v. Georgia-Pacific — an opinion Gordon & Rees partner William A. Ruskin recently commented on in a Law360 article.  The court’s decision reaffirmed the bedrock significance of the concept of dose in toxic tort litigation and rejected out of hand the argument that a less rigorous standard should be applied in a mesothelioma case than in an asbestosis case.  Bostic articulated that plaintiffs must prove substantial factor causation in all toxic tort litigation in general and in asbestos litigation in particular.

ETT BLOG_texasTimothy Bostic’s relatives sued Georgia-Pacific and 39 other asbestos-related product manufacturers claiming that Bostic’s fatal mesothelioma was caused by exposure to their products.  At trial in 2006, the jury allocated 25 percent of the causation to Knox Glass Co., the decedent’s former employer, and 75 percent to Georgia-Pacific. An amended judgment awarded plaintiffs over $11 million in compensatory and punitive damages. The Court of Appeals reversed the trial court’s decision holding that the plaintiffs failed to prove that the exposure to Georgia-Pacific’s asbestos was a substantial factor in bringing about Bostic’s death.
In affirming the Court of Appeals, the Texas Supreme Court held that the substantial factor causation standard applies to all asbestos cases involving multiple sources of exposure. To meet this standard, proof of “some exposure” or “any exposure” did not suffice to establish causation.  Instead, there must be defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, along with evidence that the dose was a substantial factor in causing the asbestos-related disease.

Bostic elaborates upon the Texas Supreme Court’s prior decision in Borg-Warner Corp. v. Flores, an asbestosis case. Flores addressed the issue of why the plaintiff’s causation evidence was legally insufficient in the absence of evidence of how much asbestos the plaintiff might have inhaled. Flores explained that proof of frequency, regularity, and proximity to a toxic substance alone is not sufficient to support causation, because it does not demonstrate that the defendant-specific dose was a substantial factor in causing the disease. Bostic expressly rejected the plaintiffs’ attempted distinction between a mesothelioma case and an asbestosis case. Rather, the court held the “framework for reviewing the legal sufficiency of causation evidence lends itself to both types of cases.”

Fundamentally, a plaintiff must show that the defendant supplied the product that caused the injury. Hence, the court viewed plaintiff’s “any exposure” theory as “illogical,” in part because it does not take into account a background dose of exposure.  In asbestos-related cancer cases, plaintiffs are not required to show that specific fibers from a defendant’s products were the ones that actually caused the asbestos-related cancer. Instead, it must be shown that exposure to a defendant’s product was a substantial factor in contributing to the total dose of asbestos the plaintiff inhaled, and therefore to the risk of developing asbestos-related disease.

The Supreme Court disagreed with the lower court, however, stating that the plaintiffs do not have to meet the heightened standard of “but-for” causation. Although the court recognized that “producing cause” or “but-for” is the level of causation applicable to most products liability cases, it was unwilling to apply that standard in a case with 40 defendants.

Acknowledging that causation is difficult to prove in multidefendant cases, the court referenced its prior holding in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), which offers an alternative method for establishing causation in the absence of direct proof. Havner recognized the possibility of using epidemiological studies to prove a population exposed to a toxin faces the increased risk of injury as compared to an unexposed or general population. Under Havner, the epidemiological evidence must show that the plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.

In essence, the Texas Supreme Court found the causation evidence in Bostic to be legally insufficient to uphold the trial verdict. The plaintiffs did not establish any approximation of dose resulting from Bostic’s exposure to Georgia-Pacific’s products. Bostic rejected the plaintiffs’ “any exposure” standard and instead reaffirmed adherence to substantial factor causation.

Alexana Gaspari is a law clerk in Gordon & Rees’s New York office.

Image courtesy of Flickr by Ray Bodden

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.

National Trends Driving Asbestos Litigation in 2013-2014 (2 of 3): Decrease in Non-Impairment Filings

Increase in Lung Cancer Filings

As plaintiffs’ firms approach a “max out” point on potential mesothelioma lawsuits and judicial reforms limit the filing of non-impaired asbestotic cases, there is a growing national trend toward filing more lung cancer claims.

Unlike the relatively limited number of people diagnosed annually with mesothelioma (estimated at 2,500 to 9,300 cases over the next 20-plus years), about 226,160 Americans are diagnosed with lung cancer each year. According to the Centers for Disease Control and Prevention (CDC), approximately 85 percent of lung cancers are smoking-related. However, plaintiffs’ attorneys have experts willing to testify that exposure to asbestos is a substantial contributing factor to the development of lung cancer (some even suggest a “synergistic effect”).

Also, the bankruptcy trusts pay significant amounts for lung cancer claims and have a low standard for the definition  of a “non-smoker” such that a claimant with a significant, but remote smoking history is characterized as a “non-smoker” and can receive a higher payment than a current smoker. This provides an incentive to seek out and file claims for people diagnosed with lung cancer who also allegedly worked with or around asbestos or just lived with someone with a history of asbestos exposure.

“Asbestos-related” lung cancer claims can involve significant damages and settlement value especially in “plaintiff-friendly” jurisdictions with favorable jury pools. Moreover, the majority of mesothelioma cases have been captured in the marketplace by top tier plaintiffs’ firms that spend significant amounts on marketing or referral fees. This leaves many of the other plaintiffs’ firms to pursue the lung cancer cases. Accordingly, there has been a noticeable increase in lung cancer filings nationally, especially in more active jurisdictions. For example, in 2012, lung cancer claims for the first time exceeded mesothelioma claims in Madison County, Illinois.  Additionally, according to the U.S. Chamber Institute for Legal Reform, the number of pending lung cancer cases in New York City has nearly tripled over the past four years.

This trend has been noticed and criticized in the context of New York Congresswoman Carolyn McCarthy’s lung cancer lawsuit. In high-profile editorial pieces in Forbes magazine.

McCarthy’s heavy smoking history (over 40 years) is juxtaposed against her claim of take-home exposure to asbestos from her father and brothers who worked on Navy ships and in utilities. The articles detail how New York plaintiffs’ asbestos firms use “a time-honored strategy of bundling weak and strong cases together leveraging larger overall settlements than if the cases were presented separately.” It remains to be seen if this criticism will slow the wave of lung cancer filings.

A Cautionary Note Regarding Expert Opinions on Causation in U.S. District Court

In an April 17 order, U.S. District Court Judge Stephen Wilson of the Central District of California in Los Angeles strictly applied federal rules and the Daubert standard to exclude causation testimony from Dr. Barry Horn and Dr. Arnold Brody.

In Sclafani v. Air & Liquid Systems Corp., the court applied California’s liberal causation standard found in Rutherford v. Owens-Illinois, Inc. (substantial factor contributing to the risk) and distinguished the recent unfortunate California Court of Appeal decision in Hernandez v. Amcord, Inc.  The result was good – defendants won summary judgment – but some of Judge Wilson’s rationale may also limit defense experts in future cases.

Citing Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, the court excluded causation opinions of both plaintiff experts.  In excluding the opinions of Brody, the court noted that he admitted his opinions regarding “every fiber” contributing to the risk had not been published in peer-reviewed literature and could not be tested. The court found that other opinions of Brody, supported by citation to four published papers that were not attached, were nevertheless inadmissible, as the papers themselves must be provided. These rulings caution that defense expert opinions may also be excluded if (a) not published in peer-reviewed literature or (b) to the extent based on studies that are not submitted along with the expert’s report.

The court further ruled that Horn’s opinions offered in deposition, but not found in his earlier Rule 26 report, were inadmissible. If this same standard were applied to defense expert Dr. Victor Roggli and his brief reports, for example, one can anticipate significant problems.

Actor Ed Lauter’s Family Sues Over Alleged Asbestos Exposure

The family of Ed Lauter, an actor who appeared in  TV shows (The Office, ER, Murder She Wrote, The Rockford Files ) and in movies (The Longest Yard, The Artist), is suing CBS and General Electric (which owns NBC) claiming that Mr. Lauter’s mesothelioma was a result of asbestos exposure while working at facilities owned by these defendants. The family is also claiming that he had exposure from working on Ford automobiles. The case is venued in Los Angeles Superior Court and the plaintiffs are represented by Simmons Browder.

Mr. Lauter is one of several in the entertainment field who have died from mesothelioma, including Steve McQueen, Merlin Olsen and Warren Zevon.