Recent Decisions Bolster Emerging National Trend, Signaling Trouble for the Each-and-Every-Exposure Theory in Asbestos Litigation
In asbestos cases, plaintiffs have long relied on expert testimony that “each and every exposure” to asbestos is a substantial contributing factor to the development of mesothelioma. In a series of recent opinions, courts in various jurisdictions have shown an increasing skepticism toward this theory by excluding expert testimony based upon it. Earlier this year, the Virginia Supreme Court rejected the “substantial contributing factor” standard for causation in asbestos cases, which may prevent plaintiffs from relying on the each-and-every-exposure theory in that state. The two most recent cases are discussed below.
Smith v. Ford Motor Co., Case No. 2:08-cv-630, 2013 U.S. Dist. (C.D. Utah, Jan. 18, 2013)
The Smith court excluded the testimony of pathologist Dr. Samuel Hammar that every asbestos exposure contributed to the plaintiff’s mesothelioma. In that case decedent Ronnie Smith, who worked part-time as a service attendant at a gas station, claimed that his mesothelioma resulted from his exposures to asbestos while performing brake service on Ford vehicles. He estimated that he may have changed brake pads on Ford vehicles on seven occasions over a period of 19 months. Dr. Hammar opined that these seven instances of exposure contributed to Mr. Smith’s mesothelioma, and that one cannot rule out any single exposure to asbestos as a cause of Mr. Smith’s mesothelioma.
The court disagreed and excluded this testimony. First, the court opined that Dr. Hammar’s each-and-every-exposure opinion was “unsupported by sufficient or reliable scientific research, data, investigations and studies.” Second, even if the court found the expert opinion to be supported by scientific evidence, the court held Dr. Hammar’s opinion was still inadmissible because the danger it posed of unfair prejudice substantially outweighed its probative value. The court reasoned that Dr. Hammar’s opinion was inconsistent with the substantial contributing factor test. While Dr. Hammar testified that he could not rule out any particular exposure, this did not mean that every exposure was a legal cause of Mr. Smith’s mesothelioma. The court wrote: “Just because we cannot rule anything out does not mean we can rule everything in.”
Ford Motor Company v. Boomer, Record No. 120283, 2013 (Va., Jan. 10, 2013)
In Boomer, the Virginia Supreme Court rejected the substantial contributing factor test in favor of a higher standard. The plaintiff’s decedent, James Lokey, was a Virginia state trooper for 30 years. Plaintiff claimed that Mr. Lokey had been exposed to asbestos while observing vehicle inspections over a period of seven to eight years. Mr. Lokey had also worked at the Norfolk Naval Shipyard for more than a year in the early 1940s. The defense experts testified that Mr. Lokey was likely exposed to significant amounts of asbestos at the shipyard. The trial court instructed the jury to determine whether the negligence of Ford or the negligence of brake component manufacturer Bendix was a “substantial contributing factor” to Mr. Lokey’s disease. The jury found in favor of Mr. Lokey’s estate, awarding damages in the amount of $282,685.69.
On appeal, the Virginia Supreme Court rejected the substantial contributing factor standard used by the trial court, concluding that the test was problematic, prone to inconsistent applications and did not provide the jury with adequate guidance. As a result, the court explained, the substantial contributing factor standard may invite a jury to extremes, thus allowing the jury to conclude that proof of de minimis exposure establishes causation or holding the plaintiff to an impermissibly elevated standard of proof. The court further noted that lower courts may easily misinterpret the substantial contributing factor test.
In place of the substantial contributing factor test, the Virginia Supreme Court applied a “sufficient” concurrent cause standard, consistent with the Restatement (Third) of Torts, for cases involving multiple alleged exposures or causes. As articulated by the court, meeting this test requires evidence that “exposure to defendant’s product alone must have been sufficient to have caused the harm.” The court noted that this test is analogous to the “multiple sufficient cause” test set forth in the Restatement (Third) of Torts.
The admissibility of plaintiff’s expert testimony on the each-and-every-exposure theory was also raised on appeal; however, the Virginia Supreme Court declined to reach that issue. Instead, the court instructed the trial judge to “consider the experts’ opinions as to whether the exposures … were each more likely than not sufficient to have caused mesothelioma.” Because the “causation testimony was inextricably linked to the substantial contributing factor test for causation,” the court instructed that: “The experts must opine as to what level of exposure is sufficient to cause mesothelioma, and whether the levels of exposure at issue in this case were sufficient.”
It remains to be seen how lower courts will apply Boomer. Nevertheless, the decision should operate to increase the amount and quality of the evidence a plaintiff must present to prove causation. Based on the Virginia Supreme Court’s rejection of the substantial contributing factor test, it appears that the each-and-every-exposure theory will not be sufficient to meet the Boomer standard. Additionally, Virginia trial courts may be more likely to exclude each-and-every-exposure testimony on the ground that it will not assist the trier of fact.
These are just the latest decisions in a growing trend wherein courts have rejected the “each-and-every-exposure” and the related “no-safe-dose” theories. State courts in Florida, Georgia, Louisiana, Mississippi, Pennsylvania, Texas and Washington as well as the United States Court of Appeals for the Sixth Circuit have already joined this trend.
Whether courts rely on the Daubert or Frye admissibility tests or on the applicable substantive causation standard, courts are increasingly skeptical of the “no-safe-dose” and “each-and-every-exposure” theories. Courts are finding that these theories lack a basis in science and defy common sense. As noted in Moeller v. Garlock Sealing Techs, 660 F.3d 950,955 (6th Cir. 2011), the each-and-every-exposure theory is akin to opining that water poured into the ocean from a single bucket substantially increases ocean levels.
Regardless of venue, defendants should aggressively challenge expert testimony that relies on either the “no-safe-dose” theory or the “each-and-every-exposure” theory as to the admissibility of the expert testimony and the legal sufficiency of the testimony to establish causation.