PITTSBURGH (Legal Newsline) - The "every exposure" theory used often in asbestos litigation was rejected in Pennsylvania in 2012 and has been the subject of several appeals within the last year. Now, two defense attorneys concerned with the application of opinions rejecting the theory have shed some light on the complicated matter.
Nicholas P. Vari and Michael J. Ross, partners with the K&L Gates law firm in Pittsburgh, addressed the "every exposure" theory and its use in asbestos litigation in their article "State Courts Move to Dismiss 'Every Exposure' Liability Theory in Asbestos Lawsuits," which was published by the Washington Legal Foundation on Feb. 28.
Vari and Ross explain that the "every exposure" theory allowed plaintiffs in asbestos lawsuits to allege that even defendants who may have contributed to a claimant's asbestos-related disease by only a "single fiber" can still be held liable.
The theory is based on the idea that a claimant's exposure is "indivisible, meaning every fiber the plaintiff was exposed could have contributed to the injury."
In other words, the theory provided a way for plaintiffs in asbestos lawsuits to allege liability upon de minimis exposure defendants, whose products alone would have been insufficient enough to cause the injury.
The theory, therefore, makes "each defendant potentially liable for every exposure that a plaintiff encountered during his lifetime, regardless of how minimal a specific defendant's product was in relation to the lifetime of exposure," Vari and Ross wrote.
"Courts seem to have given a lot of leeway to asbestos plaintiffs in terms of proving disease causation," Vari said.
Vari explained that the issue has become more relevant recently because, in the past, asbestos lawsuits included more intense exposures. Since so many companies have declared bankruptcy and turned to litigating through trusts, solvent defendants left in litigation are responsible for de minimus exposures, he said.
"The levels of exposure for those left in the tort system are much, much smaller than those in the tort system 20 or 30 years ago," Vari said.
The article also claims that the "every exposure" theory ignored the fundamental relationship between dose and disease.
"As a practical matter, the 'every exposure' theory obviated the causation element of an asbestos plaintiff's claim, ignoring the well-established scientific link between dose and disease," Vari and Ross wrote.
"It's just reality that causation is something that relates to the level of the dose," Vari added.
Vari further explained that defense attorneys are working on spreading the rejection of the "every exposure" theory to other states beyond Pennsylvania and Maryland with some difficulty as many trial courts haven't been perceptive of their arguments.
"It's viewed by some to be a harsh doctrine," Vari said.
The landmark case Vari and Ross refer to when discussing the "every exposure" theory is the Betz decision from 2012, in which the Pennsylvania Supreme Court rejected the theory as a means of establishing causation in asbestos cases.
According to the Betz decision, the Pennsylvania Supreme Court held in 2012 that an expert testifying that "every exposure" to asbestos is a substantial contributing factor to asbestos-related diseases contradicts testimony that such diseases are dose-responsive.
"Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose-responsive," the court ruled.
In an effort to define the Betz decision when applied to similar cases, the conclusion has catapulted four other opinions regarding the "every exposure" issue since July in appellate courts in Pennsylvania and Maryland, including the Dixon decision, Campbell decision, Nelson decision and Howard decision.
Vari and Ross wrote in their article that while the opinions from each case reach varying conclusions, the courts unanimously accepted the decision in Betz that the "'every exposure' theory has no place in modern toxic tort litigation" and therefore fails to establish causation in asbestos litigation.
"Indeed, even the courts that held in favor of the proponents of the 'every exposure' theory held that the theory cannot sustain a liability finding, and that instead, courts must assess individually the exposures alleged against each defendant," Vari and Ross wrote. "Accordingly, these courts have ruled that the alleged exposures attributed to each defendant must stand on their own."
Therefore, to impose liability in an asbestos lawsuit, plaintiffs must provide specific causation evidence with respect to each defendant individually, they stated.
"While such a standard appears intuitive, it is a marked departure from earlier rulings upholding the 'every exposure' theory in past asbestos cases," Vari and Ross wrote. "Those rulings had the effect of rendering each defendant liable for all of the asbestos-containing materials to which a plaintiff might have been exposed over the course of his lifetime, without regard to whether the particular defendant's product actually harmed the injured plaintiff."
Vari says that since the additional opinions stemming from Betz have been published, the Dixon opinion has been wrongfully interpreted to validate the "every exposure" theory.
In response to confusion, the pair wrote the article to "provide a survey of the law and lay out why that wasn't the case," Vari said.
According to the Dixon decision, Maryland's highest court reversed a Maryland Court of Special Appeals conclusion, reinstated an original verdict in favor of the claimant and against defendant Ford Motor Company in 2013, which could be where confusion sets in because a verdict in favor of the plaintiffs was awarded.
The higher court did not find the "every exposure" theory to be valid. Rather, it reinstated the plaintiff verdict because the claimant's evidence against Ford was sufficient enough to sustain the jury's causation findings.
"Dixon accepts facts and doesn't advocate for the application of the single fiber theory," Vari said. "Rather it was a decision based on the evidence of that case."
In other words, although the "every exposure" theory was not a valid scientific theory according to Maryland law, there was still sufficient evidence to support the jury's finding of causation against Ford, the court ruled.
"It was more the court saying that there was evidence beyond the single fiber opinion that the jury could have accepted," Vari added. "The expert may have talked about single fiber, but that's not what he relied upon for causation in his opinion."
Vari and Ross continued to explain the facts about the remaining three opinions stemming from Betz in their article.
In the Campbell decision from 2013, defendant A.W. Chesterton Inc. challenged the admissibility and legal sufficiency of the "every exposure" theory presented by a plaintiff expert medical witness.
The plaintiff, who worked as a welder for 20 years and then a custodian for 10 years with the Budd Company in Philadelphia, alleged he used A.W. Chesterton's asbestos-containing products on a regular basis while employed with Budd Company.
During trial, a plaintiff medical expert testified that any asbestos fiber the claimant inhaled contributed to his development of lung cancer.
However, during his testimony, the expert also mentioned other potential causes of the plaintiff's lung cancer, including his heavy tobacco use, exposure to metal fumes while making jewelry as a hobby and other asbestos exposures in the workplace.
Therefore, the appeals court concluded that the expert's testimony was not focused on a broad "every exposure" theory of causation.
"So the court determined the trial court did not err in refusing to grant a new trial or judgment notwithstanding the verdict based on the expert's every exposure theory because he had a number of defendant-specific factors," Vari and Ross wrote.
In the Nelson decision from 2013, the plaintiffs claim decedent James Nelson, who died from mesothelioma, was exposed to asbestos from three welding products manufacturers - Lincoln Electric Co., Crane Co. and Hobart Brothers Co.
As part of the plaintiff's argument, an expert witness testified that every exposure was a substantial contributor to Nelson's disease and that there "are no innocent exposures." However, the expert failed to share specific information pertaining to the trial defendant's specific asbestos-containing materials, thus failing to make a specific causation case.
Therefore, the Pennsylvania Superior Court held that the expert's opinions "could not be distinguished from the legally and scientifically invalid 'every exposure' theory offered by the expert medical witness in Betz."
The published Nelson opinion was later vacated and is now pending before the Pennsylvania Superior Court.
The Howard decision had a surprising outcome in the Pennsylvania Supreme Court.
After trial, the plaintiffs, who won the jury verdict in the Superior Court, agreed with the defendants that the ruling in the claimant's favor should be reversed according to Betz and, therefore, agreed to a reversal.
In an opinion reaffirming "'several governing principles' in the area of causation in toxic tort matters," the Pennsylvania Supreme Court confirmed that "the theory that each and every exposure, no matter how small, is substantially causative of disease may not be relied upon as a basis to establish substantial-factor causation for diseases that are dose-responsive."
The court further opined that cases involving "dose-responsive diseases," such as asbestos-related diseases, may not permit expert testimonies that ignore or fail to consider dose as a factor in their opinions.
"'[S]ome reasoned, individualized assessment of a plaintiff's or decedent's exposure history is necessary' before an expert witness can offer substantial-factor causation testimony, bare proof of some de minimis exposure to a defendant's product is insufficient to establish substantial-factor causation, and summary judgment is available to address cases involving de minimis exposures and causation opinions based on the 'any exposure' theory," Vari and Ross wrote.
Ultimately, each case began with the idea presented by plaintiff expert witnesses that every exposure to asbestos caused the claimant's disease and is sufficient to prove causation.
However, the courts ruled in all four cases that specific evidence brought against specific defendants was required for a jury to find causation.
In Dixon and Campbell, the court upheld the jury verdict, deciding that the plaintiffs presented enough evidence of exposures to the specific trial defendants' products.
The two decisions also suggest "that the admission of the invalid every exposure theory can be harmless error if the expert medical witness offering it also provides legally admissible testimony linking a specific defendant's products with a specific plaintiff's disease."
In Nelson, the plaintiff expert witness failed to offer specific evidence and instead relied on the idea that each of Nelson's exposures, regardless of its nature, caused his disease.
As for Howard, "any standard that is true to Betz and Howard cannot require anything less than a defendant-specific causation finding with respect to each defendant," Vari and Ross wrote.
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