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'Every exposure' theory rejected in La. asbestos case

By Heather Isringhausen Gvillo | Jul 23, 2014

SHREVEPORT, La. (Legal Newsline) - A Louisiana federal judge has rejected the "every exposure" theory in an asbestos lawsuit and granted summary judgment to four defendants, concluding that the plaintiffs' expert's testimony is "internally inconsistent."

Judge Tom Stagg delivered the July 14 opinion in the United States District Court for the Western District of Louisiana.

Defendants CertainTeed Corporation, Beazer East, Inc., Georgia Pacific LLC and Union Carbide Corporation filed separate motions for summary judgment.

Additionally, CertainTeed, Beazer and Georgia Pacific filed separate Daubert motions seeking to exclude the testimony of the plaintiffs' causation expert Dr. David Schwartz.

Tina Davidson, Kristen Davidson and Kathryn Davidson filed the wrongful death lawsuit on behalf of William Cleve Davidson, who was diagnosed with mesothelioma in 2010 and died in 2011.

In response to the claims, the defendants filed Daubert motions to exclude Schwartz's testimony relying on the every exposure theory.

Schwartz argued that each and every asbestos exposure contributed to Davidson's injury.

However, in his reports, Schwartz also admitted that he does not believe that every single asbestos fiber contributes to the development of mesothelioma, explaining that it is a dose-related disease.

In other words, the more someone is exposed to asbestos, the greater the risk for developing an asbestos-related disease.

When asked during a March 2011 deposition if "every single exposure to asbestos above background is a substantial contributing factor to the cause of mesothelioma," Schwartz testified that he "couldn't point to any specific cause as being the cause of mesothelioma."

However, in a second deposition in June 2011, Schwartz inconsistently testified that there is no way to know which exposures caused mesothelioma and which ones did not, meaning the every exposure theory must include all asbestos exposures as causation, the defendants argued.

Then he added that he would have to know the frequency, duration and proximity of a particular asbestos exposure in order to determine whether it is "substantial" or not.

The defendants objected to Schwartz's testimony, arguing that the every exposure theory does not meet the standards of admissibility according to Daubert.

They also argued that the theory undermines the substantial factor test of causation that applies to cases alleging asbestos-related injuries.

In Daubert, the Supreme Court held that the trial judge is required to act as a gatekeeper to ensure all expert testimony "is not only relevant, but reliable."

An expert's testimony must first be reliable, meaning the reasoning and methodology must be valid.

Furthermore, the testimony must also be relevant and assist the trier of fact in understanding the evidence or determining some fact at issue in the case.

The defendants argued that the every exposure theory is inappropriate because it is unreliable, cannot be tested, has no known rate of error and is mere speculation.

Staggs agreed with the defendants' assessment, stating the every exposure theory "is not testable, and consequently cannot have an error rate, thus failing to satisfy two Daubert factors."

Furthermore, he explained that the court could not find any data that Schwartz relied on that would show that any particular defendant's product actually caused Davidson to develop mesothelioma.

Staggs wrote that Schwartz's testimony is "internally inconsistent," because he could not specifically identify any particular defendant's product as having caused Davidson's mesothelioma, yet he concludes that every exposure was a substantial contributing factor.

As a result, Staggs held that Schwartz's testimony that every asbestos exposure contributed to the decedent's mesothelioma is inadmissible.

Regardless of the Daubert ruling, the defendants further argued that Schwartz's testimony should be precluded because it undermines Louisiana law on causation in asbestos cases.

According to Louisiana law, a plaintiff in an asbestos case "must show, by a preponderance of the evidence, he was exposed to asbestos and he received an injury substantially caused by that exposure," they said.

Specifically, the defendants argued that the every exposure theory conflicts with the substantial factor causation test.

Staggs agreed, holding that "if a plaintiff could establish causation with the every exposure theory, then every exposure to asbestos would be deemed a substantial factor, no matter the 'frequency, duration and proximity of exposure,' all of which are factors that Dr. Schwartz has testified are relevant to determining causation."

Staggs wrote that because Schwartz's testimony regarding the every exposure theory was deemed inadmissible, the question that stands is whether the plaintiffs can create a genuine dispute of material fact as to causation without his expert testimony. He concluded that they cannot.

Expert testimony is required to establish causation in asbestos cases and without Schwartz, the plaintiffs are left without any expert testimony supporting their causation allegations, he explained.

Therefore, they cannot create a genuine dispute of material fact as to causation.

Staggs also dismissed the third-party complaints filed by CertainTeed, Beazer and Georgia Pacific against the Celotex Asbestos Settlement Trust and the Claims Resolution Management Corporation. The complaints were filed to seek indemnity in the event that the defendants were found liable to the plaintiffs.

Because summary judgment was granted for each defendant, the third-party complaints are considered moot and are therefore dismissed.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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