WASHINGTON (Legal Newsline) - Companies named in asbestos lawsuits may employ more aggressive defenses as information emerges that other factors can cause the particular type of cancer that leads to the costliest settlements and verdicts.

A number of studies have linked mesothelioma to background factors including radiation treatments, other materials with similar properties as asbestos and even a particular gene. But, it is argued by defense lawyers, firms will remain selective when choosing which meso claims to fight.

"I think that defenses are becoming more aggressive in looking for non-asbestos causation," said Mark Behrens, an attorney with Washington, D.C.-based Shook, Hardy and Bacon. "But they may be selective when trying to do this."

"Those cases that are strongest would be where alleged exposure is very remote, maybe non-existent, not a career installer, or working on ships where there was substantial exposure."

From 2012 to 2016, an estimated 55 percent of all mesothelioma medical cases diagnosed in the U.S. were background cases, according to Maine-based risk assessment analyst Bertram Price, a mathematician.

Price estimated 37 percent of male mesothelioma were background cases, as were approximately 99 percent of all female mesothelioma cases.

Elizabeth Hanke, of KCIC, a business advisory firm, said evidence that mesothelioma is not solely caused by asbestos exposure is very important for all defendants in this type of litigation.  

"It is especially important for defendants whose products contained very low levels of asbestos and defendants who have not had an asbestos-containing product on the market for over 40 years," Hanke said.

Hanke agrees with Price's summary that defendants in the future need to "acknowledge the existence and increasing proportion of background cases."

They must, Hanke said, "effectively deal with the flawed 'one fiber will kill' and 'each and every exposure' causal theories and, most importantly, apply all of the scientifically reliable information concerning mesothelioma risk and asbestos exposure to determine if asbestos is a substantial factor in the cause of the disease for a claimant."

Behrens, who co-chairs his firm's public policy practice group, said defense attorneys are already becoming more aggressive and citing other factors that may be responsible for an individual suffering from mesothelioma, including the BAP1 gene.

But he added, "It is unrealistically optimistic that this litigation will fall off a cliff in the the next few years... It will be a long, slow and steady decline.

"If there is science out there, whether genetic or environmental, courts cannot exclude those arguments, and judges overseeing the cases have to be educated if there are arguments they have not heard before."

Hanke said she is confident courts will be open to the argument that other factors can be linked to mesothelioma "if the scientific and empirical evidence is actually presented to them."

"I’m particularly interested in the different levels of scientific evidence required for expert testimony, which could influence courts," Hanke said.

She pointed to Missouri last year signing into legislation the Daubert standard for expert testimony. KCIC noted that asbestos-related filings decreased in St. Louis by 40.3 percent and increased across the river in St. Clair County, IL, by 200 percent.

Daubert is a federal standard adopted by many states that essentially means someone described as an expert is thoroughly vetted by a court before being allowed to give testimony before a jury.

"While I am not a lawyer, I believe this higher standard will help the defendants," Hanke said. "As Dr. Price points out, the asbestos exposure threshold concept for mesothelioma is like it is for most disease risk versus exposure relationships, scientifically ambiguous. "

She added, "Most asbestos cases do not go to trial, presumably because it is not worth the risk of a high verdict for most defendants.  

"More often a lower, known settlement amount makes more financial sense for defendants. Dr. Price’s analysis shows that this strategy is unsustainable in the long run. Defendants will never stop paying – or at least they will not stop paying for a very long time – if the science is not better incorporated into their strategy."

Citing the Price analysis, Hanke said that in approximately 20 years, around 2040, most, if not all, mesothelioma will be background cases.

"This type of defense requires more coordination and trust between co-defendants. Certain cases may be more suited to this defense theory," Hanke said.

"Consider a female mesothelioma case alleging only secondary take-home exposure from a spouse that worked in a very low asbestos exposure occupation.

"All of the defendants might agree to try the case on the theory that exposure to asbestos was not a substantial factor in the cause of the mesothelioma.

"This requires all defendants to be on board with the theory and trust that no defendant will make an argument that the mesothelioma was caused by someone else’s asbestos."

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