Plaintiff’s Issues on Appeal Ruled Non-Prejudicial, Insulation was Not a Substantial Cause United States Court of Appeals, Seventh Circuit, August 31, 2017

Charles Kirk brought suit against Owens-Illinois and Exxon Mobil alleging that his lung cancer was caused by exposure to asbestos containing material.  From 1954 until 1960 Plaintiff worked aboard navy vessels removing insulation produced by Owens–Illinois, Inc., which he claimed exposed him to asbestos fibers. And for two weeks, he worked as an independent contractor at Exxon Mobil’s  Joliet refinery replacing heaters that Plaintiff claimed were insulated with asbestos. Mobil presented counter-evidence that the insulation at its refinery did not contain asbestos.  Notably, Plaintiff smoked a pack and a half of cigarettes every day for thirty years.  Before a district court and jury, the defendants maintained that cigarettes and not asbestos exposure caused Plaintiff’s lung cancer. After a seven-day trial, the jury found that cigarettes were the sole cause of Plaintiff’s cancer.  Plaintiff appealed the district court’s decision to the U.S. District Court for the Northern District of Illinois claiming that the trial court erred on two grounds depriving him of a fair trial.

First, Plaintiff claimed that the district court erred by excluding testimony about medical causation from his expert, Dr. Arthur Frank.  Prior to trial, the defendants filed motions before Judge Lee of the Northern District of Illinois seeking to exclude Dr. Arthur Frank and other witnesses from testifying about a theory of causation often referred to as “each and every exposure theory,” “any exposure theory,” “the single fiber theory,” or “no safe level of exposure theory” among others.  At the conclusion of the presentation of these pre-trial motions, Judge Lee concluded that Plaintiff had not established that the “any exposure” theory was sufficiently reliable to warrant admission under Rule 702 and the Supreme Court’s seminal case on the admissibility of expert witness testimony, Daubert v. Merrell Dow Pharmaceuticals, Inc.

Before trial, the case was transferred to Judge Manish Shah.  Despite the earlier Daubert ruling, Plaintiff called Dr. Frank at trial, hoping that a newly packaged “cumulative exposure theory” would skirt Judge Lee’s earlier ruling on the motion in limine. During voir dire of Dr. Frank, however, Judge Shah concluded that Dr. Frank’s testimony was still “not tied to the specific quantum of exposure attributable to the defendants, but was instead based on his medical and scientific opinion that every exposure is a substantial contributing factor to the cumulative exposure that causes cancer.  Plaintiff did not dispute that the district court identified and applied the appropriate Daubert framework, rather, he argued that Judge Shah made an errant factual determination that the cumulative exposure theory was the same as the “each and every exposure” theory that Judge Lee had barred.  The Court of Appeals determined the decision by the trial court was proper and was not an abuse of discretion to exclude the testimony nor to deny the motion for a new trial.  The appellate court explained:  “To summarize, the principle behind the ‘each and every exposure’ theory and the cumulative exposure theory is the same—that it is impossible to determine which particular exposure to carcinogens, if any, caused an illness.  In other words, just like ‘each and every exposure,’ the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.

Second, Plaintiff claims he was denied a fair trial when Mobil, with the knowledge of Owens–Illinois, hired a private investigator to secretly conduct an interview of a sitting juror’s acquaintance, to verify and investigate information revealed by the juror.  Ultimately the Court found that the Plaintiff was not prejudiced by Mobil’s investigation because judgment in favor of the defendants was inevitable once it became clear that Plaintiff could not prove causation.  As such, the decision of the district court is affirmed in all respects.

Read the full decision here.


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