Jurisdiction: United States District Court for the Western District of Washington
Plaintiff claimed decedent Geraldine Rabb Perkins had asbestos exposure resulting in her diagnosis of mesothelioma.
Plaintiff specifically alleged that Mrs. Perkins had para-occupational asbestos exposure originating from Puget Sound Naval Shipyard where decedent’s husband, Harang Joseph Perkins, worked as a machinist’s mate for the U.S. Navy between approximately 1968 and 1974. It was claimed Mrs. Perkins had para-occupational asbestos exposure from laundering Mr. Perkins work clothes.
Prior to being diagnosed with mesothelioma, Mrs. Perkins underwent therapeutic radiation treatment for breast cancer in approximately 2010. On February 21, 2020, Mrs. Perkins was diagnosed with pleural mesothelioma. On June 6, 2020, Mrs. Perkins passed away from pleural mesothelioma. Plaintiff ultimately sued the United States for wrongful death, survivorship and other related claims brought under the Federal Tort Claims Act (FTCA). In June, this asbestos action was tried before the court — sitting without a jury — for eight days. On August 5, closing arguments concluded. On December 27, the court rendered its decision.
Under the FTCA, the law of the state where the tort allegedly occurred controls issues of liability. Pacheco v. United States, 21 F.4th 1183, 1187 (9th Cir. 2022). To prevail on a negligence claim under Washington law, a plaintiff “must show (1) the existence of a duty to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach as the proximate cause of the injury.” Turner v. Wash. State Dep’t of Soc. & Health Servs., 493 P.3d 117, 124 (Wash. 2021) (quoting Ehrhart v. King County, 460 P.3d 612, 617 (Wash. 2020)). The “peculiar nature of asbestos products and the development of disease due to exposure to such products” creates difficulties in establishing the precise party or exposures that caused the harm. Lockwood v. AC & S, Inc., 744 P.2d 605, 613 (Wash. 1987). To prove causation in an asbestos case, therefore, Washington courts typically apply the “substantial factor” test to determine proximate cause. See Jack v. Borg-Warner Morse Tec, LLC, C17-0537JLR, 2018 WL 4409800, at *12 (W.D. Wash. Sept. 17, 2018) (citing Mavroudis v. Pittsburg-Corning Corp., 935 P.2d 684, 687-89 (Wash. Ct. App. 1997)), aff’d sub nom. Jack v. DCo, LLC, 837 F. App’x 421 (9th Cir. 2021).
In asbestos cases, to satisfy the substantial factor test, the plaintiff must demonstrate “a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.” Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 855-56 (9th Cir. 2019) (quoting McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1176 (9th Cir. 2016)). A plaintiff may establish exposure to asbestos from a defendant’s conduct through direct or circumstantial evidence. Morgan v. Aurora Pump Co., 248 P.3d 1052, 1056 (Wash. Ct. App. 2011). “However, ‘[w]hen reliance is placed upon [circumstantial] evidence, there must be reasonable inferences to establish the fact to be proved.'” Id. (quoting Arnold v. Sanstol, 260 P.2d 327, 329 (Wash. 1953)); see also Sanchez v. Haddix, 627 P.2d 1312, 1315 (Wash. 1981) (“Where causation is based on circumstantial evidence, the factual determination may not rest upon conjecture[.]”). “Ultimately, the sufficiency of the evidence of causation will depend on the unique circumstances of each case.” Lockwood, 744 P.2d at 613 (identifying factors, in a product liability occupational exposure case, for the trial court to consider when determining whether there is sufficient evidence to take the case to the jury). In view of the above, the court ultimately determined that plaintiff’s claims failed for lack of causation.
The court concluded, among other things, that plaintiff did not meet her burden in proving actionable asbestos exposure(s) were, in fact, a substantial causative factor to Mrs. Perkins’ disease. Plaintiff’s specific causation expert — pathologist Richard Kradin, M.D. (pathologist) — opined Mrs. Perkins would have been exposed to “above background levels of asbestos capable of causing mesothelioma by the laundering of her husband’s work clothes and direct contact with her husband and fibers that were deposited within the household and within the family car.” Dr. Kradin further opined every exposure above the background level was a substantial contributing factor to Mrs. Perkins’ “cumulative dose” of asbestos.
Dr. Kradin’s opinion that exposures from the Shipyard contributed to Mrs. Perkins’ pleural mesothelioma is based on his belief that all asbestos exposures above background level contributed to Mrs. Perkins’ disease: “[T]he cumulative dose is what matters with respect to the risk for developing the disease. So, all exposures above background would have to be counted.”
The court found Dr. Kradin’s opinions were based upon assumptions, speculation and conjecture, given the dearth of evidence. For instance, Dr. Kradin assumed Mrs. Perkins was exposed to asbestos above a threshold level because she laundered her husband’s “dirty and dusty work clothes” when he was working at the Shipyard while enlisted with the U.S. Navy. Yet there was no evidence presented that Mr. Perkins was aboard any ship when asbestos work was performed, let alone that he was ever close enough to that work that asbestos fibers would have adhered to his clothing. In addition, the mere fact that Plaintiff provided a statement 50 years later recalling Mr. Perkins’ work clothes were “dirty and dusty” upon arriving home from the Shipyard does not lead to a reasonable inference that the dirt or dust contained asbestos without additional, supporting evidence.
Dr. Kradin also did not characterize or estimate Mrs. Perkins’ actual exposures. Despite recognizing that Mrs. Perkins’ prior radiation therapy for breast cancer in approximately 2010 was a contributing factor, Dr. Kradin did not consider the extent to which this prior radiation treatment contributed to Mrs. Perkins’ pleural mesothelioma, which is considered relevant evidence under Washington law in determining whether there is sufficient evidence to establish causation in an asbestos case. See Klopman-Baerselman v. Air & Liquid Sys. Corp., No. 3:18-cv-05536-RJB, 2019 WL 6619821, at *3-4 (W.D. Wash. Dec. 5, 2019) (recognizing that there may be many possible sources of asbestos that could have caused decedent’s death in granting judgment for the defendant)).
Lastly, Dr. Kradin’s opinion that every exposure above the background level was a substantial contributing factor to Mrs. Perkins’ “cumulative dose” of asbestos is unreliable because it lacks sufficient factual support and is not grounded in data or reliable methodology. See McIndoe, 817 F.3d at 1177 (finding expert’s testimony that every asbestos exposure above a threshold level was a substantial factor in the development of mesothelioma was unreliable because the expert “did not speak to the severity of [plaintiff’s] exposure” to asbestos or “make distinctions between the overall dose of asbestos … and that portion of such exposure which could be attributed to the shipbuilders’ asbestos-containing materials”); Barabin v. Scapa Dryer Fabrics, Inc., No. C07-1454JLR, 2018 WL 840147, at *11-13 (W.D. Wash. Feb. 12, 2018) (finding the cumulative exposure theory that “every exposure to asbestos above a threshold level is necessarily a substantial factor” in causing mesothelioma “lacked sufficient support in facts and data” and was therefore unreliable under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993)).
The court, therefore, entered judgment in favor of defendant.
Read the full decision here.