My friend and colleague Laura Kingsley Hong recently authored an article entitled “Controversies Regarding The Role of Asbestos Exposure in the Causation of Lung Cancer: The Need for An Evidence Based Approach,” which appeared in Mealey’s Litigation Report. Ms. Hong’s commentary ties together current medicolegal concepts that are applied in virtually every scientifically-based litigation to longstanding but evolving scientific issues in asbestos litigation. While this is a debate that needs to happen, it raises the interesting question of why now and why not before?
In other mass tort and toxic tort cases, the science usually drives the litigation at the outset. For example, in an alleged zinc toxicity MDL litigation in federal court in Miami and in the MTP litigation in Philadelphia, plaintiffs claiming injury through ingestion of zinc from denture cream products were met with immediate causation challenges, which ultimately led to dismissal of those claims under both Daubert and Frye standards. See Chapman v. Procter & Gamble Distributing LLC, 766 F.3d 1296 (11th Cir. 2014); Jacoby v. Rite Aid Corp., 2013 Pa. Super. LEXIS 5563 (Pa. Superior Ct. 2013). As we discuss in our article “‘Weight of the Evidence’ Approach: A Backdoor Attempt to Undermine the Court’s Daubert Gatekeeping Obligation,” in For the Defense from the Defense Research Institute, proof of causation is at the core of these cases and the battles are fought on two fronts — general causation and specific causation. Successful resolution of these causation issues on Daubert and Frye grounds makes the cases go away.
So, why is it that some scientifically-based legal challenges were not at the center of certain asbestos cases at the outset and are only now beginning to come to the forefront? Here are some factors worth considering: Historically, asbestos litigation is a unique animal. Defendants initially challenged plaintiffs’ claims on a medical and scientific basis, but quickly learned that the nature of the exposure (e.g. high exposure to insulation) and disease (e.g. mesothelioma) left the defendants with weak defenses, at best. As the litigation progressed over the years, weaker cases that raised legitimate scientific and medical causation issues (i.e. lung cancer cases) were often assigned a lesser value and usually grouped and settled with stronger cases. For years, defendants simply did not mount committed scientific challenges because it was not cost effective to do so. Then four things changed: new defendants, new exposure claims, new science, and new efforts by plaintiffs’ firms to pursue weaker claims. We now live in a world where legitimate scientific causation issues, long overlooked, are starting to be raised. The evolution of the single fiber, cumulative exposure issues is a perfect example of just such a challenge, which has resulted in successful scientific challenges in several states around the country. The scientific literature related to lung cancer and asbestos exposure needs to be subjected to the same type of Daubert and Frye scrutiny.
Ironically, courts are understandably wondering why these issues are being raised after years of these types of cases working their way through the system. Ms. Hong’s commentary is significant because it emphasizes the need to properly refocus courts on the scientific causation analysis and leave behind how and why we got here.