Key 2020 Rulings on the “Every Exposure” Causation Theory and Anticipated Rulings for 2021

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Due to court closures and stays placed in cases as a result of the COVID-19 pandemic, there was a significant downturn in the advancement of motions throughout the second and third quarters of 2020. However, the Asbestos Case Tracker has reported on recent motions in limine and causation-based motions for summary judgment involving these issues, which provides some guidance into the anticipated rulings going forward.

In mid-September 2020, the U.S. District Court for the Eastern District of Louisiana issued several decisions on motions in limine filed by both plaintiffs and defendants in the Dempster v. Lamorak Insurance Co. matter. Notably, the defendants moved to preclude the plaintiffs’ causation expert Dr. Stephen Kraus for many reasons, including his failure to provide any quantitative or qualitative assessment of the decedent’s alleged exposure to asbestos from the defendants’ products, including any details regarding the frequency, duration or proximity of the alleged exposure to asbestos. The court disagreed, and held that Dr. Kraus was not required to show the precise level of asbestos to which the decedent was exposed, but instead his testimony was based on scientific knowledge regarding harmful levels of exposure. This, in conjunction with other bases, led the court to deny the motion to preclude Dr. Kraus.

Also in September 2020, the Superior Court of Delaware granted a brake arcing and lathe manufacturer’s motion for summary judgment on numerous grounds, including causation. Regarding the causation, the defendant established that the plaintiff, Raymond Petit, produced insufficient evidence to withstand the Lohrmann standard, which was adopted by Rhode Islands. The defendant argued that there was no evidence that the dust encountered by plaintiff as a result from his work on the defendant’s machines actually contained asbestos, and instead the dust was a result of metal-on-metal friction. The plaintiff failed to rebut this argument by submitting any evidence or testimony that the dust contained asbestos. Specifically, as a result of plaintiff’s failure to submit evidence regarding the frequency and regularity of his exposure to asbestos, summary judgment was appropriate.

In February 2020, the Supreme Court of Westchester County issued an order concerning defendant Ford Motor Company’s motion seeking to preclude the causation opinions of the plaintiff’s expert witnesses and upon preclusion, granting summary judgment pursuant to CPLR 3212(a). The plaintiff, Glen Schrank, was diagnosed with lung cancer after smoking between one and one and a half packs of cigarettes per day for multiple decades. However, the plaintiff claimed that his work involving replacement brakes and clutches, including those manufactured by Ford between 1972 and 1991, led him to be exposed to asbestos, causing his lung cancer. In the order, the court discussed the report issued by a Ford expert discussing the extensive volume of studies attributing tobacco use to lung cancer, and the expert’s reliance on numerous epidemiological studies regarding the association of lung cancer and occupational exposure to asbestos from motor vehicle repair. The court held that the opinions of Ford’s expert, in reliance upon epidemiological studies demonstrating the lack of a causal link between such motor vehicle repair and the plaintiff’s lung cancer, had satisfied the threshold burden of showing that its products could not have contributed to the causation of plaintiff’s injuries.

Upon shifting the burden to the plaintiff, the court in Schrank reviewed the expert reports issued by plaintiff’s experts. Like the opinions offered in the cases discussed above, Dr. Staggs opined regarding plaintiff’s “cumulative exposure to asbestos of all fiber types” being a significant contributing factor to his development of his asbestos-related disease. The court also considered the report of a pulmonologist, Dr. Schachter, who opined that the plaintiff’s “asbestos exposure was certainly the cause of his malignant disease in conjunction with his cigarette smoking.” The Schrank court held that the plaintiff’s experts failed to provide any basis for their opinions that plaintiff’s work as an automobile mechanic and alleged exposure to each of Ford’s products caused plaintiff’s lung cancer, nor did they demonstrate sufficient amounts of plaintiff’s asbestos exposure to have caused his illness. Moreover, the court held that the experts’ failed to establish specific causation because they failed to establish sufficient exposure to a substance to cause the claimed adverse health effect, let alone a demonstrable basis to attribute those exposures to Ford.

The court also criticized the plaintiff’s experts for failing to provide bases to support their opinions, including their lack of reliance on epidemiological studies and complete disregard for the plaintiff’s frequency of alleged exposure, rendering it impossible to determine the frequency of the plaintiff’s exposure, if any, attributable to Ford. The court specifically referenced the Court of Appeals decision in Sean R. v. BMW of N. Am., LLC, 26 NY 3d 901 (2016), which mandated such a finding as a minimum requirement in exposure cases.  Upon its review, the Schrank court held that the plaintiff’s proof was “insufficient to establish any reasonable probability that a Ford product caused plaintiff’s illness.” Accordingly, summary judgment was granted in favor of Ford. 

Also reported by Asbestos Case Tracker in February 2020, the U.S. District Court for the Northern District of Mississippi also granted a defendant’s motion for support judgment involving similarly vague expert opinions. In this case, plaintiffs’ expert, Dr. Arthur Frank, was unable to opine whether the decedent’s illness was caused by any alleged exposure from the defendant’s products, or by any of the other admitted exposures.

In reviewing these decisions, it is noteworthy that some courts have taken different approaches to the evidentiary requirements for plaintiffs’ medical experts. While some courts have permitted the “every exposure” theory under the belief that it is “generally accepted science” and permitted the expert testimony, other courts have taken a more analytical approach in acknowledging the quantification requirements of exposure. As we progress into the coming year and consider similar motions, it will be critical to stay abreast of recent causation decisions within your jurisdictions on the “every exposure” theory. Be sure to continue monitoring the Asbestos Case Tracker for decisions involving motions in limine and for summary judgment on causation issues nationwide.