What do you think is the single most important factor that will dictate the direction of asbestos litigation across the country, now and in the future? Intelligent minds may differ and we welcome your views. Having practiced in this area for over twenty years, for me the single most important area that will drive this litigation into the future is the science. As the nature of asbestos exposure and diseases continues to evolve after 35-plus years of litigation, the science is more interesting today than ever before. Here are just a few reasons why, which barely scratch the surface.
For decades now, a mesothelioma case has been essentially conceded as being causally related to asbestos based on pathology findings. While alternative causes have sporadically surfaced over the years, predominantly as a tool for defendants to point to other possible alternative causes, the science has essentially been settled . . . or so we thought. The recent studies and focus on gene mutation analysis could be the new horizon for a better understanding of why mesothelioma develops and how genetics plays a role. Who knows whether this will be a new defense and whether the new science will withstand Daubert/Frye muster.
Smoking lung cancer cases without any radiographic evidence of underlying asbestosis may be the next Daubert/Frye challenge on the horizon. With the scientific literature split (including a heavily-criticized paper by Dr. Markowitz) and the burden of establishing a causal connection on the plaintiffs, the question is whether plaintiffs’ experts can offer a causation opinion in light of admittedly deficient and contradictory epidemiology studies.
What makes the developing science somewhat unique is it also raises questions of whether it is being conducted for purely scientific purposes or to simply to address important scientific issues in the context of litigation. Not to oversimplify, but doctors do not necessarily need to understand what causes mesothelioma or care whether a person’s lung cancer was caused by smoking or asbestos exposure in order to treat the patient. While arguments can be made to the contrary, more recent scientific literature has shown signs of selection and other biases connected directly to this litigation. Questions as to who is funding and controlling scientific studies will continue to persist into the future.
Lastly, the role of the court will be critical. Across the country, we have seen an increased willingness by courts to pause and take the time to actually study and understand the scientific literature, both in and out of the asbestos context. Proper application of the Daubert and Frye standards pulls back the curtain and reveals that previously unchallenged expert opinions simply do not have legally sufficient scientific support. A perfect example is the single fiber and every exposure analysis. Only in the last few years has this theory been seriously and effectively challenged in a variety of different states (the reasons why this challenge was not made sooner is an interesting topic for another day). Similarly, the Juni decision out of NYCAL where the court applied New York’s Frye/Parker/Cornell standard for establishing causation in toxic tort cases shows this transition. In that case, two experts who have offered causation opinions in thousands of cases were precluded because the court scrutinized the scientific literature. The court concluded that there was not sufficient scientific support for the conclusion that friction products cause mesothelioma and that the every exposure above background levels without quantification of exposure to a particular product is legally sufficient. As the type and level of exposure continues to be expanded by the plaintiffs’ bar, these types of challenges are becoming more commonplace.
Takeaways:
While the science is the future, educating and persuading a jury to accept these arguments will continue to remain a challenge. The scientific battle needs to be fought and won at the Daubert/Frye stage. Companies and carriers involved in asbestos litigation would be well advised to reassess management of this litigation and commit to a long-term strategy for mounting scientifically-based challenges in appropriate jurisdictions. Obtaining favorable rulings on the scientific issues will hopefully stop or slow the flow of cases.
Also, with more asbestos cases going to trial than ever before, a proper cross examination of science/medical experts and making the proper Record for appeal is critical. Developing and using science counsel to work with trial counsel on select cases involving sharply disputed scientific issues is essential. The scientific issues are complex enough, let alone trying to effectively question an expert who knows the literature cold. While companies and carriers may have qualified capable trial counsel around the country, mastering the science and effectively challenging plaintiffs’ experts is the key to defending the company at trial.