Each and Every Exposure Theory Insufficient to Prove Specific Causation in South Carolina Federal Court U.S. District Court for the District of South Carolina, July 21, 2017
This decision addresses a similar issue from two different cases and therefore was decided within the same order. Both sets of plaintiffs offered the opinions of Carlos Bedrossian, MD to provide evidence of specific causation.
For a brief factual background, plaintiff John E. Haskins served in the U.S. Navy as a fireman aboard the USS Coney. Haskins was diagnosed with mesothelioma in November of 2014 allegedly caused by his cumulative exposure to asbestos from working with and around asbestos-containing products manufactured or distributed by the defendants. Plaintiff James Willson Chesher served as a machinist mate and a commissioned officer in the U.S. Navy and conducted or oversaw maintenance and repair work on various types of asbestos-containing equipment, including valves and de-aerating feed tanks. Chesher was also diagnosed with mesothelioma allegedly caused by his exposure to equipment manufactured by the defendants.
Bedrossian’s opinions in both cases are essentially the same. In Haskins, Bedrossian concludes that the “total and cumulative exposure to asbestos, from any and all products, containing any and all fiber types, was a significant contributing factor to Haskin’s risk of premature death from complications of his mesothelioma”. In Chesher, Bedrossian concludes that “each of the defendants’ products which contained asbestos added to the total cumulative dose of Chesher’s asbestos exposure, and therefore, constituted the contributing factor to the development of his mesothelioma, and his risk of premature death from complications from this lethal form of occupational malignancy.”
The defendants filed a motion in limine to preclude Bedrossian’s opinion as to specific causation and argue that to the extent that any specific causation opinions are offered by Bedrossian, they were necessarily based on the “every exposure theory” of causation and inadmissible under Rule 403 and Rule 702. The plaintiffs disputed this characterization of “each and every exposure” and contends that Bedrossian would simply opine that “low dose exposure to asbestos can cause mesothelioma.” The plaintiff further argues that Bedrossian does not claim that every exposure contributes to the cumulative dose in a way that can be considered causative. Instead, the plaintiffs claim that Bedrossian only considers exposures to be causative if they reach “non-trivial,” “above background,” or “occupational” levels. However, Bedrossian never defines what level of exposure he considers significant and openly admits that he did not even need to know Haskins or Chesher’s actual level of exposure to the defendants’ products in order to render his opinions. Therefore, the decision outlines that in Bedrossian’s view, whenever the total cumulative dose results in mesothelioma, every “occupational” exposure should be considered causative, no matter how small.
In review of these motions, the United States District Court, South Carolina, Charleston Division, relies upon Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005), and finds that regardless of whether the “each and every exposure theory is sound science, it is inconsistent with the law. In a products liability action under maritime law, the plaintiff must show “that (1) he was exposed to the defendant’s product, and (2) the product was a substantial factor in causing the injury he suffered.” This analysis must be conducted on a defendant-by-defendant basis. Minimal exposure’ to a defendant’s product is insufficient.” Id.
The court also offers that perhaps there is some level of exposure at which substantial causation may be presumed, regardless of the nature and extent of the plaintiff’s other exposures. But even if a plaintiff may show substantial causation by establishing some particular level of exposure in a vacuum, it is clear that this threshold level cannot be defined as the level of exposure that may cause mesothelioma. This would render the substantial causation rule meaningless, as any level of exposure may cause mesothelioma. Therefore, because Bedrossian’s opinions are premised on his conclusion that the plaintiffs’ exposures to asbestos from the defendants’ products could have independently caused their mesothelioma, his opinions cannot be used to support a finding of substantial causation. Thus, the probative value of Bedrossian’s testimony is outweighed by its tendency to confuse and mislead the jury, and it must be excluded under Rule 403.
The defendants’ motions to the extent they seek to exclude Bedrossian’s testimony was granted.