Defense Strategies For Alternative Causation

Goldberg Segalla asbestos team members, Tom Bernier, Oded Burger, Joseph Cagnoli Jr., and Susan Van Gelder have recently published a practical guide for defense attorneys raising alternative causation defenses in Mealey’s Asbestos Litigation Report. (See article link below.) In the paper, the authors reviewed recent scientific advances to provide the defense practitioner the tools to challenge the plaintiffs’ experts’ one-size-fits-all causation model.

One of the most significant recent developments in asbestos litigation has come from the field of genomics. Since 2011, over a dozen scientific papers have identified BAP1 and related mutations as factors capable of causing mesothelioma independently of any exposure to asbestos. Critically, the published findings do not establish a synergistic gene/environment interaction as a causal factor for the development of mesothelioma. In this article, the authors have explored both the practical considerations of readying a genetics-based defense as well as how the presentation of these recent scientific findings relates to the legal issues such as the eggshell plaintiff doctrine, foreseeability, and the duty to warn.

The harmful effects of ionizing radiation have long been recognized by medical researchers. However, recent scholarship has drawn an increasingly clear causal connection between therapeutic ionizing radiation and the development of secondary tumors including multiple forms of mesothelioma. The implications of these recent findings can be quite dramatic on asbestos litigation, as it is estimated that more than a third of all cancer patients undergo some form of radiation therapy. In this paper, the authors provide practical advice on how to prepare the record for expert review through discovery while highlighting key challenges, including issues related to latency, dose response, and potential synergy with asbestos exposure.

Lastly, the paper examines exposures to naturally occurring sources of elongate materials as potential alternative causation defenses. The dramatic clusters of mesothelioma cases in Turkish villages where naturally occurring erionite was used as a building material have received much attention in scientific literature. However, it is less well known that very high concentrations of erionite have been found in the Intermountain West of the United States from Oregon into Mexico and the Sierra Madre Occidental region. In this article, the authors explore both the geological research and analytical methods for evaluating potential exposure to naturally occurring sources of elongate materials as an alternative causation defense.

Read the full article here.