By Michael Hoenig - New York Law Journal -
October 19, 2011
Unobtrusively, but with increasing frequency, some courts are focusing
anew on certain forms of asbestos litigation and on certain
pivotal issues.1 Despite what the U.S. Supreme Court
called an "asbestos-litigation crisis" and urgings for a
national dispute-resolution scheme, no congressional response
emerged.2 Thus, it was left to the courts to try to
manage asbestos dockets swollen with claimants alleging they had
asbestosis, lung cancer or mesothelioma. A Rand Institute for
Civil Justice study in 2005 observed that, through 2002,
approximately 730,000 claims had been filed. A Congressional
Budget Office estimate in August 2005 posited that some 322,000
asbestos bodily injury cases were pending in state and federal
lawsuits targeted producers of asbestos and asbestos-containing
products who numbered in the hundreds (in 1982, about 300 such
companies). However, as these defendants fell in bankruptcies,
"waves" of new lawsuits spread to companies farther removed from
direct production, said now to number over 8,500 defendants. One
well-known plaintiffs' lawyer described the litigation as an
"endless search for a solvent bystander."4
"asbestos," derived from the Greek word meaning
"inextinguishable" (reflecting one of its principal
characteristics: fire resistance), is a popular generic
designation but, in reality, there are more than 30 different
minerals of fibrous structure whose physical properties vary.
However, only six principal minerals were deemed of substantial
economic value, and these have widely divergent toxicities and
risk factors.5 Thus, defect and causation evidence
regarding physical, chemical and toxicological behavior of
"amphibole asbestos" (actinolite, amosite, anthophyllite,
crocidolite and tremolite) is simply not applicable to so-called
"serpentine asbestos" (chrysotile), which was the dominant form
of asbestos used in motor vehicle brakes and in certain gaskets.
(Epidemiological studies have reported findings showing no
increased risk of mesothelioma among auto mechanics, a
world-wide worker population one would expect to abundantly
reflect the disease if exposure to chrysotile were causal.)
data show that chrysotile is more rapidly removed from the lung
than amphibole asbestos. The physico-chemical properties of
chrysotile are altered by the application of the mineral in
brakes and clutches, thermal effects that reduce the biological
activity of chrysotile. As a mineral, chrysotile degrades
readily, losing magnesium in an acidic environment (the lung and
phagocytes are lower pH environments). Progressive chemical
degradation of the chrysotile fiber decreases its ability to
induce the tumor. Thus, there is a large difference between the
different asbestos types in producing mesothelioma. Chrysotile
is simply a different substance. These points have been
elaborated incisively in a recent amicus curiae brief filed by
11 distinguished scientists in a Pennsylvania asbestos case.6
challenge posed by such generally accepted science, certain
plaintiffs' experts have taken to testifying on what has come to
be called the "any exposure" or "any fiber" or "single fiber"
theory of causation. This line of testimonial attack contends
that asbestos disease is a cumulative dose-response process.
Therefore, say they, each and every exposure to asbestos during
a person's lifetime, no matter how small or trivial—even a
single fiber—substantially contributed to the disease, whether
it be asbestosis, lung cancer or mesothelioma. However, since
some asbestos is everywhere and, thus, a person's lungs are
likely to get millions of fibers over a lifetime—so-called
"background exposures"—the "single fiber" experts are forced to
focus upon occupational or "shade tree" automotive brake repairs
as exposures that cause disease.7 This "any fiber"
gambit allows plaintiffs to sue a host of defendants claiming
that the asbestos exposure caused by each (or only select
defendants, if the state's law of joint tortfeasor liability is
tactically favorable) was a substantial factor in causing the
mesothelioma or other disease.
In recent years
a number of courts have rejected the experts' use of the "any
fiber," "any exposure" theory.8 Now, almost
"hot-off-the-press" is the Sixth Circuit's decision in
Moeller v. Garlock Sealing Technologies, LLC, issued on
Sept. 28.9 Olwen Moeller was a pipefitter who worked
with Garlock's asbestos-containing gaskets from 1962 to 1970.
But he also sustained significant exposure to asbestos
insulation made by others during and even beyond those years.
Prior to Mr. Moeller's death from mesothelioma in 2008, he and
his wife sued Garlock and others alleging exposure to the
gaskets was a substantial factor in causing his death.
plaintiff presented the "any exposure" testimony of Arthur
Frank, a physician who sub-specialized for 40 years in the study
of occupational exposure to asbestos. Garlock's expert, James
Crapo, a pulmonologist, testified that the particular type of
fiber in the gaskets could not have caused the mesothelioma.
Rather, asbestos exposure from the insulation was far more
severe than any exposure from gaskets. Garlock moved for a
directed verdict arguing that plaintiff did not prove the
gaskets were a substantial cause but the judge submitted the
case to the jury which answered the strict liability question
"no" and the negligence question "yes." The jury awarded some
after a careful review of the record, the U.S. Court of Appeals
for the Sixth Circuit agreed that plaintiff "failed to prove
that Garlock's product was a substantial factor in bringing
about the harm." Dr. Frank testified only that all types of
asbestos can cause mesothelioma and that "any asbestos exposure
counts as a 'contributing factor.'" The appellate court
concluded such testimony does not establish that exposure to
Garlock gaskets in and of itself was a "substantial" factor in
causing the mesothelioma. Quoting from the Sixth Circuit's prior
Lindstrom case,10 the panel observed that a
plaintiff "must show a high enough level of exposure that an
inference that the asbestos was a substantial factor in the
injury is more than conjectural."11
the court approved the following observation by the district
court in that case: "[The plaintiff's expert] opines that there
is no safe level of asbestos exposure, and that every exposure
to asbestos, however slight, was a substantial factor in causing
Lindstrom's disease. If an opinion such as [the plaintiff's
expert's] would be sufficient for plaintiff to meet his burden,
the Sixth Circuit's 'substantial factor' test would be
plaintiff presented no evidence quantifying decedent's exposure
to asbestos from Garlock's gaskets. Although there was testimony
that he worked with the gaskets "every day," plaintiff failed to
establish how many he removed, how frequently he removed them
(as opposed to installed them). On the other hand, the evidence
showed that his exposure to asbestos from insulation "would have
been thousands of times greater than his exposure from removing
gaskets." Because of the "massive exposure" to non-Garlock
asbestos, there was insufficient evidence to infer that the
gaskets "probably, as opposed to possibly," were a "substantial"
cause of the mesothelioma. Paraphrasing a Pennsylvania Supreme
Court decision that rejected the "any exposure" theory,
Gregg v. V-J Auto Parts Co.,13 the Sixth Circuit
suggested that a conclusion of substantial cause for Garlock's
gaskets "would be akin to saying that one who pours a bucket of
water into the ocean has substantially contributed to the
In the Gregg
case cited in Moeller, the Pennsylvania Supreme Court
said that even though it was "common for plaintiffs to submit
expert affidavits attesting that any exposure to asbestos, no
matter how minimal, is a substantial contributing factor in
asbestos disease," such opinions were "not couched within
accepted scientific methodology." The court called the
"willingness on the part of some experts" to offer such opinions
"one of the difficulties" courts face in the mass tort case.15
The Pennsylvania court rejected such "each and every exposure"
opinions as a "fiction" that would subject defendants to full
joint-and-several liability for injuries and fatalities in the
absence of reasonably developed scientific reasoning about
substantial factor causation.16 In
Summers v. Certainteed Corp.,17 a 2010 decision,
the Pennsylvania Supreme Court expressly reaffirmed that it had
"rejected the viability of the 'each and every exposure' or 'any
breath' theory" in asbestos cases, quoting extensively from
Butler v. Union Carbide Corp.,18 plaintiff
presented Dr. John C. Maddox, a pathologist, who opined that
each exposure to asbestos above "background" levels (or those
present in ambient air) contributed to causing decedent's
mesothelioma. After holding a Daubert hearing, the trial
court issued an "extensively researched" order granting
defendant's motion to strike the Maddox opinion and, later,
granting summary judgment to Union Carbide. Defense experts
testified that the chrysotile asbestos in the Union Carbide
product comprised one percent or less of the total number of
pounds of material handled by decedent. In his eight-year
exposure, the total amount of time he could have been exposed to
the chrysotile material was eight days.
Court of Appeals affirmed the trial court. The scientific
literature did not support Dr. Maddox's specific causation
opinion. Further, it was noted that a Texas appellate court, in
Smith v. Kelly-Moore Paint Co.,19 recently had
rejected Dr. Maddox's opinion of "no threshold dose" for
chrysotile exposure (his "any exposure" theory). Similarly, in
Borg-Warner Corp. v. Flores,20 the Texas Supreme
Court had earlier rejected the testimony of Dr. Barry Castleman
and another expert that mere proof of exposure is sufficient to
Judicial gatekeeping of experts'
reliability under Daubert and Frye compels sharp
scrutiny of the new wave of asbestos theories. Good science
should trump glib hypotheses, as some courts have demonstrated.
The amicus curiae brief filed on behalf of 11 distinguished
scientists mentioned above (none of whom received funding from
or testified as experts for any of the parties in the case) sets
out a slew of methodological errors by the "any exposure"
expert, among them: (1) eschewing the need to consider the dose
level of exposure and minimum threshold of fiber levels; (2) not
considering the physical, chemical and toxicological differences
among various types of asbestos and ignoring overwhelming
evidence that chrysotile asbestos "has far less, and maybe nil,
potential to cause lung cancer and mesothelioma than other
types"; (3) rejecting the generally accepted distinction between
general causation and specific causation and not even
establishing general causation for chrysotile asbestos; (4)
suggesting that the "every exposure" and "cumulative risk"
theories are generally accepted when they are not; and (5)
ignoring the large body of toxicological studies that show
chrysotile asbestos is not potent as a cancer-causing agent.
Michael Hoenig is a
member of Herzfeld & Rubin.
1. By way of
disclosure, this writer's law firm defends automobile
manufacturers in asbestos litigation.
Amchem Products Inc. v. Windsor, 521 U.S. 591, 597-598
3. M.A. Behrens
and W.L. Anderson, "The
'Any Exposure' Theory: An Unsound Basis for Asbestos Causation
and Expert Testimony," 37 SW U. L. Rev. 479 n. 2 (2008)
(providing website links).
4. Id. at
Case v. Fibreboard Corp., 743 P.2d 1062, 1065 (Okla. Sup.
Mullen v. Armstrong World Industries Inc., 246 Cal. Rptr.
32, 36, 37 (Cal. App. 1988);
Celotex Corp. v. Copeland, 471 So. 2d 533, 538 (Fla. Sup.
6. See Amicus
Curiae Brief of 11 Noted Scientists filed in the Supreme Court
of Pennsylvania in Betts v. Pneumo Abex LLC, April 25,
2011, 2010 PA S. Ct. Briefs 82010; 2011 PA S. Ct. Briefs Lexis
5, a pending appeal raising the "any exposure" issue.
7. See M.A.
Behrens and W.L. Anderson, supra n. 3, 37 SW U. L. Rev. at
8. See cases
listed in M.A. Behrens and W.L. Anderson, Id. at 480-482, naming
the experts involved and discussing throughout the article the
testimony and courts' reasoning.
9. 2011 U.S.
App. Lexis 19987 (6th Cir. Sept. 28, 2011).
Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 492
(6th Cir. 2005), aff'g sub nom,
Bartel v. John Crane Inc., 316 F.Supp.2d 603 (N.D. Ohio
2011 U.S. App. Lexis at *11.
Id. Lexis at *11.
13. 943 A.2d
216, 223 (Pa. Sup. Ct. 2007).
2011 U.S. App. Lexis 9987, at *13.
943 A.2d at 226.
16. Id. at
17. 997 A.2d
1152, 1162 n. 14 (Pa. Sup. Ct. 2010). For an excellent
discussion of Gregg, Summers, a critique of the
"any fiber" theory and related issues, see the Amicus Curiae
Brief of the Product Liability Advisory Council in Betz v.
Pneumo Abex LLC in the Pennsylvania Supreme Court (April 25,
2011), Pa. S. Ct. Briefs Lexis 6.
A11A0481 (Ga. Ct. App. June 15, 2011) (Slip Opinion).
19. 307 S.W. 3d
829, 837-839 (Tex. App. 2010).
20. 232 S.W. 3d 765, 774 (Tex. Sup. Ct. 2007).
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