The any exposure theory round III: an update on the state of the case law 2012-2016.

• Author: Anderson, William L.

IN 2006 a Pennsylvania state court judge unleashed, probably unwittingly, a dramatic change in the course of U.S. asbestos litigation by excluding the testimony of an asbestos plaintiff causation expert. (1) The expert intended to testify that "each and every exposure" in a workplace or other environment was a cause of asbestos disease, specifically mesothelioma, and that the actual extent of exposure or "dose"' did not matter. (2) The trial judge dissected that testimony, exposing its logical fallacies and scientific unreliability. (3) Since that ruling, later upheld by the Pennsylvania Supreme Court in Betz v. PneumoAbex, LLC, (4) dozens of courts nationwide have excluded or rejected various versions of the any exposure theory. (5) In some states, such as Texas, those rulings have significantly reduced dockets or even turned the course of the litigation. (6)

Plaintiffs have responded to these setbacks in two ways. First, over the last few years plaintiffs have had their own success in obtaining a series of rulings admitting any exposure opinions, in the face of defense motions and in contradiction to the many courts that have excluded this testimony. Second, in part to avoid exclusion, many testifying experts for plaintiffs have stopped describing their theory as each and every exposure, and now call it the cumulative exposure theory. Some courts have treated this as more than a change in name and denied defense motions based on any exposure testimony as moot. The battle thus remains joined, but the science is unchanged and still fully supports defendants--the cumulative exposure theory is every bit as unscientific and illogical as the any exposure theory. (8) Expert or sufficiency of evidence challenges to any or cumulative exposure testimony still remains a critical aspect of the current trend toward low exposure cases.

In two prior articles, we have described the fallacies in the any exposure approach and the state of the case law. (9) This article will not retrace that ground but instead provides an update since 2012 on the course of these decisions, shifts in plaintiffs' theory, and court rulings that defendants will need to confront. Defendants continue to win more of these motions than not, but they need to address the new rulings favoring plaintiffs and changes in the approach these experts have adopted.

1. The Flawed Approach of the Any Exposure Theory

   The causation theory originally known as the single fiber theory and later as the any exposure theory is based on the assumption that no amount of workplace asbestos exposure is too small to be excluded from causation. Plaintiffs' experts who embrace their theory typically testify that "each and every exposure to asbestos other than background exposures is cumulative and thus a substantial factor in causing mesothelioma." (10) The theory would thus capture, at its broadest use, virtually any contact with asbestos in a workplace or para-occupational activity (e.g., hobbies, home brake jobs, or home remodeling), regardless of how limited or small the exposure was. Some experts have no qualms in so applying the theory to causation opinions in cases involving a handful of gasket removals, a few backyard brake jobs, or walking by someone performing joint compound sanding, among other scenarios. (11) Cases involving tearing dental tape and stripping asbestos insulation off electric wires--trivial exposures if ever there were any--can easily go to trial. One such case produced a $3 million verdict in New Jersey. (12)

   These experts--and the stable includes virtually every plaintiff-side causation and risk expert--argue that no work or product related asbestos exposure can be excluded because it is the cumulative dose of asbestos that causes the ultimate disease and all such exposures contribute to the cumulative does. A commonly used analogy notes that every drop of water contributes to filling the glass. To the contrary, the human body actually discharges many asbestos fibers, especially the much easier to manage chrysotile form of fiber. It is not true that all fibers accumulate.

   Nor is it accurate to contend that all exposures contribute because they add to the overall burden of fiber. The human lung can marginalize background exposures in the many millions of fibers--even the any exposure experts agree that background exposures are not a known cause of asbestos disease--and protect against disease at that and presumably higher levels. The theory that every exposure to a toxin causes disease is also nonsensical in real life--the human body is exposed every day to dozens of carcinogens and other toxins with no real risk of harm. The concept that describes this process is threshold--toxins need to exceed a threshold to cause harm. Plaintiffs' experts who offer any exposure or similar testimony refuse to acknowledge the existence of a threshold for asbestos--even though they admit that such a threshold exists for background exposures that can exceed minor exposures.

   Plaintiffs' any exposure experts cannot point to any credible epidemiology or other scientific studies documenting that low exposures to asbestos actually produce disease. (13) Instead, they rely on governmental publications that often state there is no safe (or no known safe) level of asbestos, and that risk still exists even at current federal Occupational Safety & Health Administration (OSHA) exposure standards. (14) The any exposure approach shifts the burden of proof to defendants, who then have to demonstrate that there is a safe level of asbestos exposure. At bottom, the theory heavily favors plaintiffs because it requires no dose assessment of any kind--mere "dust" or exposure is sufficient to get to a jury, if a court accepts this testimony.

   The any exposure theory has many logical and scientific holes. Those flaws are summarized here in short form since they are described in considerable more detail in the many opinions rejecting the theory and summarized in the prior two articles and below. The key flaws include:

   * The theory completely ignores the most important principle of toxicology, that the dose makes the poison --all substances can be either safe or not depending on the dose. (15)

   * The theory is logically inconsistent, because these same any exposure experts exclude ubiquitous background exposures that all persons in an industrial society experience, even though those exposures are certainly cumulative and can over a lifetime exceed the workplace exposures the experts blame for disease. (16)

   * The theory is not published and critiqued in the peer-reviewed scientific literature--it is a litigation construct that even these experts have never set forth before their peers. (17)

   * The asbestos literature does not support the any exposure theory, because many low-dose asbestos-exposed populations, particularly those involving the much less harmful form of asbestos known as chrysotile, have not experienced increased incidence of mesothelioma. (18)

   * The theory makes a mockery of a substantial factor causation standard by converting even trivial exposures to the status of "substantial." In effect, the theory essentially shifts the burden of proof, inappropriately, to defendants to prove a non-causative dose. (19)

   The cases set forth in the previous two articles and below fully discuss these flaws and are recommended reading for any defense counsel confronting the any exposure theory. The impact of the any exposure theory also is no longer limited to just asbestos litigation, although it got its start there and continues to dominate plaintiff testimony in asbestos cases. Versions of causation testimony with no attempt to assess the dose have appeared in PCB, benzene, fluoride, and diacetyl litigation in recent years. (20) Plaintiffs have had a more difficult time gaining traction for the any exposure approach in non-asbestos cases, but some jurisdictions have allowed such testimony to proceed. (21)

2. The Recent Switch to Cumulative Exposure Theory

   The plaintiffs' bar has responded, twice now, to the exclusion of the any exposure theory by changing the name of the approach in an attempt to avoid further such rulings. The first attempt largely failed, but the second one--to cumulative exposure--has succeeded several times recently. Defense counsel today need to account for the purported change in approach or risk the judge deciding their motion is moot because the expert is not testifying based on any exposure theory.

   The first name change occurred after certain experts were excluded from using the original "single fiber" theory. Until about a decade ago, asbestos plaintiff experts regularly informed juries that even a single fiber of asbestos could cause mesothelioma. (22) The early judges, including the Betz case Pennsylvania judge noted in the introduction, found this extreme approach too fanciful and had no difficulty excluding the theory. (23)

   After several such rulings, the experts learned not to say "single fiber" any more and began to testify that every breath of asbestos from a product, which contains millions of fibers, is causative. Thus, the theory switched from single fiber to every breath or every exposure. None of the underlying principles changed, and the new theory included all workplace exposures just like the old one did. This effort was largely unsuccessful--defendants proceeded to obtain many rulings excluding the new any exposure theory with or without the resort to the single fiber concept. (24) But defendants had to learn not to formulate their argument based on single fiber moniker to ensure that the court addressed the real issues. (25)

   Given the success defendants were achieving, not surprisingly these experts have again attempted to avoid any exposure rulings by changing the emphasis to the cumulative nature of the exposures rather than emphasizing each and every exposure. They now testify that they are not relying on any exposure testimony, but...