Are Federal Courts Persuading State Courts to Rethink Causation in Toxic Tort Cases? a Case Study from Illinois

• Publication year: 2021

Susan E. Brice and Vince Angermeier ^*

Abstract: Concepts of "substantial factors," "any exposure," and "de minimus" contact have long-supported claims brought by toxic tort plaintiffs against manufacturers. They have furthered tort actions against defendants based on the "cumulative exposure" theory, particularly in the asbestos arena, even when a single fiber could not be connected to a specific defendant. But a 2017 Seventh Circuit decision dealing with Illinois law is part of a trend toward tightening up these standards. This article discusses the various cases on this threshold issue as the authors ponder whether this is a movement that needs some pushing.

Proving causation is a core element of any tort case: An entity cannot be sued for another's injury if it played no role in causing the injury. But this concept becomes much more complex in the context of a toxic tort case. The medical conditions caused by exposure to toxic substances can take decades to be diagnosed. And even once diagnosed, proving what "caused" the condition is rarely simple. A malignant tumor could be "caused" by one or more of a lifetime's worth of exposures to carcinogenic substances, viral infections, and radiation—or even simple chance.

Allow us to spoil the ending of Murder on the Orient Express: They all did it. Each of the twelve suspects snuck into the victim's cabin and stabbed him in the chest while he was drugged and unconscious. While not one of the suspects was a "but for" cause of the death, each was obviously culpable: He or she was a "substantial factor" in the wrongful death. There were twelve murderers, not zero.

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That same "substantial factor" causation principle carries over into toxic tort cases. Due to complex issues involved in diseases allegedly linked to toxic torts, plaintiffs typically need to proffer "experts" in medicine, toxicology, epidemiology, and the environmental fate and transport of a toxin to establish liability. Two key questions are whether the plaintiff was exposed to the toxin in question and whether the dose was sufficient to cause the disease. In the past, many courts, particularly in the asbestos context, took extreme positions on exposure and dose, allowing testimony that a "single fiber" of asbestos or "any exposure" of asbestos was capable of causing mesothelioma, thus making even de minimis contact a "substantial factor." Building on this concept, plaintiff attorneys and their experts also developed the "cumulative exposure" theory, claiming that cumulative exposures to multiple defendants' fibers established proximate cause, thereby ensnaring multiple defendants at once. Obviously, this type of expert testimony, when viewed by a jury, can be devastating to a defendant whose product had little to no connection to the plaintiff or contained minute or encapsulated asbestos.

This "any exposure" concept is often traced back to a Fourth Circuit decision, Lohrmann v. Pittsburgh Corning Corp., 782 F.2d1156 (4th Cir. 1986). In that case, the court allowed expert testimony claiming that asbestos exposure was...