Under the now widely-adopted Daubert standard, courts evaluate expert testimony based on the principles and methodology underlying the expert witness’s opinion. Admissibility of expert testimony is not governed by whether the factual underpinnings of the opinion are sound, or the conclusions correct, but rather by the relevancy and reliability of the methods applied in forming said opinion. The United States District Court for the Northern District of Illinois recently illustrated these principles in Johnson v. Orton.
How Did We Get Here?
In March of 2017, Bruce Johnson was diagnosed with mesothelioma after working with ceramics for different employers from 1971 to 1984. After Mr. Johnson’s diagnosis, he filed suit alleging that several defendants exposed him to asbestos, causing him to develop mesothelioma. Bruce Johnson passed away in January of 2020, and Deborah Johnson—Mr. Johnson’s widow—now represents herself and her late husband’s estate.
Edward Orton, Jr. Ceramic Foundation (“Orton”), a defendant in the litigation, removed the case to federal court after the last non-diverse defendant settled. Orton was granted summary judgment, and only Vanderbilt Minerals LLC (“Vanderbilt”) remained as a defendant. Vanderbilt sought to exclude testimony from several experts. This article focuses on the court’s decision to exclude the testimony of Dr. Arthur Frank.
Dr. Frank testified Mr. Johnson developed his condition because the “cumulative exposures that [Mr. Johnson] had to asbestos, from any and all products, containing any and all fiber types, would have been contributory” to his disease. Dr. Frank further opined that “[a]ll of [Mr. Johnson’s] exposures would have been at levels above background, would have been medically significant, and therefore medically causative of [Mr. Johnson’s] mesothelioma.” Vanderbilt sought to exclude Dr. Frank’s opinions and all references to this “cumulative exposure” theory.
The Relevance of Cumulative Exposure Theory
Illinois requires a plaintiff to demonstrate that exposure to asbestos was a “substantial contributing factor” to his or her injury. Asbestos-induced lung cancer is “dosage-dependent”: the risk of contracting lung cancer from asbestos depends on both the length of time the plaintiff was exposed and the amount of asbestos to which the plaintiff was exposed. Further, the plaintiff must attribute substantial exposure to a particular defendant.
Cumulative Exposure Theory turns the substantial exposure requirement on its head. Cumulative Exposure Theory does not focus on exposure to a particular dose of asbestos and, thus, it does not require any understanding of the timing and amount of the exposure. Rather, Cumulative Exposure Theory is based on the premise that each and every exposure—no matter how small, no matter how short—constitutes a substantial contributing factor to the injury.
Testimonial Prohibition by Requirement: The Necessity of Evidence on Length and Amount
The Johnson Court relied on Krik v. Exxon Mobil Corp. in excluding Dr. Frank’s testimony offered under the Cumulative Exposure Theory. The Seventh Circuit Court of Appeals handed down its opinion in Krik in 2017. In Krik, the plaintiff sought to offer cumulative exposure testimony by the same expert witness: Dr. Arthur Frank. Dr. Frank first tried to offer expert testimony based on an “each and every exposure theory” of causation, opining that any exposure to asbestos fibers whatsoever—regardless of the amount of fibers or length of exposure—constituted an underlying cause of injury to the exposed individual. The trial judge, Judge Lee, concluded that this theory was not sufficiently reliable to warrant admission at the conclusion of the hearing.
After the case was transferred to a different judge, Judge Manish Shah, Dr. Frank rebranded “each and every exposure theory” as “Cumulative Exposure Theory.” Judge Shah excluded Cumulative Exposure Theory because it was “not tied to the specific quantum of exposure attributable to the defendants.” On appeal, the Seventh Circuit affirmed the judgment of the district court, and Dr. Frank’s causation opinions were excluded.
Relying on Krik, the Johnson court prohibited Dr. Frank’s expert opinion testimony based on Cumulative Exposure Theory, reasoning that it was indistinguishable from the causation opinions Dr. Frank offered in Krik. Expert opinion testimony on causation fails to meet the admissibility standards of Rule 702 and Daubert if it (1) fails to consider the length of time that a plaintiff was exposed to any particular defendant’s product, or (2) fails to consider the amount of asbestos contained in any product to which that plaintiff was exposed. None of the testimony offered by Dr. Frank in Krik or Johnson addressed either the length or amount of exposure and were thus excluded.
Moving Forward: More Rigid Requirements to Show Causation
Johnson v. Orton applies the Seventh Circuit’s instructions to utilize a more stringent standard that requires experts to opine with specificity as to the asbestos exposure at issue and whether said exposure is a substantial factor in causing plaintiff’s injury. Any determination of whether an exposure constitutes a substantial contributing factor requires evidence of the timing and amount of exposure. Expert testimony that fails to account for these factors will be excluded under Rule 702 and Daubert. The implementation of this standard will complicate plaintiffs’ efforts when they seek to admit evidence of minute exposures to asbestos in the Northern District of Illinois and the Seventh Circuit more broadly.
For full access to Johnson v. Orton click here.
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