"Every Breath" Theory: On Its Last Breaths?

The "every breath," or cumulative exposure opinion, has been proffered by plaintiffs' experts in asbestos cases to prove specific causation, regardless of the type of product or amount of exposure. The U.S. District Court for the District of Utah joined the growing trend among courts to preclude the every breath opinion under Daubert and Federal Rule of Evidence 702 in Smith v. Ford Motor Co., et al., 2013 U.S. Dist. LEXIS 7861 (D. Utah Jan. 18, 2013). Dr. Samuel Hammar, plaintiff's expert, was precluded from testifying that "every breath" or "every exposure" to asbestos caused a plaintiff's mesothelioma, including exposures from Ford brakes. This decision signifies another victory for asbestos defendants and continues a line of judicial opinions across the United States precluding the "every breath" theory in asbestos cases. (Duane Morris attorneys Sharon Caffrey and Erin Carter led the briefing.)

Dr. Hammar's proposed testimony was that plaintiff Ronnie Smith's mesothelioma "was caused by his total and cumulative exposure to asbestos, with all exposures and all products playing a contributing role." Defendant Ford Motor Company filed a Daubert motion to preclude Dr. Hammar's opinion, which the court granted on January 18, 2013.

The U.S. District Court for the District of Utah found Dr. Hammar's proposed testimony inadmissible under Daubert and Federal Rule of Evidence 702 because: (1) it was not based upon sufficient facts or data; (2) it failed to prove specific causation sufficient for legal liability; (3) Dr. Hammar's opinion cited to no relevant scientific studies; (4) scientific literature does not support Dr. Hammar's opinion; and (5) numerous other courts have also precluded the "every breath" theory under Daubert and Rule 702. The court found that Dr. Hammar's opinion failed to consider and rule out other causes. The "every breath" theory rules in all exposures, which "asks too much from too little evidence as far as the law is concerned," according to the court. It also noted that "[j]ust because we cannot rule anything out does not mean we can rule everything in."

Dr. Hammar's opinion was not truly a theory, but rather a general proposition which "fall[s] far short of supporting the legal liability he attempts to reach with them." Under Daubert and Rule 702, an expert's opinion has to be based upon sufficient facts and data in order to be useful to a jury; Dr. Hammar's opinion was "based on the opposite: a lack of facts and data."

The "every breath" theory is also inconsistent with itself. Although Dr. Hammar could not attribute causation to an individual exposure, he nevertheless opined that each exposure contributed to the disease.

Focusing on the lack of scientific articles and studies supporting Dr. Hammar's opinion, the court noted that Dr. Hammar only cited articles about general theories, which did not provide support for his opinions. Conversely, epidemiologic studies demonstrate no statistically significant difference in the incidence of mesothelioma among auto mechanics when compared to the general population.

The impact of this decision can be viewed in conjunction with the other opinions, cited in the District Court for the District of Utah opinion, which have precluded the "every breath" testimony. Courts continue to require plaintiffs to provide specific causation evidence and to not simply rely on the generic testimony of experts that all exposures are causative. For asbestos defendants, this is another key decision, requiring plaintiffs' experts to support their opinions with scientific evidence and literature—rather than just the assumptions underlying the "every breath" theory.

For Further Information

If you have any questions about this Alert, please contact Sharon L. Caffrey, Alyson Walker Lotman, Erin M. Carter, any member of the Products Liability and Toxic Torts Practice Group or the attorney in the firm with whom you are regularly in contact.