To advance claims against as many defendants as possible, plaintiff attorneys in asbestos litigation routinely attempt to introduce expert testimony to the effect that “each and every exposure” to asbestos was a “substantial” factor in causing the plaintiff’s alleged mesothelioma (a cancer of the lining of the lung that is correlated with asbestos exposure).
Particularly in jurisdictions with joint and several liability, plaintiffs leverage the “each and every exposure” theory against defendants whose products account for a small or even negligible portion of a particular individual’s overall asbestos exposure in order to force disproportionately high settlements or verdicts. However, it is “a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation . . . ” Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216, 226-27 (2007).
Asbestos defendants’ efforts to exclude testimony based on this unscientific theory have gained some traction in recent years. Several courts have recognized that the “each and every exposure” theory relies on speculation rather than science. (See, for example, Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012); Holcomb v. Georgia Pacific LLC, 289 P.3d 188, 197 (Nev. 2012).)
Recently, however, Maryland’s highest court has deviated from this trend. In Dixon v. Ford Motor Company, ---A.3d----, 2013 WL 3821431, the Maryland Court of Appeals reversed the intermediate court’s rejection of the “each and every exposure” theory, and held admissible the opinion that “each and every exposure to asbestos was a substantial contributing factor” in the development of the plaintiff’s mesothelioma.
The case involved a wife who was allegedly exposed to asbestos dust from Ford brake parts on the clothes her husband wore home from work. Significantly, there was evidence of more than 1,000 discrete exposures to Ford’s asbestos containing products, based on the number of times the husband worked with the brake products over his career.
The court’s rationale for allowing the opinion in this case was that there was evidence of a substantial cumulative exposure over time. The court held that the expert’s opinion that each and every exposure is a substantial cause of mesothelioma had to be taken in the context of this overall exposure. Analyzing this rationale, however, one may point out that the evidence Ford sought to exclude in this motion was not the cumulative exposure. Further, one may argue that the expert’s opinion—that in each case of mesothelioma, every single exposure is a substantial causal factor—is a categorical statement of an allegedly scientific principle, existing independently of the facts of any particular case. Presumably, the facts of a particular case would not make a scientific principle any more or less valid.
Attempting to reconcile several recent opinions have rejected the “each and every exposure” theory, the Dixon court observed that the cumulative exposures in those cases were lower than in Dixon. It noted, in particular, that the Betz opinion was made “without regard, it seems, to any particular facts.” However, even if true, this would simply reflect the view held by these other courts that the cumulative exposure in a given case is immaterial to whether the “each and every exposure” opinion is scientifically valid.
In sum, asbestos defendants who move to exclude “each and every exposure” testimony should not be surprised to see Dixon cited in response. However, a comparatively large body of case law can be drawn upon to rebut plaintiffs’ theory, and, in many instances, defendants may be able to distinguish Dixon factually from their case at bar.