Seventh Circuit Upholds Exclusion of Expert Testimony that “Cumulative Exposure” Equals Causation in Asbestos Cases

by Reminger Co., LPA

An essential element in an asbestos case is proof that an exposure to a particular defendant’s product is a substantial factor in causing the injury.  To satisfy their burden, plaintiffs rely upon testimony from experts.  Most often, plaintiffs’ experts are unable to identify the quantity or duration of a specific exposure, and rely upon generalized testimony to establish causation.  This testimony is often designated as the “each and every exposure theory,” or more recently, “cumulative exposure” theory.  Each theory has come under significant criticism, and the courts are split on whether the evidence is admissible. 

The United States Court of Appeals for the Seventh Circuit upheld the exclusion of causation testimony under both theories in Krik v. Exxon Mobil Corp., 2017 U.S. App. LEXIS 16795. Mr. Krik had developed lung cancer, which defendants attributed to his cigarette smoking.  Plaintiffs retained Dr. Arthur Frank, a commonly used plaintiff’s expert, in an attempt to show that his exposure to asbestos at various times in his career was a substantial factor in the development of the cancer.

The case proceeded to trial with two defendants remaining.  Prior to trial, defendants filed Motions in Limine challenging the testimony of Dr. Frank.  Prior to the trial, Dr. Frank had opined that each and every exposure to asbestos was a substantial factor.  The trial court barred the testimony, finding that it did not comport with the requirements of Daubert to satisfy both Illinois law and Maritime law that the exposure to asbestos was a substantial contributing factor to his injury.

At trial, despite the initial ruling, and after the case was transferred to another judge, plaintiffs called Dr. Frank and proffered his testimony in voir dire.  Dr. Frank changed his testimony from “each and every exposure” to a “cumulative exposure” basis, asserting that each exposure accumulates to create a substantial factor in the development of the disease.  The trial court rejected the cumulative exposure testimony, finding it was an extension of the “each and every” theory that was previously rejected.  At trial, the jury found that plaintiff’s lung cancer developed as a result of his cigarette smoking, and entered a verdict for the defendants.  Plaintiff then appealed, asserting as one basis that the exclusion of Dr. Frank’s testimony was error. 

The Seventh Circuit District Court reviewed the trial court’s rulings on an abuse of discretion standard.  The court noted that the court’s application of Daubert was reviewed on a de novo standard, but found that the court had properly applied the standards.  The court then reviewed the original ruling excluding the “each and every exposure” testimony, and the subsequent ruling excluding the “cumulative exposure” testimony and affirmed the trial court’s rulings.

The Court of Appeals focused on Dr. Frank’s deposition testimony explaining the “each and every exposure” theory.  Dr. Frank had agreed in his deposition with numerous statements that showed the inability to link a particular defendant’s product to any particular exposure. 

During the trial, the trial court’s voir dire confirmed that the “new” theory propounded by Dr. Frank, every exposure is a substantial contributing factor to the cumulative exposure, was no different from the “each and every exposure” that had been rejected by the trial court.  The Court of Appeals cited with approval the trial court’s opinion that there is no distinction.  The Court of Appeals further relied upon opinions from the Ninth and Sixth Circuit, which excluded “cumulative” and “each and every exposure” theories as being inconsistent with the substantial factor test that applies in asbestos cases.  See McIndoe v. Huntington Ingalls, Inc., 817 F.3d 1170, 1177 (9th Cir. 2016); Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 493 (6th Cir. 2005).  The Court of Appeals then affirmed the trial court’s exclusion to the testimony. 

In addition, the trial court excluded a particular document known as the “Helsinki Document” as an independent exhibit.  The Court of Appeals likewise affirmed the propriety of the exclusion.  The Helsinki Document is a consensus statement developed at an international public policy conference in Helsinki in 1997.  Plaintiff intended to rely upon the document for one statement that asserted “cumulative exposure on a probability basis should thus be considered the main criteria for the attribution of a substantial contribution by asbestos to lung cancer risk.”  The Court of Appeals found that the exclusion was proper, noting that no party established that the Helsinki criteria came from a learned treatise or was a result of any scientific studies.  The Court of Appeals further noted that plaintiff’s expert disagreed with a number of statements within the document, thus finding that the exclusion of the document as an exhibit was proper.  The Court of Appeals did, however, find that the Helsinki Document is an appropriate document for impeachment of defendant’s experts.

This decision is another decision in a line of cases where courts are critically evaluating the basis for plaintiffs’ experts’ opinions on exposure to asbestos fibers, particularly where the exposure is de minimis. While not fully accepted across the United States, there appears to be a movement toward the exclusion of the “cumulative exposure” theory by plaintiff’s experts.

This case may also have applications in other toxic tort cases.  One other basis for the Court of Appeals affirmation of the trial court’s rulings was its notation that the theories conflict with fundamental principles of toxicology that illnesses from exposures are dose dependent.  The “each and every” and “cumulative exposure” theories do not require an analysis of the dose, and thus bypass plaintiff’s burden of proof under this long accepted fundamental element in a toxic tort case.

Written by:

Reminger Co., LPA

Reminger Co., LPA on:

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