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Judges: Asbestos plaintiff not harmed by ruling barring testimony from doctor over exposure theories

By Jonathan Bilyk | Sep 1, 2017

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A federal appeals court in Chicago has refused to upend a jury’s verdict against a retired pipefitter, who had claimed Owens-Illinois and ExxonMobil should be held liable for his lung cancer, because possible exposure to asbestos on work sites decades ago, and not a 30-year, pack-and-a-half-a-day cigarette smoking habit, had caused the illness.

The three-judge panel of the U.S. Seventh Circuit Court of Appeals said plaintiff Charles Krik was not wronged in the verdict, as two federal judges were correct in excluding testimony from an expert witness called by plaintiffs to testify that any exposure to asbestos, regardless of the amount of exposure, is a substantial contributing cause of cancer.

Rather, the appellate judges said, the trial judges were well in line with the growing opinion in federal courts that this theory “is not reliable,” as it tramples on legal principles requiring plaintiffs to establish the people or companies they are suing actually caused the injury at the heart of a lawsuit.

“Requiring a defendant to exclude a potential cause of the illness, therefore, improperly shifts the burden to the defendants to disprove causation and nullifies the requirements of the ‘substantial factor’ test,” the judges wrote. “… More than 30 other federal courts and state courts have held that this cumulative/’any exposure’ theory is not reliable. The district court did not err and certainly did not abuse its discretion by excluding this testimony.”

The opinion was authored by Seventh Circuit Chief Judge Diane P. Wood, with circuit judges Ilana D. Rovner and Diane S. Sykes concurring.

The case had landed before the Seventh Circuit in late 2016, after U.S. District Judge Manish Shah refused Krik’s request for a new trial, arguing his cause had been hampered by the earlier ruling from District Judge John Z. Lee to exclude the testimony of expert witness, Dr. Arthur Frank.

Owens and ExxonMobil had asked the court to bar Frank from offering testimony asserting Krik’s cancer could have been actually caused by asbestos exposure on job sites for which the companies were responsible. The testimony would have centered on the so-called “any exposure theory,” which holds that “any exposure to asbestos fibers whatsoever, regardless of the amount of fibers or length of exposure constitutes an underlying cause of injury to the exposed individual.”

After Lee ruled, the case was transferred to Shah’s courtroom for trial.

Krik’s attorneys called Krik to testify, offering a what they called a “cumulative exposure theory,” which asserted “every exposure (to asbestos) is a substantial contributing factor to the cumulative exposure that causes cancer.”

Shah, however, recognized such a theory as mere repackaging of the “any exposure theory,” and denied Frank’s testimony.

On appeal, the judges agreed with that decision, noting it was an attempt to “skirt Judge Lee’s earlier ruling” and to argue around the requirement they must demonstrate how an alleged exposure to asbestos caused Krik’s cancer.

“We agree that Dr. Frank’s cumulative exposure theory was no different from the ‘each and every exposure’ theory in all relevant ways,” the appellate judges wrote.

“To summarize, the principle behind the ‘each and every exposure’ theory and the cumulative exposure theory is the same - that it is impossible to determine which particular exposure to carcinogens, if any, caused an illness,” they stated later in the decision. “In other words, just like ‘each and every exposure,’ the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.

“The ultimate burden of proof on the element of causation, however, remains with the plaintiff.”

Krik was represented in the action by attorneys with the Cascino Vaughan Law Offices, of Chicago.

ExxonMobil was defended by Johnson & Bell, of Chicago, and Blackwell Burke, of Minneapolis. Owens-Illinois was defended by SchiffHardin LLP, of Chicago, and Quilling, Selander, Lownds, Winslett & Moser, of Dallas.

Following the Seventh Circuit’s ruling, attorney David F. Fanning with Johnson & Bell, who, with colleague attorney H. Patrick Morris, had represented ExxonMobil at trial and on appeal, called the decision “a significant win for all toxic tort defendants who have battled against the ‘every exposure’ or ‘cumulative exposure’ theories of causation on countless occasions.”

“At its core, the decision eliminates this faulty theory, which was generated solely for litigation purposes, and which has been central to the business model of the plaintiff’s toxic tort bar for many years,” Fanning said in an emailed statement.


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Organizations in this Story

Johnson & Bell, Ltd.Schiff Hardin LLPCascino Vaughan Law Offices LtdOwens-IllinoisExxonMobilQUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C.U.S. District Court for the Northern District of IllinoisU.S. Court of Appeals for the Seventh Circuit