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California Appellate Court Upholds “Every Exposure” Theory

Deferring to the role of a jury in resolving questions of competing scientific theories, a California appeals court upheld a trial court’s ruling allowing expert testimony based on the “every exposure” theory, calling it “the subject of legitimate scientific debate.”  See Davis v. Honeywell Int’l Inc., 199 Cal.Rptr.3d 583 (Cal. Ct. App. 2016).

Plaintiff brought suit for wrongful death and negligence, among other claims, alleging decedent’s exposure to asbestos in Defendant’s brake linings during the 1960s and 70s contributed to his development of mesothelioma and subsequent death.  After the trial court allowed expert testimony on the “every exposure” theory, which states that even low doses of asbestos are substantial factors contributing to the aggregate dose of asbestos that causes mesothelioma, a jury found for Plaintiff and awarded $2 million in damages.

Defendant appealed, arguing that the expert testimony relying on the every exposure theory should have been excluded as speculative and devoid of evidentiary and logical support.  In upholding the trial court’s decision to allow the testimony, the Court held that although the trial court has a duty to act as a “gatekeeper” in excluding “clearly invalid and unreliable” expert opinion, its role is not to choose between expert opinions.  Id. at 590. The Court found that the theory could be reconciled with the defense expert’s opinion that mesothelioma and other asbestos-related diseases are dose dependent.  Therefore it was up to the jury, not the judge, to decide which opinion to apply.

This article was written with the assistance of Brooklyn N. Hildebrandt.

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 218

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Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Graham C. Zorn Environmental, Toxic Tort, Products Liability Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Graham Zorn focuses his practice on environmental, toxic tort, and products liability litigation.

His representative experience includes extensive work on a series of complex products liability and toxic tort cases related to alleged groundwater, and litigation over lead in drinking water. He has represented individual businesses, trade associations, and municipalities in litigation, as well as in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal environmental statutes. He also counsels domestic and international clients on a variety of product compliance, market access, and enforcement matters. In particular, he is well versed in reporting requirements related to conflict mineral use in electronics, medical devices, and consumer products.

Graham obtained his law degree from Vermont Law School where he was a Head Notes Editor for the Vermont Law Review and a student clinician in the Environment and Natural Resources Law Clinic. During law school, he clerked at the Wisconsin Department of Justice in the Environmental Protection Unit where he assisted in defending state agencies in a citizen suit alleging Clean Air Act new source review violations.

Before law school, Graham worked on domestic social policy, with a focus on health care, and environment and energy policy for U.S. Senator Russ Feingold. He obtained his undergraduate degree from Carleton College with a major in Geology. 

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