One challenge trial teams often face as they defend clients in asbestos or talc related lawsuits is providing the jury with enough information to understand the cause of plaintiff’s harm. It is more effective to show what actually caused the harm, not merely that their client did not. Although in many jurisdictions the additional step of proving the alternative cause is not required by law, as a practical matter, seasoned trial lawyers know that juries want to know this and may need someone to hold accountable. From a human perspective, this is understandable. It is uncomfortable not having closure when the plaintiff has been diagnosed with a serious, often terminal, illness. So, to provide their client with the best possible defense, trial teams must find and pursue all explanations for the plaintiff’s disease beyond those related to their client.

Explanations can come from several places. Each case presents opportunities for factual exploration. Was the plaintiff exposed to other carcinogenic materials? Are there other genetic or medical explanations, like past radiation treatments or a medical misdiagnosis? When leads like these are found, trial teams must use their experts to fully explore possible alternative explanations for plaintiff’s harm.

Expert testimony is necessary to tell the story of alternative causation at trial. When possible, expert testimony should address the entities responsible for the alternative cause and what those companies knew about asbestos at the time. Often these entities are not named in the lawsuit, and many are bankrupt. This makes the expert testimony regarding these entities vital to the trial team’s defense strategy.

One example of an alternative cause in many cases is past exposure to amphibole-containing insulation. If a plaintiff has worked with asbestos insulation, this could serve as the exact explanation that a jury looks for as the actual cause of the plaintiff’s disease. Since most insulation manufacturers are now bankrupt and will not be present at trial, expert testimony about these products and the companies that made or sold them is crucial to the defense.

Recently, an article entitled “A state-of-the-science review of health hazards in insulators in the United States” was published in the Journal of Occupational and Environmental Hygiene. This article, written by Zisook, Gaffney, Pierce, Comerford, Hamaji, Henshaw, and Balzer, provides the exact analysis needed to put any insulation exposure into context.

The analysis in the Zisook paper presents a timeline of the evolution of knowledge regarding potential health hazards associated with exposures to airborne asbestos among insulators. The article breaks down two thousand years of knowledge into five eras. Each era contains seminal events as to the knowledge of the hazards of asbestos in the insulation trade, including the development and standardization of workplace and respiratory controls. These include the establishment of occupational exposure limits, changes in insulation product composition and usage, key epidemiological studies and health studies of insulators, sampling and analytical method development for characterizing exposures, and industrial hygiene sampling and recommendations for controlling exposure to asbestos during insulating work.

The timeline also documents the knowledge of the scientific and industrial community with full historical context. Within the industrial community, the article includes the evolution of what the insulation trade knew about the hazards of asbestos, including the International Association of Heat and Frost Insulators and Asbestos Workers Union, now known as the International Association of Heat and Frost Insulators and Allied Workers, the National Insulation Contractors Association, and the National Insulation Manufactures Association. The article also addresses what the government knew, including major regulations, guidelines, as well as the United States Navy’s knowledge of exposures to insulators.

A successful trial team will illicit testimony from their experts addressing the above to assist a jury by providing them with the information they need to adequately explain why a plaintiff developed their disease. This will not only satisfy the legal requirements across jurisdictions, but it will go above and beyond to satisfy the jury’s need to determine who should be accountable