Utah Federal Court Rejects “Every Exposure” Theory
Adding to the growing chorus of courts that have rejected the “every exposure” theory (sometimes referred to as the “any exposure” theory), under which plaintiffs argue that each and every exposure to a toxic substance is sufficient to establish liability for certain injuries, a federal court in Utah dismissed a plaintiff’s claims for failing to establish causation. Smith v. Ford Motor Co., No. 2:08-cv-630 (D. Utah Jan. 18, 2013), available at www.bdlaw.com/assets/attachments/Smith.pdf. (For other courts that have reached similar conclusions, see Maryland Appellate Court Rejects “Any Exposure” Theory, Toxic Tort and Product Liability Quarterly, October 25, 2012, available athttp://www.environmentallawportal.com/Maryland-Court-Rejects-Any-Exposure-Theory;Pennsylvania High Court Rejects “Any Exposure” Theory, Toxic Tort and Product Liability Quarterly, July 18, 2012, available at http://www.environmentallawportal.com/Pennsylvania-High-Court-Rejects-Theory). The District Court held that plaintiff’s expert was precluded from testifying that “every exposure” to asbestos-containing products manufactured by the defendant contributed to plaintiff’s mesothelioma. Smith, slip op. at 3, 10.
Plaintiff claimed he was exposed to dust from defendant’s asbestos-containing brakes when he worked as a gas station attendant from August 1966 to May of 1968. Id. at 2. Plaintiff offered the expert testimony of Dr. Samuel Hammar, who based his opinion on the theory that “each and every exposure to asbestos by a human being who is later afflicted with mesothelioma, contributed to the formation of the disease.” Id. at 3-4. Defendant moved to dismiss the testimony on grounds that the theory lacked scientific foundation, was mere speculation, and was barred by Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Id. at 3.
The court determined that the “every exposure” theory “as offered as a basis for legal liability is inadmissible speculation that is devoid of responsible scientific support.” Id. at 3-4. The court concluded that this expert testimony did “virtually nothing to help the trier of fact decide the all-important question of specific causation,” and was based solely on the expert’s belief that no exposure should be ruled out as a contributing cause. Id. at 7.
Pennsylvania Court Allows “Every Exposure” Testimony When Combined With Other Evidence
Distinguishing the recent Pennsylvania Supreme Court’s decision in Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. May 31, 2012) (see Pennsylvania High Court Rejects “Any Exposure” Theory, Toxic Tort and Product Liability Quarterly, July 18, 2012, available athttp://www.environmentallawportal.com/Pennsylvania-High-Court-Rejects-Theory), which rejected the “every exposure” theory to prove causation, a Pennsylvania appellate court upheld a nearly $1 million judgment in an asbestos injury case against a welding products company. Wolfinger v. 20th Century Glove Corp. of Texas, No. 1393 EDA 2011 (Pa. Super. Ct. Feb. 14, 2013), available atwww.bdlaw.com/assets/attachments/Wolfinger.pdf. The court held that the jury weighed other evidence in conjunction with the expert’s testimony on “every exposure” and therefore the state Supreme Court’s decision in Betz did not require reversal of the jury’s verdict. Wolfinger, slip op. at 23-24.
Wolfinger filed suit against a group of defendants alleging that exposure to asbestos caused him to suffer from pleural thickening. Id. at 2. Plaintiff relied, in part, on expert testimony that every breath the plaintiff took in the presence of asbestos was enough to establish causation. After trial, the court entered judgment against defendant Lincoln Electric Co. for just over $950,000. Id. at 3. The court denied defendant’s post-trial motion seeking a new trial or modified verdict on the grounds that testimony from the plaintiff's expert was inadmissible under applicable Pennsylvania Supreme Court precedent.
On appeal, defendant claimed that the trial court improperly admitted plaintiff’s expert testimony. Id. at 9. Rejecting defendant’s arguments, the Superior Court (an intermediate appellate court) distinguished the Betz decision on the grounds that the court in that case was confronted only with reviewing the adequacy of the every exposure theory for causation on its own, and not in conjunction with other evidence. Id. at 10-11. Here, the plaintiff offered other evidence in the case to buttress its theory, including a specific history of the plaintiff’s exposure to the defendant’s product, and therefore the expert testimony “was relevant to, albeit not dispositive of, the issue of substantial factor causation.” Id. at 11.