‘Any exposure’ theory rejected in asbestos lung cancer case
An Illinois federal judge has barred a plaintiff alleging asbestos-induced lung cancer from relying on the any exposure theory at trial.
Judge John Z. Lee delivered the Dec. 22 opinion in the U.S. District Court for the Northern District of Illinois, rejecting the any exposure theory.
Defendants Crane Co., ExxonMobil Oil Corporation, Owens-Illinois, Inc., and Marley-Wylain Company requested the court to exclude the any exposure theory and to bar plaintiff Charles Krik from calling certain witnesses at trial who plan on relying on the any exposure theory in their testimonies.
Lee explained that the any exposure theory “posits that any exposure to asbestos fibers whatsoever constitutes an underlying cause of injury to the individual exposed.”
Krik claims he developed lung cancer as a result of asbestos exposure and sought to present testimony from experts Dr. Arthur Frank, Dr. Arnold Brody and Frank Parker, who intended to testify that each and every asbestos exposure caused the claimant’s lung cancer.
While the court denied the defendants’ motion to bar certain witnesses, Lee granted their request to exclude the any exposure theory. He concluded that Krik failed to establish that the any exposure theory is sufficiently reliable to warrant admission.
The court applied the Daubert factors when determining the issue of asbestos injury causation.
Applying the Daubert factors, the defendants argued that the any exposure theory is speculative and is not scientifically reliable because it ignores a “fundamental principle of toxicology – that the ‘dose makes the poison.’”
They added that the any exposure theory “allows a plaintiff to skirt this fundamental principle by wholly bypassing the dosage requirement.”
Krik, on the other hand, claimed the methodology used in the any exposure theory was proper.
He argued that Illinois law does not require plaintiffs to quantify their individual exposure levels in order to establish causation.
Lee wrote that even though Krik and his experts have acknowledged that asbestos-induced lung cancer is a dose-responsive disease, the plaintiff still intended to have his experts testify that any exposure to asbestos, regardless of dosage, is sufficient to cause an asbestos related disease.
Lee also notes that Krik failed to offer any expert testimony explaining how much asbestos exposure he actually experienced and whether the dosage was even sufficient enough to cause his disease.
“Krik’s argument that a single exposure or a de minimis exposure satisfies the substantial contributing factor test under Illinois law incorrectly states the controlling law: it is not that de minimis exposure is sufficient, but that more than de minimis exposure is required to prove causation,” he wrote. “Krik’s argument, therefore, is unavailing.”
Instead, the claimant relied on the any exposure theory to prove causation for lung cancer, a disease with many causes ranging from asbestos exposure to cigarette smoke.
Furthermore, the any exposure theory is inadmissible because Krik’s experts failed to base their opinions on facts specific to this case, the judge ruled. Read more