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
3/12/2008 9:59:58 AM In the largest asbestos-related settlement on record, W.R. Grace & Co. (GRA) agreed Tuesday to reimburse the federal government $250 million. The money was used by the government in the town of Libby, Montana, where hundreds of people were sickened by asbestos, including some that died. The investigation and cleanup cost the taxpayers $168 million, with another $175 million likely.
The record payout is awaiting approval by a federal bankruptcy judge. The funding for the cleanup was originally taken from the government’s Superfund environmental cleanup program, and the $250 million from W.R. Grace & Co. will reimburse taxpayers….
Read the full story at RTT News: Global Financial Newswires
| AP Business Writer
6:23 PM EST, February 27, 2008
HACKENSACK, N.J. – The family of a man who died from an asbestos-related cancer was awarded $30.3 million from a New Jersey jury, their lawyer said Wednesday.
The award is believed to be the largest in New Jersey for mesothelioma, an aggressive lung cancer, said the lawyer, Moshe Maimon.
The disease killed 50-year-old Mark Buttitta in 2002, although he had only handled auto parts containing asbestos while working summers at giant GM warehouses in New Jersey, Maimon said…..
For the full story, visit Newsday.com’s website
MASSENA—The superintendent of building and grounds for the Massena Central School District has admitted that he lied to federal special agents from the Environmental Protection agency about the removal and disposal of asbestos from district buildings and to falsifying an investigation report on asbestos in Jefferson Elementary School.
Ben G. Gladding, 48, of Norfolk pleaded guilty Friday in U.S. District Court in Utica before Judge David N. Hurd. He has worked for the school district for nearly 30 years….
For the full story visit North Country Gazette.
DAYTONA BEACH, Fla. — Children are starting to get sick from a mysterious mold at a Daytona Beach elementary school. Toxicologists came out to Longstreet Elementary, but they still can’t figure out what’s causing the mold. It’s difficult to track down, too. The classrooms were just rebuilt this winter and a mold expert Friday explained that all it takes is some moisture like Thursday night’s rain to get in during the rebuilding and then one tiny spore in one tiny crack can lead to big problems. Tampa toxicologists and the county health department inspected the row of moldy classrooms Friday at Longstreet Elementary School. They found no obvious mold or environment for mold growth. “It is serious and it is a problem,” said parent Cheryl Martin. Air samples confirmed the mold was there last month and Martin’s experience with her daughter tells her it was a serious amount.”The doctor checked her again for her breathing and he can hear the wheezing inside. And he put her on a breathing machine,” she said….
Read the Full Story at WFTV.com
(Looks like one parent is wanting to file suit against the school district. Could be messy!)