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‘Any exposure’ theory rejected in asbestos lung cancer case

By HEATHER ISRINGHAUSEN GVILLO, http://legalnewsline.com/

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.

Everett McKinley Dirksen United States Courthouse in Chicago

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

Blood lead screenings offered near Exide plant

Posted by KABC-TV/DT, http://abclocal.go.com

Exide plantFree blood lead screenings are available for people who live, work or attend school near the Exide Technologies plant in Vernon.

Los Angeles County health officials made the screenings available Monday after excessive levels of lead were detected in recent emissions from the battery recycling plant. Elevated levels of lead were found in the yards of 39 homes around the plant.

“There are many sources of lead in our daily environment,” Director of Public Health Jonathan Fielding said. “However, it is clear that Exide Technologies has emitted unacceptably high levels of lead and other toxic chemicals into the surrounding communities for years.”

Exide recycles batteries and has been under close scrutiny by state and local regulators over the past year.

Residents from Boyle Heights and East Los Angeles have voiced concerns about their safety numerous times.

This is the latest in a string of problems surrounding the plant. In January, regional air quality officials sued Exide for $40 million, saying the plant exposed people to cancer-causing chemicals such as arsenic. Read More

Educational program executives sentenced for exposing high school students to asbestos

By Heather Isringhausen Gvillo, http://legalnewsline.com

Two former executives from a now-defunct nonprofit organization were sentenced to prison on Monday for exposing as many as 80 Merced County high school students to asbestos in an attempt to cut corners in asbestos removal.

Patrick Bowman and Rudy Buendia III pleaded no contest to federal charges of violating federal asbestos laws in May.

Bowman, who was also a teacher with the Valley Community School in Los Banos, Calif., served as Firm Build’s board president and coordinator of the Workplace Learning Academy, and Buendia was the nonprofit’s construction project site supervisor.

U.S. District Judge Lawrence J. O’Neill of the Eastern District of California sentenced Bowman to 27 months and Buendia to 24 months in federal prison.

Joseph Cuellar, Firm Build’s former administrative manager, was also charged but filed a motion to withdraw his no contest plea, which was later denied. As a result, O’Neill gave Cuellar’s counsel until May 15 to file additional motions before moving forward with sentencing.

Firm Build had a contract with the Merced County Office of Education to provide job training and work experience programs to local “at-risk” high school students from the Workplace Learning Academy. The program was intended to teach trade skills to students as young as 14 years old.

The students would work for part of the school day and receive school credit for their work. Some were paid minimum wage for the work they performed, Bowman’s plea agreement states.

Instead, the trio knowingly used to students to remove asbestos during a demolition and renovation project at Castle Commerce Center’s Automotive Training Center, located at 2245 Jetstream Drive in Atwater, from September 2005 to March 2006.

The “defendants falsely represented that Firm Build, Inc. intended to perform a renovation construction project … with no disturbance or removal of any asbestos containing materials, including flooring, insulation and piping, when, in truth and fact, defendants knew that the renovation and construction project would involve the removal of asbestos containing materials,” the indictment states.

During the construction work, students and employees removed and abated between 700 and 1,000 linear feet of asbestos-containing pipe insulation.

The students were required to remove asbestos-containing materials without first learning proper removal methods and were not provided appropriate respiratory protection.

Job Coach Joe Gudino testified that they would cut through the insulation and pipes and let them drop to the ground, creating dust. He added that the insulation was “crumbly.”

Students also cut out the insulation, dragged it to dumpsters and removed the remaining dust with dustpans. They also occasionally used sledgehammers to remove pipe insulation and then used their hands or shovels to dispose of the material in dumpsters.

Job Coach Angelo Gonzalez testified that employees and students put the asbestos-containing insulation in garbage bags and wheelbarrows and disposed of it in dumpsters, which were picked up by the Central Valley Disposal to take to regular landfills.

According to court records, the men knew the building had asbestos in it when they negotiated the lease. Read More

Manufacturers lose $1.1B lead paint suit

By Joel Rosenblatt and Jack Kaskey, BLOOMBERG NEWS

Sherwin-Williams Co., NL Industries Inc. and ConAgra Grocery Products LLC were ordered by a judge to pay $1.1 billion to replace or contain lead paint in millions of homes after losing a public-nuisance lawsuit brought by 10 California cities and counties.

Superior Court Judge James Kleinberg in San Jose, California, yesterday tentatively ruled against the companies after a non-jury trial that lasted about five weeks. Two other defendants, Atlantic Richfield Co., a Los Angeles-based unit of BP Plc, and Wilmington, Delaware-based DuPont Co., won dismissal of the claims against them.

The local governments that sued, including Los Angeles County and the cities of San Diego and San Francisco, broke the companies’ streak of victories in similar suits in seven other states. Los Angeles County will get $605 million for lead abatement in the ruling.

Kleinberg rejected the manufacturers’ arguments that paint was “not the whole problem,” and that alternate sources of lead contribute to poisoning.

“Consistent with their arguments throughout the trial the defendants rely on statistics and percentages,” Kleinberg wrote. “When translated into the lives of children that is not a persuasive position. The court is convinced there are thousands of California children in the jurisdictions whose lives can be improved, if not saved through a lead abatement plan.” Read More