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
By Susan Vento, http://www.rollcall.com
Since at least the early 1900s, the lethal risks of asbestos exposure have been known — and intentionally hidden from — American workers and their families by companies of all sorts whose bottom lines were more important than the well-being and very lives of their workers.
For many years, asbestos companies have lobbied at the state and federal levels to erode the constitutional and legal rights of those workers diagnosed with mesothelioma, asbestosis and cancers caused by asbestos. Now they are lobbying Congress once again to delay and deny medical bill payments to those who are sick and dying.
The FACT Act is not about transparency at all. It requires the unbelievable disclosure on a public website of asbestos victims’ personal information, including the last four digits of their Social Security numbers, information about their finances, their children and other sensitive material that could subject them to identity theft and possible criminal mischief. The bill is completely one-sided — asbestos companies have no such “transparency” requirements. Read More
By Jane Akre
Monday, February 04, 2008 11:40 PM EST
Beverly and Robert Speight knew they had a problem when they could puncture the waterlogged siding on their $250,000 Iowa home with a fingertip. It is the unspeakable word to builders, insurers and home inspectors. “M” for mold or mildew—no one wants to cover it or take responsibility for it.
The owner of a moldy home may discover multiple exclusions in the contract with a home inspector or that their homeowners insurance has dropped or capped mold claims. Homeowners often run into a brick wall they have to remedy with their own bank account.
Just ask Erin Brockovich, of the film by the same name. She had to move out of her California home after mold, found growing in the floor and walls, caused her family’s health problems.
The CDC says there is no such thing as “toxic mold” but mold impacts those with asthma or a compromised immune system. The Institute of Medicine reports allergic and non allergic reactions in humans exposed to spores. All agree it should be removed.
Now the Iowa Supreme Court has issued a ruling that gives homeowners living in moldy conditions some hope. Home builders can be held responsible for poor workmanship that leads to mold and mildew from water seepage, long after the original buyer has moved out.
Full Story HERE
Congressman John Conyers, Jr. Introduces
H.R. 1268: The United States Toxic Mold Safety and Protection Act
(“The Melina Bill”)
The growth of “toxic mold” is becoming a problem of monumental proportions. Exposure to mold growth in residential, public and commercial buildings is believed to have caused serious medical conditions which include bleeding lungs, digestive problems, hair loss, nausea, loss of memory, reduced cognitive skills, and death. Property damage from mold growth has destroyed millions of dollars in real estate and forced homeowners to the curb. We cannot eliminate mold. However, there are steps that can be taken to minimize the dangers of indoor mold growth.
The United States Toxic Mold Safety and Protection Act will mandate comprehensive research into mold growth, create programs to educate the public about the dangers of toxic mold, and provide assistance to victims. In addition, the Act will generate guidelines for preventing indoor mold growth, establish standards for removing mold when it does grow, provide grants for mold removal in public buildings, authorize tax credits for inspection and/or remediation of mold hazards, and create a national insurance program to protect homeowners from catastrophic losses. Taken as a whole, the Toxic Mold Safety and Protection Act will attack indoor mold growth with good science, public awareness, and tangible relief.
Home ownership is part of the American Dream, but for many toxic mold has transformed that dream into a nightmare. It’s time to stop toxic mold from robbing Americans of their health and their homes. If you are concerned about the hazards of mold contact your congressional representative and ask them to cosponsor and/or support the United States Toxic Mold Safety and Protection Act.
Click here to the full text of the United States Toxic Mold Safety and Protection Act
(Adobe Acrobat or Acrobat Reader Required)
Major Provisions of the Bill
Title I – Research and Public Education
•The Bill directs the Environmental Protection Agency (EPA) and Centers for Disease Control (CDC) to examine the effects of different molds on human health and develop accurate scientific information on the hazards presented by indoor mold.
•The Bill directs EPA and the Department of Housing and Urban Development (HUD) respectively, to establish guidelines that identify conditions that facilitate indoor mold growth and measures that can be implemented to prevent such growth. The guidelines will also address mold inspection, testing, and remediation.
•The Bill asks EPA and HUD to establish guidelines for certifying mold inspectors and remediators. The guidelines will help identify hazards associated with inspection and remediation and the steps that should be taken to minimize the risk to human health.
•The Bill authorizes programs to educate the public about the dangers of indoor mold. An informed public with be in a better position to avoid mold hazards, prevent mold growth and respond appropriately when mold growth occurs.
Title II – Housing and Real Property Provisions
•The Bill requires mold inspections for multi-unit residential property and mold inspections for all property that is purchased or leased using funds that are guaranteed by the federal government. The Bill also requires mold inspections in public housing.
•The Bill requires, to whatever extent possible, that local jurisdictions modify building codes to minimize mold hazards in new construction.
Title IV – Indoor Mold Hazard Assistance
•The Bill authorizes grants for mold removal in public buildings.
Title V – Tax Provisions
•The Bill authorizes tax credits for inspection and/or remediation of mold hazards.
Title VI – National Toxic Mold Insurance Program
•The Bill creates a National Toxic Mold Insurance Program administered by the Federal Emergency Management Agency (FEMA) to protect homeowners from catastrophic losses. Many homeowners are finding that insurance companies will not offer adequate coverage for mold.
Title VII – Health Care Provisions
•The Bill enables States to provide medicaid coverage to mold victims who are unable to secure adequate health care.
For additional information contact Joel Segal at (202) 225-5126