Metropolitan News-Enterprise


Thursday, July 23, 2009


Page 11


The Legal Community:

Toxic Tort Litigation: ‘Any Exposure’ Causation Theory Packs California Courts With Defendants




(The writer is a partner in the firm of Crowell & Moring LLP in Washington, D.C., where he represents defendants in toxic tort and asbestos litigation.)

After 30 years and the bankruptcy of most asbestos manufacturers, the endless asbestos litigation is starting to look like the Energizer Bunny. It just keeps going and going, even powering out-of-state firms bringing their cases in California.

In April, Los Angeles Superior Court Judge Aurelio Munoz excoriated the Texas-based law firm Waters & Kraus for filing cases in Texas, which limits a plaintiff deposition to only six hours, and then dismissing and refiling in California. The refiling appeared to be calculated to take advantage of California’s lax causation standards and extremely stringent summary judgment standards, under which defendants must essentially prove a negative—that their product played no role in the alleged injury—in order to win a summary judgment motion.

 This state’s lax causation standard is rooted in the “any exposure” theory—a causation approach virtually unique to asbestos litigation.

Plaintiff experts regularly assert that “any exposure” to asbestos is a cause of disease—no dose is too small. The theory traps the most trivial of exposures and ensnares thousands of defendants today who have not previously been targets of asbestos litigation. And California has become a magnet jurisdiction for asbestos plaintiff attorneys, in part because its courts have not yet dealt with this theory and its implications. Until they do—and the position here is that the theory should be rejected—minimal exposure asbestos cases will continue to overrun California courts.

‘Substantial Factor’ Causation

Under traditional tort law, the plaintiff must prove that the exposure at issue was sufficient to cause her disease. Medically, this requires competent expert evidence that the exposures rose above the levels our bodies can normally handle, i.e., at a high enough level to induce disease or injury—think two aspirin versus 50. Legally, this concept is usually expressed as “substantial factor” causation. The plaintiff must prove the defendant's product or activity was a substantial factor in causing the disease.

California is a substantial factor state, but the trial and appellate courts to date have not correctly applied that doctrine in asbestos litigation. The California Supreme Court adopted substantial factor causation for asbestos cases in 1997.

In Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, however, the court inserted a “risk” element in its articulation—asbestos plaintiffs must prove the defendants’ product “was a substantial factor contributing to ...[the] risk of developing cancer.” (16 Cal.4th at 977). This side trip into the “risk” world, unfortunately, opened the door for the “any exposure” theory—trial courts routinely deny summary judgment if plaintiff experienced virtually any contact with an asbestos-containing product. One brake job, one gasket removal, one “I walked by someone working with asbestos” could, in a theoretical sense, be said to “increase the risk,” and thus keep a defendant in case and force a settlement.

Blatantly Unscientific

In no other toxic tort litigation would such a result be conceivable, much less condoned on a daily basis. Imagine a lawsuit alleging an increased risk of cancer based on breathing “some” gasoline fumes from pumping our own gas, without any attempt to determine whether the dose of carcinogens from that experience was enough to cause anything. In the real tort world, low dose cases are typically dismissed through Daubert or Frye rulings if the expert cannot identify a toxic dose of the substance. Asbestos plaintiff experts, through the “any exposure” approach, are the only ones allowed to escape this fundamental causation requirement. The theory is so blatantly unscientific that at least 16 courts around the country, including two state supreme courts, have eviscerated it in well-reasoned opinions as a “fiction,” “unsupported by medical science,” and completely antithetical to the substantial factor requirement. See Behrens, M., & Anderson, W., “The ‘Any Exposure’ Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 S.W.U. L.Rev. 479 (2008).”

The irony of such widespread trial court reliance on Rutherford's risk language is that Rutherford actually rejected an attempt to inject “any exposure” thinking into asbestos cases. Prior to Rutherford, plaintiffs had attempted in Lineaweaver v. Plant Insulation Co. (1995), 31 Cal.App.4th 1409) to reverse the burden of proof by requiring defendants to prove their exposures were not the source of the disease. The Lineaweaver appellate court rejected any burden shifting, however, and instead stuck with traditional substantial factor causation, even in asbestos cases. (Cal.App.4th at 1416) So far so good. Then along came Rutherford, where plaintiffs made another push at reversing the burden of proof, this time in a cancer case. If there was a provable exposure (i.e., any exposure), the Rutherford plaintiffs argued, the defendant should have to prove that the exposure was too small or too inconsequential to contribute to the cancer—a not-so-subtle attempt to adopt the “any exposure” approach. The Rutherford court thoroughly rejected this attempt. Shifting the burden in this way would “require every joined defendant to exonerate itself upon nothing more that plaintiffs’ showing of exposure to defendants’ asbestos products, some of which may have caused harm.” (Cal.4th at 980) The Court explicitly required a showing that the exposure be “significant enough” to cause disease. (Id. at 977) Not every asbestos defendant should be held liable: “Asbestos products have widely divergent toxicities ... all asbestos suppliers did not fire the same shot.” (Id. at 979). Rutherford, like Lineaweaver before it, continued to require plaintiffs to prove both (1) that an exposure had occurred, and (2) that the exposure was a substantial factor in causing or increasing the risk of the disease.

California Courts Manipulated

Somehow these lessons of Rutherford are almost never applied at the trial court level. Many plaintiff experts continue to use the discredited “any exposure” theory in California asbestos cases, thus improperly shifting the burden of real causation to defendants. What’s worse, when other states have rejected the “any exposure” theory, plaintiff firms have simply packed their cases and moved to states like California, where the grass is substantially greener. Case in point—Texas rejected the “any exposure” approach two years ago. Almost immediately, Texas firms, faced with having to prove their low-dose cases under real causation standards, began to move into California and other more lenient states.

Judge Munoz’s appropriate attempt to spur change is a welcome step to stop the manipulation of California courts. This and similar manipulatory practices will continue until California courts begin to apply traditional tort law principles to the new wave of low-dose asbestos cases. The best step possible would be to eliminate the use of the “any exposure” theory in the state’s trial courts by requiring evidence of a harmful dose at the summary judgment stage.


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