Accumulating asbestos appeals

As every first-year law student knows from their Torts class, one of the fundamental elements of a tort is causation. And as every American knows from their TV, asbestos causes mesothelioma. But most people don’t know what evidence a plaintiff must present to prove that a particular defendant’s asbestos-containing product was the cause of his mesothelioma.

Asbestos cases frequently have many defendants who manufactured asbestos-containing products that the plaintiff was exposed to over the course of many decades. When plaintiffs develop mesothelioma, sometimes decades after their exposure, they sue every company that had anything to do with an asbestos-containing product that they encountered. And while it is well-settled that asbestos causes mesothelioma, it is a much heavier lift for a plaintiff to show that a particular defendant’s product was the specific cause of his mesothelioma, especially where that plaintiff was exposed to asbestos-containing products by numerous other defendants as well. This issue has been litigated all over the United States with courts grappling with how to retain fundamental causation principles in cases where it is, as a practical matter, impossible to prove which product caused the cancer.

Two concepts have appeared repeatedly in asbestos cases regarding causation, one seemingly more controversial than the other. The first is that mesothelioma is caused by the cumulative total of all the exposures to asbestos over the course of a plaintiff’s entire life, i.e., the greater the cumulative total asbestos exposure, the greater the risk will be for developing mesothelioma. Sort of like how smoking increases your risk of lung cancer – the more you smoke, the higher your risk.

The second, and more controversial, flows from the first. If mesothelioma is caused by the cumulative total exposure, and because it cannot be shown scientifically which asbestos fiber actually caused the mesothelioma, it is said that each and every exposure to asbestos contributed to the mesothelioma. This second concept is routinely characterized as “junk science” and has been rejected by courts all over the U.S. This might be like saying each and every cigarette a person ever smoked caused their cancer.

Take a concrete – and extreme – example. Plaintiff dies from mesothelioma after spending forty years working in a factory where he was exposed to asbestos fibers several hours per day, five days per week from Defendant A’s product. Plaintiff also used Defendant B’s asbestos-containing product on a single occasion where he was exposed for less than one minute. Now the “cumulative dose” theory explains that our plaintiff’s mesothelioma was caused by the cumulative total exposure to asbestos. But if that’s true, did the single exposure to Defendant B’s product cause that mesothelioma? Under the “each and every exposure” theory, the answer is “yes.” It’s not hard to see in an extreme example like this the problem with holding Defendant B liable for plaintiff’s mesothelioma. This general predicament has led courts to adopt what is commonly referred to as the “substantial factor causation” test.

The test, as initially articulated in Lohrmann v. Pittsburg Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986), provides that a plaintiff in an asbestos case must present “evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.” South Carolina first adopted the test in Henderson v. Allied Signal, Inc., 373 S.C. 179 (2007) and recently reaffirmed its adherence to the test in Edwards v. Scapa Waycross, Inc., Op. No. 28193 (S.C. Sup. Ct. Filed February 28, 2024) (Howard Adv. Sh. No. 8 at 10).

In Edwards, the defendants argued that the “cumulative dose theory” and the “each and every exposure” theory were the same thing. The Court of Appeals first rejected this argument holding that Scapa “conflated” the two theories to argue that they were inconsistent with the substantial factor causation test. Edwards v. Scapa Waycross, Inc., 437 S.C. 396, 416-17 (Ct. App. 2022). The Court of Appeals found the two theories to be distinct. Relying on its earlier decision in Jolly v. Gen. Elec. Co., 435 S.C. 607 (Ct. App. 2021), the Court noted that the cumulative dose theory is background information necessary to a jury’s understanding of mesothelioma but does not espouse the view that each and every breath of asbestos meets the legal causation standard. Edwards, 437 S.C. at 417.

When the Edwards case made it to the Supreme Court, Scapa argued that Jolly should be overruled and that the Court of Appeals improperly expanded the legal causation standard in asbestos cases by mistakenly relying on Rost v. Ford Motor Company, 151 A.3d 1032 (Pa. 2016). The Court disagreed and found that the Court of Appeals had not adopted a new causation standard. So, the legal test for causation in asbestos cases in South Carolina remains the substantial factor causation test articulated in Lohrmann and Henderson. Edwards, Op. No. 28193 (Howard Adv. Sh. No. 8 at 11-12).

But are the cumulative dose theory and the each and every exposure theory effectively the same thing? Rost has been a hugely controversial decision among the asbestos defense bar and, according to some, left the state of the law regarding causation in asbestos cases in Pennsylvania in shambles because of its perceived incompatibility with the earlier decision in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012).

In Rost, the Pennsylvania Supreme Court was also faced with the argument that the cumulative dose and each and every exposure theory were the same. Rost, 151 A.3d at 1042. The plaintiff in Rost argued that legal causation in an asbestos case was met when the plaintiff proved that his exposure to the defendant’s product was “frequent, proximate, and regular” and that a plaintiff could not merely rely on the theory that every breath of exposure constituted legal causation. Id. The Rost Court held: “We must agree with the [plaintiff] that [the defendant] has confused or conflated the ‘irrefutable scientific fact’ that every exposure cumulatively contributes to the total dose (which in turn increases the likelihood of disease), with the legal question under Pennsylvania law as to whether particular exposures to asbestos are ‘substantial factors’ in causing the disease.” Id. at 1045.

While the Pennsylvania Supreme Court rejected expert testimony that each and every exposure to asbestos was substantially causative of a plaintiff’s mesothelioma, the Rost Court concluded that did not mean an expert cannot testify generally about cumulative exposure to asbestos increasing the likelihood of developing mesothelioma. It’s just that in addition to such foundational testimony, a plaintiff must also present evidence of “frequency, proximity, and regularity” of exposure to the defendant’s product. In so holding, the Rost Court expressly rejected the defense argument that the plaintiff had to present evidence of comparative causation amongst several defendants. Id. at 1047.

The Seventh Circuit reached quite a different conclusion in Kirk v. Exxon, 870 F.3d 669 (7th Cir. 2017). In Kirk the defense moved to exclude expert testimony on the each and every exposure theory and the trial court granted that motion. The plaintiff then sought instead to introduce expert testimony about the cumulative dose theory which the trial judge also excluded. The Seventh Circuit held that the two theories were the same. Id. at 673. But the decision in Kirk was largely based on the plaintiff’s expert’s own testimony that he intended to testify that by “cumulative dose” he meant that every exposure to asbestos would constitute a substantial contributing factor. Id. at 676-76.

Georgia also addressed the issue in Scapa Dryer Fabrics, Inc. v. Knight, 788 S.E.2d 421 (Ga. 2016) where the plaintiff’s expert testified that any exposure to asbestos was substantially causative of the plaintiff’s mesothelioma regardless of the extent of the exposure, i.e., the each and every exposure theory. And while the Georgia Supreme Court also rejected this testimony, it left the door open to the possibility that an expert still may be permitted to testify about the cumulative dose theory. Id. at 423-24. The Knight Court explained the problem with the expert’s testimony was that he told the jury that the extent of the plaintiff’s exposure to the defendant’s product did not matter. Instead, the expert told the jury that if the plaintiff had any exposure at all then that exposure was a contributing cause to the development of mesothelioma. Id. at 426. However, the Court went on to say that there may be some instances when an expert could premise his testimony on the cumulative dose theory. The Court explained that “if an expert coupled his reliance on the cumulative exposure theory with reliable data sufficient to show that the exposure in question were more than de minimis — and if the expert qualified his ultimate opinion as to causation, conditioning it upon there having been more than a de minimis exposure — the opinion then might "fit" the pertinent causation inquiry, notwithstanding that the extent of exposure is disputed.” Id.

So the Supreme Court of Georgia apparently agrees that cumulative exposure and each and every exposure are distinct concepts. And while an expert cannot base his opinion that a defendant’s product was a substantial factor in causing the plaintiff’s mesothelioma solely on the basis that every exposure contributes, an expert may still be permitted to explain that the risk of developing mesothelioma increases as exposure to asbestos increases.

The takeaway from these cases must be that the word “substantial” is doing a lot of work in the “substantial factor causation” test. Two things can be true at once: each and every breath of asbestos contributes to the cumulative total a person inhales over the course of their entire life, but a single breath of a single asbestos fiber does not substantially cause that person’s mesothelioma. Many different comparisons have been given to describe these concepts but one of the most illuminating was that in Summers v. Certainteed Corp., 886 A.2d 240, 244 (Pa. Super. Ct. 2005): “[S]uppose an expert said that if one took a bucket of water and dumped it in the ocean, that was a ‘substantial contributing factor’ to the size of the ocean.” While that bucket of water may not be a substantial contributing factor, it no doubt is part of the cumulative total.

adam@ruffinappeals.com

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