Theories and Examples from the Defense Perspective
DOES “EACH AND EVERY”
EXPOSURE COUNT?
Anthony J. Sbarra, Jr.
Hermes, Netburn, O’Connor & Spearing, P.C.
THE “EVERY EXPOSURE COUNTS” THEORY
It is my opinion that Mr. Melford has malignant mesothelioma of the left chest.
His prognosis despite radical surgery is poor. It is my opinion, to a reasonable
degree of medical certainty, that his mesothelioma was caused by cumulative
exposure to asbestos.
Dr. means
Richardan
Kradin,
October,
2011there is
“A special exposure as used here
exposure
for which
scientific reason to conclude that such an exposure creates risk of
developing
disease.”
Asbestos is the only established
causethe
of diffuse
malignant mesothelioma in
patients in the United States who have not received prior radiology at the site of
the tumor. All special exposures to asbestos which occur prior to the
development of a diffuse malignant mesothelioma contribute to its
pathogenesis. A special exposure as used here means an exposure for which
there is scientific reason to conclude that such an exposure creates risk of
developing the disease. All of the types of asbestos can cause diffuse
malignant mesothelioma.
Dr. Eugene Mark, October, 2008
MESOTHELIOMA CAUSATION AT THE CELLULAR
LEVEL

Concept of “target cells” in the mesothelium

Target cells attacked by asbestos fibers

Fibers damage DNA in target cells, causing inability to
control growth

Certain number of insults/errors to cell or cells
required

Not all fibers reach target cells

After sufficient amount of insults/errors, disease
is inevitable
DR.
BRODY
“It’sARNOLD
a crap shoot as to
which fibers make it to the target cell; isn’t that
correct?”
A matter of chance - Impossible
to determine which
fibers reach the target cells
and cause disease.
“I agree.”

Q:
All Right. And you’ve got the target cell, and you’ve got a person who is breathing
asbestos fibers. It’s a crap shoot as to which fibers make it to the target cell; isn’t that
“…you
indicated that some proportion of those fibers get to the target
correct?

A:
I agree.

Q:
When you’re dealing with the target cells
and the fibers coming in, you indicated that
“Right.”
some proportion of those fibers get to the target cell; correct?

A:
That’s the question that we went through. Right.

Q:

A:
cell, correct?”
“…doesn’t that mean that some proportion of the fibers do not reach
By definition, Doctor, doesn’t that mean that some proportion of the fibers do not reach
the target cell?”
the target cell?
Of course, because, as you’ve indicated, all of the obstacles that we have.
“Of course…”
Blanchard v. American Standard, Inc. et al.
Providence Superior Court, C.A. No.: PC 09-2432,
April 19, 2010
DR. ARNOLD BRODY
The train has left the station - Certain amount of
“And science
tell us howDisease
many insultsbecomes
you need; correct?”
insults/errors
arecan’t
required.
inevitable.

Q:

A:
But in any event, for the individual who ultimately develops the disease, the
target cells have to be insulted by a sufficient amount of fibers to mess up the DNA,
“…probably
somewhere
within
15 orand
16…but
you’re
right.
can’t tell
so that the cells
can’t control
growth,
here we
go with
theWe
disease,
correct?
exactly.”
Correct.

Q:
And science can’t tell us how many insults you need; correct?

A:

Q:

A:
“Doctor,
the target
cell has
been
suchthan
a degree
that
So
there’sonce
a range.
So exactly,
no, but
it’sinsulted
certainlytomore
three separate
control
growth
is lost, that
person
is 16.
going
get the disease
errors,
andover
probably
somewhere
within
15 or
Soto
somewhere
in that range, but
ultimately; correct?”
you’re right. We can’t tell exactly.
Once that occurs, Doctor, once the target cell has been insulted to such a degree
that control over growth is lost, that person is going to get the disease ultimately;
correct?
Right.
“Right.”
Blanchard v. American Standard, Inc. et al.
Providence Superior Court, C.A. No.: PC 09-2432,
April 19, 2010
WHAT DR. BRODY CONCEDES

The theory has never been scientifically tested.

The theory is unsupported by any data.
The theory has not been published in peerreviewed literature.
 The theory is a “concept” which is “intuitive.”


The theory has not been “put together as a scientific
principle and tested.”
Baxter v. Alfa Laval, et al.,
Suffolk Superior Court, C.A. No.: MICVO5-4314,
July 18, 2006
THE“…using
THEORY
AND
LOGIC
the cumulative approach, they all contributed by making it
more likely that the result happened.”
The shooting gallery – Every fiber cannot be a cause.

“If somebody is in a shooting gallery and 50 people shoot at him and
Dr. other
Jerrold
Abraham
one bullet kills him…the
49 people
that shot at him were not
Q:
Going back to the whole
fiber attacking
cells, there’s
no way of knowing which
causative
of his death,
correct?”

fibers from which products actually accomplished that fact, correct?
A:
Well, again, using the cumulative exposure approach, they all contributed by
“…unless
couldn’t
trace
the bullets
to see, then you could attribute
makingyou
it more
likely that
that result
happened.
it to all
Q:
Well, that’s my point. If somebody
is inofa them.”
shooting gallery and 50 people shoot at him
and one bullet kills him, the other 50 people – or the other 49 people that shot at
him were not causative of his death, correct?
A:
Well, unless you couldn’t trace the bullets to see, then you could attribute it to all of
“…you can’t figure it out, so you include all the shooters?”
them.
Q:
Well, that’s just it, you can’t figure it out, so you include all the shooters?

A:



That’s a reasonable analogy since that’s the way cumulative exposure works.
“…that’s the way cumulative exposure works.”
Cashman v. Aamco Transmissions, et al,
Providence Superior Court, C.A. No.: 06-5839
Deposition, October 13, 2012
WHAT THE EXPERTS REALLY MEAN
We cannot exclude any exposures, so we include
“We have
them
all. no way of knowing which fibers caused or contributed to the






disease, we have no way of excluding any of the fibers, so we include
Dr. Elaine Panitz
them all. Isn’t that what you’re telling us?”
Q:
We have no way of knowing which fibers caused or contributed to the disease, we
have no way of excluding any of the fibers, so we include them all. Isn’t
that what you’re telling us?
A:
I would say that as we indicated, all of the exposures in his occupational
setting have to
be considered
contributing
to the cumulative
“…scientifically
that’s
how we as
regard
the exposure
and theexposure.
cause and
Q: effect.
And they
haveistono
bescientific
consideredevidence
because you
tell which
caused
There
to can’t
suggest
whichones
fibers
in a
the disease and which ones didn’t. Isn’t that correct?
doseislead
to to
the
malignant mesothelioma.”
A:
Thatcumulative
is correct. There
no way
know.
Q:
There’s no way to know, so you include every single one of them?
A:
But scientifically that’s how we regard the exposure and the cause and
effect. There is no scientific evidence to suggest which fibers in a cumulative
dose lead to the malignant mesothelioma.
Kelley v. Alco Auto Parts Co., Inc., et al.,
Middlesex Superior Court, C.A. No.: 06-1539,
October 29, 2009
WHAT SOME COURTS SAY ABOUT THIS
But to go from the inability to eliminate as a possible cause to an
opinion that it is a substantial contributing cause, I think there’s a
danger that that particular opinion based on the inability to eliminate it
is an impermissible opinion with respect to the law of the burden of
proof and the law of what a substantial contributing cause is.
Hely, J., Watts v. Alfa Laval, Inc., et al. Middlesex
Superior Court
Trial, March 16, 2009
WHAT SOME COURTS SAY ABOUT THIS
It is the plaintiff’s burden of proof to prove that a particular product and
“I willtonot
permit Dr.product
Holsteinortoatestify,
evendefendant’s
if he believes
it sincerely
exposure
a particular
particular
product
or
himselfwithout
as a scientist,
thatpinning
each and
everyto
fiber
is a cause
of the
products,
necessarily
it down
a particular
one,
but illness
that a
at least in terms
of legal
analysis
the ajury
has to make.”
particular defendant’s
product
or products
were
substantial
contributing
cause of the illness. I will not permit Dr. Holstein to testify, even if he believes it
sincerely himself as a scientist, that each and every fiber is a cause of the
illness at least in terms of legal analysis the jury has to make. From review of
Dr. Holstein’s
previous
I’ve heardtestimony,
the phrase
“It’s
like the
a glass
of
“From review
of Dr. testimony,
Holstein’s previous
I’ve
heard
phrase
water: the
makes
the glass
overflow,
therefore
along with all
‘It’slast
like drop
a glass
of water:
the last
drop makes
the that
glassdrop
overflow,
the other
drops isthat
a substantial
cause.”
I will
permit that
therefore
drop alongcontributing
with all the other
drops
is not
a substantial
phrase
or analogy cause.’
either. I will not permit that phrase or analogy either.”
contributing
Hely, J., Moscaritolo v. A.W. Chesterton Co., et al.,
Middlesex Superior Court
Trial, June 2, 2011
WHAT SOME COURTS SAY ABOUT THIS
While a plaintiff may present “each and every exposure”
evidence at trial to establish the inherent dangers of
breathing in asbestos, such evidence will not satisfy the
“While a plaintiff may present “each and every exposure” evidence at
causation
standard
unless
it is
trial…such evidence
will notadopted
satisfy the here
causation
standard
adopted here
unless it is accompanied
by sufficient
evidenceofofthe
the “frequency,
accompanied
by sufficient
evidence
“frequency,
regularity, and proximity” of the plaintiff’s exposure to asbestos…”
regularity, and proximity” of the plaintiff’s exposure to
asbestos to establish that such exposure was a
substantial factor in bringing about the plaintiff’s injury.
Sweredoski v. Alfal Laval, Inc., Providence Superior Court
C.A. No. PC2011-1544, June 13,2013
THE THEORY AND RIDICULOUS CONCLUSIONS
4,000 = 1 – The cumulative theory at its extreme.
Dr. Elaine Panitz


“…so you’ve got 4,000 exposures as compared to one exposure, that
exposure
still awith
substantial
contributing cause?”
Q: If heone
worked
for 40isyears
asbestos-containing
products made by
company A and he came into contact with those products 4,000 times
and then he worked once with an asbestos-containing product made
by manufacturer B, so you’ve got 4,000 exposures as compared to one
exposure, that one exposure is still a substantial contributing cause?
“I would put it this way. Each of those occupational exposures
the cumulative
exposure…”exposures
A: I would putcontributes
it this way. toEach
of those occupational
contributes to the cumulative exposure that leads to the development
of malignant mesothelioma.
Kelley v. Alco Auto Parts Co., Inc., et al.,
Middlesex Superior Court, C.A. No.: 06-1539,
October 29, 2009
THE THEORY AND RIDICULOUS CONCLUSIONS
The fiber fairy - One fiber makes all the difference.
Dr. Jerrold Abraham

Q:
Say you’ve got a fellow who’s sitting in a room. The air is the air, as
you’ve said it. He’s sitting there for a half an hour. There are no
respirable fibers. And a fiber fairy appears in the room and puts a 6micron chrysotile fiber right in his breathing zone and he breathes it,
which takes the exposure to above background. Is that a significant
contributing factor in your view?

A:
Well, hypothetically it would be.
Cashman v. Aamco Transmissions, et al,
Providence Superior Court, C.A. No.: 06-5839,
October 13, 2012
THE THEORY AND RIDICULOUS CONCLUSIONS
The fiber fairy - One fiber makes all the difference.
Dr. Jerrold Abraham

Q:
If that fellow who was sitting in that room – let’s put two of them in the
room, and the same thing happens to them; one, they both develop
mesothelioma and two, they’re both exposed to one fiber from the fiber
fairy. Okay? One of them lived in a hermetically-sealed room for his
entire life and only had the exposure to that one fiber, and the other
worked in a shipyard for 60 years with amosite-containing insulation and
pipe covering. Under those circumstances the one fiber would still be a
significant contributing factor to both of those fellows developing
mesothelioma in your view. Is that correct?

A:
Well, again, I think it’s highly unlikely that there would be such a patient
that only had that one fiber exposure that developed a mesothelioma, but if
there were I’d have to include it.
Cashman v. Aamco Transmissions, et al,
Providence Superior Court, C.A. No.: 06-5839,
October 13, 2012
TAKEAWAYS

“Risk” does not equal “cause.”

The inability to exclude does not equal causation.

There should be a showing of frequency,
duration and proximity.
Anthony J. Sbarra, Jr.
Hermes, Netburn, O’Connor & Spearing, P.C.
Alice S. Johnston
Obermayer Rebmann Maxwell & Hippel LLP
Garlock bankruptcy proceeding
Public access issues
Ancillary issues
Garlock Sealing Technologies LLC
Chapter 11 Voluntary Petition filed
in U. S. Bankruptcy Court,
Western District of North Carolina
June 5, 2010
Excerpts from Resolutions:
 Company is “overwhelmed by the financial and institutional
costs of defending and resolving tens of thousands of asbestos
claims in state and federal courts across the country, which costs,
if permitted to follow the current course, threaten the financial
stability of the Company”
 “…a bankruptcy proceeding … intended to establish a trust that
would resolve all current and future asbestos claims under
Section 524(g) of the U. S. Bankruptcy Code, currently provides
the best alternative … by providing a single forum that offers an
efficient and fair means of determining and satisfying the
Company’s alleged responsibility for the mass of asbestos
personal injury claims pending against it and expected to be
filed in the future;”
Affidavit of Donald Pomeroy in
support of first day motions:
“The Debtors’ cost of resolving an individual Asbestos
Claim has on average multiplied over eightfold since
early 2000, when a bankruptcy wave commenced that
eventually swept nearly all of the major manufacturers
of dangerous, friable, asbestos products into
bankruptcy. As a result of joint and several liability
principles applicable in many jurisdictions and
improper targeting of product exposure evidence by
plaintiffs’ firms (described in the Information Brief ),
the bankruptcy wave left peripheral defendants like
Garlock, whose products contained nonfriable asbestos,
to pay the enormous liabilities of such bankrupt
defendants.” (footnote omitted)
Order Estimating Aggregate Liability,
Hon. George R. Hodges,
January 10, 2014
Relevant interests:
 Debtor – Garlock Sealing Technologies LLC
 Official Committee of the Asbestos Personal Injury
Claimants and other moving parties with Motions to Seal
 Future Asbestos Claimants’ Representative
 Legal Newsline
 Ford Motor Company and others similarly situated, the
“public access proponents”
 Legal Newsline Motion to Unseal the trial testimony
and exhibits from the estimation hearing
 Ford Motions for access
 Joinders to the Ford public access motions
References for circulation:
 Hon. George R. Hodges, Order Estimating Aggregate Liability,





January 10, 2014
Mark Plevin, The Garlock Estimation Decision: Why Allowing
Debtors and Defendants Broad Access to Claimant Materials
Could Help Promote the Integrity of the Civil Justice System,
Norton Journal of Bankruptcy Law and Practice, Vol. 23 No. 4
(2014)
Dan Fisher, Judge Slashes Asbestos Liability In Garlock
Bankruptcy To $125 Million, Forbes, January 10, 2014
Dan Fisher, Manufacturer's Lonely Quest To Open Asbestos
Claims Files Gains Strength, Forbes, March 27, 2014
Dan Fisher, Secrecy Crumbling As Judge Gives Ford, Insurers
Access To Asbestos Files, Forbes, May 6, 2014
Peggy Ableman, The Garlock Decision Should Be Required
Reading for All Trial Court Judges in Asbestos Cases, American
Journal of Trial Advocacy, Vol. 37:479 2014
Handling Lung Cancer Cases
Current Trends in Asbestos
Litigation
ABA Tort Trial & Insurance Practice Section webinar
Lung Cancer
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Medical Records
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Medical Records
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Bankruptcy Trust Records
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Efforts to Quit Smoking
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Smoking History
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Warnings
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Smoking
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2010 Surgeon General’s Report
• There is no safe level of exposure to cigarette
smoke
• Cigarette smoke contains more than 7,000
chemicals, hundreds of which are hazardous and
69 of which are known to cause cancer
• Cigarettes are responsible for one in five deaths
each year
Markowitz, et al.
•
Asbestos, Asbestosis, Smoking and Lung
Cancer: New Findings from the North
American Insulator Cohort, Am J. Respir. Crit
Care Med. Vol 188, Iss. 1, pp. 90-96 (April
13, 2013).
Responses to Markowitz
• Asbestos, Asbestosis, Smoking and Lung Cancer:
Study Bias and Confounding Issues That
Complicate the Interpretation of the Results, Am.
J. Respir. Crit. Care Med., Vol. 189, No. 1 (2014) –
letters from Drs. Ross and Geyer
• Reply from authors in same issue
THANK YOU
Jennifer S. Kilpatrick
Swanson, Martin & Bell, LLP
Chicago, Illinois
jkilpatrick@smbtrials.com