The “every exposure” theory in asbestos litigation has been widely criticized and many judges have concluded it doesn’t pass muster in a court of law. The crux of it is that because no amount of exposure to asbestos is safe, every exposure to asbestos must be harmful. But simply showing a single exposure – or just a few exposures – to asbestos usually isn’t enough to win a personal injury or wrongful death case.
That means asbestos injury attorneys have to be prepared to introduce as much evidence as possible showing plaintiff endured a great deal of exposure. Failure to do so may result in an outcome like what was seen recently in Georgia in the case of Scapa Dryer Fabrics Inc. v. Knight et al., in which the Georgia Supreme Court tossed a $4 million mesothelioma verdict, finding the use of the every exposure theory in trial was inadequate to prove defendant’s liability.
Specifically, the court ruled, plaintiff’s expert witness failed to analyze the extent of exposure in any sort of meaningful way and he also failed to qualify his opinion on causation by limiting it to such an estimate of exposure.
Defendant in this case is a manufacturer of textiles, and it produced dryer felts in the 1960s and 1970s. Additionally, some of the boilers and pipes in the facility were insulated with material that contained asbestos. The company also used yarn that contained asbestos in certain parts of the manufacturing process.
Plaintiff worked as an independent contractor at the site on numerous occasions between the late 1960s and the early 1970s. Some 40 years later, plaintiff was diagnosed with mesothelioma. The only known cause of mesothelioma is exposure to asbestos.
The case was tried in Georgia, and jurors returned a verdict in favor of plaintiff for $4 million in damages. Defendant appealed and the appellate court affirmed. The state supreme court, however, reversed.
One of the points raised by defendant on appeal was that plaintiff’s expert witness testified that if plaintiff was exposed to asbestos at defendant facility, that exposure was the cause of plaintiff’s mesothelioma, no matter how much asbestos to which he’d actually been exposed.
Evidence was presented at trial to show plaintiff was exposed to asbestos at the facility, but it wasn’t exactly clear how much. This is of course a challenge anytime you’re working with incidents that occurred 40 years ago. There was evidence to show plaintiff sometimes worked in the facility while the manufacturing process was ongoing. He worked in the ventilation ducts where dust – including asbestos dust – was contained. He also on at least one occasion cut into a pipe insulation and was exposed to more dust that way.
Defense argued that small amounts of asbestos in the air – something defense expert witness called “background asbestos” – isn’t known to cause disease. He stated it wasn’t clear at what exact point a cumulative exposure to the material is known to cause a person to develop mesothelioma.
Plaintiff expert witness argued that exact point is not knowable for sure, but each and every exposure to the dust in excess of that “background asbestos” contributes to the cumulative exposure and therefore the cumulative risk.
Ultimately, the Georgia Supreme Court ruled the theory doesn’t comport with legal requirements for proving causation.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Scapa Dryer Fabrics Inc. v. Knight et al., July 5, 2016, Georgia Supreme Court
More Blog Entries:
Grant v. Foster Wheeler, LLC – Proof of Asbestos Defendants’ Products as Proximate Cause of Injury, July 5, 2016, Boston Mesothelioma Lawyer Blog