Recently, Congresswoman Carolyn McCarthy filed an asbestos exposure lawsuit, alleging that her lung cancer directly resulted from the time she spent as a youth washing the asbestos-covered clothing of her father and brothers.
Her claim has been met with broad cynicism because of the fact that she recently quit her pack-a-day cigarette habit.
Although our Boston mesothelioma attorneys have written before on the issue of asbestos litigation brought by smokers and former smokers (the cases are possible to win and a person’s choice to smoke doesn’t negate a manufacturer’s duty to warn), one of the more prominent issues we see here is that of the every exposure theory.
In broad terms, the every exposure theory, also sometimes referred to as the single fiber theory, holds that every exposure or every single fiber has the ability to serve as a substantially causative element of asbestos-related disease. This theory is sound because we know that countless medical experts have testified that no amount of asbestos exposure is safe.
However, the courts have been rejecting the every exposure theory with increasing regularity. We fully expect that the defendants in the McCarthy case will raise this as a possible cause for motion to dismiss, after pressing her for details on the extent of her laundry duties and the amount of the fiber to which she was exposed.
Plaintiff attorneys have to be fully prepared to answer the defense’s challenge to this theory.
A good example of what can happen otherwise was revealed in the recent case of Anderson v. Fort Motor Company, et al., as reviewed by the U.S. Court for the District of Utah, Central Division. Here, the court granted the defense’s motion to exclude causative testimony from the plaintiff’s medical experts, after the defense had argued that the every exposure theory is not valid science.
The plaintiff in this case filed his action in the fall of 2006, following his mesothelioma diagnosis. He died less than two years later, and his widow continued to press forward with the case, which was bounced around to various courts as part of a mass tort action.
A Pennsylvania court had denied the defendant’s motion to exclude specific causation testimony. That court did not supply a reason for this. However, the Utah court, upon receiving the case in preparation for trial, decided to grant it.
The plaintiff had hired two experts to testify on the cause of the deceased’s mesothelioma. Although neither had either personally examined the deceased, both issued opinions as to the cause of his death.
Both doctors offered up the opinion that asbestos exposure should be considered, at the very least, a contributing factor if not the sole factor in the plaintiff’s cancer. Neither doctor had any specific knowledge of the asbestos contained in the products manufactured by the defendants, nor did their depositions reveal any information relative to the plaintiff’s exposure to the defendants’ specific products.
We know without question that mesothelioma is caused by asbestos and that in fact asbestos is the only cause of this deadly cancer. However, proving it requires meticulous gathering of medical records and knowing what information to request of medical experts slated to testify.
It’s not enough to simply say that because someone encountered exposure at some point that the defendant is liable. A far more comprehensive approach is required.
If you or a loved one is diagnosed with mesothelioma in Boston, call for a free and confidential appointment at (617) 777-7777.
Anderson v. Fort Motor Company, et al., June 24, 2013, U.S. Court for the District of Utah, Central Division
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Sequester Hits Mesothelioma Research, Dec. 10, 2013, Boston Mesothelioma Lawyer Blog