• Rejection: Every Exposure Theory in Asbestos Litigation
  • November 25, 2013 | Author: Mark A. Pratzel
  • Law Firm: Husch Blackwell LLP - St. Louis Office
  • A trend has emerged across the country whereby more courts are rejecting the every exposure theory in asbestos litigation. This theory, also referred to the single fiber theory, is used by plaintiffs in asbestos litigation to argue that a single fiber is substantially causative of asbestos-related diseases.

    Recently, however, courts are rejecting the every exposure theory and are requiring an analysis of the frequency, regularity, and proximity with defendant-specific evidence relating to the dose to which the plaintiff was exposed. For example, a Pennsylvania court recently rejected the single fiber theory on causation and noted that the plaintiff’s pathologist, Dr. Maddox, “did not use the language of a methodology or standard applied in the field of pathology. Maddox’s testimony makes it clear that his opinion was grounded in risk assessment” which is outside of the expertise of pathologists.

    Similarly, for the past several years Texas has required defendant-specific evidence relating to the dose to which the plaintiff. Courts in Utah and Rhode Island have also rejected the single fiber approach over the past year.

    This trend, however, is not universal yet throughout the United States. Illinois, which is a hotbed for asbestos litigation, does not reject the every exposure theory in its causation analysis. Although Illinois utilizes the frequency, proximity, and regularity causation standard, courts allow plaintiff’s experts to offer opinions that every exposure and every fiber is a substantial factor in causing plaintiff’s asbestos-related disease.

    The take away from this current trend is that defense attorneys should determine at the outset whether courts in the suit’s jurisdiction reject the single fiber theory. Defense attorneys should also diligently research plaintiff’s expert’s credentials and challenge his/her methodology where appropriate. A complete review of the medical and scientific bases of the plaintiff’s case and causation is vital in light of this recent trend.