Document ypar453OKOOMD98eKkB6E4LV6

Behrens Anderson Article Final Macro 12/18/2008 3:09 PM THE "ANY EXPOSURE" THEORY: AN UNSOUND BASIS FOR ASBESTOS CAUSATION AND EXPERT TESTIMONY M ark A, Behrens Wi Iliam |L. AAndderson O ver the years asbestos litigation has morphed into a tort world all of its 1 Courts developed entire sets of r ul es in an attempt to manage 2 efficiently their substantial asbestos dockets, in the process dispensing with * Mark A B ehrens is a partner in th Pu P L.L.P. in Washington, D.C. He received his B.A. fro n l icy G roup of Sh k, Ha dy & Bacon University of Wisconsi I'Madison in 1987 and his J.D. from Vanderbilt U versity Law Scho Vanderbilt Law Review. Mark is a m mber of The A m e Washington, D.C.'s "top lawyers" by Washingtonia , 1990, where he was a m ember of the n Law institute and was lamed one of zine in December 2007. Mr. Behrens may be contacted at mbehrens @sh b.com. ^William Anderson is a partner with Crowe & Moring L.L.P. Washington, D.C. He spresents defenda s in toxic tort d product l bili ty liti gatior rites regarding th intersection of oence and la w. I le received hi n 1975 and h J.D. from th e Unive -sity of Mini esota Law School Editor-in-Chief Mi nnesota Law Revi ,w. Mr. Ander wa nderson (@c ; ludi g asbestos cases, and B.A. fro lI endrix College n 1988, here he served y be contacted ^ Research Litigation Justice, pport for this Article was s discussed herein ided by funding from th solely those of the autho Co for 1. See Griffin B. Bell, Asbestos Litigation and Judicial Leadership: The Courts' Duty to Help Solve the Asbestos Litigation Crisis, BRIEFLY, June 2002, at 1, 4; Mark A. Behrens, Some Proposals for Co urts Interested in Helping Sick Cla imants and Solving Serious Problems in Asbestos Litigation, 54 Baylor L. rev. 331, 336-42 (2002); P aul F. Rothste i n, What Courts Can Do in the Face of the Never-Ending Asbestos Crisis, 71 MlSS. L.J. 1, 4-9 (2001). 2. See In re Combustion Eng'g, Inc., 391 F.3d 190, 200 (3d Cir. 2004) ("For decades, the state and federal judicial systems have struggled with an avalanche of asbestos lawsuits."). The United States Supreme C ourt has described the litigation as a "crisis." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 597 (1997). Through 2002, approximately 730,000 cla, s had be Stephen J. Carroll et al., Asbestos Litigation xxiv (RAND Inst. for C il Justic available at http ://wWw.rand.org/pubs/monographs/2005/RAND_MG162.pdf. "In Aug i filed. 2005), 2005, th Co igressional Bu Offic ated that there were b 322,000 sbestos bodily injury cases pending in state and federal courts." Am. ACAD. OF ACTUARIES' MASS TORTS SUBCOMM.. Overview of Asbestos Claims http:// www.actuary.org //ppddff//casualty Issues and g07. p Trends 5 (2007), available a 479 Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 480 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 3 many standard venue, discovery, and trial consolidation requirements, I he changes almost universally favored plaintiffs and instead of affecting a reduction in congested dockets, the litigation became so malleable and lucrative that plaintiff attorneys have spent the last decade searching for the "next asbestos." Practitioners in this field have come to know these asbestos rules well, whereas newcomers are often astounded to discover that their tort law frame of reference means little in the alternative universe of asbestos litigation, one of the most substantial departures from black letter tort law is the any exposure theory of causation, sometimes referred to as the any fiber theory, 4 iIn a nutshell, the any exposure theory contends that because asbestos disease is a cumulative, dose-response process, each and every exposure to asbestos during a person's lifetime, no matter how small or trivial, substantially contributes to the ultimate disease (e.g., asbestosis, lung cancer, or mesothelioma), There is an important caveat, however, in that most proponents of this theory agree that background exposures to asbestos, even though they may contribute millions of fibers to an individual's lungs over a lifetime, do not contribute to the development of disease, Only occupational or para-occupational (e.g,, home remodeling or "shade tree" automotive brake repair) exposures count.7 T he theory allows plaintiffs' co unsel to sue thousands of defendants every year whose "contribution" to disease is trivial and far below the type of doses actually known to cause disease, while at the same time excluding from causation another source of millions of fibers (i,e,, background exposures), In the last three years, more than a dozen courts in multiple jurisdictions have excluded or criticized any exposure causation testimony, either as unscientific under a Daubert8/Fr9ye analysis or as insufficient to 10 support causation, I his pattern of decisions includes, the Texas Supreme Court in a mechanic/asbestosi s case,* l 3, See Victo r E, Schwartz & Rochelle M, Ted,esco, The Law o Asb estos Litigation, Ho w Effo rts to Strea mline the Litigation Ha ve Fueled Mo re Cla i ms , 71 M ISS, L,J, 531, 542-47 (2001); V ictor E, Schwartz & Leah Lorber, A Letter to the Nation's Trial Judges: How the Focus on Efficiency Is Hurting You and Innocent Victims in Asbestos Liability Cases, 24 Am, J, Trial Advoc, 247, 256-58 (2000), 4, See, infra notes 26, 30-31, 5, See, e ,g,, infra note 50, 6, See Barte l v, John Crane, Inc,, 316 F, Supp, 2d 603, 607-08 (N,D, Ohio 2004), aff'd sub nom, Lindstrom v, A-C Prod, Liab, Trust, 424 F,3d 488 (6th Cir, 2005), 7, See, e.g, Borg-Warner Corp, v, Flores, 232 S,W,3d 765, 773 (Tex, 2007), reh'g denied (Oct, 12, 2007), 8, See Da ub ,rt v, Merrell Dow Pharms,, Inc,, 509 U,S, 579 (1993), 9, See Frye > , United States, 293 F, 1013 (D,C, Cir, 1923), 10, See, e.g. nfra notes 11-19, Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 481 rejecting the testimony of Dr. Barry C astleman and another expert that mere proof of exposure is sufficient for causation;11 a Texas appellate court in a mesothelioma case, rejecting the testimony of Dr. S amuel Hammar that any dry wall exposures above 0.1 fibers/cc year would be a substantial contributing factor; 12 the Texas Mum-District Litigation ("MDL") court, rejecting the testimony of Dr. Eugene m ark in a friction product case and other experts in an electrician/dry wall exposure case; 13 the Pennsylvania supreme court in a mesothelioma case against an auto parts company, rejecting the position espoused in affidavits by Drs. Richard Lemen, James Girard, and Arth ur r .14 Irank; an ohio federal district court and the sixth circuit court of Appeals in a gasket and packings case, rejecting the testimony of Drs. Arthur Frank and Yasunosuki Suzuki; three Pennsylvania state trial courts, rejecting the any exposure testimony of Drs. John M addox, Eugene m ark, Will i am Longo, Jonathan Gelfand, and Arth ur Frank in friction product cases and criticizing the theory's application in a pleural .16 disease case; a federal bankruptcy court in litigation involving asbestos in vermiculite insulation , .17 exposure approach; rejecting Dr. Henry Anderson's any a m ississippi appellate court, rejecting a medical monitoring 18 class for persons allegedly exposed in a school building; and two Wash ington State trial court decisions by different judges, rejecting the opinions of Drs. Samuel Hammar and Carl 11. See Flores, 232 S.W.3d at 774. 12. See Geo rgia-Pac. Corp. v. Ste phen s, 239 S.W.3d 304, 320-21 (Tex. App. 2007), reh'g o ve rr uled (Oct. 13, 2007), review denied (Feb. 22, 2008). 13. See L etter Ruling, In re Asbestos Litig., Cause No. 2004-03964 (Tex. Dist. Ct. Jan. 20, 2004); L etter Ruling, In re As bestos, Cause No. 2004-3,964 (Tex. Dist. Ct. July 18, 2007). 14. See Gregg v. V-J. Auto Parts, Inc., 943 A.2d 216, 218, 223, 226-27 (Pa. 2007). 15 . See Ba rtel, 316 F. Supp. 2d at 611. 16. See In re Toxic Substance Cases, No. A.D. 03-319, 2006 WL 2404008 at *7-8 (Pa. Ct. Com. Pl. Aug. 1 7, 2006); Basile v. Am. Honda Motor Co., No 11484 CD 2005 (Pa. Ct. Com. Pl. Feb. 22, 2007); In re Asbestos Litig., Certain Asbesto s Friction Cases Involving COhrysler LLC, No. 0001 Control #084682 (Pa. Ct. Com. Pl. Sept. 24, 2008); Sum mers order v. Certainteed Corp., 886 A.2d 240, 244 (Pa. Super. Ct. 2005) , appeal granted, 897 A.2d 460 (Pa. 2006). 17. See In re W.R. Grace & Co., 355 B.R. 462, 474, 478 (Bankr. D. Del. 2006), leave to appeal denied, No. 07-MC-0005 RLB, 01-1139, 2007 WL 1074094 (D. Del. Mar. 26, 2007). 18. See Brooks v. S tone Architecture, P.A., 934 So. 2d 350 (Miss. Ct. App. 2006). Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 482 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 19 Brodkin in heavy equipment mechanic cases. These are not insignificant courts------they include two state supreme courts, one federal appellate court, a federal bankruptcy court, and state 20 appellate and trial courts in several jurisdictions. In addition, the breadth of alleged exposures and diseases covered by these cases demonstrates that the any exposure theory is failing across the spectrum of asbestos cases, regardless of disease and type of exposure. Perhaps most remarkably, the experts whose testimony is being excluded are veterans in the litigation who have supported plaintiff cases for many years with little or no interference 21 from the judiciary. The rejection of these experts' causation testimony, while a significant departure from past practice, reflects the sound 22 application of standard causation rules to asbestos testimony -something that should have happened years ago and is finally gaining traction. Th ese rulings also likely reflect a growing skepticism of many asbestos claims in 23 the wake of findings of massive fraud in federal court silica litigation. This Arti cle discusses the underpinnings of the any exposure causation theory and why recent courts that have examined the theory more carefully 19. See A nderson v. Asbestos Corp., N 05-2-04551 -5SEA, slip op. at 144-45 (Wash. King County Super. Ct. Oct. 31, 2006) (transcript of bench ruling) (Erlick, J.); Free v. Ametek, No. 07 2-04091 -9-SEA (Wash. King County Super. Ct. Feb. 29, 2008) (Barnett, J.) (ruling on motion in 20. Se supra notes 11-19 and a 21. Se infra n otes 50-53. y I ny 22. See, e.g., Flores, 232 S.W.3d at 770 (discussing the "substantial factor" test in causation); David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 BROOK. L. REV. 51, 59 (2008) (stating that "[t]he recent, increasingly strict exposure cases . . . reflect a welcome realization by state courts that holding defendants liable for causing asbestos-related disease when their products were responsible for only de minimis exposure to asbestos, and other parties were responsible for far greater exposure, is not just, equitable, or consistent with the substantial factor requirements of the Restatement (Second) and Lohrmann [v. P, ttsburgh Corning Corp, 782 F.2d 1156 (4th Cir. 1986)]."); cf. Lee S. Siegel, Note, As the Asbestos Crumbles,' A Look at New Evi dentiary Issues in Asbestos~R.elated Property Damage Litigations, 20 HOFSTRA L. REV. 1139, 1146 (1992) ("There is no merit to the one fiber theory, and the myth is slowly being dispelled."). 23. See In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 635 (S.D. Tex. 2005); Lester Brickman, Disparities Between Asbestosis and Silicosis Claims Generated by Litigation Screenings and Clinical Studies, 29 CARDOZO L.REV. 513 (2007); L ester Brickman, On the Appli cability of the Silica MDL Proceeding to Asbestos Litigation, 12 CONN. INS. L.J. 289 (2006); see also Editorial, Screening for Corruption, Wall St. J., Dec. 2, 2005, at A10 , abstract available at 2005 WLNR 19447615; Editorial, Silicosis, Inc, WALL ST. J., Oct. 27, 2005, at A20, abstract available at 2005 WLNR 1 7413061; Editorial, The S.l.cos.s Sher.tr, WALL ST. J., July 14, 2005, at A10 , abstract available at 2005 WLNR 11084626; David Hechler, Silica Pla intiffs Suffer Setbacks, Broad Effects Seen in Fraud Allegations, NAT L L.J., Feb. 28, 2005, at 1; Roger Parloff, Diagnosis for DollarsA Court Battle Over Silicosis Shines a Harsh Light on Mass Medical Sc re ene rs-- The Same Peop le Whose Diagnoses Have Cost Asbestos Defendants Billions, FORTUNE, June 13, 2005, at 96, available at 2005 ^VLNR 8694138; J onathan D. Glater, Companies Get Weapon in Injury Suits Many Silica-Damage Plaintiffs Also Filed Claims Over Asbestos, N.Y. TIMES, Feb. 2, 2005, at C1, available at 2005 WLNR 1415209. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 483 have decided to reject it. Th ese decisions reflect a proper assessment of the 24 p, dose requirement of toxicology. On the other hand, courts that continue to allow any exposure testimony to proceed unchallenged run the risk of encouraging a flood of speculative or trivial claims at a time when the litigation environment for asbestos claims appears to be regaining some 25 C semblance of control. Such an outcome would reflect poor science and even poorer public policy. I. The Toxicological Requirement of Dose and Its Application in the Toxic Tort Context The any exposure theory can only be understood against the backdrop of widely accepted tort and medical causation principles because the theory departs so dramatically from those principles. Ord inarily, under long standing rules of tort law, courts should require asbestos plaintiffs to demonstrate that each defendant's product was either a "but-for" cause or a "substantial factor" in the cause of plaintiff s disease.26 In the typical tort case, such a showing would require not only proof of exposure to the defendant's product, but also exposure to enough of a dose of the defendant's product to actually cause disease.27 T he concept of a necessary dose goes back to the sixteenth century, when the father of toxicology, physician and philosopher Paracelsus, first articulated the principle that the dose makes the poison: "A ll substances are poisonous------there is none which 28 is not; the dose differentiates a poison from a remedy. Examples are 24. See David E. Bernstei K\eeeeping nk of Asbestos L itigation, 31 Pepp. L. rev. 11, 28 (2003) ("TI hhere is clearly some relationship betwee bestos and diseases. The effects of exposure to asbestos on a particular individual, how , depend on the level of exposure and what type of asbestos one was exposed to and for how g ")- 25. See Mark A. Behrens & Phil Goldberg, The Asbestos Litigation Cr E The Tide Appears to Be Turning, 12 CONN. INS. L.J. 477 (2006); James A. Henderson, J Asbestos Litigation Madness: Ha ve the States Turned a Corner?, MEALEY'S TORT REFORM UPDATE, l. 3:6, Jan. 18, 2006, at 23; Patti Waldmeir, The Americas, Asbestos Litigation Declines in Fa of US Legal Reforms, FlN. TIMES, July 24, 2006, at 2, available at 2006 ^WLNR 1 2719566; M artha Neil, Backing Away from t he Abyss'. Courts May Be Starting to Get a Grip on Asbestos Litigation, A.B.A. J., Sept. 2006, at 26. 26. See Restatement (Second) of Torts 431, 433 (1965). The word "substantial" is used to denote the fact that the defendant's conduct has such an e ffect in producing the harm as to lead reasonable men to regard it as a cause . . . rather than in the so-called philosophical sense," which includes every one of the great number of events without which any happening would not have occurred. Id. at 431cmt. a. 27. See infra notes 29-31 and accompanying text. 28. Dav id L. Eaton, Scien tific Ju dgment and Toxic To rts A Primer in Toxicolo gy fo r Ju d ges and La wyers, 12 J.L. & POL Y 5, 11 (2003) (e mphasis omitted) (internal quotation marks omitted) Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 484 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 commonplace------alcohol, aspirin, sunlight, even basic substances we eat in food and vitamins like zinc are not harmful at low levels, but can cause harm at higher doses.29 This dose concept is widely recognized in both science and courts as the foundation of causation and the basis for many medical tort decisions.30 courts around the country, including at least five federal circuit courts, have recognized the necessity of proving an actual toxic dose in medical tort cases. As one leading researcher recently wrote: "D ose is the single most (quoting Casarett and Doull's Toxicology: The Basic Science of Poisons, Chs. 1, 4 (Curtis D. Klaassen ed., McGraw Hill 6th ed. 2001)). 29. A fundamental tenet of toxicology is that "the dose makes the poison." Bernard D. Goldstein & Mary Sue Henifin, Re Terence Guide on Toxicology, in Federal Judicial Center, Reference Manual on Scientific Evidence 401, 403 (West Group 2d ed. 2000) (1994) (internal quotation marks omitted). Thus, courts routinely require ntiffs to de just some exposure, but "evidence from which the trier of fact could conclude that the plaintiff was exposed to levels of toxins sufficient to cause the harm complained of. ' Nelson v. Tenn. Gas Pipeline Co., No. 95-1112, 1998 WL 1 297690, slip op. at *6 (W.D. Tenn. Aug. 31, 1998), aff'd, 243 F.3d 244 (6th Cir.), cert, denied, 534 U.S. 822 (2001) (citing Wintz v. Northrop Corp., 110 F.3d 508, 513 (7th Cir. 1997) (internal citation omitted)); see also Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1107 (8th Cir. 1996). This is as true for asbestos as for any other potentially toxic substance. See Bartel, 316 F. Supp. 2d at 611 (rejecting "one-fiber" asbestos theory as not supported by medical literature); In re Toxic Substance Cases, 2006 WL 2404008 at *7-8 (criticizing plaintiffs' experts for failing to assess the dose for mechanic exposure). 30. See, e,g,, McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1241 (11th Cir. 2005) ("In toxic tort cases, `[scientific knowledge of the harmful level of exposure to a chemical, plus knowledge that [the] plaintiff wa s exposed to such quantities[,\ are minimal facts necessary to sustain the plaintiffs burden . . . .'") (emphasis added) (quoting Allen v. Pa. Eng'g Corp., 102 F.3d 194, 199 (5th Cir. 1996)). 31. See, e,g,, id, (explaining that plaintiffs must establish the level at which substance is harmful and that their expos opinion of expert who did of that level); Nelson, 1998 WL 1 297690 at *6 (excluding s dose because "[a]n appropriate methodology requires evidence from which the trier of fact could conclude that the plaintiff was exposed to levels of toxin sufficient to cause the harm complained of."); Mitchell v. Gencorp, Inc., 165 F.3d 778, 781 (10th Cir. 1999) ("[A] plaintiff must demonstrate `the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of exposure to the defendant's toxic substance before he or she may recover.'") (quoting Wright, 91 F.3d at 1106); Moore v. Ashland Chem., Inc., 151 F.3d 269, 278 (5th Cir. 1998) ("Because he had no accurate information on the level of Moore's exposure to the fumes, Dr. Jenkins necessarily had no support for the theory that the level of chemicals to which Moore was exposed caused RADS. ), cert, denied, 526 U.S. 1064 (1999); Allen, 102 F.3d at 199 ("Scientific knowledge of the harmful level of exposure to a k pledge that the tiff P dt tit necessary to sustain the plaintiffs' burden in a toxic tort case."); Cano v. Everest Miner Corp., 362 F. Supp. 2d 814, 825 (W.D. Tex. 2005) (quoting Merrell Dow Pharms., Inc. v. Ha er, 953 S.W.2d 706, 720 (Tex. 1997)) ("[A] claimant must not only introduce sufficient epidemiological evidence, he must also show that he is similar to those in the studies."); Nat'l Bank of Commerce v. Dow Chem. Co., 965 F. Supp. 1490, 1524 (E.D. Ark. 1996) (explaining plaintiff must provide evidence of level of exposure and show that the dose was likely to produce harm of the type experienced by plaintiff); Louderback v. Orkin Exterminating Co., Inc., 26 F. Supp. 2d 1 298, 1305 (D. Kan. 1998) ("[T]o recover in a toxic tort case, the plaintiff must prove the levels of exposure that are hazardous to human beings generally as well as the plaintiff's actual level of Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 485 important factor to consider in evaluating whether an alleged exposure caused a specific adverse effect."32 Parker v. Mobil Oil Corp,, a recent non-asbestos case involving benzene, illustrates the point and the reasoned approach of many courts. In Paarker, a gas station attendant alleged that he developed acute myeloid leukemia ("AML") from low level benzene exposures in gasoline. 34 Epidemiology studies have demonstrated that high exposures to pure benzene, typically in factory settings, can cause AML, but studies have not demonstrated the occurrence of disease from low-exposure gas station work where the exposures involved only a small amount (usually two to five fpercent) of benzene in gasoline. 35 Plaintif s experts, Drs. Phil Landrigan and Bernard Goldstein, extrapolated down from the high-dose, factory benzene exposure studies and cited to government regulations and mathematical modeling studies to opine that low level exposures would 36 ~r likewise cause the disease. I hey did so, however, without any assessment of the actual dose from gas station work; they could not present any evidence that the plaintiff s dose approached those shown to cause disease 37 | in the epidemiology studies of high-dose workers. Instead, they expressed their opinions in subjective terms, referring to the plaintiff s exposures as "substantial" or "significant" with no grounding in actual dose calculations 38 or comparisons. The New York Court of Appeals rejected this methodology as unreliable under New York's general requirements for reliab ility and proper 39 foundation to support an evidentiary submission. I he decision focused on the flawed approach to dose and unsupported assumptions that low doses produce the same effects as high doses: Th e experts, although undoubtedly highly qualified in their respective fields, failed to demonstrate that exposure to benzene as a component of gasoline caused Parker's AML. Dr. Goldstein's general, subjective and exposure to the toxic substance.") (quoting Wright, 91 F.3d at 1106); Mancuso v. Consol. Edison Co., 967 F. Supp. 1437, 1453 (S.D.N.Y. 1997) (explaining that expert's testimony that plaintiffs' ailments were caused by exposure to PCBs was in admissible because, inter alia, expert did n ot make sufficient determinations of environmental PCB levels, nor of the extent of the plaintiffs' exposure thereto."). 32. Eaton, supra note 28, at 11 . 33. 857 N.E.2d 1114 (N.Y. 2006), 34. Id. at 1116. argument denied, 861 N.E.2d 104 (N.Y. 2007). 35. Id. at 1117. 36. Id. at 1122. 37. Id. 38. Id. at 1121-22. 39. Id. at 11 20-22. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 486 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 conclusory assertion --based on Parker's deposition testimony--that Parker had --far more exposure to benzene than did the refinery workers in the epidemiological studies" is plainly insufficient to establish causation. It neither states the level of the refinery workers' exposure, nor specifies how Parker's exposure exceeded it, thus lacking in epide miologic evidence 40 to support the claim. The New York court thus rejected the notion that low level, unquantified exposures to a known harmful substance necessarily suffices as proof of causation of a disease the substance is known to produce at 41 much higher exposure levels. I his is classic toxicology, applied properly in the courtroom setting. Parker has many antecedents similarly rejecting assumed causation at low levels, including, for instance, the United States Supreme Court's General El ectric Co. v. Jo iner ruling, which rejected alleged pcb injury without a dose assessment, 3 and the Sixth Circuit's Ne lson v. Te nnessee Gas Pipeline Co. decision, which likewise rejected alleged environmental harm from pcb exposure without any assessment of the actual dose. The concept of a sufficient dose to cause disease is fundamental to both science and tort laaww, and should not be jettisoned in favor of a mere "exposure only" approach. II. The Asbestos Any Exposure Theory in contrast to the traditional tort approach requiring some assessment of dose, some courts presiding over asbestos cases have permitted plaintiffs to demonstrate merely that they were exposed to a defendant's product, rather than require proof that any particular exposure was high enough to cause a plaintiff's disease.46 T he result is that the causation dose requirem ent------rea l exposure, at quantities known to cause disease------was reduced to an exposure test, and a minimal one at that. some verdicts have stretched the 40. Id. at 1121-22. 41. Id. at 1122. 42. 522 U.S. 136 (1997). 43. Id. at 144-47. 44. 243 F.3d 244 (6th Cir.), cert, denied, 534 U.S. 822 (2001). 45. Id. at 252-54. 46. See, e.g., Jones v. John Crane, Inc., 35 Cal. Rptr. 3d 144, 151 -52 (Ct. Ap p. 2005) (finding evidence of exposure to defendant's asbestos products, regardless of level of exposure, was sufficien t to esta blis h missed by agr n in Californ d yf .usation); Celotex Corp. v. Tate, 797 S.W.2d 197, 203 (Tex. App. 1990), rnent (Aug. 16, 1996); see generally Steven D. Wasserman et al., Asbestos : Can it Change for the Better?, 34 PEPP. L. REV. 883, 897-99 (2007) olving de minimis exposures Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 487 concept so far that virtually any exposure, regardless of degree or 47 frequency, suffices. The foundation for these opinions is the any exposure theory, 48 sometimes called the any fiber theory. Rather than assess dose, the experts who support this theory simply opine that any occupational or product-related exposure to asbestos fibers is sufficient------there is no minimum. 49 As a result, they regularly opine that every exposure a plaintiff received from any occupational or hobby-related work is a substantial factor 50 in causing disease. ~r I he opinions will encompass all such activities, 47. So me examples include a verdict upholding a $4 million judgment against Union Carbide, based on the any exposure theory, when plaintiff could not even recall using defendant's product, see California Court'. Conflicting Evidence Co uld Have Resulted in Ve rdict for Asbestos- Exposed Man, MEALEY'S LlTIG. REP.: ASBESTOS, vol. 22:22, Dec. 1 2, 2007, at 4; a $5 million verdict against John Crane based on any exposure to rope and gaskets without any assessment of the dose or fiber release from those products, see Judge: Daughter's Showing That Father was Exposed, Product was Present Sufficient, Mealey's Litig. Rep.: Asbestos, vol. 22:22, Dec. 12, 2007, at 5; a $35 million verdict for "exposure" to Leslie Control's "small pump and valve components" in the Navy, ignoring large-scale exposure to Navy insulation, see $351M Awarded to Couple for Exposure to Asbestos in Navy, Mealey's Litig. Rep.: Asbestos, vol. 22:19, Nov. 1, 2007, at 3; and a verdict of $3.92 million against General Electric alleging exposure from brakes in cranes and a mill motor, apparently with no assessment of the minimal dose those exposures likely would produce, see Maryland Asbestos Jury Awards $392 Million to 33 Steelworkers' Families, MEALEY'S ASBESTOS. BANKR. REP., vol. 7:1, Aug. 1, 2007, at 12. See also Flores v. Borg-Warner Corp,, 153 S.W.3d 209, 214 (Tex. App. 2004) (finding a product "emitting" dust or "working in the presence of' dust deemed sufficient for causation), rev'd, 232 S.W.3d 765 (Tex. 2007), reh 'g denied (Oct. 1 2, 2007). 48. S ome plaintiff experts have testified that breathing even a single fiber of asbestos could cause disease. When this approach began to be criticized, the theory became more commonly articulated as "every exposure," "any exposure," "every breath," or similar phrases. Some plaintiffs' experts state simply that any exposure above background is sufficient, while others attach a number as a cutoff (e.g., Dr. Samuel Hammar's 0.1 fibers/cc year level, or Dr. John Maddox's 0.0003 fibers/cc single exposure cutoff), but the result is usually the sam e------most if not all occupational expos captured. See infra notes 50-51 and panying text. 49. See Gregg, 943 A.2d at 226 ("We recognize that it is common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how small, is a substantial contributing factor in asbestos disease."); Georgia-Pac, Corp,, 239 S.W.3d at 308 (stating plaintiffs relied on "expert testimony that any exposure to asbestos contributes to cause mesothelioma"); Lindstrom, 424 F.3d at 498 (stating plaintiff experts contended that "[o]nce mesothelioma is diagnosed, it is impossible to rule out any of Mr. Lindstrom's exposures as being substantially contributory."). 50. See Georgia-Pac, Corp,, 239 S.W.3d at 315 (stating opinion of plaintiffs' expert Jerry Lauderdale was "that every exposure does contribute to the development of potential to develop mesothelioma."); Summers, 886 A.2d at 244 (quoting plaintiffs' expert Dr. Jonathan Gelfand stating, "Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted."); Bartel, 316 F. Supp. 2d at 611 (criticizing testimony of Drs. Arthur Frank and Yasunosuke Suzuki "that every exposure to asbestos [plaintiff] had during his working career, no matter how small, was a substantial factor in causing his peritoneal mesothelioma"); In re Toxic Substance Cases, 2006 WL 2404007 at *1 (rejecting testimony of plaintiffs' experts, Drs. Maddox and Laman, who opined that "every single exposure to every asbestos product is a Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 488 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 regardless of duration or dose------a single backyard brake job, one remodeling job using asbestos-containing joint compound, walking by a gasket repair job on an engine------all have been targeted by plaintiffs' experts 51 as the cause of mesothelioma, The any exposure plaintiffs' experts typically make the following arguments to support their position: (a) A single fiber of asbestos can generate mesothelioma. The exact mechanism by which asbestos causes cancer, including mesothelioma, is not known, but one theory is that the cancer is believed to be the result of inflam m ation or other factors that disrupt a cell's DNA and cause the cell to 52 begin replicating out of control, I he any exposure experts rely on this hypothesis to testify that exposure to a single fiber could, in theory, start the disease, 53 once an individual has mesothelioma, these experts contend that we do not know and cannot determine which fiber (or more importantly, which defendant's fiber) caused the disease, and thus must assume that any and all exposures are the potential cause, 54 T~the experts exclude, of subsequently di. gnosed -related disease."). 51 , Fo Dr, Arth ur Fra tponent of the any exposure theory, has testified that a single brake job should be identified as a substantial factor in causing asbestos disease, See Lulich v, Rapid Am, Corp,, No, 2005 L004323 (Cir, Ct, Cook County, Ill, ) (Deposition of7 Arth ur Frank, Feb. 1, 2005, at 111 ("[S]omeone removing a set of brakes that contain brake dust where there is some percentage of untransformed chrysotile , , , i would say yes, it was a contributing factor to his mesothelioma."). The other examples are representative of allegations and expert testimony in numerous other cases, See, e.g., Chavers v, General Motors Corp,, 79 S,W,3d 361, 370 (Ark. 2002) ("The competent medical evidence presented in this case does not support the conclusion that a one-ti me exposure to asbestos-containing brakes was a substantial cause of Mr, Chaver's mesothelioma."); Wilson v, A,P, Green Indus,, In , 807 A,2d 922, 926 (Pa, Super, Ctt, 2002) ( affirming summary judgment for manufacturer wher ecedent was merely exposed to du from defendant's product "at one time or another."). 52 , See, e.g., I lamilton v, As b estos Corp,, 998 P,2d 403, 407 (Cal, 2000) (describing mesothelioma disease p rocess); Cheryl L, Fattman et al,, Experi menta l Mo dels of As b estos - Related Disease, in PATHOLOGY OF ASBESTOS-ASSOCIATED DISEASES 256, 285 (Victor L, Roggli et al, eds,, Springer Sci, + Bus, Media, Inc, 2d ed, 2004) (1992) (citing studies by Moalli), 53, See, e.g., Bartel, 316 F, Supp, 2d at 605 (Dr, Arthur Frank testified that a single fiber could cause disease); Gregg, 943 A,2d at 223 (stating plaintiffs' expert Dr. Richard Lemen opined that there is no "safe" level of exposure to asbestos and that any level of exposure will place an individual at risk for developing asbestos-related conditions ); Bonnette v, Conoco, Inc,, 837 So, 2d 1219, 1232 (La. 2003) (stating plaintiff's expert Dr. Richard Lemen "testified that any level of exposure to asbestos will place an individual at risk for developing asbestos -related conditions."); Basile, No 11484 CD 2005, slip, op, at 9-12 ("The `single fiber' theory [presented by plaintiffs expert] holds that exposure to a single asbestos fiber can cause mesothelioma and other disease processes."); Georgia-Pa Corp, 239 S.W.3d at 320 ("[T] he experts posited that all asbestos fibers cause mesotheliom all asbestos fibe have the ability ndu g mutations in the cells and it is not possible to pinpoint which particular fibers actually caused the mutations."); I n re Toxic Substan ce Cases, 2006 WL 2404008 at *6 (stating plaintiff experts testified that a "single exposure" can cause disease). 54, See, e.g., Georgia-Pac. Corp, 239 S,W,3d at 314-15, 320; Gregg, 943 A,2d at 223; Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 489 incongruously, background fibers as the potential initiating source, and they do not address or account for the body's defensive mechanisms that actually protect against cancer caused by just one fiber or even many fibers entering the body.55 (b) Asbestos is a cumulative dose disease. A sbestos disease is generally believed to result from the cumulative total dose of asbestos 56 ~r received over time rather than from an instantaneous exposure. I he any exposure proponents rely on the cumulative dose principle to conclude that every occupational exposure contributes to the disease, from the very smallest to the very highest, much like every drop of water contributes to 57 -r filling a glass. I hey do not factor in, however, the established differences 58 in fiber potency, any di fferences in duration of exposure across jobs or the Bonnette, 837 So. 2d at 1 232; Basle, No 11484 CD 2005, slip. op Cases, 2006 WL 2404008 at *6. ; 9-12; In Su 55. See, eg,, Flores, 232 S.W.3d at 773 ( stating expert ackno did not suggest they were a cause of asbestosis ); Georg, a-Pac Co edged background fibers bi 239 S.W.3d at 315 (quotin Dr. Samuel Hammar's testimony that the "level of exposure it takes to cause mesothelioma `could be any level above what is considered to be background . . . . ); In re Toxic Substance Cases, 2006 WL 2404008 at *3 ("[Background or ambient exposure is simply not sufficient to allow experts to causally attribute asbestos-related disease to it. Everyone, including the plaintiff's experts, agrees that something greater is required."). Bartel, 316 F. Supp. 2d at 607-08 (discussing background levels of asbestos). 56. National Cancer Institute, Fact Sheet, Asbestos Exposure: Q uestions and Answers 3 (Feb. 1, 2007), http://www.cancer.gov/images/Documents/5ac7d2fc-27df-4ecc-839f-dc5bc1909e01 /fs3 _21 .pdf. 57. See, eg, Georgia-Pac. Corp, 239 S.W.3d at 320. 58. A great many studies and publications recognize that chrysoti le is less potent in causing mesothelioma than the amphibole family of asbestos fibers, including amosite and crocidolite. See Bartel, 316 F. Supp. 2d at 606 ("[Prevailing scientific and medical view" supports lower chrysotile potency); Becker v. Baron Bros., Coliseum Auto Parts, Inc., 649 A.2d 613, 620 (N.J. 1994) ( holding that trial court erred in instructing jury that all asbestos-containing friction products without warnings are defective as a matter of law: "O ur courts have acknowledged that asbestos-containing products are not uniformly dangerous and thus that courts should not treat them all alike."); Gideon v. Johns-Manville Sales Corp., 761 F.2d 11 29, 1145 (5th Cir. 1985) ("[A]ll asbestos -containing products cannot be lumped together in determining their dangerousness."); Celotex Corp. v. Copeland, 471 So. 2d 533, 538 (Fla. 1985) ("Asbestos products . . . have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others."); Charles M. Yarborough, Chrysotile as a Cause of Mesothelioma, An Assessment Based on Epidemiology, 36 Critical Rev. Toxicology 165, 165 (2006); U.S. Envtl. Prot. Agency, Report on the Peer Consultation Workshop to Discuss a Proposed Protocol to Assess Asbestos Related Risk vm (2003), http://www.epa.gov/oswer/riskassessment/asbestos/pdfs/asbestos__report.pdf, A ndrew Churg, Nonne oplastic Disease Ca used by Asbestos, in Pathology of Occupational Lung Disease 277, 314 (A ndrew Churg & Francis H.Y. Green eds., 2d ed. 1998); B.T. Mossman et al., Asbestos, Scientific Developments and Implications for Public Policy, 247 SCIENCE 294, 296, 299 (1990), available at 1990 ^VLNR 2425147. Th e distinction is important for jobs such as automotive mechanics whose exposure is only to chrysotile fibers, because the difference in potency would indicate the need for a considerably higher dose to cause disease in that occupation. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 490 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 dose of fiber received from any particular job, the removal of some fibers from the body, 59 or the frequency of exposure on any job. AA ll asbestos types and all exposures are treated the same for purposes of their opinions. (c) The "no safe dose" or "no threshold" approach. I n keeping with the dose principle, virtually every toxin is believed to have a threshold level below which injury does not occur.60 A dose of two aspirin, for instance, is below the threshold of injury for that drug.61 it is exceedingly difficult, however, to establish with certainty the level at which asbestos exposures 62 do not cause mesothelioma, I his is primarily because epidemiology studies------the gold Standard for establishing causation------cannot easily identify differences in populations at low exposure levels approaching background, Because of the difficulty of proof that low exposures are safe, regulatory agencies such as osha have frequently stated that there is no known safe level of asbestos exposure and, therefore, set the regulatory 63 limit at the lowest technologically feasible limit, 59, The body apable of r n ovi ng n y inhaled fibers through defer cha ch as throat mu s, ciliary bodies, lymph system See generally Fa jghnng nd sneezing, the action of macrophage cells, and th a note 52, at 260-65, Chrysotile fiber particular, are removed fairly quickly, with a half life (the amount of time required e half the resident fibers from the bo dy) of a few months for most fibers, The half life of amphibole fibers in contrast is measured in years or decades, See churg, supra note 58, at 284-85; Free, No, 07-2 04091 -9-SEA, slip op, ; 2-3, The notion that chrysotile fibers cause damage during their brief stay in the human body before their expulsion --known as the "hit and run" theory------is supported by plaintiff experts but rejected by many researchers, See, e.g., Richardi A, Lemen, Asbestos in Brakes: Exposure and Risk of Disease, 45 AM, J, INDUS, MED, 229, 234 (2004) (stating plaintiff testifying expert Dr, Lemen argued that fast clearance of chrysotile does not eliminate possibility it caused disease before being eliminated); Kelly J, Butnor et al,, Expos u re to Brake Dust and Ma lignant Mesothelioma: A Study of 10 Cases with Mineral Fiber Analyses, 47 ANNALS OCCUPATIONAL HYGIENE 325, 239 (2000) (explaining why "hit and run" theory is "flimsy" and not plausible); Richard A, Lemen, Reply to Victor L. Roggli and Arthur M. Langer, 47 AM, J, INDUS, MED, 278, 278-79 (2005) (criticizing Roggli's rejection of "hit and run" theory). 60, See Eaton, supra note 28, at 15, 61, Aspirin is a commonly-understood example, Oth ers include alcohol, nitroglycerine, arsenic, and even water, See In re Toxic Substance Cases, 2006 WL 2404008 at *7, 62, Id. at *8-9; Free, No, 07-2-04091-9-SEA, slip op, at 4, 63, See, e.g., NIOSH-OSHA Asbestos Work Group, Workplace Exposure to Asbestos: Review and Recommendations DHHS (NIOSH) Pub, No, 81-103 3 (1980), www.cdc.gov/niosh/topics/asbestos/pdfs/81103.pdf ("Evaluation of all available human data provides no evidence for a threshold or for a `safe' level of asbestos exposure."); 59 Fed, Reg, 40964-01, 40967 (Aug, 10, 1994) ( stati n g osha believes that the regulatory limit of ,1 fiber per cubic centimeter of air as an eight-hour time- weighted average is "the practical lower limit of feasibility for measuring asbestos levels reliably."), available at 1994 WL 413576 (F,R,), The basis for the 1975 proposal's reduction in the permissible exposure limit to 0.5 f/cc was OSHA's the n-current policy for carcinogens that assumed that no safe threshold level was d o on stra b l e nd therefore that th Ac quired th , Ag th PEL a g ly ly feasibl 51 Fed, Reg, 222612-01, 22614 (June 20, 1986), available a : 1986 WL 103293 (F,R,), Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 491 The any exposure experts have converted this cautionary approach into 64 an opinion that there is no safe dose of asbestos. ~t I his conclusion, however, is clearly a non sequitui--------the absence of conclusory proof as to where the threshold lies does not mean there is no threshold. These experts rely on, and often m isstate, this concept to argue that since the safe level is unknown, then every exposure must be considered dangerous and 65 contributory to disease. (d) The linear non~threshold theory and extrapolation down. The any exposure theorists are often confronted with the lack of any epidemiology studies reasonably demonstrating that low levels of asbestos exposure produce any increased incidence of disease. Because the plaintiffs' experts have no such proof at the levels they claim are disease-inducing, they turn to an extrapolation methodology that relies on the assumption that 67 | high-dose studies can be used to estimate low-dose disease. In the studies of high-incidence asbestos disease, typically in professions such as insulators, asbestos factory workers, miners, and textile workers, the disease follows a dose-response relationship that approaches, at least at the higher exposure levels experienced by those workers, a somewhat linear relationship 68 disease. between the lifetime fiber I hat data, however, does not exist at burden and the incidence 69 lower levels of exposure. I of he two most likely explanations are: (1) the exposures do not cause disease at 64. See in re Toxic Substance Cases, 2006 WL 2404008 at *11. While it may be a valid assertion that: if high dose asbestos exposure is bad for you, then low dose asbestos exposure may potentially be bad for you, it is not a valid assertion that because high dose exposure to asbestos is bad for you, then low dose exposure to asbestos is, in fact, bad for you, or that a specific plaintiff's exposure at an unknown low dose exposure level, in fact, contributed to that plainti ffs asbestos- related disease. Id. (emphasis omitted). 65. See in re Toxic Substance Cases, 2006 WL 2404008 at *11 ("[Drs. John Maddox and David Laman] offer not a shred of independent corroboration of their opinion that each and every fiber causes or contributes to a Plaintiffs disease process."); Brooks, 934 So. 2d at 355 ( stati n g plaintiffs' expert Dr. Gaeton Lorino "was unable to cite a single study or publication to support his assertion" that mesothelioma is not a dose -related disease), In re W.R. Grace, 355 B.R. at 474-75 (discussing the fallacy of the "no safe dose" position). 66. See, e.g., B.T. Mossman et al., supra note 58, at 294 ("There are no available data showing health hazards due to low-level exposure . . . . ). 67. The extrapolation-down approach of plaintiff experts was specifically addressed and rejected by the courts in In re Toxic Substance Cases, 2006 WL 2404008 at *7-8, and Free, No. 07-2-04091 -9-SEA, slip op. at 3-4. 68. See John T. Hodgson & Andrew D arnton, The Quantitative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure, 44 ANNALS OCCUPATIONAL HYGIENE 565, 578 fig. 6 (2000); Free, No. 07-2-04091-9-SEA, slip op. at 3 n. 5 (discussing slope in Hodgson article). 69. See H odgson & Darnton, supra note 68, at 578 fig. 6, 580 fig. 9 ( identifying data points above 10 fibers/ ml years). Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 492 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 lower levels and there is, quite plainly, nothing to find, or (2) the exposures may cause very low levels of disease, so low that their occurrence is not distinguishable from other causes of the disease. The any exposure experts, relying on a theoretical approach sometimes used by regulators, assume that 70 the latter explanation is true. I hey adopt a linear dose-response curve that extends in a straight line all the way to zero exposure. Most toxins do not follow such a line, but present a curvilinear relationship that drops to zero disease as the exposures approach the threshold (usually well above zero 72 exposures). I he assumed linear relationship at low levels produces a theoretical level of mesothelioma at extremely low levels of exposure, but these are theoretical and assumed cases only since no study has ever identified real disease at such low levels that is distinguishable from 73 idiopathic or spontaneous mesothelioma. I he experts nevertheless testify, through this extrapolation down methodology, that disease must exist at low levels and that their calculated estimates prove that an individual plaintiff s 74 low exposures contributed to his disease. (e) Reliance on case reports. In some instances, lacking any supporting epidemiology, some any exposure experts resort to reliance on 75 case reports of disease in persons exposed to low doses. I he most frequent application is in mechanic cases, where the epidemiology has consistently supported a lack of disease from chrysotile exposures, even 76 among lifetime mechanics. I he experts reject the existing, contradictory 77 epidemiology and rely on case reports instead. --Case reports, by their 70. See In re 71. Id. at *7. : Suu bsta nce Ca 2006 WL 2404008 at *6-7. 72. Id. ( discussing threshold effect for -non substances), Eaton, supr note 28, at 1 5-1 7. 73. See In re Toxic Substance Cases, 2006 WL 2404C 2ra n ote 56, at 3. al cancer institute, 74. See In re Toxic Substance Cases, 2006 WL 2404008 7-8. 75. A case report is nothing more than an occurrence in which a person with a particula exposure also develops a particular disease. iIff epiddeemmiioollooggyy has established the lliinnk,, a case report can potentially reflect a real causative source, for example, a heavy smoker who develops lung cancer. In most instances, however, case reports are at best suggestive of a possible link and frequently represent unrelated incidents. For example, case reports of coffee drinkers incurring pancreatic cancer a few years ago turned out to be false associations when epidemiology studies produced no evidence of a link. See American Cancer Society , Pancreatic Cancer is Not Linked with Drinking Coffee or Alcohol (Ju ly 1 7, 2001), http :// w w w .cancer.org / docroo t/ IN ^^^S/ co nte n t/ NWS_1 _1 x_P ancreatic _Ca ncer__I s__N ot__Li n ked__^Vith__Dri n ki n g__Coffee__or__Al cohol .asp. 76. The studies are summarized and discussed in Francine Laden et al., Lung Cancer a nd Mesothelioma among Male Automobile Mechanics: A Review, 19 REV. ON ENVTL. HEALTH 39 (2004), Michael Goodman et al., Mesothelioma and Lung Ca ncer among Motor Vehicle Mechanics: A Meta-ana lys i s, 48 ANNALS OCCUPATIONAL HYGIENE 309, 309 (2004); see also Yarborough, supra note 58. 77 . See, e.g., In re Toxic Substance Cases, 2006 WL 2404008 at *4-5. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 493 very nature, can never prove causation."7 8 C onsequently, some courts 79 routinely reject case reports as proof of causation. Nevertheless, some courts allow experts to rely on case reports as evidence in asbestos courtrooms where these ex perts are permitted to testify . The proponents of the any exposure theory make little or no attem pt to segregate real exposures from trivial or nonexistent exposures. The types of exposures sufficient to name a defendant can involve either a small number of exposure experiences, or a longer series of low dose exposures, 80 such as mechanics doing brake jobs. Ihe lifetime dose from either type of exposure is minimal and far different from the world of known asbestos disease generated typically in dusty trades involving amphibole fibers. Through this testimony, the any exposure ex perts are helping to extend 81 the asbestos litigation to any entity that had any connection to asbestos. The "new" wave of asbestos cases, relying almost exclusively on the any exposure theory, typically involves a mesothelioma victim who, through attorney interviews, has identified any conceivable contact with asbestos in 82 his or her lifetime. I he contact can include household members who had direct contact and then allegedly brought fibers home, or "bystander" or "pass-by" exposures allegedly resulting frrom just being in the same building or vicinity as asbestos-related 83 work.78 79 8i0n each case, the attorneys 78. Robert N. Jones, Asbestos Medicine II, SJ031 ALI-ABA 29, 29, 35 (Nov. 13-14, 2003). 79. See G lastetter v. Novartis Pharms. Corp., 107 F. Supp. 2d 1015 (E.D. Mo. 2000), aff'd, 252 F.3d 986 (8th Cir. 2001); Hollander v. Sandoz Pharms. Corp., 95 F. Supp. 2d 1 230, 1 235-38 (W.D. Okla. 2000), aff'd in part, 289 F.3d 1193 (10th Cir.), cert, denied, 537 U.S. 1088 (2002); Brumbaugh v. Sandoz Pharm. Corp., 77 F. Supp. 2d 1153, 1157 (D. Mont. 1999); Willert v. Ortho Pharm. Corp., 995 F. Supp. 979, 981 (D. Minn. 1998); Boyles v. Am. Cyanamid Co., 796 F. Supp. 704, 708 (E.D.N.Y. 1992); Casey v. Ohio Med. Prods., 877 F. Supp. 1380, 1385 (N.D. Cal. 1995); In re Diet Drugs (Ph entermine, Fenfluramine, Dexfenfl ura m i ne ) Prods. Liab. Litig., MDL 1203, 2001 WL 454586 at *15 (E.D. Pa. Feb. 1, 2001) (memorandum and pretrial order No. 1685) (unreported). 80. See Dennis J. P austenbach et al., An Eva luation of the Historical Exposures of Mechanics > Asbestos in Bra e Dust, 18 Applied Occupational & Envtl. Hygiene 786, 786-804 (2003) (stating average lifetime . 0.04 f/c OSHA standard of 0.1 f/cc); Brent L. Fir (cir In vo l ved i n Brake Repair (2007) 644, 644 ( stating al., Cumulative Asbestos Exposure for US Au bile Mechanics !950s-2000), 17 J. Exposure Science & Envtl. Epidemiology tive lifetime average exposures for automobile mechanics "are all jbstantially lower than the of 4.5 f/cm3 ye iated ith occupational xposure to 0.1 f/cm3 of sbestos for 45 y s that is currently pe i i tte d i der the current p th r US."). 81. See Richard B. Schmitt, Burning Issue: How Plaintiffs' Lawyers Have Turned Asbestos into a Court Perennial, WALL ST. J., Mar. 5, 2001, at A1, available at 2001 WLNR 2021814; Susan Warre n, Asbestos Quagmire: Pl aintiffs Target Companies IWhose Premises Contained Any Form of Dea d ly Materia l, ^VALL ST. J., Jan. 27, 2003, at B1 , available at 2003 WLNR 3099209. 82. See, e, g,, Chavers, 79 S.W.3d at 370. 83. See, e, g,, Georg, a-Pac. Corp,, 239 S.W.3d at 315 (sta ting plaintiffs' expert Dr. Samuel Hammer expressed opinion that "each and every exposure that an individual has in a bystander Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 494 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 then sue dozens of defendants associated with these contacts, many of 84 n whom have never made an asbestos product, One-time contacts or events are treated equally as causes along with long-duration, high level exposures, such as Navy shipyard work, 85 m esothelioma is particularly vulnerable, because it is readily associated with asbestos and, at least for amphiboles, 86 requires a lower dose than other asbestos diseases, De ) espite the wide agreement that a significant number (by some estimates, twenty to thirty 1 87 percent) of mesotheliomas are not asbestos induced, the any exposure theory is capable of converting every diagnosis of mesothelioma into an asbestos action, countless individuals have had some contact with asbestos, either directly or through a family member, in their lifetime sufficient to satisfy the theory's minimal requirements. The any exposure cases are heavily weighted toward a handful of jurisdictions that continue to apply the "old" rules to all asbestos cases.88 The massive expansion of the number of asbestos defendants brought about by this theory is highly problematic, When asbestos litigation focused on actual producers of asbestos and asbestos-containing products, defendants numbered in the hundreds (in 1982, about 300 such defendant* 84 85 86 * occupational setting causes their mesothelioma."); see also Jackson v. Anchor Packing Co,, 994 F.2d 1 295 (8 th Ci r, 1993) (affirming dismissal of claimants who performed gener al "tireworker" duties and did not directly handle any of the defendant's asbestos products). 84, See, e.g., Chavers v, Gatke Corp,, 132 C a l , Rptr, 2d 198, 199 (Ct, App, 2003) ( stating plaintiffs' complaint "joined as defendants scores of manufacturers, suppl iers and distributors of friction brake products containing asbestos --59 named defendants and 800 `Doe' defendants , , , , ); Susan "Warren, Asbestos Suits Target Makers of Wine, Cars, Soups, Soaps, ^VALL ST, J,, Apr, 1 2, 2000, at B1 , available at 2000 WLNR 2042486, 85, See, e.g., $35. 1M Awarded to Couple for Exposure to Asbestos in Navy, MEALEY S LITIG, REP,: ASBESTOS, vol, 22:19, Nov, 1, 2007, at 3 (stating $35 million verdict for "exposure" to Leslie Control's "small pump and valve components" in the Navy, ignoring large-scale exposure to Navy insulation), 86, See 51 Fed, Reg, 2261 2-01, 22619 (June 20, 1986) (noting cases of mesothelioma, but y posed popula available at 1986 WL 103293 (F,R,), ighborhood dh 87, See Mayo Clinic Staff, Mesothelioma (Aug, 11, 2006), http://www.mayoclinic.com/health/mesothelioma/DS00779/DSECTION=4 ("Asbestos exposure plays a role in 70 percent to 80 percent of mesothelioma cases, though the actual percentage could be higher."); Lawrence G. Cetrulo, Asbestos L itigation & Tort Reform: Health Hazards/Diseases, 3 TOXIC TORTS LITIG, Guide 33:3 (updated Oct. 2007) ("Asbestos exposure is the dominant cause of mesothelioma, and accounts for 70 to 80 percent of all mesothelioma cases."); B,T, Mossman et al,, supra note 58 ( [A] pproxi mately 20 to 30% of mestheliomas occur in the general population in adults not exposed occupationally to asbestos."); Leste r Brickman, On the Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Rea lity, 31 PEPP, L, REV, 33, 44 n,19 (2003) (stating that approximately twenty percent of mesotheliomas have been attributed to causes other than exposure to asbestos), malignant 88, See Wasserman et al,, supra note 46, at 905-08 (dis should reject de , nd any expo th ssing po cy reasons why courts sbestos l Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 495 89 compani es) iJow, over 8,500 d efendants have been named, 90 as "the net has spread from the asbestos makers to companies far removed from the scene of any putative Wrongdoing."91 O ne well-known plaintiffs' attorney has described the litigation as an "endless search for a solvent bystander."92 Once a company is caught in this net, unless courts are willing to reject any exposure testimony prior to trial, it is nearly impossible for a defendant to escape without serious financial consequences. III. Court Rulings Rejecting or Criticizing the Any Exposure Approach in the last three years, the any exposure approach has been criticized or found inadmissible under both the Frye and Daubert tests, and under general requirements of reliability and foundation, before over a dozen 93 courts in multiple jurisdictions. I hese courts have recognized the extreme position the plaintiffs' experts are taking, the lack of scientific proof supporting their theory, and the lack of logical or scientific support for their 94 conclusions. The any exposure theory was first criticized in a 2005 o hi o federa l court case, Bartel v. John Crane, Inc. In Bartel, plaintiff's experts attempted to attribute plaintiff s mesothelioma to exposure from handling the defendant's gaskets and packing while in the Navy.96 The plaintiff, like many Naval workers, had substantial exposure to large amounts of amphibole asbestos in ship insulation, but plaintiff either did not sue or had settled with the entities responsible for those extreme and clearly dangerous 97 exposures. Ixposures from gaskets and packing, in contrast, are quite 89. See James S. Kakalik et al., Variation in Asbestos Litigation Compensation and Expenses 5 (1984). 90. See Deborah R. I lensler, California Asbestos Litigation--The Big Picture, HarrisMartin Columns: Asbestos, Aug. 2004, at 5. 91 . Editorial, L awyers Torch the Economy, WALL ST. J., Apr. 6, 2001 , at A1 4, available at 2001 WLNR 1993314. 92. `Medical Monitoring and Asbestos Litigation'--A Discussion with Richard Scruggs and Victor Schwartz, MEALEY'S LlTIG. REP.: ASBESTOS, tot 17:3, Mar. 1, 2002, at 5 (quoting Mr. Scruggs); see also Steven B. Hantler et al., Is the "Crisis" in the Civil Justice System Real or Imagined?, 38 LOY. L.A. L. REV. 1121, 1151-52 (2005) (discussing spread of asbestos litigation to "peripheral defendants"). "Nontraditional [d]efendants [n]ow [a]ccount for [m]ore [t]han [h]alf of [a]sbestos [expenditures." CARROLL ET AL., supra note 2, at 94. 93. See supra notes 11-19. 94. See, e.g., Flores, 232 S.W.3d at 774 95. 316 F. Supp. 2d at 611. 96. Id. at 604-05. 97. Id. at 604-06. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 496 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 flow------measured at 0.0062 fibers/cc in trial evidence. 3 Some of plaintif s experts agreed that exposures approaching or below background, such as those from gasket work, would be insufficient for causation. 99 As to the remaining any exposure experts, who relied on this theory to point the ffinger at the minimal chrysoti le exposures rather than plaintif s insulation exposures, the court found their testimony unpersuasive: Th e two exp erts who disagreed, Dr. Frank and Dr. Suz uki, testified that every exposure to asbestos Lindstro m had during his working career, no matter how small, was a substantial factor in causing his peritoneal mesothelioma . . . . If an opinion such as [this] . . . would be sufficient for plaintiff to meet his burden, the Sixth Circuit's "substantial factor" test would be meaningless . . . . in addition, the opinion of Dr. F rank, that every breath Lindstrom took which contained asbestos could have been a substantial factor in 100 causing his disease, is not supported by the medical literature. This decision was upheld on appeal by the United States Court of Appeals for the Sixth Circuit: "[Plaintiff s expert argument] appears to be that a showing of any level of asbestos exposure attributable to John Crane's products was sufficient for the court to have entered a judgment in their favor. We reject plaintiffs-appellants' argument on this point."91081*110020103 We believe the Bartel opinions were the first time that the any exposure theory was held insufficient to support causation. Bartel itself appears to have received little attention and did not quickly replicate itself in other courts. In the last two years, however, and largely independent of Bartel, the flawed any exposure approach has produced a raft of decisions that reject the theory as unscientific and/or exclude the expert testimony 102 under Daubert or F rye. The first and most influential of these subsequent decisions was that of Judge colville in a Pennsylvania case, Betz v. Pneumo-Abex. Betz initially involved a group of automotive mechanic cases in which plaintiffs' 98. Id. at 608. For omparison purposes, this figure is more thar current standard (0.1 fib per cubic centimeter of air as an eight-hour which OSHA pe workers to be exposed every day for forty ye. protection. See 29 C.F.R. 1910.1001(c)(1) (2006). limes l o we r than the weighted average) at ithout requiring any 99 . Bartel, 316 F. Supp. 2d at 604-06. 100. Id. at 611. 101 . L i n dstro m, 424 F.3d at 498. 102. See supra notes 11-19. 103. The trial court opinion was entitled In re Toxic Substances Cases, 2006 WL 2404008 (Pa Ct. Com. Pl. Aug. 1 7, 2006). T he case has also been referred to as Simikian (another plaintiff). but on appeal the title changed to Betz v. Pneumo Abex LLC, No. 1058 WDA 2006 (Pa. Super. Ct Jan. 16, 2007) (Betz is the administrator of the deceased plaintiff Vogelsberger's estate). Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 497 experts Drs. John M addox and David Laman declared that the specific exposure facts of each mechanic were essentially irrelevant because any 104 ~r exposure was sufficient to support causation. I he experts thus rebuffed the need for any sort of dose assessment and opined that any level of 105 mechanic work, regardless of duration, was sufficient to cause disease. Judge Colville precluded this testimony, and in the process, addressed the key underpinnings of the theory and found each one illogical and unsupported. We will cover Judge Colville's reasoning in some detail, because it remains today the seminal and best evisceration of the grounds asserted by any exposure approach experts. Decisions that followed largely repeated and elaborated on Judge Colville's arguments. First, Judge colville addressed the serious discrepancy between the claim that any exposure to an occupational fiber causes disease, and the experts' candid, albeit incongrue nt, admission that a lifetime of background exposures to asbestos fibers does not cause disease. in modern industrial society, urban and sometimes rural air has historically contained asbestos at low levels (some of this from natural asbestos outcrops), and thus most individuals over fifty will have millions of "background" fibers in their lungs even without any known occupational or other direct exposure to 108 asbestos. ~r I hese levels have never been known to cause disease, primarily because the human body is capable of ejecting, absorbing, or 109 otherwise dealing with these low exposures. Pi aintiff experts almost without exception readily admit this and exclude background exposures from their cumulative dose opinions. 0 (This "admission" has the benefit for plaintiffs of preventing defendants from pointing to background exposures as contributory.) The fibers involved in these two types of exposures, however, are no different------only the dose distinguishes background from occupational exposures, and even then a low occupational exposure (such as the crane gasket exposure of 0.0062 f/cc in the Bartel case above) 111 exposure. can easily overlap or not exceed a higher background I hus, there is no logic that permits these experts to categorically exclude background exposure, yet, at the same time, 104. In 105. Id 106. Id 107. Id 108. Id 109. Id 110. Id. 111. Id. Toxic Substance Cases, 2006 WL 2404008 *11-12 *3 1 Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 498 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 112 categorically include all occupational exposures as causative. Given the admission by plaintiff s experts that background exposures were not high enough to cause disease, Judge colville recognized that it was incumbent on the experts to identify exactly what dose would be sufficient to cause disease: For instance, exp erts suggest that the average ambient exposure in Pittsburgh is approximately .0001 fibers per milliliter of air . . . . No one, including the plaintiff s experts, proffers an opinion that this level of exposure creates an increased risk of the development of any asbestos- related disease . . . . The argument in this Frye challenge, in part, revolves around the question of how much greater quantity of exposure is necessary to permit the causal attribution of an asbestos-related disease to a particular asbestos-related exposure. 113 Plaintiff s experts made no attempt to measure or quantify the mechanics' occupational doses or show how they were sufficient to cause 114 ~T disease when background exposures clearly are not. I he court rejected the experts' complete failure to quantify or assess the mechanic's dose in any way because the lack of any measurement made it impossible for them to accurately distinguish low level occupational exposures from background 115 exposures. Second, Judge Colville rejected the experts' attempt to "extrapolate down from high-dose asbestos studies to prove that occupational exposures at low doses, above background or not, also must cause 116 ~T disease. I he amphibole form of asbestos is widely recognized to cause disease at significant doses (e.g., in the shipyard, insulator, and asbestos factory professions), but there are no low-dose response curves for asbestos exposure and no studies demonstrating an increase in actual disease at very low doses, particularly for chrysotile. Drs. M addox and Laman used the 112 113 114 Id. . i *12. Id. . ; *3p (( emphasis add Id. ; *6-7. 115 116 Id. ; *6, 9, 11-13. Id. *6-7. 117 Id. t *6, 8. Whether shrysotile exposures othelioma at all is the subject of considerable debate currently in the scientific commu & A. D. McDo nald, Chrysotile, Tremolite and C.a ity. Se. upra notes 58-59; J. C. McDonald ty, 41 Annals Occupational HYGIENE 699, 703 (1977); Thomas A. Sporn & V ctor L. R ogg^ Mes ,Pathology of Asbestos-Associated Diseases 104, 108 (V a l. eds ., SSpp r ger Sci. + Bus. Media, Inc. 2d ed. 2004) (1992) ( stating th pacity of chrysotile to cause mesothelioma is "much debated"). Epidemiology studies have not demonstrated excess mesothelioma amon populations exposed only to low levels of chrysotile. See, e.g., supra note 58 (vehicle mechani studies show no increased mesothelioma); Jennifer P ierce et al., An Eva luation of Reported No Effec fo Lu Ca Mes 38 Critical Rev. in Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 499 "extrapolate down" methodology to assume, based on high -dose studies, 118 that low-dose studies would also cause disease in a linear fashion. Judge Colville rejected this approach: The fallacy of the --extrapolation down" argument is plainly illustrated by common sense and common experience, Large amounts of alcohol can intoxicate, larger amounts can kill; a very small amount, however, can do neither, Large amounts of nitroglycerine or arsenic can injure, larger amounts can kill; small amounts, however, are medicinal, Great volumes of water may be harmful, moderate amounts of water, however, are healthful, In short, the poison is in the dose, 119 Judge c olville recognized that when experts attempt this kind of extrapolation downward, they are engaged in both a logical falsehood and scientific error: [P]laintiffs have not proffered any generally accepted methodology to support the contention that a single exposure or an otherwise vanishingly small exposure has, in fact, in any case, ever caused or contributed to any specific individual's disease, or even less so, that in this case such a small exposure did, in fact, contribute to this specific plain tiff's disease. Finally, Judge Colville rejected the experts' reliance on the "no safe threshold" position.1 T he court noted the very large difference between stating that the threshold is not known and claiming that there is no 122 threshold at all, I he court believed that such testimony improperly shifted the burden of proof to defendants when it is plaintiff's burden to establish the known toxic level of a substance and that plaintiff experienced 123 a dose consistent with that level, Following Judge Colville s ruling, a second Pennsylvania trial judge rejected the any exposure testimony of Dr, M addox on similar reasoning in a case involving heavy equipment mechanic exposures, 4 Judge Colville's decision is currently on appeal before Pennsylvania's intermedi ate appellate court, The Pennsylvania Supreme Court, however, recently issued a decision in Gregg v. V.J. Auto Parts, Inc. that clearly rejects the any exposure theory and may well offer a glimpse into how the court would ultimately deal with Betz. Gregg involved allegations that personal car TOXICOLOGY 191 (2008) ( identifying likely no-effect level in chrysotile studies) 118, In re Toxic Substance Cases, 2006 WL 2404008 at *7, 119, Id. 120, Id. at *8, 121, Id. 122, Id. at *8-9, 123, Id. at *8, 124, See Basile, No, 11484 CD 2005, slip op, at 5, 1 25, 943 A,2d at 226, Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 500 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 repair work on brakes and gaskets caused plaintiff s mesothelioma, resulting in a lawsuit against the auto parts store that sold Mr. G regg the 126 ~r parts he used. I he primary holding in the case dealt with the application of the --frequency, proximity, and regularity" causation test, but in the course of the discussion the Court majority expressed a clear rejection of the any exposure approach: We recognize that it is common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor in asbestos disease. However, we share Judge Klein's perspective, as expressed in the S,ummers [v. Certainteed Corp., 886 A.2d 240 (Pa. Super. 2005) , appeal granted, 897 A.2d 460 (Pa. 2006)] decision, that such generalized opinions do not suffice to create a jury question in a case where exposure to the defendant's product is de minimis, particularly in the absence of evidence excluding other possible sources of exposure (or in the face of evidence of substantial exposure from other sources ). As J udge Klein explained, one of the difficulties courts face in the mass tort cases arises on account of a willingness on the part of some experts to offer opinions that are not fairly grounded in a reasonable belief concerning the underlying facts and/or opinions that are 127 not couched within accepted scientific methodology. While recognizing the occasional difficulty of proving which of plaintiff s exposures contributed to the disease, Pennsylvania's highest court nevertheless rejected the easy way out of simply stating that all exposures are responsible: [W]e do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every "direct-evidence" case. The result, in our view, is to subject defendants to full joint-and-several liability fo r injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a 128 substantial factor in causing the harm. Thus, it now appears to be the law in Pennsylvania, as expressed by that state's highest court, that asbestos cases will have to follow the same dose and toxicity rules and proof as any other toxic tort case. A blanket assertion that each and every occupational exposure contributes to disease will no longer support an asbestos case in that state. Pennsylvania's Supreme Court is not the only state supreme court to 126. Id. at 217-18. 127. Id. at 226 (cita 128. Id. at 226-27. tte d Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE "ANY EXPOSURE" THEORY 501 address this issue. Six months earlier, the Texas Supreme Court in Borg- Warner Corp. v. Fi ores became the first state court of last appeal to reject 129 the any exposure theory. I he case involved a mechanic who worked most of his life doing brake and clutch jobs and claimed he developed 130 asbestosis as a result of repeated, low-level exposures over a lifetime. Following a line of Texas asbestos cases highly favorable to plainti ffs, the intermediate Corpus Christi appellate court had held that under Texas law it was sufficient for plaintiffs to show mere exposure to take a defendant to trial: In the context of asbestos-related claims, if there is sufficient evidence that the defendant supplied any of the asbestos to which the plaintiff was exposed, then the plaintiff has met the burden of proof . . . . [T]he plaintiffs offered evidence that the defendant's products emitted dust containing respirable asbestos fibers, which one of the plaintiffs had inhaled. On appeal, this Court held that the evidence was sufficient to prove the defendant's products injured both plaintiffs. ``[W]ork[ing] in the presence of the asbestos-containing product" was "direct evidence" of causation and sufficient to uphold the jury's finding [of liability].131 These statements reflect the older, shortcut approach to causation in asbestos cases designed to expedite cases to trial and alleviate plaintiffs of the burden of proving which exposures actually contributed to their 132 T T A p disease. I he I exas Supreme Court, however, rejected this approach inconsistent with Texas tort and causation law: Wh ile science has confirmed the threat posed by asbestos, we have not had the occasion to de cide whether a person's exposure to "some" respirable fibers is sufficient to show that a product containing asbestos was a substantial factor in causing asbestosis . . . . 133 not . . . . [W] e conclude that it is The court's reasoning followed that of Judge Colville in recognizing the importance of dose, the need for a dose quantification, and the necessity of equating the plaintiff s dose to those in the epidemiological literature 129. 232 S.W.3d at 774. CD CD 130. Id. at 131. Fiore s, 153 S.W.3d at 213-14 (citations om itted 132. 133. See suupra notes 1-3 and accompanying text. Fiore s, 232 S.W.3d at 765-66. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 502 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 134 o r T documenting disease. Since I lores, other lexas courts have rejected the 135 any exposure approach, including in mesothelioma cases. The federal bankruptcy court in Delaware (Judge J ud ith K. F itzgerald) also rejected the any exposure theory in In re WR Gra ce & Co.136 fPlaintif s experts contended that asbestos contamination in vermiculate attic insulation posed an unreasonable risk of harm to the homeowners because "any exposure to asbestos fibers is an unreasonable risk."137 T heir testimony was excluded under Daubert, however, because the experts failed to establish what level of exposure would actually cause disease and could not present any epidemiology studies demonstrating asbestos disease from exposure to vermiculite. The court held, "[t]he use of the no safe level or linear `no threshold' model for showing unreasonable risk flies in the face of the toxicological law of dose-response, that is, that `the dose makes the 139 poison . . . . other courts in M ississippi and Wash ington State have similarly 140 T f\/1 rejected any exposure testimony. l he Mississippi decision came in the context of an allegation that exposure to asbestos in a school justified a medical monitoring award, but the court of appeals rejected that approach 134. Id. at 770-74. 135. See Georgia-Pac. Corp., 239 S.W.3d at 321; L etter Ruling, In re Asbestos, No. 2004-3, 964 (Tex. Dist. Ct., July 18, 2007). The Texas MDL judge actually presaged the Flores ruling in rejecting similar a ny exposure testimony in 2004. See Letter Ruling, In re Asbestos, No. 2004 03964 (excluding plaintiff expert Eugene Mark on "any exposure" theory). 136. 355 B.R. at 474-78. 137. H. at 474. 138. H. at 468. 139. Id. at 476. A Delaware state judge in charge of asbestos litigation, J udge Joseph R. Slights III, has rejected a broad motion by automotive defendants to dismiss all mechanic cases, filed largely on the ground that the epidemiology did not support such cases. Even in rejecting this argument, however, Judge Sl ights expressed considerable skepticism that a no threshold, any fiber theory would be viable: If, in a given case, a plaintiff must rely upon a no threshold theory to establish causation, the [c]ourt can determine the reliability of that testimony on a separate in limine motion. Suffice it to say, the testimony will be scrutinized carefully. See Bartel v. John Crane, Inc., 316 F.[ ]Supp.[ ]2d 603, 611 (N.D. Ohio 2004) (finding Dr. Frank's single fiber theory to be inconsistent with prevailing scientific evidence, including the testimony of Drs. Lemen and Hammar). In re Asbestos Litig., 911 A.2d 11 76, 1 209 n.202 (De l. Super. Ct.), cert. denied, 2006 WL 1579782 (Del. Super. Ct. June 7, 2006), appeal refused, 906 A.2d 806 (Del. 2006). The Michigan intermediate appellate court likewise failed to exclude the testimony of plaintiffs' expert Richard Le but the decision turned on the vehicle mechanic epidemiology and not on a purported a ny exposure causation opinion. See Chapin v. A & L Parts, 732 N.W.2d 578, 587 (Mich. Ct. App.), appeal denied, 733 N.W.2d 23 (Mich. 2007), 733 N.W.2d 29 (Mich. 2007), and 733 N.W.2d 35 (Mich. 2007). 140. See Brooks, 934 So. 2d at 355-56; Anderson, No. 05-2-04551-5SEA, slip op. at 144-45 ("[T]his is not a theory which is generally accepted in the scientific community."); Free, No. 07 2-04091 -9-SEA. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE "ANY EXPOSURE" THEORY 503 without some assessment that the dose was high enough to produce disease. In one the ^Wash ington decisions, a state trial judge held that Dr. Samuel Hammar's testimony that any occupational exposure was sufficient to cause disease was ` not a theory which is generally accepted in the scientific community" and thus prevented him from so testifying.142 This case illustrates the extremes of the theory, as the case went to trial against Caterpillar, not in regard to plaintiff s extensive Navy exposures, but on the ground that plaintiff walked by Caterpillar engines while gaskets were 143 being removed and thus must have breathed some asbestos fibers. I his ruling is believed to be the first substantive limitation on the testimony of Dr. H ammar, one of the most prominent of plaintiffs' testifying experts. Since then, Dr. Hammar's low dose testimony has been excluded by another Washington State trial judge (along with the testimony of another plaintiffs' expert, Dr. Carl Brodkin),144 and in Texas in the Georgia Pa cific Corp. v. Ste phens mesothelioma case where Dr. H am mar testified that f) 1 / 146 any exposure above 0.1 fibers/cc years would contribute to cause disease. One of the opinions criticizing the any exposure approach, Summers v. m m 147 Certainteed Corp., directly addresses the illogic of the cumulative dose approach many of these expert use to include every exposure in causation: Dr. [Jonathan] Gelfand used the phrase, "Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted." However, suppose 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. Dr. Gelfand's statement saying every breath is a "substantial contributing factor" is not accurate. If someone walks past a mechanic changing brakes, he or she is exposed to asbestos. If that person worked for thirty years at an asbestos factory making lagging, it can hardly be said that the one whiff of the asbestos from the brakes is a "substantial" 148 factor in causing disease. The Summers statement proved influential in convincing the Pennsylvania Stupreme Court to reject the any exposure approach in the recent Gregg 149 ruling. 141. See Brooks, 934 So. 2d at 355-56. 142. See Anderson, No. 05-2-04551-5SEA, slip op. at 145. 143. Id. at 95. 144. Free, No. 07-2-04091 -9-SEA, slip. op. at 4-5 (ruling on motion in limine). 145. 239 S.W.3d at 304. 146. Id. at 316. 147. 886 A.2d 240 (Pa. Super. Ct. 2005), appeal granted, 897 A.2d 460 (Pa. 2006) 148. Id. at 244 (emphasis omitted). 149. See Gregg, 943 A.2d at 226. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 504 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 Experts who continue to assert the any exposure basis for medical causation in asbestos cases are carrying a torch that is being extinguished repeatedly in asbestos cases around the country. As courts have held, "each and every exposure" testimony is, at best, an unproven hypothesis that ignores scientific principles and should not suffice for causation in an asbestos case. 150 IV. How the Any Exposure Theory Fits into the Scientific and Tort Litigation World Plaintiffs' experts who support the any exposure approach to asbestos litigation can speak at great length and cite to many materials to justify their approach. The discussion is a siren song of epidemiology, animal studies, the history of asbestos, fear of cancer, case reports of persons with mesothelioma and a certain exposure, and mathematical predictions of thousands of mesothelioma cases at even the lowest of doses. They can cite to a number of review articles and other published literature that support at least a portion of their approach, much of it written by other 152 plaintiff testifying experts. r Government publications also offer tacit support, since regulators take highly conservative approaches and rarely, if ever, dec lare any form of asbestos exposure to be "safe," even when the literature supports an identifiable no-effect level. 153 150. Se In y ox.ic Substance Ca. 2006 WL 2404008 at *6; Ba tel 316 F. Su at 611; Georgia-Pac. Corp, 239 S.W.3d at 320-21. 2d 151. See, e.g., Lemen, supra note 59; David Egilman et al., Exposing the "Myth" of ABC, "Anything But Chrysotile": A Critiq ue of the Canada n Asbestos Mining Industry and McGm University Chrysotile Studies, 44 AM. J. INDUS. MED. 540 (2003); Laura S. ^Velch, Asbestos Exposure Causes Mesothelioma, But Not This Exposure, An Amicus Brief to the Michigan Sup re me Court, 13 Intl. J. Occupational & Envtl. Health 318 (2007). 152. See, e.g., Lemen, supra note 59; see also Egilman et al., supra note 151; see also ^Velch, supra note 151; D avid S. E gil man, Abuse of Epidemiology, Automobile Manufacturers Manufacture a Defense to Asbestos Liability, 11 I nt. J. Occupational & Envtl. Health 360 (2005); Barry I.Castleman, Asbestos: Medical and Legal Aspects 539-80 (Aspen P ublishers, Inc. 5th ed. 2005). All of these authors testify on behalf of plaintiffs in asbestos litigation. 153. See, e.g., P ierce et al., supra r ote 117, at 205 (ca culating no-effect level for chrysotile exposures). For example, despite the ixtensive growing ividence that chrysotile is less potent than amphiboles and that short fibers do not cause disease, neither OSHA nor EPA has ever made any distinctions between the different exposures in thei regulatory requirements. There are practical reasons for this (the diffici lty of separating exposures in a workplace), but the justification is usually, "since we don't know for sure we'll just be cautious and regulate everything the same way." While this approach may have some justification in the regulatory world, it should never serve as a ba disease-inducing potency. EPA ha: for finding legal causatic nnounced the creation of a exposure regardless of advisory panel to assist Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 505 Nevertheless, despite these attempts to support it, the any exposure 154 theory does not have any credible foundation in the scientific literature. In fact, the any exposure theory is almost entirely a litigation construct and is not widely published or accepted in the peer-reviewed literature. Virtually nothing in the literature expressly states what these experts routinely say in court------that each and every occupational exposure, no 155 matter how small, is a cause of disease. ~r I here is great debate over related subjects such as whether chrysotile should be considered a cause of mesothelioma, whether short fibers contribute to disease, or whether occupations like vehicle mechanics are even subject to any asbestos disease at all, despite long-term, low-level exposures. Even the most plaintiff- oriented of these articles, however, do not take the extreme position that there is no minimum. The litigation proponents of the theory themselves rarely, if ever, present the notion that every occupational exposure is causative to the general scientific community through publications or the agency in deciding whether its sk assessm should be Pitied -et l ect the growing literature and findings 154. Se cases cited supr , 65. 155. Perhaps the closest enunciation is that of the "Helsinki Criteria," a document generated y 1997 develop the of c for attri b l g l ng d mesothelioma to asbestos exposure. See Asbestos, Asbestosis, an d Cancer', The Helsinki Criteria for Diagnosis and Attribution, 23 Scandinavian J. Work Env't & Health 311, 31 2-14 (1997). As to mesothelioma, the Helsinki Criteria states that a "significant occupational exposure" is for attriibbution, but then later restates (confusingly) that "brief or low level exposures" als Id. at 313. T here defin nstitute a significant, brief, or low level exposure, and no provided for attributing disease such exposures, particularly for chrysotile. Nor does the I le sinki Criteria do cument purport provide any basis for determining which occupational exposur s should be cons idered causative- 11 ly pr i de for attri b l g disease po generally. Even th Helsinki Criteria's extreme approach to mesothelioma attribution does not state that every occupational exposure, or eve inducing. Instead, it clearly i r included and some judgment disease to an occupational expo P kground, should be co dered disease - xposures that too low to be and duratic See i< d before attributing a 156. Cf,, e.g., Ronald F. Dodson et al., Asbestos Fi ber Length Rel ated to Potential Pathogenicity', A Critical Review, 44 AM. J. INDUS. MED. 291 (2003)] P ip J. Land rigan et al., The Hazards of Chrysotile Asbestos' A Critical Review, 37 INDUS. HEALTH 271 (1999)] William J. Nicholson, The Carcinogenicity of Chrysotile Asbestos A Review, 39 INDUS. HEALTH 57 (2001)] Gunnar Hillerdaal, Mesotheliom a: Cases Associated with Non-Occupational and Low Dose Exposures, 56 OCCUPATIONAL & ENVTL. Med. 505 (1999) ] with Hodgson & Darnton, supra note 68 (stating chrysotile far less potent than amphiboles); Eastern Research Group, Inc., Report on the Expert Panel on Health Effects of Asbestos and Synthetic Vitreous Fibers: The Influence of Fiber Length v, (2003), http ://www.atsdr.cdc.gov /HAC/asbestospanel/final part1.pdf] Eastern Research Group, Inc., Report on the Peer Consultation Workshop to Discuss a Proposed Protocol to Assess Asbestos http:// www.epa.go v/ooswer/ riskassess m t/a bestos//ppddffss</a 58, at 314. Related Risk port.pdf; Ch vm (2003), Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 506 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 scientific conferences where it could be scrutinized and likely debunked. Thus, the theory completely fails the Daubert peer review and publication test and the "general acceptance" test under either Daubert or Frye. The any exposure theory also does not fit well in the litigation world. it is largely an asbestos issue because in most toxic tort litigation the notion that any exposure to a toxin satisfies the substantial factor or but-for tests of causation would be considered so extreme that most experts would not have the temerity to present it. in the Parker case discussed previously, the plaintiff s experts testified that plaintiff s AML was caused by many years of gas station work exposures, not any exposure. 158 i|magine if they had been dealing with a long-time benzene factory workei--------the exact population demonstrated by epidemiology to be at ri sk------but tried to blame the plaintiff s disease on the few times he put gas in his own car and thus breathed miniscule amounts of benzene in gasoline. This is the equivalent of the any exposure theory carried over to non-asbestos litigation. At best, the any exposure approach is only a theory, an unproven hypothetical concept. At worst and carried to extremes, it is almost certainly erroneous and misleading, and would never be permitted as a basis for testimony in most toxic tort causation contexts. Only in the world of special asbestos rules can such a theory gain a foothold. V. Asbestos Jurisprudence in Light of the Decisions Rejecting the Any Exposure T heory The above decisions rejecting the any exposure theory have the potential to affect a sea of change in asbestos litigation causation testimony. The issues they raise will likely come to be litigated at some point in virtually every asbestos jurisdiction. M any of the courts that will have to address any exposure motions have managed asbestos cases for years and have seen some of the plaintiffs' experts testify perhaps hundreds of times without anyone challenging the scientific basis for their testimony. Some of these judges will be quite puzzled to understand why defendants are suddenly raising expert and157 * 157. T he Da ubert test requires that th ientific methodology be reliable spect of which that the theory/methodology have beer bjected to peer review and gene eptance in the uentific community. See Dauber 509 U.S. at 593-94. Th e Frye test is m rw, req mnng mply that the theory be accepted the scientific community before ad mis: evidence. See id. at 584-85. Both tests are designed to preven theories from b e i g presented as courtroom evidence before they have run the gauntlet of revie and testing i the scientific community. Se d. at 589-90. 158. See supra notes 33-41 and panying text. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 507 causation issues not part of the previous asbestos landscape. For several reasons, courts should take a closer look at this causation testimony, even if they have not done so in the past. A. Courts Should Begin to Apply Standard Tort Principles and C.ausation Rules to Asbestos Cases For three decades, the special asbestos rules affecting causation created a unique opportunity for plainti ffs to prove their cases merely by identifying a defendant's product and asserting, through plaintiffs or co-workers' testimony, that some fibers from that product were in the plaintiff s breathing zone. 159 In the context of the "old" asbestos litigation, where, for example, an insulator might work with multiple insulation products but could not necessarily prove how much with each one, the rule served to overcome proof obstacles in occupations and industries clearly demonstrated through 160 asbestos disease. epidemiology to cause mesothelioma and other Whether the relaxation of causation rules was justified in this circumstance or not, the justification no longer exists where most of the defendants are not asbestos companies or insulation suppliers, but are companies that only sold or used products with limited asbestos in them. often the asbestos in the products used or sold by these defendants was sealed in resins or binders and thus would not ordinarily produce much, if any, exposure. Mechanic exposures, for example, have historically been in the range of half the current osha standard of acceptable exposures worrkplace. 161 Gaskets likewise produce very little exposure, as noted in the in the Bartel case. Nevertheless, in the face of allegations that the plaintiff worker or co-worker witnessed visible dust while working with asbestos parts, or disrupted these products through grinding, sanding, cutting, or drilling, it is nearly impossible for such a defendant to claim zero fiber exposure------the only defense that could avoid a trial under an any exposure attac k . These cases fall squarely into the world of the New York Parker case, where the causation theory is highly speculative and theoretical, and is not supported by epidemiology showing disease from these exposures or159 160 161 162 159. See supra n otes 1-3, 46-47 . 160. See id. d 161. See Pausten bach et al., supr ote 80 162. See Bartel, 316 F. Supp. 2d 608. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 508 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 163 occupations. | If plaintiff law firms wish to develop a new wave of asbestos litigation against de minimis exposure defendants, based on a theory that is not generally accepted in the scientific community, they should not be permitted to rely on the old rules to do so. instead, the principles of Parker and other traditional toxic tort cases should apply, and the testimony must be tested under Da ubert, Frye, or other state evidentiary and expert requirements before trial. Plaintiffs' experts should be required to assess the dose from an individual defendant's product or workplace and demonstrate that it is the kind of dose shown in established epidemiology studies to be capable of causing disease. B. The Expansion of Asbestos Litigation to a IWide Array of Minimal Exposure Defendants is Unjustified The effect of the any exposure theory can be exceptionally unfair when applied to defendants connected with extremely small exposures, especially when plaintiff experts ignore far more significant exposures that almost certainly caused the disease. The unfairness is only multiplied in jurisdictions that will not permit the defendants remaining at trial to point to the plaintiff's real asbestos exposures from other sources.164 T he courts discussed above have sometimes reacted to the perverse effect of the any exposure theory as applied to asbestos cases. The Pennsylvania Summers court, for example, noted the incongruity of blaming a single brake job for plaintiff s mesothelioma when he was a lifelong insulator.165 The Gregg court questioned why plaintiffs were trying to take a brake parts supplier to trial when the complaint alleged a forty-year history of occupational 166 T R // exposure. I he Dartel/Lindstrom cases noted that the claim against the provider of gaskets and packings seemed trivial in comparison to the worker's extensive insulation exposure.167 These courts are recognizing that asbestos causation can get out of 163. See Parker, 857 N.E.2d at 1121-22. 164. In I llinois, for instance, the bizarre L ipke v Celotex Corp., 505 N.E.2d 1213 (Ill. App. Ct. 1987), rule, the only one of its kind in the country, prohibits a trial defendant from informing the j u ry about any of plaintiff s other asbestos exposures, even when those exposures were severe (e.g., in the Navy) and far more than sufficient to cause the disease. Th is rule, and others like it that prohibit references to bankrupt asbestos companies, leave the jury with few or no sources of asbestos to consider as the cause of the plaintiff s disease except for the minimal exposures of the dose trial defenda Se generally V, E. S c h wa rtz Asbestos L itigation Ma dison County, Illinois, The Challenge Ahead, 16 Wash. U. J.L. & Pol'y 235 (2004) 165. See Summers, 886 A.2d at 244. 166. See Gregg, 943 A.2d at 226. 167. See Da rtel, 316 F. Supp. 2d at 610-11. Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 2008] THE --ANY EXPOSURE" THEORY 509 control under the any exposure approach. Yet plaintiffs' experts refuse to acknowledge that their theory attaches causation to trivial exposures, nor do they even attempt to separate work experiences that truly cause asbestos disease from those that contribute nothing but isolated or inconsequential exposures. Put bluntly, there is likely to be a credibil ity issue for courts that allow experts to testify that a single breath of exposure justifies taking that 168 defen dant to trial. C. The Sccience RR.equires MMoore As documented in Judge Colville's analysis 169 and others above, the any exposure experts do not have epidemiology or other scientific proof that these low exposures cause anything. They are testifying to a theory, a hypothesis, an estimate of disease derived from assumptions that may or may not be true. courts cannot be in the business of allowing cases to go forward with only theory and speculation to prove causation. Under either Frye or Daubert, and for that matter under basic evidentiary and reliability 170 principles, there must be more. ~r Iraditional industrial hygiene and toxicology principles and methodologies exist under which non-litigation professionals can assess whether past exposures were sufficient to cause 171 T P disease. I he Parker opinion noted as much and found no merit to the contention that low dose cases cannot be proven unless plaintiffs are given 172 ~r the advantage of avoiding any dose assessment. I he reality is that such cases can and should only be proven if the dose can be reasonably and scientifically assessed and there is credible science supporting causation at such doses. otherwise, the experts should be excluded and the cases should not g o to trial. 168. V irtually everyone who lives in < industrial society has been exposed to asbestos fibers id could be a potential plaintiff under th ny exposure theory, even though there is no evidence >w_level exposures consistent with background po actually cause disease. [Be asbestos] of the b quitous of the Earth's minerals and in addition, millions of cars still spew thousands of asbestos fibers into the air h time a driver applies the brakes, many if not most adults in the general population ha .ignificant numbers of asbestos fibers in their lungs, however, despite breathing in m ns of asbestos fibers annually, virtually n ne of the population thus exposed i bi i concentratio . of asbestos fibers thereby su ffe r dverse effects on their health. Brickman, supra note 87, at 49. 169. See supra notes 103-23 and acco panying te 170. See Frye, 293 F. at 1013 (expla acceptance within the scientific commu admission of expert testimony depends o reliabili ty ) pert testimony depends on general bert, 509 U.S. at 579 (explaining 171 . See, e.g., Parker, 857 N.E.2d at 1114 172. See supra notes 33-41 and a. panying t Behrens Anderson Article Final Macro 12/18/2008 3:09 PM 510 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 37 D. It Is Not Sufficient to Let a Low~dose Case Simply Go to the Jury Some courts are proponents of letting expert disputes, such as the level of exposure required, go to the jury in every instance. Similarly, some of the any exposure experts, when confronted with their failure to separate significant from insignificant exposures, respond that they are unwilling to deal with differences among defendants and simply expect the jury to figure it all out. Th is is not an acceptable approach, scientifically or legally. W ithout any expert testimony separating the exposures likely to have caused the disease from those unlikely to have done so, the jury has no basis to make the decision. The attr ibution of disease among di fferent fiber types and exposure experiences is not within the province of a lay person but must be supported by expert testimony. Experts who abdicate that exercise should not be permitted to testify that all exposures "contribute" and then hand it over to the jury. Likewise, the subject of "how much is enough" is without question one that is subject to a Daubert/Frye review of the experts' methodology and testimony. Judges cannot abdicate their gatekeeping function on this 173 critical expert issue, but must determine whether the expert testimony and causation evidence pass scientific and legal muster. Th is is particularly true in complex science cases, in which juries of lay people are singularly ill - equipped to sort through the complex studies and scientific issues and instead often render decisions based on favorable reactions to witnesses, impressive testimony by the experts, and sympathy for a plaintiff who is likely to die soon (or already has) from a disease known to be caused by as bestos. VI. CONCLUSION Asbestos has for years held sway as perhaps the most feared of industrial exposures. At the same time, asbestos litigation has also earned a reputation as the most out-of-control of all tort litigation. The history of asbestos is indeed a terrible one, with great loss of life from exposures that predate the institution of osha workplace and other regulations. That history is not a basis for blaming every fiber and every breath for asbestos disease in today's litigation environment. Courts must exercise control over the current state of litigation and the assertion of the any exposure theory. in light of the array of recent decisions rejecting that theory, courts that do so are clearly in good company and have substantial support from their colleagues in other jurisdictions. 173. See, eg., Da , 509 U.S. at 597