On December 22, 2014, in a pre-trial ruling, the U.S. District Court for the Northern District of Illinois, in Krik v. Crane Co., et al., No. 1:10-cv-07435 (N.D. Ill. December 22, 2014) barred perennial plaintiff’s expert Dr. Arthur Frank and other experts for the plaintiff from providing opinions espousing the “Any Exposure” theory (also known as “Each and Every Exposure,” “Single Fiber” and “No Safe Level of Exposure”), which “posits that any exposure to asbestos fibers whatsoever constitutes an underlying cause of injury to the individual exposed.” In reaching this decision, the court found that the plaintiff failed to sustain his burden of establishing that the “Any Exposure” theory is sufficiently reliable to warrant admission under Federal Rules of Evidence Rule 702 and Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993). Subject to this preclusion, however, the Northern District will allow the plaintiff’s experts to provide case-specific causation opinions against the defendants, if such opinions are based on the experts’ analysis of the fact witnesses’ asbestos exposure testimony that is admitted into the record at trial.
The plaintiff, Charles Krik, filed suit against the defendants alleging that he developed lung cancer as a result of his exposure to asbestos-containing products manufactured and sold by the defendants. Krik sought to present testimony from his experts that “in general, each and every exposure to asbestos products results in injury to the person exposed.” The defendants moved to bar expert testimony adopting the “Any Exposure” theory of causation as inadmissible and unduly prejudicial.
The defendant, ExxonMobil, also moved to bar the plaintiff’s experts from offering any specific causation testimony regarding ExxonMobil because the plaintiff’s experts offered no specific testimony in either their initial reports or during their depositions that connected the plaintiff’s exposure to ExxonMobil’s premises.
The defendant’s motions were granted in part and denied in part. The court granted the defendant’s motion to bar the plaintiff from presenting expert opinions embracing the “Any Exposure” theory. The court, however, denied ExxonMobil’s motion to bar plaintiff’s experts from offering any specific causation testimony regarding ExxonMobil.
Any Exposure” Theory
In barring the plaintiff from presenting expert opinions adopting the “Any Exposure” theory, the court first reasoned that expert testimony espousing the “Any Exposure” theory is not scientifically reliable under the standard set forth in Daubert. In reaching this conclusion, the court considered the defendant’s argument that the “Any Exposure” theory lacks a sound toxicological basis and ignores the toxicology principle that the “dose makes the poison.” While acknowledging that asbestos-induced lung cancer is dosage dependent, the plaintiff argued that his lung cancer was caused by his cumulative exposure to asbestos. Because studies indicate that there is no known threshold or safe level of asbestos exposure, the plaintiff’s experts could not rule out that a single dose of asbestos causes injury and, therefore, opined that any exposure, regardless of the dosage, was a substantial contribution to the plaintiff’s cumulative total exposure, causing his injury.
The court found that the approach taken by the plaintiff’s experts was “unacceptable” for a causation expert. The court was persuaded by the reasoning in Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 433-34 (7th Cir. 2013) and Smith v. Ford Motor Co., No. 2:08-cv-630 (D. Utah Jan. 18, 2013). In Schultz, the Seventh Circuit observed that “the notion that it is theoretically possible that any amount of exposure could cause injury is different from an opinion that the particular level of dosage experienced by a plaintiff was sufficient to cause his or her particular injury.” The Smith court recognized that “where a causation opinion was based upon the assumption that all asbestos exposures were contributing factors, it ‘asks too much from too little evidence as far as the law is concerned.’”
The court also rejected the plaintiff’s argument that a single or de minimis exposure is sufficient to prove causation under the substantial contributing factor test. To establish causation between a plaintiff’s exposure and a defendant’s product in Illinois, the plaintiff must satisfy the “frequency, regularity, and proximity” test. This requires the plaintiff to prove more than a casual or minimum contact with a defendant’s product to establish causation. Maritime law also requires plaintiffs to show “a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.” Accordingly, the court found that a single or de minimis exposure to a defendant’s product is not a substantial contributing factor to a plaintiff’s cumulative asbestos exposure under controlling causation law.
The court next concluded that the “Any Exposure” theory was further unreliable because the plaintiff’s experts did not “present any individualized analysis of [the plaintiff’s] level of asbestos exposure,” and were unable “to quantify the extent of [the plaintiff’s] exposure to asbestos containing products.” There was, therefore, a “wholesale failure” by the plaintiff’s experts to base their “Any Exposure” theory opinions on the facts specific to the case at hand. The plaintiff’s experts also failed to identify any peer-reviewed scientific journals adopting the “Any Exposure” theory or cite any medical studies setting forth a known rate of error for the theory. The record was, therefore, insufficient to allow expert opinions espousing the “Any Exposure” theory.
Finally, the court distinguished the multi-district litigation (MDL) court’s holding in Schumacher v. Amitco (In re Asbestos Prods. Liab. Litig.) No. 10-cv-01627 (E.D. Pa. Nov. 2, 2010), which allowed “Any Exposure” theory expert opinions. The court recognized that the MDL’s ruling was limited to the facts in record in that case and was not intended to have universal, binding application on all cases that are part of the MDL proceeding. Further, the expert in Schumacher engaged in a more detailed case-specific analysis. Specifically, the expert reviewed the plaintiff’s testimony and the defendant’s answers to interrogatories regarding the percentage of chrysotile asbestos contained in the defendants’ respective products. The expert relied on case studies that linked the specific products at issue to the asbestos-related disease. That case-specific analysis formed the basis for his opinions adopting the “Any Exposure” theory in that case. Because the plaintiff’s experts in Krik did not perform this case-specific analysis, the Krik court distinguished Schumacher.
Expert's Case-Specific Causation Testimony
Notwithstanding its ruling precluding the plaintiff from presenting at trial any expert testimony espousing the “Any Exposure” theory, the court did not bar the plaintiff’s experts from providing specific causation testimony as to ExxonMobil. The court reasoned that there was evidence in the record from the plaintiff or other fact witnesses that the plaintiff was exposed to asbestos from insulation he removed from steam lines while replacing unit heaters in 25 control rooms on ExxonMobil’s premises. The court ruled that “to the extent that [the plaintiff ] will present facts at trial that he was exposed to asbestos at ExxonMobil facilities and [the plaintiff’s experts] will rely upon such facts at trial, the experts will be permitted to testify at trial regarding such exposure, subject to the Court’s ruling precluding testimony as to the ‘Any Exposure’ theory.” The court reasoned that ExxonMobil’s concerns with respect to such opinions can be adequately addressed during cross-examination at trial.
While other jurisdictions have discussed the admissibility of the “Any Exposure” theory, Krik is the first time the issue was addressed by a court in the Seventh Circuit in an asbestos action. The Krik ruling is part of a growing national trend in asbestos litigation to curb the unfairly prejudicial impact expert testimony adopting the “Any Exposure” theory has on defendants whose “contribution” to a plaintiff’s injury is trivial and well below the dosage known to cause an asbestos-induced disease. Such a trend reflects the judiciary’s increased scrutiny on the reliability of plaintiffs’ asbestos causation theories. Defendants will, therefore, be able to use the Krik ruling to bar not only expert testimony embracing the “Any Exposure” theory but also other expert opinions where plaintiffs seek to relax federal evidentiary and causation standards to cast broader liability.
Plaintiffs may argue that the Krik ruling does not apply to Illinois state court asbestos cases. In Krik, the “Any Exposure” theory was found inadmissible under Federal Rules of Evidence Rule 702 and the Daubert standard. Illinois Rules of Evidence Rule 702 confirms that Illinois uses the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) in determining the admissibility of expert opinions. The Frye standard relies on “general acceptance” of an expert’s methods and techniques, whereas the Daubert standard takes a scientific knowledge approach to determining the reliability of an expert’s testimony. Because the threshold for the admissibility of expert opinions is less stringent under the Frye standard, applying the Krik holding in Illinois state court asbestos cases may be problematic. To date, no Illinois state court has determined whether expert testimony adopting the “Any Exposure” theory is admissible under the Frye standard.
Plaintiffs also may argue that the Krik holding is limited to the facts of the case and is not a universal rejection of the “Any Exposure” theory. Plaintiffs, nonetheless, face an uphill battle in proving the reliability of the “Any Exposure” theory under federal evidentiary and causation standards. Under Krik, plaintiffs will also incur additional expense to have their experts review case-specific materials and formulate case-specific opinions in an attempt to persuade the court to allow plaintiffs’ experts to espouse the “Any Exposure” theory of causation.
The barring of expert testimony embracing the “Any Exposure” theory, however, does not operate to bar the plaintiff’s expert testimony in its entirety. The Krik ruling leaves the door open for plaintiffs’ experts to provide case-specific causation opinions against defendants if such opinions are based on the experts’ analysis of the plaintiffs’ fact witnesses’ asbestos exposure testimony. It is, therefore, important for defendants to focus expert discovery requests and depositions on case-specific causation opinion or establish the lack thereof.