On September 14, 2016, Florida joined a growing number of jurisdictions that reject the “any exposure” theory of proving causation. Variously known as the “cumulative exposure” or “each and every exposure” theory, it is based on a form of junk science that cannot meet the Daubert test for the admissibility of scientific evidence. According to proponents, the actual level of exposure that a claimant may have had to asbestos doesn’t matter. Instead, a person’s asbestos-related disease is caused by any exposure he or she may have had to an asbestos product that was above the background level naturally occurring in the environment.
The “any exposure” theory can be difficult to challenge. With it, plaintiffs proceed without industrial hygienists and avoid any sort of an exposure assessment. Essentially, plaintiffs can rely on medical testimony that a disease is consistent with asbestos exposure, coupled with a bare-bones occupational history that the plaintiff performed work that is known to expose workers to any level of asbestos. Plaintiffs’ experts opine that since no level of asbestos is known to be safe, any exposure is a substantial contributing cause of the disease. This approach can be applied to any disease, such as mesothelioma, asbestosis or lung cancer, since all may be caused by exposure to asbestos. The key to a successful defense is to challenge the expert opinions at the pretrial stage and preclude the jury from considering this “junk science.”
In Crane Co. v. DeLisle, 41 Fla. L. Weekly D2133a (September 14, 2016), that is exactly what the defendants did. Unfortunately, the trial judge allowed all of the plaintiff’s experts testify. Florida’s Fourth District Court of Appeal reversed and held that such opinions could not meet the rigors of the Daubert standard, which is used by most states and became effective in Florida in 2013. In short, Florida now requires that expert testimony be based on sufficient facts and be the product of reliable principles and methods, and that those principles and methods are applied reliably to the facts of the case. This threshold must be established to the satisfaction of the trial court before the jury may hear the expert opinions.
Even though it is based on the federal standard, the Daubert standard is still fairly new in Florida, so there have not yet been many published opinions interpreting it. This decision comes out strongly in support of the trial court’s gatekeeper function and requires the trial courts to critically examine the bases underlying any expert opinions. It is an important decision that should have ramifications far beyond causation in asbestos cases. It can be expected to affect the admissibility of all expert opinions in every type of case, but particularly in toxic tort cases. The trial court’s decision on these issues will not be overturned unless it has abused its discretion. Even with this high standard, the appellate court found the trial judge abused his discretion by allowing the testimony of plaintiffs’ four experts.