In Krik v. Exxon Mobil Corporation, No. 15-3112 (7th Cir. 2017), Judge Manish Shah, of the United States Court of Appeals for the Seventh Circuit, upheld the U.S. District Court for the Northern District of Illinois’ decision to bar the plaintiff’s experts from providing opinions espousing the “each and every exposure” theory in an asbestos product liability case. The “each and every exposure” theory (or “single fiber” theory, or “any exposure” theory) posits that any exposure to asbestos whatsoever constitutes a substantial factor in the development of an asbestos-related disease. The court found that the “each and every exposure” theory was not sufficiently reliable to warrant admission under Federal Rules of Evidence Rule 702 and the Supreme Court’s seminal case on the admissibility of expert witness testimony, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The plaintiff, Charles Krik, alleges that he developed lung cancer as a result of his exposure to removing asbestos-containing insulation manufactured by Owens-Illinois, Inc. (“Owens-Illinois”) aboard U.S. Navy vessels from 1954 to 1960. Additionally, he alleges exposure from two weeks as an independent contractor at Exxon Mobil Corporation’s (“Exxon”) Joliet refinery replacing heaters that were allegedly insulated with asbestos. Owens-Illinois and Exxon were the only two defendants remaining at trial. Defendants argue that (a) the plaintiff’s expert’s theory is speculative and not based on any identifiable methodology or research and (b) Mr. Krik’s lung cancer was a result of him smoking a pack and a half of cigarettes every day for thirty years.

The decision centered on the proffered testimony of the plaintiff’s expert, Dr. Arthur Frank, that any exposure to asbestos, regardless of the amount of fibers or length of exposure, constitutes an underlying cause of injury to the exposed individual. Since there has been a national trend towards a rejection of the “each and every exposure” theory, Dr. Frank attempted to have his opinion characterized as a “cumulative exposure” theory. In that, Dr. Frank opined that “…if there is exposure to a cancer causing agent, that becomes part of the totality of the exposure, some may contribute more, some may contribute less, but they are all part of the exposure” and “[i]f the exposure took place, it was part of the cumulative exposure that someone had.” Additionally, Dr. Frank opined that any exposure, no matter how de minimis, was a substantial contribution to the cumulative total: “either its zero or its substantial; there is no such thing as not substantial.” Dr. Frank also admitted at his deposition that he had not considered any information about the amount of exposure in his analysis. The District Court stated that asbestos-induced lung cancer is dosage dependent – that is, the risk of contracting lung cancer from asbestos depends on the length of time of exposure and the amount of exposure – and concluded that Dr. Frank’s “cumulative exposure” theory was the same as the “each and every exposure” theory because it was still “not tied to the specific quantum of exposure attributable to the defendants, but was instead based on his medical and scientific opinion that every exposure is a substantial contributing factor to the cumulative exposure that causes cancer.”

The Court of Appeals upheld the District Court’s decision and added that “causation requires that an expert connect the nature of the asbestos exposure and pair it with a Daubert-approved methodology that can be used to determine whether such an exposure was a substantial cause of the defendant’s injury.” The court went on to state that the “each and every exposure” theory’s principle is that it is impossible to determine which particular exposure to carcinogens, if any, caused an illness. Thus, the theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose. This improperly shifts the burden of causation on defendants to disprove the same and exclude a potential cause of the illness. This would effectively nullify the requirements of the “substantial factor” test for causation. See Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 493 (6th Cir. 2005) (“a holding to the contrary would permit imposition of liability on the manufacturer of any product with which a worker had the briefest of encounters on a single occasion.”).

As stated above, the national trend has been to rebuke the “each and every exposure” theory in asbestos litigation. Indeed, in Krik, Owens-Illinois highlighted that more than thirty other federal and state courts have held that this theory is not reliable. In New York, the First Department of the Appellate Division recently upheld Justice Barbara Jaffe’s 2015 decision in Juni v. Ford Motor Company to reject the “each and every exposure” theory. As such, trial defendants in New York will be able to utilize Junito attempt to preclude “each and every exposure” theories proffered by plaintiffs’ experts, such as the one offered in Krik, due to their failure to meet causation standards for reliability.