As promised we're weighing in on Holcomb v. Georgia Pacific, et al - the most recent effort by a court, this time Nevada's supreme court, to paint a fig leaf over the judicial embarrassment that is modern asbestos litigation.
To recap, by 1989 (twenty years after Clarence Borel filed the complaint that launched the mother of all mass torts) the litigation appeared to be winding down. The personal injury (and school abatement) cases had bankrupted most of the companies that once had constituted the lion's share of the asbestos industry. A little over a decade later Pittsburgh-Corning, and soon thereafter Owens-Corning, sought bankruptcy protection. With that, market share-wise, the vast majority of the American "asbestos industry" had been put out of its misery. The remaining defendants (with the exception of Owens-Illinois which serendipitously exited the business back in 1958) were each responsible for a microscopic share of the asbestos used in the United States. Surely the end was near. Instead, because courts tended to create special causation rules in asbestos cases which conflated risk with causation and because those same courts assiduously avoided the question of whether some risks were so small that liability could not fairly be predicated on them, the litigation continued unabated.
Drowning defendants, desperate for anything that might help against the "every asbestos fiber poses risk, mesothelioma is the actualization of risk, therefore plaintiff's meso was caused by every fiber" sophistry that goes on down at the courthouse, often grab for Lohrmann v. Pittsburgh Corning . It's an 80's era asbestosis case holding, essentially, that two to three weeks of work cutting/applying Unibestos wasn't enough to impose liability on Pittsburgh Corning (though things went less well for the other defendants). There was no discussion of dose, nor of the relative potency of amosite nor of the risk posed by each of the defendants' products. Instead, Lohrmann accepted proof of frequent, regular and proximate exposure to a defendant's asbestos-containing product as a proxy for a quantitative assessment of exposure and thereby risk or whatever other consideration drove the court's approximation of the line between de minimis and non-de minimis exposures. But how frequent is frequent? How regular is regular? How proximate is proximate?
"It's better than nothing", one assumes the Holcomb defendants thought when they asked the Nevada Supreme Court to adopt the so-called Lohrmann standard. So how did it work out? Would plaintiff's testimony that exposures were "numerous" be sufficiently regular and frequent? Would working "around" a joint-compound user proximate enough?
According to the Nevada Supreme Court it's enough. And thus the problem with Lohrmann.
Today there's an extensive peer-reviewed literature demonstrating the typical distribution of exposures resulting from almost every conceivable use of asbestos, and a well refined risk model for asbestos-induced mesothelioma that lets anyone estimate the risk associated with the exposures described by a plaintiff and his co-workers. Coming up with a plausible range of exposure is neither too hard nor too expensive. Down here in Texas plaintiffs need someone to testify to a supportable dose range and a review of their experts' bills reveals a typical cost of about $2500 - a fraction of amount they spend on their experts who testify about the history of the use and recognition of the hazards of asbestos exposure.
So would it be too much of a burden to make plaintiff state a supportable range of his likely exposure? The Nevada Supreme Court thought so - though it didn't say how much it thought such an estimation would cost, nor how much is too much. It also bought the straw man argument that states like Texas which actually ask "about how much" are instead asking the impossible to answer "state precisely how much". From there the court went on to conclude that an inference of causation may reasonably be drawn from expert testimony that infrequent and low level exposures can cause mesothelioma plus evidence that the plaintiff sustained "numerous" instances of working "around" the asbestos-containing product. And sure enough, that's the gist of Lohrmann.
As for why defendants continue to go from court to court demanding the adoption of the Lohrmann standard, that remains a mystery. As for why plaintiffs hate to say "about how much", we already know the answer - compared to the risks posed by some of the products now caught up in the litigation, taking a shower is a death defying feat.
2013 will be the International Year of Statistics. Maybe it'll be the year more judges and lawyers come to appreciate how much better our decision-making can be when we have the courage to demand the data and to accept what it implies.