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November 30, 2016 Practice Points

“Every Exposure” Opinions Fail, as Courts Rule That Dose Matters

By Knight S. Anderson

On September 30, 2016, following what has become a national trend, a judge in the United States District Court for the Western District of Wisconsin issued an opinion with a Daubert ruling finding that dose matters. Suoja v. Owens-Illinois, Inc., No. 99-CV-475-SLC, 2016 U.S. Dist. LEXIS 135421 (W.D. Wis. Sept. 30, 2016). Though some courts have held to the contrary, a majority of courts addressing this issue have found that the “every exposure” opinion is insufficient. See e.g., Moeller v. Garlock Sealing Technologies, LLC, 600 F.3d 950, 954 (6th Cir. 2011); Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 342 (Tex. 2014); Yates v. Ford Motor Co., 113 F.Supp.3d 841 (E.D.N.C. 2015); Wannell v. Honeywell Int’l, Inc., 292 F.R.D. 26, 39 (D.C. Dist. Ct. 2013); Anderson v. Ford Motor Co., 950 F.Supp.2d 1217 (D. Utah 2013); Krik v. Crane Co., 76 F.Supp.3d 747, 750–51 (N.D.Ill. 2014); Scapa Dryer Fabrics, Inc. v. Knight, 788 S.E.2d 421 (Ga. 2016); Milward v. Rust-Oleum Corp., 820 F.3d 469 (1st Cir. 2016).

Suoja held that the plaintiff’s expert’s “cumulative exposure” opinion, which was merely a restated version of and no different than the “any exposure” opinion that was previously excluded, was insufficient to establish substantial factor causation. Id. at *28–30. The court explained that the plaintiff’s expert’s opinion on causation was not based on any data or opinion on the dose of exposure to the defendant’s product or that dose in relation to the overall dose, such that he could not assess whether such exposure was, in fact, substantial. Id. at *28, 31–33. Ironically the expert’s own testimony demonstrated that he could not provide an opinion sufficient to meet the substantial factor test, when he “said there was no scientific way to disaggregate an individual’s exposures to asbestos or to say that one was substantial and one was insubstantial.” Id. at *9. (Internal citation omitted.) The expert further acknowledged that it is his opinion that any asbestos exposure, “no matter how slight, no matter how minimal” is part of an individual’s cumulative exposure and thus a cause, and that he could not separate substantial from insubstantial exposures. Id. at *28.

[I]t is plain from [the expert’s] testimony that his ultimate opinion was not tied to any specific quantum of exposure that was attributable to defendant, but instead was based on his holistic view that every exposure to asbestos, no matter how minimal, is a substantial contributing factor to any resulting mesothelioma. In other words, if there is exposure, then there is causation. This is precisely the testimony that defendant moved successfully to bar. Id. at *30.

The court points out: “rather than examine this exposure and attempt to account for it when considering [Plaintiff’s] alleged exposure to Kaylo, [the expert] simply ignored it.” Id. at *11. “Dr. Frank did not offer any opinion about the amount of asbestos from Kaylo to which [Plaintiff] was exposed; perforce [the expert] did not compare the amount of [Plaintiff’s] Kaylo exposure to [Plaintiff’s] cumulative exposure to asbestos from so many other products over the course of [Plaintiff’s] career.” Id. at *29. And, “[a]s defendant notes, a causation expert who accounts only for exposure and not for dosage adds nothing to the analysis.” Id. at *10 (citing Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 432 (7th Cir. 2013).

In the end, the judge concluded, absent this type of testimony [the expert’s] cumulative exposure opinion and his failure to address dose, creates only the mere possibility that the defendant’s product was a substantial factor. And, a “mere possibility” of causation is not enough to support a plaintiff’s verdict. Id. at *4 (“Having failed to prove key elements of his claims of strict liability and negligence, plaintiff cannot prevail.”).

In closing, keep in mind that while sometimes it is not what you say, but how you say it, in Suoja, the court found no distinction in the expert’s different language. The plaintiff’s experts need to have some assessment of the requisite dose to cause the disease at issue and the relative doses that a plaintiff may have received. If not, the expert’s causation opinion will likely be challenged and, in many cases, will be excluded. In toxic tort cases, dose matters.

Knight S. Anderson is a partner at Tucker Ellis LLP in Cleveland, Ohio.

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