Defending the Mesothelioma Case:

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1 Defending the Mesothelioma Case: Types, Alternative Causes, and Working Up the Case Mary Price Birk Baker & Hostetler, LLP 303 East 17 th Avenue, Suite 1100 Denver, CO (303) (303) [fax] Thomas J. Burns O Connell, Tivin, Miller & Burns 135 S. LaSalle Street, Suite 2300 Chicago, IL (312) (312) [fax]

2 Mary Price Birk is a partner in the Denver office of Baker & Hostetler, LLP, has been responsible for defense of hundreds of asbestos personal injury and wrongful death cases filed in state and federal courts for a variety of manufacturers and distributors. She is a member of the Bars of Colorado, Utah, Montana and Nevada. Thomas J. Burns is a partner in the Chicago law firm of O Connell Tivin Miller & Burns LLC. He has tried more than 100 mesothelioma cases to verdict in states across the country. Mr. Burns serves as national, regional or local counsel for a variety of manufacturers and distributors sued in asbestos litigation and routinely consults with other law firms regarding medical and scientific issues their clients face in the litigation.

3 Defending the Mesothelioma Case: Types, Alternative Causes, and Working Up the Case Table of Contents I. Introduction II. Mesothelioma A. Histological Types of Mesothelioma B. Other Mesothelioma Pretenders C. Mesotheliomas (Defined by Location) III. Diagnosis IV. Causation V. Alternative Causes or Exposures VI. Working Up the Mesothelioma Case VII. Conclusion Defending the Mesothelioma Case: Types, Alternative Causes, and... Birk and Burns 159

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5 Defending the Mesothelioma Case: Types, Alternative Causes, and Working Up the Case I. Introduction Mesothelioma cases are the most difficult cases to defend against in asbestos litigation because of the links in medical literature between exposure to asbestos and mesothelioma. These cases involve serious financial risks in terms of jury verdicts. That being said, the cases are defensible, if proper investigation and discovery are implemented from the moment the defendant is served with the complaint. Mesothelioma cases often begin with what would generally happen at the end of a case - with the plaintiff s trial testimony. Unfortunately, defense counsel are often put in a position where they are taking trial testimony before any significant discovery has been done. Thus, defense counsel must begin preparation for trial in a mesothelioma case from the moment the complaint is received. Investigation of the plaintiff s claims cannot wait until discovery responses are received and found wanting. Immediate independent investigation as well as insistence on records, information, and releases for records before the plaintiff s trial testimony will assist defense counsel in being able to meaningfully prepare the case. Just as important to the successful defense is knowing your client before the complaint is received. Because a mesothelioma often begins with the plaintiff s trial testimony, it is imperative that defense counsel attending that deposition have a thorough understanding of the client and the client s history with asbestos and asbestos containing products. Once that deposition is completed, it is extremely difficult- if not impossible- to go back and fix problems created by defense counsel who did not have sufficient knowledge of the client during the deposition. Racing defendants to trial on an expedited schedule, disclosing only the information that supports their case against the viable defendants, and limiting access to medical evidence that would exonerate the defendant at trial has become an accepted practice for plaintiffs counsel as they acclimatize courts to allowing trial against multiple defendants in mere months although they themselves have had months- if not years- to prepare their case against defendants before filing it. Asserting the right to prepare for trial and investigate the plaintiff s life exposures, medical conditions, and obtain medical evidence demands constant vigilance, diligence, and creativity. Remember: the case against the defendant is, roughly, the same in almost every case, while the exposure and medical history of the plaintiff is different in every case. The link between reported histories of asbestos exposure and mesothelioma and the rarity of the disease has caused mesothelioma to be labeled a signal malignancy, i.e., a disease often linked to a particular cause, in this case, asbestos. Because of this association, a person developing mesothelioma who contacts a lawyer is often prompted to remember dubious exposures to products of (solvent) manufacturers. In truth, if the person s mesothelioma was indeed caused by exposure to asbestos, that exposure often was to products of entities either not able to be identified, or of entities who are no longer viable. Although the burden of proof against the defendant is on the plaintiff, the harder burden of finding and proving the exposure to alternative sources of asbestos falls on the defense lawyer. Remember: if the case goes to trial the jury will be told mesothelioma is caused by asbestos and the plaintiff was exposed to asbestos from your client. It is incumbent on you to present the facts of the plaintiff s complete exposure. Our discussion will encompass types of mesothelioma, causation and diagnosis, and options to make sure appropriate discovery and investigation for a complete evaluation of a plaintiff s exposure history and possible causation are developed. Defending the Mesothelioma Case: Types, Alternative Causes, and... Birk and Burns 161

6 II. Mesothelioma Determining exactly what kind of disease the plaintiff is alleged to have is the first step in the defense of the mesothelioma case. That information will help counsel determine what kind of pathologist they want to employ as well as many elements of their defense strategy. This determination starts with a careful review of the medical records and any expert reports provided by plaintiffs. What do those records and reports say? Sometimes, more importantly, what don t they say? What tests were done? What records were reviewed? Is the plaintiff s expert relying on pathology reports from a local provider? Were there any differential diagnoses? Look for weasel words that can key you in to a plaintiff s expert s lack of conviction in their conclusions. The term mesothelioma is commonly used to refer to malignant (diffuse) mesothelioma. This disease is relatively rare, though for the defense practitioner in this field or for the general public who are blasted by the television ads by plaintiffs lawyers looking for new cases, it may seem to be running rampant. The disease is much more common in men than in women. Knowing the histological variety of the mesothelioma a plaintiff presents can assist in determining whether that mesothelioma is of a variety linked to asbestos exposure. A. Histological Types of Mesothelioma 1. Epithelial Mesotheliomas: The histological classification of malignant mesothelioma is broken out as follows: a. Tubolopapillary b. Adenomatoid c. Solid Variant d. Small Cell e. Adenoidcystic f. Well-differentiated papillary mesothelioma g. Pleomorphic 2. Sarcomatoid a. Desmoplastic b. Fibersarcomatoid c. Chondorosarcomatoid d. Osteosarcomatoid e. Lymphohitiocytoid f. Malignant fibrous histiocytoma-like 3. Biphasic/Mixed B. Other Mesothelioma Pretenders 1. Pseudomesotheliomas 2. Renal Cell Kidney Carcinoma metasized to pleura 162 Asbestos Medicine November 2013

7 C. Mesotheliomas (Defined by Location) 1. Pleural Mesothelioma: Pleural mesothelioma is a cancer of the mesothelial cells that presents in the lining of the lungs (pleura). In the overwhelming majority of cases, pleural mesothelioma is caused by occupational or para-occupational exposure to asbestos. 2. Peritoneal Mesothelioma: Peritoneal mesothelioma is a cancer of the mesothelial cells that presents in the lining of the abdomen (peritoneum). Experts strongly disagree on whether chrysotile can cause peritoneal mesothelioma, but most agree that if chrysotile can cause peritoneal mesothelioma, the exposure has to have been of extremely heavy dose. Typically, asbestos-related peritoneal mesothelioma is caused by high-dose exposure to amphibole asbestos. In a case in which no amphibole exposure is identified by the plaintiff, defense counsel s task (if their defendant s product contained only chrysotile asbestos) is to find that exposure. Medical literature supports the proposition that a good proportion of peritoneal mesotheliomas, especially those in women, are idiopathic. This is also true in the case of young persons who develop peritoneal mesotheliomas in whose cases it is important to diligently search for other medical conditions. The good news with regard to cases brought by young plaintiffs is that their early medical records are more likely to still exist. In contrast to pleural mesothelioma, cases of peritoneal mesothelioma present a good opportunity to explore alternative causation to asbestos exposure. 3. Testicular (tunica vaginalis testis) mesothelioma: Testicular mesothelioma is a cancer of the mesothelial cells that presents in the lining of the testicles. In cases where there are no pathological indications of heavy asbestos exposure (e.g. asbestosis or significant pleural plaques), there is ample support in the medical literature for causes other than asbestos exposure. 4. Pericardial mesothelioma: Pericardial mesothelioma is a cancer of the mesothelial cells that presents in the lining or sac that surrounds the heart. In the overwhelming number of cases, pericardial mesothelioma will spread to or originate from the pleura. III. Diagnosis Mesotheliomas are typically diagnosed by testing pathological samples. Pathologists use a variety of immunohistochemical stains to diagnose the mesothelioma and to differentiate between mesothelioma and adenocarcinomas or other diseases. The defense attorney practicing in this area should be familiar with these stains, and the expected results in order to ascertain the strength of the plaintiff s experts or a treating physician s conclusions. The importance of immunohistochemical tests cannot be overstated. In one case in which no such tests were done, a plaintiff with extensive pleural plaques was informed after a gross examination by his treating physician that he had mesothelioma, and only discovered the truth after he brought his lawsuit. Immunohistochemical stains used in mesothelioma cases for diagnosis may include: Mucicarme CEA B72.3 CD15 Cytokeratin AE 1/3 Desmin Calretinin Defending the Mesothelioma Case: Types, Alternative Causes, and... Birk and Burns 163

8 TTF-1 E-Cadherin CK 5/6 EMA CK20 WT-1 Immunohistochemical stains and expected results, when distinguishing between mesothelioma and adenocarcinomas, may include: Type Result #1 Result #2 Mucicarmine Negative for mesothelioma Positive for adenocarcinoma CEA Negative for mesothelioma Negative/double positive for adenocarcinoma B72.3 Negative for mesothelioma Positive for adenocarcinoma CD15 Negative for mesothelioma Negative/positive for adenocarcinoma Cytokeratin AE 1/3 Positive for mesothelioma Positive for adenocarcinoma Desmin Positive/negative for mesothelioma Negative for adenocarcinoma Calretinin Positive for mesothelioma Negative for adenocarcinoma TTF-1 Negative for mesothelioma Positive for adenocarcinoma E-Cadherin Negative for mesothelioma Positive for adenocarcinoma CK 5/6 Positive for mesothelioma Negative for adenocarcinoma EMA Negative/positive for mesothelioma Positive for adenocarcinoma CK20 Negative for mesothelioma Negative/positive for adenocarcinoma WT-1 Negative/positive for mesothelioma Negative for adenocarcinoma Differential diagnoses for malignant mesotheliomas can include benign, reactive mesothelial proliferations, adenocarcinomas, and malignancies involving the serosal membranes. IV. Causation A. Know the Standard for Admissibility of Expert Testimony in your Jurisdiction and Prepare Your Offensive and Defensive Case With Standard In Mind. This starts with the questions you ask the plaintiff and not just the experts. B. Epidemiological Studies v. Case Reports: An epidemiological study is a population study designed to examine associations between a particular factor and a disease or other health effect. 164 Asbestos Medicine November 2013

9 Although epidemiological studies cannot prove causation, they can show a correlation between a certain risk factor and a disease. A case report, in contrast, is a detailed report of the signs, symptoms, diagnosis, and sometimes treatment and follow-up of an individual patient. They are anecdotal evidence and much less scientifically rigorous than an epidemiological study. As such they do not carry the scientific weight of an epidemiological study, and should not be treated with the same deference. V. Alternative Causes or Exposures A. Radiation 1. Exposure on Nuclear Worksites. 2. Therapeutic Radiation. B. Hidden Tremolite Exposures 1. Vermiculite 2. Talc Contaminants C. Other Minerals with Similar Characteristics to Asbestos 1. Erionite Erionite, a naturally-occurring fibrous mineral belonging to the zeolite group, has been linked to significant mesothelioma clusters in several villages in Turkey. But erionite is not only found in Turkey. Erionite has been found in at least 12 U.S. states, including North Dakota, South Dakota, Nevada, Arizona, Utah, California, Wyoming, New Mexico, Utah, Oregon, Colorado, and Montana. 2. Other naturally occurring minerals D. Exposures Plaintiffs Counsel Don t Want You to Find 1. Exposures for which no defendant is available to pay 2. Exposures to products of entities who have previously settled This is the area of focus where you can make a difference. The vast majority of mesothelioma cases in litigation are associated with occupational and para-occupational exposure to asbestos. It is your job to discover and prove all possible exposures of each particular plaintiff. VI. Working Up the Mesothelioma Case A. Discovery Requests: Propounding and, just as importantly, following up on getting real responses to discovery requests is the first step in building a defense. Simply accepting the records that plaintiffs counsel chooses to provide is not enough. Neither is accepting responses to discovery plaintiffs purport to serve upon themselves and then answer in skeletal fashion. Defense counsel can provide countless stories about arriving at a preservation deposition armed with these paltry responses only to discover that information that would have allowed any real investigation into the plaintiff s claims prior to having to execute a trial cross-examination has been omitted. Just because plaintiff s counsel - and, indeed, some defense counsel say this is the way we ve always done it does not mean this is what you have to accept. 1. Medical Records: Obtaining a full set of medical records is critical. Medical records from a plaintiff s life prior to his/her diagnosis with mesothelioma can point out discrepancies in work history allegations and alternative causes or conditions. For example, prior medical Defending the Mesothelioma Case: Types, Alternative Causes, and... Birk and Burns 165

10 records might show therapeutic radiation near or at the site of a later mesothelioma or talc pleurodeses for lung collapses during a time when medical talc may not have been asbestos-free. 2. Pathology Materials: Pathology materials are essential in evaluating and constructing the defense of a mesothelioma case. Defense counsel should attempt to obtain all relevant pathology material pertaining to the plaintiff. These materials include not only tumor samples, but uninvolved lung or peritoneum samples, pathology from prior melanomas, and pathology from any other cancers the plaintiff may have had. Indeed, pathology samples from uninvolved lung or peritoneum samples and/or prior medical procedures are often the most important evidence in determining the full picture of a particular plaintiff s exposure to asbestos. 3. Military Records: Military records can provide a rich source of evidence of alternative exposures. They may show locations where plaintiff might have been exposed to asbestos. Counsel should be careful not to limit their examination of these worksites to the expected sources such as Navy shipyards and/or ships. For example, at one site in Idaho, although undisputedly on dry land, prototypes of a nuclear submarine and aircraft carrier with tons of asbestos-insulation were built and used in training personnel, allowing exposure not only to asbestos, but also, at times to radiation. These records may also point out potential fact witnesses (fellow servicemen, supervising officers, contractors) who can be used to present the totality of the plaintiff s asbestos exposure and not just the portion his attorney s choose. 4. Employment Records: Old employment records can be difficult to find. Employers go out of business, die, or destroy their records. However, more often than one might expect, records are inadvertently kept and can show everything from sources of asbestos exposure to pertinent medical conditions, and also give names and addresses of other employees who can be possible witnesses. 5. Proof of Claims: Assembling information about proofs of claims to asbestos bankruptcies in many jurisdictions takes stamina some (not all) plaintiffs attorneys may routinely deny the submission of any such proof of claims only to claim inadvertent error when the claims are uncovered. These claims are a rich source of alternative exposure evidence. Be aware that the plaintiff who worked at a nuclear facility and has made a claim against asbestos defendants for his/her mesothelioma may also have made a claim against the U.S. government for radiation exposure. Many times this information is not disclosed by plaintiffs in discovery, but can easily be checked. 6. Court Records. In any other litigation, checking for prior filings by a plaintiff is routine. In asbestos litigation, this basic discovery is often neglected. Not only may defense counsel discover that a plaintiff had a previous asbestos case, but they might also find out other information such as prior medical conditions, undisclosed employments, or recent bankruptcy filings. 7. Government Databases: Both the state and federal government maintain databases that may be of assistance in showing alternative exposures. Many states maintain good records about asbestos abatement from the time such activities began. Those databases can show massive quantities of asbestos removed from a plaintiff s worksite where he/she maintains they had no exposure to asbestos. 166 Asbestos Medicine November 2013

11 8. Discovery Served on Co-Defendants: In many cases there may be a defendant in the case upon whom you may want to serve discovery. Employers, work sight owners and contractors often have records that will detail asbestos-containing products used by and around the plaintiff. If plaintiff s counsel chooses not to request them, you should. B. Investigation of other Exposures 1. Researching worksites/living conditions a. Don t reinvent the wheel. Find the information developed in earlier cases, before your defendant was ever sued. b. Dig for new information. c. Case Examples This break out session will discuss specific situations in which the investigation into the worksites and exposure history were of critical importance in the case results. C. Medical Evidence 1. Fiber Burden Analysis. a. What is it and what it can show: A fiber burden analysis in the context of this discussion is a pathological study that can identify both coated and uncoated fibers that are present in the tested tissue. Basically, the tissue being examined is digested (and destroyed), leaving behind any non-organic materials that were present in the tissue. An asbestos fiber burden analysis can identify the type and amount of fiber present in the tissues. It can also show the concentration of exposure and sometimes the source of those asbestos fibers. In simple terms, the fiber burden study can show what types of asbestos are in the person s lungs, i.e., chrysotile, amosite, crocidolite, tremolite. It can also show the presence of other minerals, such as talc or silica. The asbestos revealed by the fiber burden analysis can be in the form of actual fibers or in the form of an asbestos body. An asbestos body, often referred to as a ferruginous body, is an asbestos fiber that has been coated with an iron-rich material. The vast majority of asbestos bodies are formed on amphibole (mostly amosite) fibers. b. Why fiber burden analysis is important: A fiber burden analysis can reveal exposures to types of asbestos to which the plaintiff has not testified. Importantly, it can show that the plaintiff was exposed to amphibole asbestos sources that are arguably more likely to have caused the plaintiff s asbestos than chrysotile asbestos in the products of most of the defendants being sued. In some cases, the discovery of elevated levels of exposures to a certain type of amphibole can lead to discovery of the probable source of the person s exposure, such as tying him/her into a mesothelioma cluster from a worksite where no asbestos exposure was previously identified. Remember: amphibole fiber is not present in the ambient air in any significant quantity, so if it is found in a fiber burden analysis you can assume it was from occupational or paraoccupational exposure. c. Do you want one in your case? If so, when and how should it be brought up: A fiber burden analysis may not be in every defendant s interest. This break out session will discuss when and how to determine whether it is in your client s interest. Again: know your client before making this decision. Defending the Mesothelioma Case: Types, Alternative Causes, and... Birk and Burns 167

12 d. How it is done: A fiber burden analysis or study is generally done by or at the direction of a pathologist. There are few experts who do this particular testing so getting the necessary material and getting on the expert s calendar for the testing should be done as soon as possible during the course of the case. (i) Pathology materials needed: Lung (or other pertinent area) tissue that is uninvolved with the tumor, in other words, not the samples of the tumor that are generally taken for a biopsy or for immunohistochemical testing. The test is not done normally on tumor tissue, although some past fiber burden studies plaintiff s rely on were performed on tumor tissue. A fiber burden is destructive testing, i.e., it will destroy the sample used. Thus, the pathology needs to be split between the defense and the plaintiff s counsel, and prior agreement must be reached or court permission obtained, for such testing. Often, once a fiber burden is discussed and contemplated, plaintiff s experts will want to include in any fiber burden they perform, a test on lymph node tissue. Such testing is done by plaintiff s expert in order to support their arguments regarding chrysotile clearance. Counter-testing by the defense on lymph node tissue is not generally done as it is not probative. (ii) Where to obtain the uninvolved tissue for a fiber burden: Sometimes there are existing uninvolved lung tissue samples from previous medical procedures. For example, a plaintiff may have had an extrapleural pneumonectomy or lung resection in which all or part of a lung was removed. If so, the pathology will be stored somewhere and defense counsel is entitled to a portion of that pathology for testing, including for a fiber burden. (In rare cases during the biopsy of the tumor some lung tissue is removed. Your expert can tell you whether such a sample is enough for a fiber burden study.) In the case of a deceased person, if an autopsy or post-mortem examination was done, pathological samples would have been taken and will be stored at the appropriate laboratory or medical facility. Those samples generally include tissue samples from the organs, including the lungs, and samples of that lung tissue can be used for a fiber burden analysis. If no uninvolved tissue exists on which a fiber burden study can be performed, and there is a living plaintiff, counsel may want to consider getting either an agreement or a court order allowing a post-mortem examination that would include taking pathology samples in the event of the plaintiff s death during the litigation. See discussion below regarding post-mortem examinations. e. Testing Methods TEM v. SEM analysis 2. Post-Mortem Examinations: When no uninvolved lung tissue exists from previous medical procedures, a post-mortem examination can allow such pathology to be collected. Additionally, post-mortem examinations are often helpful in cases in which diagnosis or tumor origination is in doubt. In cases in which a plaintiff has presented with both peritoneal and pleural mesotheliomas, determining the primary location can assist with a causation defense as it is generally accepted that peritoneal mesotheliomas are more likely to have been caused by amphibole exposure. 168 Asbestos Medicine November 2013

13 VII. Conclusion Preparation for the defense of a mesothelioma case starts as soon as the complaint is received. Begin as you mean to go on with vigilance, diligence, creativity, and an eye to trial. Defending the Mesothelioma Case: Types, Alternative Causes, and... Birk and Burns 169

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