Defending Lung Cancer Claims A Primer for Young Lawyers

Transcription

1 Defending Lung Cancer Claims A Primer for Young Lawyers Michael W. Drumke Swanson, Martin & Bell, LLP 330 North Wabash Avenue, Suite 3300 Chicago, IL (312) (312) mdrumke@smbtrials.com

2 Michael W. Drumke is a partner with Swanson Martin & Bell LLP in Chicago. He focuses his practice on business litigation and other complex litigation matters, including class actions, toxic tort, product liability, environmental, and insurance coverage litigation. Mr. Drumke has significant experience coordinating and defending national mass tort litigation on behalf of a number of companies in Illinois, Wisconsin, Missouri, Indiana, Michigan, Texas, California, New York, New Jersey, Pennsylvania, Rhode Island, Louisiana, Alabama, Mississippi, Massachusetts, Ohio, Oregon, Washington, and the U.S. Virgin Islands.

3 Defending Lung Cancer Claims A Primer for Young Lawyers Table of Contents I. Introduction A. Plaintiff s Basic Presentation B. The Defense Case II. Basic Medical Information to Know A. Physiology of the Lung B. Pathology of the Lung C. Pulmonary Evaluation D. Asbestos Related Conditions III. Relative Risks of Smoking and Asbestos A. Deposition Outline Lung Cancer Focus General Background General Employment Information Smoking Medical Lung Diseases Defending Lung Cancer Claims A Primer for Young Lawyers Drumke 173

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5 Defending Lung Cancer Claims A Primer for Young Lawyers I. Introduction A. Plaintiff s Basic Presentation In most lung cancer cases plaintiff s counsel will present a client with a minimal asbestos history and a heavy smoking history. Plaintiff will attempt to prove that a mere exposure to asbestos can cause lung cancer and that it is not necessary for a plaintiff to have actual asbestosis before one can attribute his lung cancer to asbestos exposure. Plaintiff s counsel will also argue that the act of smoking and asbestos exposure combines in a multiplicative fashion to greatly increase the risk of lung cancer. Plaintiff s counsel will typically blame both smoking and asbestos. In jurisdictions where one only need prove substantial contributing factor, plaintiffs lose very little by implicating tobacco along with asbestos. B. The Defense Case The defense of a lung cancer case starts and ends with the smoking issue. It is very, very rare to have a lung cancer case where the plaintiff was not a regular smoker. Defense counsel must gather specific smoking information concerning a particular plaintiff. It is important to know how many cigarettes plaintiff smoked, how long the plaintiff smoked them, whether the plaintiff inhaled and whether the plaintiff was around others who smoked. How much did plaintiff really smoke? How many puffs did plaintiff take? It is also important to discover plaintiff s other non-malignant smoking- related diseases such as atherosclerosis, coronary artery disease, heart attacks, other circulatory problems, emphysema, and chronic obstructive pulmonary disease. There is ample literature and data to support the smoking/lung cancer defense. For instance, the American Thoracic Society in 1996 published a paper that sets forth a good summary of the statistics and facts concerning cigarette smoking and health. Furthermore, since the mid-1960s, the United States Surgeon General has produced numerous volumes dedicated to the health effects of cigarette smoking. For example, the Surgeon General s report contains the following statistics: For each cigarette one smokes, one loses about five minutes of life, roughly the time it takes to smoke the cigarette. 90% of all lung cancers are correctly related to cigarette smoking. The average smoker takes 50,000 to 70,000 puffs on cigarettes each year, assuming he is a onepack-a-day smoker. Each puff of cigarette smoke contains up to 4,000 chemical compounds, 43 to 100 of which are known carcinogens. A one-pack-a-day smoker (that is 7,300 cigarettes a year), inhales a massive number of carcinogens and chemical compounds in a single year of smoking. Multiply that by a 40, 50 or 60 pack a year smoking history and it is not difficult to show how devastating smoking is and that, most likely, smoking caused plaintiff s lung cancer. Fiber type and lung cancer. It is generally agreed that commercial amphiboles are more potent causes of lung cancer than Chrysotile. Defending Lung Cancer Claims A Primer for Young Lawyers Drumke 175

6 II. Basic Medical Information to Know A. Physiology of the Lung The purpose of lungs is to facilitate the exchange of gas. Specifically, carbon dioxide (CO2) is removed while oxygen (02) is inserted into the bloodstream. The lungs essentially function as would a pair of bellows. The air pressure in the chest cavity is negative. Thus, when the diaphragm moves up and down, it causes the lungs to expand and contract. When air is breathed in, it enters the nasal cavity, then travels down the trachea (wind pipe), and into the right and left bronchi. Air then travels to the terminal bronchioli and into the alveolar sacs, where the gas exchange occurs. The alveolar sacs actually resemble bunches of grapes. The substance of lung tissue is a pink, spongy material called parenchyma. The parenchyma is surrounded by two linings, the visceral and parietal pleura. The visceral pleura is the lining adjacent to the lung itself, while the parietal pleura is adjacent to the chest wall. Between the visceral and parietal pleura is a potential space containing mesothelial cells which act as a lubricant, allowing chest movement and expansion and contraction of the lungs. The diaphragm is a musculofibrous partition separating the thoracic and abdominal cavities which aids respiration by moving up and down. The lungs are divided into lobes. While the right lung contains three lobes, the left lobe contains only two, allowing room for the heart. B. Pathology of the Lung When asbestos fibers are breathed in (as they are by anyone living in an urban environment), 99 percent of those fibers are removed by the body s defense mechanisms. The defense mechanisms include nasal hairs, the so-called cilia escalator, and macrophages. The cilia escalator consists of fingers which undulate and thereby move mucus containing particulate matter up the bronchial tree and out of the body in the form of sputum. It is important to note that in persons who smoke, the primary damage of cigarette smoking occurs to the ciliary escalator. Particulate matter that makes its way through the upper respiratory airway and through the cilia escalator then confronts the macrophages, which are attack cells engulfing and eating foreign particles and moving them up and out through the cilia escalator. It should be noted that fiber type, length and diameter affect the manner in which asbestos fibers enter the body and are trapped by the defense mechanisms. According the Stanton hypothesis, fibers greater than 8 microns in length and less than.25 microns in diameter are the most carcinogenic, because they act like tiny needles which are capable of penetrating the lung tissue. Thicker, curly fibers such as chrysotile are less likely to penetrate the lung tissue than the thin, straight amphiboles (amosite and crocidolite). C. Pulmonary Evaluation In evaluating an asbestos exposed plaintiff, the physician will use physical examination, pulmonary function studies, arterial blood gases and x-rays. An important part of the patient s physical examination is the taking of a history of exposure to asbestos and other toxic substances. The physician must obtain a history as to length of exposure and the latency period (the period of time between onset of exposure and onset of symptoms). The physician will also listen to the patient s chest for rales, which sound like either velcro being pulled apart, or like cellophane being crunched in the hand. The physician will also ask whether the patient experiences shortness of breath. Shortness of breath, or dyspnea, is commonly found in persons occupationally exposed to asbestos. However, dyspnea can also be a symptom of numerous other medical conditions not related to asbestos exposure. It should be noted that in persons whose dyspnea is related to asbestos exposure, the dyspnea most often occurs on exertion. If the dyspnea occurs at rest, it is an indication of advanced asbestosis. Finally, the physician will 176 Asbestos Medicine November 2013

7 examine the person for clubbing of the fingers and toes. Clubbing is a condition that occurs in asbestos exposure as well as in other medical conditions. It is not required for a diagnosis of asbestos related disease, however. Clubbing refers to the condition whereby the normally flat angle from the cuticle to the end of the nail is altered by a lack of oxygen distally. Pulmonary function tests (PFTs) are used in the evaluation of asbestos plaintiffs in order to distinguish between restrictive and obstructive disease. Restrictive respiratory disease refers to a so-called stiff lung, where the lung cannot take in as much air as normal. Asbestos related conditions are restrictive, and a patient with restrictive disease will often complain of a feeling that he is smothering. Obstructive disease, on the other hand, is not caused by asbestos exposure. Obstructive disease refers to a condition where obstruction in the lung tissue prevents exhalation and proper gas exchange. In obstructive diseases, the patient has no problem taking in air, but is unable to breathe the air out sufficiently to facilitate exhalation of carbon dioxide. When properly conducted, a physician performs four PFT s and uses the best two sets of results, which should be within 5% of each other or else are considered unreliable. An individual s PFT results are compared to predicted values. The predicted value for an individual is different depending upon that individual s sex, race, age, height and weight. The importance of predicted values is that it provides for comparison of PFT results with a similar population. Factors affecting an individual s pulmonary function study results include the following: 1. Effort expended 2. Lack of energy (e.g., due to severe illness) 3. Obesity 4. Tight clothing 5. Physical problems (e.g., congestive heart failure) 6. Alcohol consumption The following values * are the most important in evaluating asbestos related conditions: 1. FVC (Forced Vital Capacity) The amount of air that can be expelled slowly after maximum inspiration 2. FEV1 (Force Expiratory Volume at 1 Second) Volume of air that can be forcibly expelled in 1 second after full inspiration 3. TLC (Total Lung Capacity) Volume of gas in lungs at the end of maximum inspiration; consists of vital capacity plus residual volume 4. RV (Residual Volume) The amount of air remaining in the lungs after expiration 5. FEV1/FVC (also called ratio ) This is the standard test used to determine obstructive airways disease (*Pre-bronchodilation result values.) The following rules of thumb can be used to distinguish obstructive vs. restrictive disease from pulmonary function study results: OBSTRUCTIVE (not asbestos related) RESTRICTIVE Decreased or normal FVC Decreased FVC Decreased FEV1 vs. Increased or normal FEV1 Decreased FEV1/FVC Decreased TLC Defending Lung Cancer Claims A Primer for Young Lawyers Drumke 177

8 Normal TLC Increased RV (Note: Normal FEV1/FVC Generally, normal PFT results are 80% or greater of predicted values.) Another important result from pulmonary function studies is the diffusion capacity (DLCO). Diffusing capacity is measured by inserting gas into the lungs and testing the degree to which the gas is diffused into the bloodstream. A physician may also examine the arterial blood gas results (ABG). ABG is an invasive test which determines whether the blood has adequate oxygenation. ABGs are also important for determining the value for carboxyhemoglobin (COHB). COHB is an indicator of smoking; if the COHB level is equal to or greater than 3, the person being tested has smoked very recently. This is important in asbestos litigation because plaintiffs often fail to reveal the extent of their smoking habit and history. In the absence of pathology material, chest x-rays are the most valuable tool for diagnosing asbestos related conditions. In order to properly diagnose asbestosis, it is necessary to have an AP view chest x-ray; e.g., front to back. It is also important to note when chest x-rays have been taken on a portable machine, because the quality of the x-ray will be significantly lower. Portable chest x-rays may be used by plaintiffs physicians in a mobile diagnostic office set-up, for example, near a shipyard In interpreting a chest x-ray for evidence of asbestos related disease, the physician will look for blunting of the costophrenic angle between the diaphragm and lung. The radiologist will examine the chest x-ray for evidence of markings and opacities which are the indicators of asbestos exposure and/or disease. These forms are used by B-readers. A B-reader is a radiologist who has been specially trained and tested to interpret films according to standardized methods. In interpreting chest x-rays, a B-reader will compare the patient s x-rays with standard films provided to all B-readers. In examining a chest x-ray, a B-reader will look for opacities and profusion. Opacities are white markings on the chest x-ray which may be either large or small, rounded or irregular. On the ILO form, the shape of opacities is noted by the letters p, q, r, s, t and u. Generally, opacities in an asbestos-related condition are s, t or u in shape (irregular); p, q and r opacities are rounded in shape. Large opacities (greater than one cm. in diameter) correspond to lesions of progressive massive fibrosis and are classified on the ILO form into A, B or C according to their dimensions, C being the largest. In asbestos related conditions, opacities are generally irregular and small. Profusion indicates the degree of interstitial markings seen on the chest x-ray. Profusion is rated from 0/0 to 3/3, 0/0 being a cold normal film and 3/3 being the most severely diseased film. In the profusion rating, the top number indicates what the reader classifies the x-ray as, and the bottom number indicates whether that x-ray shows more or less profusion than the standard film with which it is being compared. In other words, a film interpreted by a B-reader as 0/1 means that the B-reader reads the film as being normal, and the patient s x-ray showed slightly more profusion than the standard film with which it was compared. In terms of diagnosing asbestos related conditions, a film must be 1/1 or greater to be considered abnormal. Factors in interpreting chest x-rays include the following: Quality of the film age Smoking Chest trauma Chest surgery Tuberculosis Emphysema 178 Asbestos Medicine November 2013

9 Scarring from infection large breasts Obesity Normal shadows Poor inspiratory effort D. Asbestos Related Conditions Pleural thickening is a non-calcified thickening of the pleura, generally found in the parietal pleura. In an asbestos related condition, pleural thickening is generally found bilaterally in the lower lung fields. However, pleural thickening can be caused by non-asbestos related conditions, including insults to the chest cavity, tuberculosis and pneumonia. Pleural thickening does not generally cause impairment, but in severe cases can result in impairment. Pleural effusion is an abnormal accumulation of fluid in the interstitial spaces of the lungs. Pleural effusion can be caused by asbestos exposure, but may also be caused by rheumatoid arthritis, tuberculosis or pneumonia. Pleural effusion often subsides and disappears, but may leave a residual blunting of the costophrenic angle, which can effect the appearance of the chest x-ray. The latency period for asbestos-associated pleural effusion ranges from three to twenty years. A pleural plaque is a calcified area on the pleura which resembles a callous. On the chest x-ray, it can be seen as a white spot. In asbestos-related conditions, plaques are generally found bilaterally in the lower lung fields or on the diaphragm. Pleural plaques are not a precursor to asbestosis, lung cancer or mesothelioma, and the majority of physicians do not feel that plaques cause any disability. It is important to remember that pleural plaques are found on the lining, and not in the parenchyma of the lung. Non-asbestos causes of pleural plaques include tuberculosis, pneumonia, and insults to the chest cavity. The latency period for asbestos-associated pleural plaques is ten to twenty years. As stated earlier, 99% of all asbestos fibers are removed by the body s defense mechanisms before they are able to reach the lungs. The 1% of fibers that are not removed by the defense mechanisms may imbed themselves and remain in the tissue of the alveolar sacs. When the particle is coated by macrophages with an iron- protein coating, it is then known as a ferruginous body or asbestos body (if the core is asbestos). It is important to realize that everyone living in urban areas has asbestos bodies in their lungs due to asbestos fibers in the ambient (background) air. There are no harmful effects per se from asbestos fibers in ambient air levels. In very large numbers, however, asbestos fibers in the lung result in a scarring process known as interstitial fibrosis. The symptoms of asbestosis include dyspnea (usually on exertion), fatigue, non-productive cough (a productive cough would be more indicative of smoking), cyanosis in the extremities, clubbing of the fingers or toes, and rales on listening to the chest. Properly defined, asbestosis occurs only in the parenchyma of the lungs. Thus, it is medically improper to speak in terms of pleural asbestosis, although it is not uncommon for physicians retained by plaintiffs to diagnose such a condition. The diagnosis of asbestosis can also be made pathologically. The criteria accepted to make a pathological diagnosis of asbestosis is the presence of two or more asbestos bodies and the presence of diffuse interstitial fibrosis. The pathological diagnosis is considered the more accurate method of diagnosing asbestosis. The effects of asbestos on the respiratory system are dose related, that is, the higher the dose, the more severe the effects. Whether there is a threshold of exposure below which there is no statistically significant increased risk for asbestos related disease is a point of contention with plaintiffs experts. Defending Lung Cancer Claims A Primer for Young Lawyers Drumke 179

10 For many years, asbestosis was said to be permanent (no cure) and progressive, and that the disease progressed even after cessation of exposure to asbestos. There is some evidence that, although not curable, milder forms of asbestosis may not always be progressive. Asbestosis can be caused by any of the types of asbestos fibers. Furthermore, while a physician may state that asbestosis usually progresses, he should not be able to state to any reasonable degree of medical certainty that asbestosis will definitely progress in a specific plaintiff, particularly during that plaintiff s lifetime. According to the Surgeon General, the primary cause of lung cancer in the United States is cigarette smoking. Cigarette smoking causes 85 percent of all lung cancers and can cause any cell type of lung cancer in any location of the lungs. According to the theory of synergism, supported by most physicians today, there is a multiplicative effect of asbestos exposure and cigarette smoking; in other words, the effects of asbestos and cigarette smoking together are greater than the combined risks of those exposures. The following chart illustrates the multiplicative nature of these risks. III. Relative Risks of Smoking and Asbestos EXPOSURE RELATIVE RISK NONSMOKER/NO ASBESTOS EXPOSURE 1 NONSMOKER/ASBESTOS EXPOSED 5 SMOKER/NO ASBESTOS EXPOSURE 11 SMOKER/ASBESTOS EXPOSED 53 Physicians hired by the plaintiffs bar contend that, in an asbestos exposed worker who is a heavy smoker and develops lung cancer, the lung cancer can be said to have been caused by asbestos exposure even where no asbestos bodies are found in the lung upon autopsy. Pathology reports on deceased lung cancer plaintiffs are very important because many defense physicians will state that, if asbestosis (asbestos bodies plus fibrosis) cannot be found pathologically, the lung cancer cannot be said to be attributable to one s asbestos exposure, but rather is solely attributable to one s cigarette smoking. The symptoms of lung cancer include general malaise, dyspnea, blood in the sputum, a large white spot on chest x-ray, and, in many cases, pneumonia. In asbestos related lung cancers, an argument can be made that the cancer is generally found in the base of the lungs. However, many physicians ascribe to the belief that asbestos related lung cancers can be found in any lobe of the lung. The latency period between exposure to asbestos and lung cancer is generally 20 years or greater. Treatment includes lobectomy, radiation or chemotherapy, but the five year survival rate is less than 50 percent. Lung cancer can be caused by any asbestos fiber type. A. Deposition Outline Lung Cancer Focus 1. General Background Spouse(s) General health? Spouse(s) ever diagnosed with cancer? Occupation/Employment? Smoker? Date of marriage(s)? Children Ever work with Plaintiff? 180 Asbestos Medicine November 2013

11 Ever diagnosed with cancer? Mother, Father, Brothers, Sisters Work with? What were Mother and Father s occupations? How long did you live with parents? Age at death? History of cancer, heart disease, lung problems? Childhood diseases: TB, Polio vaccine? What year? Scarlet fever, Heart/lung disease, Pneumonia? Any disabilities? What? Military? Where stationed?/ When? Chemical/Asbestos exposure? Ever file another lawsuit? If so, get details. (Depositions, recorded statements given) Ever file a claim against any asbestos trust fund? If so, get details. Which attorney represented you on your trust claims? 2. General Employment Information Union Membership: get all details For each job: Where worked at plant? Zones, areas, pieces of equipment? Foreman/Supervisor? Trained by whom? Duties of job? Detailed % of time doing each task Alleged exposures to asbestos containing materials ( ACM ) Type of product Work hands on or around? Proximity to asbestos containing product Other trades working in vicinity Details exact amount of time spent working with/around ACM Employment Physicals? When? For whom? By whom? Where? X-rays? PFTs? Told results? Exposure to gases, coal dust, chemicals, etc.? Every file a worker s comp claim? Details? 3. Smoking How much? (Look at medical records Ever tell doctor you smoked packs per day? ) Did you smoke filtered or non-filtered cigarettes? Defending Lung Cancer Claims A Primer for Young Lawyers Drumke 181

12 Where? (Home only, at work, etc...) Wife smoke? Kids smoke? Other exposure to secondary smoke? When learned bad for health? What told re: cigarette danger? Cigarette warnings (Came out in 1965) Read these warnings? Understand causes serious lung problems and/or cancer? Surgeon General s report re: smoking When heard of? Where? Heard smoking can cause emphysema? When? Know anyone who has died from it? Heard smoking can cause lung cancer? No. 1 killer in U. S. re: cancer Can kill you? Heard smoking can cause chronic bronchitis? Even above, continued to smoke? Why even if knew above? (If says addicted) Attempts to quit? Programs Professional help? Doctor tell you to quit? Why? What did you do when told to quit? Fear of other diseases re: smoking? (If no, ask Why not? ) Smoking and Asbestos Ever heard of effects? When? Who from? Talk to doctor re: effects of asbestos and smoking? When? Doctor ever tell you that asbestos can cause lung cancer? When? What did you think caused cancer? Why still smoking? Use other forms of tobacco/details re: same 4. Medical Highlights Family doctor relationship how long How often seen? Other family members? What conditions treated by family doctors? Causes? Prognosis? 182 Asbestos Medicine November 2013

13 Ever complained of shortness of breath? Ever complained of cough? Told re: smoking? Are you taking medications currently? Obtain all details including dosage and who prescribed. Did the plaintiff ever undergo any x-rays and details (or had any other radiation exposure). Hospitalizations Doctors Reason for admittance/treatment given Diagnosis? Prognosis permanent? Cause of condition? Tissue removal? at what facility? Location of x-rays Specialist (Same questions as for family doctor.) Prior cancers radiation treatments and details Rib fractures/chest trauma Prior injuries/ Chronic health problems Regular physical exam? How often? Date of last exam before illness? Reason? Doctor names and addresses? X-rays? CTs? MRIs? PFTs? Insurance exam? When? For whom? Where/ X-rays? Told results? 5. Lung Diseases Chronic cough Sputum production? Amount? Occur at day or night? Time of day when worse? Continuous? Change in position bring on cough? Color of sputum? Blood in sputum? Shortness of Breath When? Doing what? Cardiovascular disease? Wheezing? Ever? Chest pain With sputum? When start? Chronic bronchitis? (Cough, lots of sputum, fever) Who diagnosed? When? Defending Lung Cancer Claims A Primer for Young Lawyers Drumke 183

14 Treatment? Cause? What told? Prognosis? Pneumonia? When? Where? Doctor? Prognosis? Emphysema? When told had? What doctor? Complained of? Prognosis? Tests? Results? What then? Cause? Heart Disease/High blood pressure? Strokes, etc.? When? Symptoms? Doctor? Cause? Complained of? Prognosis? Tests? Results? Medications? Told to restrict activities? Use of Alcohol and Drugs Number of drinks per week and type; duration; Prescription or illicit drug use, type, duration, etc. 184 Asbestos Medicine November 2013