Turning Molecules Into Mountains: The State of the Any Exposure Theory Bryant J. Spann Daniel R. Higginbotham

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1 Turning Molecules Into Mountains: The State of the Any Exposure Theory Bryant J. Spann Daniel R. Higginbotham When it comes to proving causation in toxic tort and hazardous substance litigation, it is sometimes said that the devil is in the dose. 1 Dose is critical in evaluating whether an alleged exposure caused a specific adverse effect because, in the words of the Sixteenth Century philosopher Paracelsus, All substances are poisonous there is none which is not; the dose differentiates a poison from a remedy. 2 Consistent with this basic dictum of toxicology, courts across the country have recognized that exposure to an actual toxic dose is a minimal fact necessary to sustain the plaintiff s burden in a toxic tort case. 3 In an effort to side step this toxicological law of dose-response, enterprising plaintiffs lawyers have developed a theory of causation, often referred to as the any exposure or no threshold theory. Succinctly, the theory contends that, with respect to diseases that are believed to result from the cumulative total dose rather than from an instantaneous exposure, each and every exposure during a lifetime no matter how trivial is a substantial factor in causing the disease. The any exposure theory is grounded in the notion that, where there are no known safe levels of exposure to a toxic agent, exposure to even one molecule of the agent has some finite possibility of causing an illness, such that each exposure is a substantial contributing cause. Although the any exposure theory met with some initial success, courts have begun to examine the theory with a closer eye. As a result, since 2005, several federal and state supreme courts have excluded any exposure causation testimony as unscientific under a Daubert/Frye analysis or as insufficient to support causation in toxic tort and environmental exposure cases. 4 What follows is a brief overview of these decisions, beginning with rulings in asbestos litigation, where the any exposure theory was born. 5 I. Asbestos The dose-response law of toxicology was particularly problematic for plaintiffs in asbestos litigation. By the 1990s, the asbestos producers targeted in early lawsuits had fallen into bankruptcy, triggering an endless search for a solvent bystander. 6 Plaintiffs lawyers shifted their focus to companies further removed from direct production of asbestos, such as 1 See Bernard D. Goldstein, Toxic Torts: The Devil is in the Dose, 16 J.L. & POL Y 551 (2008). 2 David L. Eaton, Scientific Judgment and Toxic Torts A primer in Toxicology for Judges and Lawyers, 12 J.L. & POL Y 5, 11 (2003). 3 See, e.g., Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 679 (6th Cir. 2011); Allen v. Pa. Eng g Corp., 102 F.3d 194, 199 (5th Cir. 1996). 4 Although not the focus of this article, courts in pharmaceutical products liability litigation have likewise reaffirmed the central importance of dose in addressing questions of causation. See, e.g., McClain v. Metabolife Intern., Inc., 401 F.3d 1233, 1239 (11th Cir. 2005). 5 For a more comprehensive examination of the any exposure theory, see Mark A. Behrens & William L. Anderson, The Any Exposure Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 SW. U. L. REV. 479 (2008). 6 Michael Hoenig, Courts Shoot Down Asbestos Causation Theory, N.Y. L.J., Oct. 19, 2011.

2 manufacturers of home remodeling products and automotive brakes. The problem, of course, was that these products were often responsible for only an insignificant amount of asbestos exposure, especially in the case of insulators and factory workers who suffered significant occupational exposure. To get around this problem, plaintiffs lawyers retained expert witnesses who were prepared to testify that each and every exposure to asbestos, regardless of duration or dose, is a substantial cause of mesothelioma or asbestosis. The experts emphasized that, once an individual has mesothelioma, it is impossible to determine which fiber caused the disease. As a result, it must be assumed, they reasoned, that each exposure was a potential cause. Thus, it did not matter that the defendants targeted in this new wave of asbestos litigation were responsible for a relatively insignificant amount of exposure. One of the first major decisions to reject the any exposure theory was the Pennsylvania Supreme Court s ruling in Gregg v. V.J. Auto Parts, Inc. 7 The plaintiff in that case, Mr. Gregg, alleged that he had developed mesothelioma as a result of personal repair work on automotive brakes and gaskets, and he filed a product liability claim against the automotive store that had supplied him those parts. 8 Because Gregg was also exposed to asbestos throughout a forty-year career as a cable splicer and line man, he relied on the any exposure theory. His expert, Richard A. Lemen, Ph.D., opined that [t]here is no safe level of exposure to asbestos below which human beings are not at risk of developing an asbestos disease [such as] mesothelioma. 9 As a result, according to Dr. Lemen, all exposures contribute to the risk of developing mesothelioma, such that Gregg s exposure to brake dust should be considered a substantial cause to his development of mesothelioma. 10 On appeal, the Pennsylvania Supreme Court squarely rejected the any exposure theory. Although the court recognized the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period, it refused to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every direct evidence case. 11 Thus, in Pennsylvania, traditional rules of dose and exposure govern asbestos cases. 12 Pennsylvania is not alone in rejecting the any exposure theory. In Borg-Warner Corp. v. Flores, a case involving an auto mechanic who developed asbestosis after performing approximately fifteen to twenty brake jobs per week for thirty years, the Texas Supreme Court rejected the testimony of Dr. Barry Castleman and another expert that mere proof of exposure is sufficient for causation: A.2d 216 (Pa. 2007). 8 Id. at Id. at Id. 11 Id. at The Pennsylvania Supreme Court reaffirmed this holding in a 2010 decision, stating that it had rejected the viability of the each and every exposure or any breath theory in asbestos cases. See Summers v. Certainteed Corp., 997 A.2d 1152, 1162 n.14 (Pa. 2010). 2

3 Because most chemically induced adverse health effects clearly demonstrate thresholds, there must be reasonable evidence that the exposure was of sufficient magnitude to exceed the threshold before a likelihood of causation can be inferred. 13 In other words, in Texas, asbestos plaintiffs must present defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease. 14 Other courts that have recently criticized or rejected the any exposure theory in the context of an asbestos case include: The Sixth Circuit Court of Appeals in a pipefitter s mesothelioma case against the manufacturer of asbestos-containing gaskets, rejecting the testimony of Dr. Arthur Frank as akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean s volume ; 15 A Georgia Court of Appeals decision upholding the trial court s exclusion of Dr. John Maddox under Daubert, finding that Dr. Maddox s any exposure theory... failed to provide any evidence that plaintiffs decedent s exposure to chrysotile-only asbestos products was a substantial factor in causing him to develop mesothelioma ; 16 and The Court of Special Appeals of Maryland in a mesothelioma case against Ford Motor Company, overturning a multi-million dollar verdict in favor of the plaintiff because the trial court improperly permitted Dr. Laura Welch to testify that every exposure to asbestos is a substantial contributing cause. 17 II. Benzene, Coal Dust, and other Environmental Exposures Although the any exposure theory is a product of asbestos litigation, plaintiffs lawyers have not hesitated to extend its reasoning to other toxic tort claims. a. Benzene Most notably, plaintiffs exposed to low levels of benzene have recently begun relying on the any exposure theory to prove specific causation. They argue that, although OSHA and other regulatory agencies have identified threshold levels of benzene exposure, there are no studies demonstrating the levels at which benzene exposures do not cause acute myelogenous leukemia ( AML ) and other forms of cancer. 18 As a result, they contend that the only absolutely safe S.W.3d 765, 773 (Tex. 2007) (quoting Eaton, supra note 2). 14 Id. 15 Moeller v. Garlock Sealing Tech., LLC, 660 F.3d 950, 955 (6th Cir. 2011). 16 Butler v. Union Carbide Corp., 712 S.E.2d 537, 543 (Ga. App. 2011). 17 Dixon v. Ford Motor Co., 47 A.3d 1038, 1047 (Md. App. 2012). 18 See, e.g., Baker v. Chevron USA, Inc., 680 F. Supp. 2d 865, 872 (S.D. Ohio 2010) (plaintiffs expert testifying that there are no known safe levels of benzene exposure). 3

4 level is zero, such that every exposure must be considered dangerous and contributory to disease. 19 Parker v. Mobil Oil Corp. is perhaps the best example of the any exposure theory in the context of a benzene case. 20 The plaintiff, a gas station attendant, alleged that he developed AML from low-level benzene exposures in gasoline. 21 His experts extrapolated down from highdose factory exposure studies and opined that even the low levels of benzene the plaintiff was exposed to could cause his AML. 22 The New York Court of Appeals excluded the experts under Frye, finding that their opinions rested on the unfounded assumption that low level, unquantified exposures to benzene had the same effect as high doses. 23 Other courts that have rejected the any exposure theory in benzene cases include federal district courts in Washington 24 and Ohio, 25 as well as the Sixth Circuit Court of Appeals. 26 b. Coal Dust Former coal miners who have developed coal workers pneumoconiosis, silicosis, and other dust-induced pulmonary diseases have also begun to rely on the any exposure theory to prove specific causation. Although none of those cases has yet resulted in a published opinion, plaintiffs have contended that each inhalation of respirable-sized coal dust contributes to the development of pneumoconiosis; thus, they reason, each such inhalation was a contributing cause. Not surprisingly, plaintiffs have tapped seasoned asbestos witnesses, such as Dr. Arthur Frank, to pitch this theory. The clear defect in this theory is the same in coal cases as it is in others: there is not, and will never be, a study that analyzes the health effects of a single inhalation of coal dust. There is, therefore, no real basis on which any expert can validly opine as to such effects. It is hoped, in light of the clear national trend, that courts that decide coal dust cases will, correctly, place them in the bucket of water in the ocean category outlined by the Sixth Circuit in asbestos litigation Id N.E.2d 1114 (N.Y. 2006). 21 Id. at Id. at Id. 24 See Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, (E.D. Wash 2009) ( The use of the no safe level or linear no threshold model for showing unreasonable risk flies in the face of the toxicological law of dose-response.... In layman s terms, the model assumes that if a lot of something is bad for you, a little of the same thing, while perhaps not equally bad, must be so in some degree. ). 25 See Baker, 680 F. Supp. 2d at 878 n.9 ( Dr. Dahlgren... essentially espouses the one-hit or no threshold theory of causation in which exposure to one molecule of a cancer-causing agent has some finite possibility of causing a genetic mutation leading to cancer.... [I]t has not been accepted as a reliable theory for causation under Daubert standards. ) 26 See Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 679 (6th Cir. 2011) ( Dahlgren s opinion that Mrs. Pluck s low-level exposure to benzene caused her [Non-Hodgkins lymphoma] is not grounded in sufficient facts or data, nor does it reflect the reliable principles and methods required by Rule 702. It is, instead, pure conjecture. ). 27 Moeller, 660 F.3d at

5 c. Creosote Courts have recently rejected plaintiffs argument that any exposure to the cancer-causing agent creosote. In Abraham v. Union Pacific Railroad Co., the Court of Appeals of Texas rejected the expert testimony of Dr. James Dahlgren, who attempted to extrapolate downward from high-dose creosote exposure studies to show that the plaintiffs developed lung and throat cancers due to their low-level exposures to creosote while working on railroad cars. 28 The court found that Dr. Dahlgren s opinions failed to meet the reliability standard of Daubert because the opinion failed to show that the extent and nature of [the plaintiffs ] creosote exposure is the same or similar to the exposure necessary to promote the development of disease. 29 d. Uranium Finally, in Cano v. Everest Minerals Corp., a uranium exposure case, the Western District of Texas held that the linear no-threshold model cannot support a more-likely-than-not opinion in a legal proceeding S.W.3d 13, 23 (Tex. App. 2007). 29 Id F. Supp. 2d 814, 837 (W.D. Tex. 2005). 5

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