Andrews Publications Tobacco Litigation 2000 THEORIES FOR THE REDUCTION OF DAMAGES

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1 THEORIES FOR THE REDUCTION OF DAMAGES

2 By Steven Wright Brita J. Forssberg

3 SYNERGISM Effect of cigarette smoking is greater than that of asbestos.

4 Synergism

5 Synergism Lung cancer incidence rates, expressed as cases per hundred thousand manyears:

6 Synergism Lung cancer incidence rates, expressed as cases per hundred thousand manyears: nonsmoker controls - 10

7 Synergism Lung cancer incidence rates, expressed as cases per hundred thousand manyears: nonsmoker controls - 10 smoker controls - 100

8 Synergism Lung cancer incidence rates, expressed as cases per hundred thousand manyears: nonsmoker controls - 10 smoker controls nonsmoker asbestos workers - 5

9 Synergism Lung cancer incidence rates, expressed as cases per hundred thousand manyears: nonsmoker controls - 10 smoker controls nonsmoker asbestos workers - 5 smoking asbestos workers - 500

10 Lung Cancer The number one cancer death for both men and women.

11 Lung Cancer 85% of all lung cancers are directly attributable to cigarette smoking

12 Lung Cancer

13 Lung Cancer The Surgeon General reported that the relative risk for smokers can be as high as 23.

14 Lung Cancer The Surgeon General reported that the relative risk for smokers can be as high as 23.

15 Lung Cancer The Surgeon General reported that the relative risk for smokers can be as high as 23. For heavy smokers, the risk can be over 40 times the nonsmokers risk.

16 Lung Cancer Absent asbestosis, 100% of lung cancers are attributable to smoking.

17 Lung Cancer It is very rare for lung cancer to have resulted from asbestos exposure in the absence of pathological evidence of diffuse pulmonary fibrosis.

18 Other Cancers Cigarette smoking is strongly associated with other cancers, including cancers of the: kidney bladder esophagus aerodigestive tract oral cavity

19 Mesothelioma

20

21 Smoking affects asbestos dose (and thus mesothelioma risk) through the impairment of lung defense mechanisms:

22 Smoking affects asbestos dose (and thus mesothelioma risk) through the impairment of lung defense mechanisms:

23 Smoking affects asbestos dose (and thus mesothelioma risk) through the impairment of lung defense mechanisms: 1 Damage to the muco-ciliary escalator;

24 Smoking affects asbestos dose (and thus mesothelioma risk) through the impairment of lung defense mechanisms: 1 Damage to the muco-ciliary escalator; 2 Macrophage impairment; and

25 Smoking affects asbestos dose (and thus mesothelioma risk) through the impairment of lung defense mechanisms: 1 Damage to the muco-ciliary escalator; 2 Macrophage impairment; and 3 Reduction in immune system function.

26 Causation

27 Causation

28 Causation which exposure(s) caused the cancer

29 Causation which exposure(s) caused the cancer

30 Causation which exposure(s) caused the cancer

31 Causation which exposure(s) caused the cancer relative fault - whether another cause was more proximately or directly causative of the plaintiff s injuries

32 Causation The probabilities: fraction of the disease caused by the agent fraction attributable to other causes

33 Causation

34 Causation Epidemiology - statistical measurement of the relationship between exposure to a chemical and the manifestation of disease.

35 Causation Epidemiology - statistical measurement of the relationship between exposure to a chemical and the manifestation of disease.

36 Causation Epidemiology - statistical measurement of the relationship between exposure to a chemical and the manifestation of disease. Judge Weinstein, Agent Orange Litigation

37 Causation Relative risk - ratio of the incidence of disease in those exposed to the incidence of disease in those not exposed.

38 Attributable risk - Calculate attributable proportion of risk from the relative risk

39 Causation Relative risk and attributable proportion of risk can be used as bases for apportionment

40 Other methods of reducing liability/damages

41 Other methods of reducing liability/damages Comparative negligence of the plaintiff

42 Other methods of reducing liability/damages Comparative negligence of the plaintiff

43 Other methods of reducing liability/damages Comparative negligence of the plaintiff Contribution from other tortfeasors

44 Comparative Negligence Plaintiffs decision to smoke

45 Comparative Negligence

46 Comparative Negligence Pure comparative negligence

47 Comparative Negligence Pure comparative negligence

48 Comparative Negligence Pure comparative negligence Modified comparative negligence

49 Comparative Negligence Pure comparative negligence Modified comparative negligence

50 Comparative Negligence Pure comparative negligence Modified comparative negligence Slight/Gross negligence

51 Contribution from Joint Tortfeasors Right of action for amounts paid above proportionate share.

52 Apportionment Allocating or dividing damages between causes

53 Restatement of Torts, Second at Section 433A 1 Damages for harm are to be apportioned among two or more causes where: (a) there are distinct harms, or (b) there is reasonable basis for determining the contribution of each cause to a single harm. 2 Damages for any other harm cannot be apportioned among two or more causes.

54 Courts have permitted apportionment and juries have been able to apportion damages between asbestos and smoking

55 Courts have permitted apportionment and juries have been able to apportion damages between asbestos and smoking > Parker v. Bell Asbestos Mines, Ltd., 3rd Cir. 1987

56 Courts have permitted apportionment and juries have been able to apportion damages between asbestos and smoking > Parker v. Bell Asbestos Mines, Ltd., 3rd Cir > Dafler v. Raymark Industries, Inc., NJ 1993

57 Courts have permitted apportionment and juries have been able to apportion damages between asbestos and smoking > Parker v. Bell Asbestos Mines, Ltd., 3rd Cir > Dafler v. Raymark Industries, Inc., NJ 1993 > Martin v. Johns-Manville Corp., Pa., 1987 (jury apportioned, appellate court reversed)

58 Apportionment Need to provide evidence about relative risk between asbestos and smoking so that jury has a basis to apportion.

59 A three step method for the comparison of the relative risk from asbestos and tobacco.

60 A three step method for the comparison of the relative risk from asbestos and tobacco. 1 Using epidemiological or clinical data, calculate the relative risk from asbestos contact alone.

61 A three step method for the comparison of the relative risk from asbestos and tobacco. 1 Using epidemiological or clinical data, calculate the relative risk from asbestos contact alone. 2 Calculate the relative risk from tobacco abuse alone.

62 A three step method for the comparison of the relative risk from asbestos and tobacco. 1 Using epidemiological or clinical data, calculate the relative risk from asbestos contact alone. 2 Calculate the relative risk from tobacco abuse alone. 3 Use an acceptable allocating principle to derive an apportionable risk.

63 Table 8 Numbers from Selikoff Papers

64 Doll and Peto British Physician Study relative risk for cigarette smoking

65 When causes 1 and 2 have combined synergistically to produce greater risk than adding their risks would predict:

66 When causes 1 and 2 have combined synergistically to produce greater risk than adding their risks would predict: 1 The increased risk allocable to cause 1 acting alone is allocated to cause 1.

67 When causes 1 and 2 have combined synergistically to produce greater risk than adding their risks would predict: 1 The increased risk allocable to cause 1 acting alone is allocated to cause 1.

68 When causes 1 and 2 have combined synergistically to produce greater risk than adding their risks would predict: 1 The increased risk allocable to cause 1 acting alone is allocated to cause 1. 2 The increased risk allocable to cause 2 acting alone is allocated to cause 2.

69 When causes 1 and 2 have combined synergistically to produce greater risk than adding their risks would predict: 1 The increased risk allocable to cause 1 acting alone is allocated to cause 1. 2 The increased risk allocable to cause 2 acting alone is allocated to cause 2.

70 When causes 1 and 2 have combined synergistically to produce greater risk than adding their risks would predict: 1 The increased risk allocable to cause 1 acting alone is allocated to cause 1. 2 The increased risk allocable to cause 2 acting alone is allocated to cause 2. 3 The increased risk due to the synergistic combination of causes 1 and 2 is split evenly.

71 THEORIES FOR THE REDUCTION OF DAMAGES

72 By Steven Wright Brita J. Forssberg

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