Analysis of a Brake Lining Ruling: “California Appellate Court Upholds “Every Exposure” Theory
A post from defense lawyers evaluates the March 2016 decision in Davis v. Honeywell Int’l Inc., 199 Cal.Rptr.3d 583 (Cal. Ct. App. 2016). Davis is a case arising from asbestos in brake linings allegedly causing mesothelioma; see this August 8, 2016 post at Beveridge & Diamond, by Daniel Krainin.
In the Davis opinion, plaintiff’s expert offered “every fiber” and “low dose” testimony to establish causation of a mesothelioma for a person who performed brake work for about 15 years. For full context, it’s useful to read the full article and the opinion. But pasted below are two key statements:
“Deferring to the role of a jury in resolving questions of competing scientific theories, a California appeals court upheld a trial court’s ruling allowing expert testimony based on the “every exposure” theory, calling it “the subject of legitimate scientific debate.”
Defendant appealed, arguing that the expert testimony relying on the every exposure theory should have been excluded as speculative and devoid of evidentiary and logical support. In upholding the trial court’s decision to allow the testimony, the Court held that although the trial court has a duty to act as a “gatekeeper” in excluding “clearly invalid and unreliable” expert opinion, its role is not to choose between expert opinions. Id. at 590. The Court found that the theory could be reconciled with the defense expert’s opinion that mesothelioma and other asbestos-related diseases are dose dependent. Therefore it was up to the jury, not the judge, to decide which opinion to apply.”
The defense tried to appeal, with amicus support from the US Chamber of Commerce. However, the California Supreme Court denied review in May 2016, and also denied depublication of the opinion.