Asbestos Litigation, Investing in Data, and the Law and Science of Cancer Causation

For today, some comments on investing in objective scientific data and translating science into law, as well as pointing to a useful presentation on “magic words” and causation in asbestos cases.

Causation is of course a key issue in any tort case. In some cases, it’s an easy to resolve, such as when a car rams into a pedestrian and a leg is broken.  Other fact patterns create more difficult issues; Mrs. Palsgraf’s complex fact pattern of course comes to mind.

For asbestos litigation, proof of causation remains key and complex, especially in cases where a “low dose” may be at issue. Various fact patterns can arise. For example, the total dose may be “low.” Or, a person may have received some massive doses (e.g. working in a ship’s engine room as a pipe fitter) and some relatively low doses (e.g. changing brake linings a few times). To succeed, the defendants in the low dose claims face the daunting task of convincing judges and jurors the low doses did not matter.

In some instances, defense lawyers declare “low dose” victory by winning appellate rulings tied to the use (or non-use) of”magic words” thought to aid the defense cause as to expert testimony and proof of causation. However, David Oliver and I have publicly commented we see very little in the way of a win for the defense in some of those rulings, and think the rulings actually may be adverse in some ways. In some of the same articles (which are not coordinated), we also have called for more joint efforts by lawyers, doctors, and scientists  to develop objective exposure data, and to better understand the language used by each profession in order to translate science into words. David also has pointed out some risks and issues related to a “duty to mine big data.”

On the translational topic, the possibly magic words “every exposure” have attracted much defense attention for some years, such as here, here and here. But where have the “victories” really taken the defense,  and how have plaintiff experts responded to challenges to magic words? By adopting new words that express essentially the same outcome but in different words. On those topics, this fall 2015 presentation by Mort Dubin of Orrick provides  examples of the changes and the pyrrhic nature of some of the purported defense victories.

A take away? For asbestos cancer causation issues, insurers and defendants need to invest tens of millions so that scientists can perform tests and experiments to generate more objective scientific data about actual or alleged asbestos -related cancers. Investing in science and more certainty certainly seems more useful than spending hundreds of millions per year on verdicts and settlements despite supposedly having won some fights over magic words.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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