• Kirk Hartley

Be Careful What You Wish For – The Asbestos Defense Version – We Need More Translational

Some asbestos defendants declared victory after recent appellate decisions, including the recent Nevada Supreme Court opinion in Holcomb. The Holcomb opinion adopted the “Lohrman standard” that requires asbestos plaintiffs to provide proof  of  “exposure” based on work that was “frequent, regular and proximate” to use of asbestos.  But it’s a faux victory, as explained in David Oliver’s insightful post at Mass Torts: State of the Art. Note especially David’s focus on the court’s refusal to embrace much science. The point is highlighted by his prior post on the Texas Supreme Court opinion in Flores and the Bostic opinion from an intermediate appellate court in Texas. With that done, consider David’s post on the latest asbestos “victory,” the Virginia Supreme Court’s ruling in Boomer. Was it really a victory? Maybe, for some extremely marginal defendants. And, the opinion may lead to more debates about when a cancer arose since the court suggested that as a defense.

Bottom lines? Translational medicine seeks to move scientific findings into actual patient care. We need more translational law to move science into the jury room. The American Law Institute, courts and legislators need more help from more scientists.  That said, manufacturers and insurers need to understand they may not like all the outcomes. More or less every day, molecular biologists are opening new windows into disease processes.


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