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Court Tosses ‘Any Dose’ Asbestos Claim

Tuesday, May 29, 2012

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In a case with major potential implications for chemical exposure claims, Pennsylvania’s high court has dismissed expert testimony asserting that “each and every fiber of inhaled asbestos” contributes to cancer.

The 6-0 Pennsylvania Supreme Court decision, issued May 23, rejected expert testimony in an auto mechanic’s lawsuit against Ford Motor Co., Allied Signal and other companies.

 The mechanic argued that he contracted mesothelioma over decades spent working on asbestos brake linings.

The mechanic argued that he contracted mesothelioma over decades spent working on asbestos brake linings.

Mechanic Charles Simikian claimed that the mesothelioma he contracted was due to his exposure to asbestos-containing brake linings and similar products over a 44-year period.

Simikian died after filing the litigation in February 2005, and his widow carried on the case.

‘The Poison is in the Dose’

The decision involved a 2005 affidavit by an expert witness that Simikian had retained. Pathologist John C. Maddox, M.D., of Newport News, VA, said in that sworn statement that “each exposure to asbestos” is “a substantial contributing factor in the development of the disease.”

Maddox compared the exposure to cigarette smoking, saying that “[a]ll the cigarettes that one smokes are considered to be contributory to the development of the lung cancer.”

Two expert witnesses retained by the companies, however, trounced Maddox’s conclusions, saying that he was ignoring the critical factor of dosage in evaluating toxic exposure.

The trial judge agreed, saying that whether the potentially harmful substance in question was water, alcohol or nitroglycerine, “The poison is in the dose.”

‘Unsound and Illogical’

Occupational environmental epidemiologist M. Jane Teta, Dr.P.H. M.P.H., said that Maddox’s conclusion ignored scientific evidence, “employed a selective approach” to scientific literature; and, in particular, disregarded “a wealth of epidemiological evidence” showing that workers who use brake linings and similar products do not have a higher rate of mesothelioma than the general population, Justice Thomas Saylor wrote in the 53-page opinion.

Dennis J. Paustenbach, PhD, PABT, another expert witness for the defendants, also contended that Maddox had been selective in his review and had not cited “a single paper in the last 25 years” among his evidence.

Together, the two defendants’ experts debunked Maddox’s methodology and conclusions as “scientifically unsound and illogical.”

‘Any Dose’

Saylor agreed, saying that the plaintiffs must show some relationship between the level of exposure and the illness.

“Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose-responsive,” Saylor wrote.

To accept the “any dose” theory, the court said, would be to say that it “makes no difference if the plaintiff merely worked infrequently on a family vehicle or was a shipyard worker frequently exposed to friable asbestos of the most carcinogenic form.”

Expert Test Case

The justices said they took up the matter as a test case of the so-called Frye test, which bars “novel scientific evidence from the courtroom until it has achieved acceptance in the relevant scientific community.”

The defense had argued that it would be impossible to legally assign responsibility without showing that Simikian had been exposed to specific doses of asbestos known to cause the disease.

The trial judge—Allegheny County Common Pleas Court Judge Robert Colville—agreed, and the high court said Colville “was right to be circumspect about the scientific methodology underlying the any-exposure opinion.”

Business Support

The case drew more than a dozen friend-of-the-court briefs from business, manufacturing and chemical groups on behalf of the defendants.

The National Federation of Independent Business lauded the ruling, saying that thousands of small businesses nationwide had been sued on the basis of the “any-dose” theory.

“This is a significant decision because it prevents the use of tenuous theories that have no basis in science,” the group’s Pennsylvania director, Kevin Shivers, told The Philadelphia Inquirer. ”We are grateful to the court for this decision because it makes the system objectively fairer.”


Tagged categories: Asbestos; Exposure conditions; Health and safety; Lawsuits

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