Back to Baselines – Litigating Increased Risks

Fear and increased risk of cancer in asbestos cases have been considered by the United States Supreme Court, by the United States Court of Appeals, by federal District Courts, by state Supreme and appellate courts, all around the country, but rarely or never with the good sense and confidence exhibited by a lone Common Pleas judge in Philadelphia, back in 1986.  In a decision that has gotten way too little recognition, Judge Abraham Gafni explained the key importance of base rates in litigating risk.  Sutcliffe v. G.A.F. Corp., 15 Phila. 339, 1986 Phila. Cty. Rptr. LEXIS 22, 1986 WL 501554 (1986).  Judge Gafni’s short decision is still required reading for every lawyer who litigates issues of risk in personal injury or medical monitoring claims.

The Sutcliffe case was like many other Philadelphia asbestos cases.  James Sutcliffe had been an insulator, from 1954 to 1974, at the Philadelphia Naval Shipyard, where he personally worked with asbestos insulation materials.  Id. at 341.  After he retired, Mr. Sutcliffe was diagnosed with asbestosis.  Rather than suing the party responsible for his working conditions, the Navy, under the Federal Employer’s Liability Act, Sutcliffe sued the remote insulation suppliers, who had no control over safety at his workplace.  At trial, Sutcliffe’s counsel called Dr. William Atkinson, a local pulmonary physician, as an expert witness to give an opinion about the diagnosis of asbestosis, and an opinion as to Sutcliffe’s increased risk of cancer.  Dr. Atkinson characterized Sutcliffe’s increased risk of lung cancer – approximately three to five-fold increased risk — as a multiple of a baseline, but Atkinson failed to provide the magnitude of the baseline risk.  Id. at 342 – 43.  The court found that this testimony was meaningless without the measure of baseline risk for those who had not been exposed to asbestos, and thus directed a verdict in favor of the defendant on the subject of increased risk of lung cancer:

“Without a statistical reference point, a jury would not be able to measure, with any reasonable certainty, the increase in risk due to the asbestosis.  Otherwise stated, saying that a risk is, for example, three times greater upon exposure to asbestos can convey nothing in the absence of a statement as to the base rate of risk in the absence of such exposure.”

Id. at 342 – 43.  The plaintiff’s failure of proof set off a cascade of logically and legally required consequences.  Without sufficient evidence of increased risk, the jury was also precluded from awarding damages for fear of cancer:

“Whether damages should be awarded for fear of developing cancer and mesothelioma is directly related to the issue of risk. Unless there is a legally sufficient foundation for a plaintiff’s increased risk of harm, a determination of  damages for a plaintiff’s fear becomes subjective. There must be some basis upon which a plaintiff’s fear can be determined to be reasonable. In the instant matter, no such basis exists since the evidence on risk of harm was insufficient and warranted a nonsuit.”

Id. at 346.

Finally, the plaintiff’s omission of evidence of base rates limited the theories that plaintiff could urge in support of his failure-to-warn claim.  Without sufficient evidence of increased risk or fear of cancer, the plaintiff could not properly argue to the jury that G.A.F. Corporation’s warning was inadequate because it failed to mention cancer:

“At the end of plaintiffs’ case, this Court granted defendant’s motion for a nonsuit on the issues of risk and fear of cancer and mesothelioma on the ground that the evidence as to those claims was insufficient. As a result of the nonsuit, plaintiffs’ counsel was prohibited from mentioning the words ‘cancer‘ or ‘mesothelioma ‘ when arguing the inadequacy of defendant’s warning label in his closing argument.”

Id. at 341.

Judge Gafni explained why baseline risk statistics were so important that their absence would result in the dismissal of a large portion of the plaintiff’s case:

“Virtually every substance taken in excess can, of course be harmful to the human body including the most basic nutrients, vitamins and minerals otherwise necessary for human health. Yet, no one would suggest that every conceivable warning must be given as to each substance if the statistical risk is infinitesimal. Consider, for example, whether a warning would be required as to a substance which increased the risk of one exposed to it from one in one hundred million to two in one hundred million. This is a 100% increase in risk, but of minimal importance in actual risk. A jury would be entitled to determine in such circumstances whether the warning as to such a risk is required. If the jury would be merely told in such circumstances, however, that the risk had doubled, without being informed of the actual underlying risk, it could erroneously assume that the individual had, in fact, been exposed to a significant risk.”

Id. at 343-44.

Although Judge Gafni stumbled upon the distinction between statistical and clinical significance, his meaning is clear and his holding continues to be relevant to many so-called toxic tort cases:

“In sum, when attempting to establish increased risk of harm (as plaintiff has attempted to do for both cancer and mesothelioma) by statistical evidence, it is imperative that statistics be given for both the plaintiff and for the average individual (the base rate). One without the other is of no statistical or probative value since it would require sheer speculation as to the missing statistic in attempting to determine the actual increase in risk and whether such a risk is of sufficient significance that failing to warn of it rendered the product defective. Of course, it would also affect the jury’s ability to ultimately determine appropriate damages had that issue been reached. Accordingly, in the absence of appropriate statistical evidence, the Court granted a nonsuit on the issues of risk of cancer and mesothelioma; it was on that basis that plaintiff’s counsel was instructed that reference to such could not be made in his closing argument.”

Id. at 345-46.

Sutcliffe has barely been cited in Pennsylvania, although for a while, its authority helped shape the notion that a jury should be charged to consider the size of an increased cancer risk in fashioning an appropriate, proportional reward in damages.  Another judge on the Philadelphia Court of Common Pleas, Judge Sandra Mazer Moss, for instance, routinely gave an explanatory instruction in which she charged juries to consider the magnitude of the increased risk to make sure that any damages awarded for fear or increased risk of future cancer were reasonably proportional to the net risk that resulted from the alleged occupational asbestos exposure.  For instance, if the jury would award $1,000,000 in an actual cancer case, it should award $10,000, if the net excess risk were 1%.  (This analysis ignores a necessary further reduction to present value.)  Moss’s instruction on increased risk helped cabin excessive damages in increased risk cases in Pennsylvania, during the early 1990s.  Eventually, this jury instruction became unnecessary after the Pennsylvania Supreme Court effectively eliminated damages for fear and increased risk of cancer in asbestos non-malignant injury cases.  Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996).

Outside of Pennsylvania, Sutcliffe has rarely been cited.  One law professor, Christopher Guzelian, who has insightfully addressed risk and causation questions, has cited the case in his important works on the law of increased risk and fear of future diseases. See, e.g., Christopher Guzelian, “The Kindynamic Theory of Tort,” 80 Indiana L.J. 987, 1010n.85 (2005); “Liability and Fear,” 65 Ohio State L.J. 713, 816n.312 (2004).  The leading casebooks, treatises, and hornbooks, however, fail to take stock of this case.  Sutcliffe continues to be relevant in asbestos and many other so-called toxic tort cases.

Several other academic authors have addressed base or background rates, but none has seen fit to discuss Sutcliffe.  See, e.g., Aaron Taggart & Wayne Blackmon, “Statistical base and background rates: the silent issue not addressed in Massachusetts v. EPA,” 7 Law, Probability and Risk 275 (2008); Jonathan J. Koehler, “When do courts think base rate statistics are relevant?” 42 Jurimetrics J. 373 (2002); Vern R. Walker, “The Concept of Baseline Risk in Tort Litigation, 80 Ky. L.J. 631 (1992)

Tragically, Chuck Kalinowski, the lawyer who argued the motion for compulsory non-suit in Sutcliffe, has died, and Judge Gafni now teaches and serves as a mediator.  They left behind a valuable legacy, which should not be forgotten as the courts turn their attention to increased risks in other contexts.

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