“Each and Every Exposure” Is a Substantial Factor

“Every time a bell rings an angel gets his wings”
It’s a Wonderful Life (1946)

Every time a plaintiff shows the smallest imaginable exposure, there is a full recovery.
… The American tort system.

 

In 1984, Philadelphia County had a non-jury system for asbestos personal injury cases, with a right to “appeal” for a de novo trial with a jury. The non-jury trials were a wonderful training ground for a generation of trial lawyers, and for a generation or two of testifying expert witnesses. When I started to try asbestos cases as a young lawyer, the plaintiffs’ counsel had already taught their expert witnesses to include the “each and every exposure” talismanic language in their direct examination testimonies on the causation of the plaintiffs’ condition. The litigation industry had figured out that this expression would help avoid a compulsory non-suit on proximate causation.

Back in those wild, woolly frontier days, I encountered the slick Dr. Joseph Sokolowski (“Sok”), a pulmonary physician in private practice in New Jersey. Sok, like many other pulmonary physicians in the Delaware Valley area, had seen civilian workers referred by Philadelphia Naval Shipyard to be evaluated for asbestosis. When the plaintiff-friendly physicians diagnosed asbestosis, a few preferred firms would then pursue their claims under the Federal Employees Compensation Act (FECA). The United States government would notify the workers of their occupational disease, and urge them to pursue the government’s outside vendors of asbestos-containing materials, with a reminder that the government had a lien against any civil action recovery. The federal government thus made common cause with the niche law practices of workers’ compensation lawyers,1 and helped launch the tsunami of asbestos litigation.2

Sok was perfect for his role in the federal kick-back scheme. He could deliver the most implausible testimony, and weather brutal cross-examination without flinching. He had the face of a choir boy, and his service as an outside examiner for the Navy Yard employees gave his diagnoses the apparent imprimatur of the federal government. Although Sok had no real understanding of epidemiology, he could readily master the Selikoff litany of 5-10-50, for relative risks for lung cancer, from asbestos alone (supposedly), from smoking alone, and from asbestos and smoking combined, respectively. And he similarly mastered his lines that “each and every exposure” is substantial, when pressed on whether and how exposure to a minor vendor’s product was a substantial factor. Back in those days, before Johns-Manville (JM) Corporation went bankrupt, honest witnesses at the Navy Yard acknowledged that JM supplied the vast majority of asbestos products, but that testimony changed literally over the course of a trial day, when the plaintiffs’ bar learned of the JM bankruptcy.

It was into this topsy-turvy litigation world, I was thrown. I had the sense that there was no basis for the “each and every exposure” opinion, but my elders at the defense bar seemed to avoid the opinion studiously on cross-examination. I recall co-defendants’ counsels’ looks of horror and disapproval when I broached the topic in my first cross-examination. Sok had known to incorporate the “each and every exposure” opinion into his direct testimony, but he had no intelligible response to my question about what possible basis there was for the opinion. “Well, we have to blame each and every exposure because we have no way distinguish among exposures.” I could not let it lie there, and so I asked: “So your opinion about each and every exposure is based upon your ignorance?” My question was quickly met with an objection, and just as quickly with a rather loud and disapproving, “Sustained!” When Sok finished his testimony, I moved to strike his substantial factor opinion as having no foundation, but my motion was met with by judicial annoyance and apathy.

And so I learned that science and logic had nothing to do with asbestos litigation. Some determined defense counsel persevered, however, and in the face of over one hundred bankruptcies,3 a few courts started to take the evidence and arguments against the “every exposure” testimony, seriously. Last week, the New York Court of Appeals, New York’s highest court, agreed to state out loud that the plaintiffs’ “every exposure” theory had no clothes, no foundation, and no science. Juni v. A.O. Smith Water Products Co., No. 123, N.Y. Court of Appeals (Nov. 27, 2018).4

In a short, concise opinion, with a single dissent, the Court held that plaintiffs’ evidence (any exposure, no matter how trivial) in a mesothelioma death case was “insufficient as a matter of law to establish that respondent Ford Motor Co.’s conduct was a proximate cause of the decedent’s injuries.” The ruling affirmed the First Department’s affirmance of a trial court’s judgment notwithstanding the $11 million jury verdict against Ford.5 Arguing for the proposition that every exposure is substantial, over three dozen scientists, physicians, and historians, most of whom regularly support and testify for the litigation industry, filed a brief in support of the plaintiffs.6 The Atlantic Legal Foundation filed an amicus brief on behalf of several scientists,7 and I had the privilege of filing an amicus brief on behalf of the Coalition for Litigation Justice and nine other organizations in support of Ford’s positions.8

It has been 34 years since I first encountered the “every exposure is substantial” dogma in a Philaddelphia courtroom. Some times in litigation, it takes a long time to see the truth come out.


1 E.g., Shein and Brookman; Greitzer & Locks; both of Philadelphia.

2 Encouraging litigation against its suppliers, the federal government pulled off a coup of misdirection. First, it deflected public censure from the Navy and other governmental branches for its own carelessness in the use, installation, and removal of asbestos-containing insulations. Second, the government winnowed the ranks of older, better compensated workers. Third, and most diabolically, the government, which was self-insured for FECA claims, recovered most of their outlay when its former employees recovered judgments or settlements against the government’s outside asbestos product vendors. “The United States Government’s Role in the Asbestos Mess” (Jan. 31, 2012). See also Walter Olson, “Asbestos awareness pre-Selikoff,” Point of Law (Oct. 19, 2007); “The U.S. Navy and the asbestos calamityPoint of Law (Oct. 9, 2007).

4 The plaintiffs were represented by Alani Golanski of Weitz & Luxenberg LLP.

6 Abby Lippman, Annie Thebaud Mony, Arthur L. Frank, Barry Castleman, Bruce P. Lanphear,

Celeste Monforton, Colin L. Soskolne, Daniel Thau Teitelbaum, Dario Consonni, Dario Mirabelli, David Egilman, David F. Goldsmith, David Ozonoff, David Rosner, Fiorella Belpoggi, James Huff, John Heinzow, John M. Dement, John Coulter Maddox, Karl T. Kelsey, Kathleen Ruff, Kenneth D. Rosenman, L. Christine Oliver, Laura Welch, Leslie Thomas Stayner, Morris Greenberg, Nachman Brautbar, Philip J. Landrigan, Xaver Baur, Hans-Joachim Woitowitz, Bice Fubini, Richard Kradin, T.K. Joshi, Theresa S. Emory, Thomas H. Gassert,

Tony Fletcher, and Yv Bonnier Viger.

7 John Henderson Duffus, Ronald E. Gots, Arthur M. Langer, Robert Nolan, Gordon L. Nord, Alan John Rogers, and Emanuel Rubin.

8 Amici Curiae Brief of Coalition for Litigation Justice, Inc., Business Council of New York State, Lawsuit Reform Alliance of New York, New York Insurance Association, Inc., Northeast Retail Lumber Association, National Association of Manufacturers, Chamber of Commerce of the U.S.A., American Tort Reform Association, American Insurance Association, and NFIB Small Business Legal Center Supporting Defendant-Respondent Ford Motor Company.

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