Sixth Circuit Rejects "Any Exposure" Theory of Causation

October 8, 2011

By D. Mark Jackson, Esq.

Asbestos plaintiffs in San Francisco, Alameda, Los Angeles and other California jurisdictions often attempt to advance the notion that "any exposure" to asbestos -- the theoretical "one fiber" -- causes disease. Last week, however, in Moeller v. Garlock Sealing Technologies, LLC (PDF), the United States Court of Appeals for the Sixth Circuit joined other courts in rejecting the "any exposure is a substantial factor" theory. While this decision is not binding on California courts, it adds to a growing body of authority heightening the requirement for proving causation in asbestos cases.

Defendant Garlock appealed the trial court's denial of a motion for judgment as a matter of law following a jury verdict against it. The Court of Appeals reversed, finding that plaintiff's evidence was insufficient to support the jury verdict. Applying Kentucky law, the Moeller court concluded that neither expert Arthur Frank, M.D., nor treating oncologist Charles Webb, M.D., ever testified specifically that Garlock gaskets were a substantial factor in causing decedent's mesothelioma.

To the extent that the causation standard could be satisfied through inference, the Court of Appeals found that the evidence presented by plaintiff was insufficient to allow a jury to infer that exposure to Garlock gaskets was a substantial cause of decedent's cancer. In particular, while there was testimony that decedent worked with Garlock gaskets every day, plaintiff failed to establish how many Garlock gaskets he removed, or how frequently he removed -- as opposed to installed -- them. Given that plaintiff failed to quantify decedent's exposure to asbestos from Garlock gaskets and plaintiff conceded that decedent sustained massive exposure to asbestos from non-Garlock (insulation) sources, the Court of Appeals concluded there was no substantial factor causation.

The Court of Appeals did not outright reject plaintiff's causation theory based on unreliability or lack of accepted methodology, as some cases in other jurisdictions have done. However, the language of the opinion suggests Moeller is in accord. The court quoted a prior Sixth Circuit case which concluded the "substantial factor" test would be meaningless if the plaintiff could meet his burden with an expert's opinion that every exposure to asbestos, however slight, was a substantial factor in causing the plaintiff's disease.

The Moeller court also echoed a common defense argument: "saying that exposure to Garlock gaskets was a substantial cause of [decedent's] mesothelioma would be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean's volume."