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Theories and Examples from the Defense Perspective Hermes, Netburn, O’Connor & Spearing, P.C. Anthony J. Sbarra, Jr.

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Presentation on theme: "Theories and Examples from the Defense Perspective Hermes, Netburn, O’Connor & Spearing, P.C. Anthony J. Sbarra, Jr."— Presentation transcript:

1 Theories and Examples from the Defense Perspective Hermes, Netburn, O’Connor & Spearing, P.C. Anthony J. Sbarra, Jr.

2 It is my opinion that Mr. Melford has malignant mesothelioma of the left chest. His prognosis despite radical surgery is poor. It is my opinion, to a reasonable degree of medical certainty, that his mesothelioma was caused by cumulative exposure to asbestos. Dr. Richard Kradin, October, 2011 Asbestos is the only established cause of diffuse malignant mesothelioma in patients in the United States who have not received prior radiology at the site of the tumor. All special exposures to asbestos which occur prior to the development of a diffuse malignant mesothelioma contribute to its pathogenesis. A special exposure as used here means an exposure for which there is scientific reason to conclude that such an exposure creates risk of developing the disease. All of the types of asbestos can cause diffuse malignant mesothelioma. Dr. Eugene Mark, October, 2008 “A special exposure as used here means an exposure for which there is scientific reason to conclude that such an exposure creates risk of developing the disease.”

3  Concept of “target cells” in the mesothelium  Target cells attacked by asbestos fibers  Fibers damage DNA in target cells, causing inability to control growth  Certain number of insults/errors to cell or cells required  Not all fibers reach target cells  After sufficient amount of insults/errors, disease is inevitable

4 A matter of chance A matter of chance - Impossible to determine which fibers reach the target cells and cause disease.  A:I agree.  Q:By definition, Doctor, doesn’t that mean that some proportion of the fibers do not reach the target cell?  Q:When you’re dealing with the target cells and the fibers coming in, you indicated that some proportion of those fibers get to the target cell; correct?  A:Of course, because, as you’ve indicated, all of the obstacles that we have.  A:That’s the question that we went through. Right. A matter of chance - Impossible to determine which fibers reach the target cells and cause disease.  Q:All Right. And you’ve got the target cell, and you’ve got a person who is breathing asbestos fibers. It’s a crap shoot as to which fibers make it to the target cell; isn’t that correct?  A:I agree.  Q:When you’re dealing with the target cells and the fibers coming in, you indicated that some proportion of those fibers get to the target cell; correct?  A:That’s the question that we went through. Right.  Q:By definition, Doctor, doesn’t that mean that some proportion of the fibers do not reach the target cell.  A:Of course, because, as you’ve indicated, all of the obstacles that we have. Blanchard v. American Standard, Inc. et al. Providence Superior Court, C.A. No.: PC , Deposition, April 19, 2010  Q:All Right. And you’ve got the target cell, and you’ve got a person who is breathing asbestos fibers. It’s a crap shoot as to which fibers make it to the target cell; isn’t that correct? Blanchard v. American Standard, Inc. et al. Providence Superior Court, C.A. No.: PC , April 19, 2010 “It’s a crap shoot as to which fibers make it to the target cell; isn’t that correct?” “I agree.” “…you indicated that some proportion of those fibers get to the target cell, correct?” “Right.” “…doesn’t that mean that some proportion of the fibers do not reach the target cell?” “Of course…”

5 The train has left the station The train has left the station - Certain amount of insults/errors are required. Disease becomes inevitable.  Q:But in any event, for the individual who ultimately develops the disease, the target cells have to be insulted by a sufficient amount of fibers to mess up the DNA, so that the cells can’t control growth, and here we go with the disease, correct?  A: Correct.  Q: And science can’t tell us how many insults you need; correct?  A: So there’s a range. So exactly, no, but it’s certainly more than three separate errors, and probably somewhere within 15 or 16. So somewhere in that range, but you’re right. We can’t tell exactly.  Q: Once that occurs, Doctor, once the target cell has been insulted to such a degree that control over growth is lost, that person is going to get the disease ultimately; correct?  A:Right. “And science can’t tell us how many insults you need; correct?” “…probably somewhere within 15 or 16…but you’re right. We can’t tell exactly.” “Doctor, once the target cell has been insulted to such a degree that control over growth is lost, that person is going to get the disease ultimately; correct?” “Right.” Blanchard v. American Standard, Inc. et al. Providence Superior Court, C.A. No.: PC , April 19, 2010

6  The theory has never been scientifically tested.  The theory is unsupported by any data.  The theory has not been published in peer- reviewed literature.  The theory is a “concept” which is “intuitive.”  The theory has not been “put together as a scientific principle and tested.” Baxter v. Alfa Laval, et al., Suffolk Superior Court, C.A. No.: MICVO5-4314, July 18, 2006

7 The shooting gallery The shooting gallery – Every fiber cannot be a cause. Dr. Jerrold Abraham  Q:Going back to the whole fiber attacking cells, there’s no way of knowing which fibers from which products actually accomplished that fact, correct?  A:Well, again, using the cumulative exposure approach, they all contributed by making it more likely that that result happened.  Q:Well, that’s my point. If somebody is in a shooting gallery and 50 people shoot at him and one bullet kills him, the other 50 people – or the other 49 people that shot at him were not causative of his death, correct?  A:Well, unless you couldn’t trace the bullets to see, then you could attribute it to all of them.  Q:Well, that’s just it, you can’t figure it out, so you include all the shooters?  A:That’s a reasonable analogy since that’s the way cumulative exposure works. Cashman v. Aamco Transmissions, et al, Providence Superior Court, C.A. No.: Deposition, October 13, 2012 “…using the cumulative approach, they all contributed by making it more likely that the result happened.” “If somebody is in a shooting gallery and 50 people shoot at him and one bullet kills him…the other 49 people that shot at him were not causative of his death, correct?” “…unless you couldn’t trace the bullets to see, then you could attribute it to all of them.” “…you can’t figure it out, so you include all the shooters?” “…that’s the way cumulative exposure works.”

8 We cannot exclude any exposures, so we include them all. Dr. Elaine Panitz  Q:We have no way of knowing which fibers caused or contributed to the disease, we have no way of excluding any of the fibers, so we include them all. Isn’t that what you’re telling us?  A:I would say that as we indicated, all of the exposures in his occupational setting have to be considered as contributing to the cumulative exposure.  Q:And they have to be considered because you can’t tell which ones caused the disease and which ones didn’t. Isn’t that correct?  A:That is correct. There is no way to know.  Q:There’s no way to know, so you include every single one of them?  A:But scientifically that’s how we regard the exposure and the cause and effect. There is no scientific evidence to suggest which fibers in a cumulative dose lead to the malignant mesothelioma. Kelley v. Alco Auto Parts Co., Inc., et al., Middlesex Superior Court, C.A. No.: , October 29, 2009 “We have no way of knowing which fibers caused or contributed to the disease, we have no way of excluding any of the fibers, so we include them all. Isn’t that what you’re telling us?” “…scientifically that’s how we regard the exposure and the cause and effect. There is no scientific evidence to suggest which fibers in a cumulative dose lead to the malignant mesothelioma.”

9 But to go from the inability to eliminate as a possible cause to an opinion that it is a substantial contributing cause, I think there’s a danger that that particular opinion based on the inability to eliminate it is an impermissible opinion with respect to the law of the burden of proof and the law of what a substantial contributing cause is. Hely, J., Watts v. Alfa Laval, Inc., et al. Middlesex Superior Court Trial, March 16, 2009

10 It is the plaintiff’s burden of proof to prove that a particular product and exposure to a particular product or a particular defendant’s product or products, without necessarily pinning it down to a particular one, but that a particular defendant’s product or products were a substantial contributing cause of the illness. I will not permit Dr. Holstein to testify, even if he believes it sincerely himself as a scientist, that each and every fiber is a cause of the illness at least in terms of legal analysis the jury has to make. From review of Dr. Holstein’s previous testimony, I’ve heard the phrase “It’s like a glass of water: the last drop makes the glass overflow, therefore that drop along with all the other drops is a substantial contributing cause.” I will not permit that phrase or analogy either. Hely, J., Moscaritolo v. A.W. Chesterton Co., et al., Middlesex Superior Court Trial, June 2, 2011 “I will not permit Dr. Holstein to testify, even if he believes it sincerely himself as a scientist, that each and every fiber is a cause of the illness at least in terms of legal analysis the jury has to make.” “From review of Dr. Holstein’s previous testimony, I’ve heard the phrase ‘It’s like a glass of water: the last drop makes the glass overflow, therefore that drop along with all the other drops is a substantial contributing cause.’ I will not permit that phrase or analogy either.”

11 While a plaintiff may present “each and every exposure” evidence at trial to establish the inherent dangers of breathing in asbestos, such evidence will not satisfy the causation standard adopted here unless it is accompanied by sufficient evidence of the “frequency, regularity, and proximity” of the plaintiff’s exposure to asbestos to establish that such exposure was a substantial factor in bringing about the plaintiff’s injury. Sweredoski v. Alfal Laval, Inc., Providence Superior Court C.A. No. PC , June 13,2013 “While a plaintiff may present “each and every exposure” evidence at trial…such evidence will not satisfy the causation standard adopted here unless it is accompanied by sufficient evidence of the “frequency, regularity, and proximity” of the plaintiff’s exposure to asbestos…”

12 4,000 = 1 4,000 = 1 – The cumulative theory at its extreme. Dr. Elaine Panitz  Q:If he worked for 40 years with asbestos-containing products made by company A and he came into contact with those products 4,000 times and then he worked once with an asbestos-containing product made by manufacturer B, so you’ve got 4,000 exposures as compared to one exposure, that one exposure is still a substantial contributing cause?  A:I would put it this way. Each of those occupational exposures contributes to the cumulative exposure that leads to the development of malignant mesothelioma. Kelley v. Alco Auto Parts Co., Inc., et al., Middlesex Superior Court, C.A. No.: , October 29, 2009 “…so you’ve got 4,000 exposures as compared to one exposure, that one exposure is still a substantial contributing cause?” “I would put it this way. Each of those occupational exposures contributes to the cumulative exposure…”

13 The fiber fairy The fiber fairy - One fiber makes all the difference. Dr. Jerrold Abraham  Q:Say you’ve got a fellow who’s sitting in a room. The air is the air, as you’ve said it. He’s sitting there for a half an hour. There are no respirable fibers. And a fiber fairy appears in the room and puts a 6- micron chrysotile fiber right in his breathing zone and he breathes it, which takes the exposure to above background. Is that a significant contributing factor in your view?  A:Well, hypothetically it would be. Cashman v. Aamco Transmissions, et al, Providence Superior Court, C.A. No.: , October 13, 2012

14  Q:If that fellow who was sitting in that room – let’s put two of them in the room, and the same thing happens to them; one, they both develop mesothelioma and two, they’re both exposed to one fiber from the fiber fairy. Okay? One of them lived in a hermetically-sealed room for his entire life and only had the exposure to that one fiber, and the other worked in a shipyard for 60 years with amosite-containing insulation and pipe covering. Under those circumstances the one fiber would still be a significant contributing factor to both of those fellows developing mesothelioma in your view. Is that correct? The fiber fairy The fiber fairy - One fiber makes all the difference. Dr. Jerrold Abraham  A:Well, again, I think it’s highly unlikely that there would be such a patient that only had that one fiber exposure that developed a mesothelioma, but if there were I’d have to include it. Cashman v. Aamco Transmissions, et al, Providence Superior Court, C.A. No.: , October 13, 2012

15  “Risk” does not equal “cause.”  The inability to exclude does not equal causation.  There should be a showing of frequency, duration and proximity. Hermes, Netburn, O’Connor & Spearing, P.C. Anthony J. Sbarra, Jr.

16 Alice S. Johnston Obermayer Rebmann Maxwell & Hippel LLP

17 Garlock bankruptcy proceeding Public access issues Ancillary issues

18 Garlock Sealing Technologies LLC Chapter 11 Voluntary Petition filed in U. S. Bankruptcy Court, Western District of North Carolina June 5, 2010

19 Excerpts from Resolutions: Company is “overwhelmed by the financial and institutional costs of defending and resolving tens of thousands of asbestos claims in state and federal courts across the country, which costs, if permitted to follow the current course, threaten the financial stability of the Company” “…a bankruptcy proceeding … intended to establish a trust that would resolve all current and future asbestos claims under Section 524(g) of the U. S. Bankruptcy Code, currently provides the best alternative … by providing a single forum that offers an efficient and fair means of determining and satisfying the Company’s alleged responsibility for the mass of asbestos personal injury claims pending against it and expected to be filed in the future;”

20 Affidavit of Donald Pomeroy in support of first day motions: “The Debtors’ cost of resolving an individual Asbestos Claim has on average multiplied over eightfold since early 2000, when a bankruptcy wave commenced that eventually swept nearly all of the major manufacturers of dangerous, friable, asbestos products into bankruptcy. As a result of joint and several liability principles applicable in many jurisdictions and improper targeting of product exposure evidence by plaintiffs’ firms (described in the Information Brief), the bankruptcy wave left peripheral defendants like Garlock, whose products contained nonfriable asbestos, to pay the enormous liabilities of such bankrupt defendants.” (footnote omitted)

21 Order Estimating Aggregate Liability, Hon. George R. Hodges, January 10, 2014

22 Relevant interests: Debtor – Garlock Sealing Technologies LLC Official Committee of the Asbestos Personal Injury Claimants and other moving parties with Motions to Seal Future Asbestos Claimants’ Representative Legal Newsline Ford Motor Company and others similarly situated, the “public access proponents”

23 Legal Newsline Motion to Unseal the trial testimony and exhibits from the estimation hearing Ford Motions for access Joinders to the Ford public access motions

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25 References for circulation: Hon. George R. Hodges, Order Estimating Aggregate Liability, January 10, 2014 Mark Plevin, The Garlock Estimation Decision: Why Allowing Debtors and Defendants Broad Access to Claimant Materials Could Help Promote the Integrity of the Civil Justice System, Norton Journal of Bankruptcy Law and Practice, Vol. 23 No. 4 (2014) Dan Fisher, Judge Slashes Asbestos Liability In Garlock Bankruptcy To $125 Million, Forbes, January 10, 2014 Dan Fisher, Manufacturer's Lonely Quest To Open Asbestos Claims Files Gains Strength, Forbes, March 27, 2014 Dan Fisher, Secrecy Crumbling As Judge Gives Ford, Insurers Access To Asbestos Files, Forbes, May 6, 2014 Peggy Ableman, The Garlock Decision Should Be Required Reading for All Trial Court Judges in Asbestos Cases, American Journal of Trial Advocacy, Vol. 37:

26 ABA Tort Trial & Insurance Practice Section webinar

27 Lung Cancer

28 Medical Records

29

30 Bankruptcy Trust Records

31 Efforts to Quit Smoking

32 Smoking History

33 Warnings

34 Smoking

35

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37 2010 Surgeon General’s Report There is no safe level of exposure to cigarette smoke Cigarette smoke contains more than 7,000 chemicals, hundreds of which are hazardous and 69 of which are known to cause cancer Cigarettes are responsible for one in five deaths each year

38 Markowitz, et al. Asbestos, Asbestosis, Smoking and Lung Cancer: New Findings from the North American Insulator Cohort, Am J. Respir. Crit Care Med. Vol 188, Iss. 1, pp (April 13, 2013).

39 Responses to Markowitz Asbestos, Asbestosis, Smoking and Lung Cancer: Study Bias and Confounding Issues That Complicate the Interpretation of the Results, Am. J. Respir. Crit. Care Med., Vol. 189, No. 1 (2014) – letters from Drs. Ross and Geyer Reply from authors in same issue

40 THANK YOU Jennifer S. Kilpatrick Swanson, Martin & Bell, LLP Chicago, Illinois


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