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Bucking National Trend, California Appeals Court Allows Discredited Asbestos Exposure Theory

Seemingly determined to keep California atop the Judicial Hellholes rankings, an appeals court there last week ignored precedent (Sargon Enterprises, Inc. v. University Californiaof Southern California(2012) 55 Cal.4th 747) requiring trial judges to function as “gatekeepers” when it comes to the scientific validity of expert testimony and instead upheld a decision to let jurors play that critical role in their acceptance of a discredited theory of asbestos exposure.

As reported by Christopher D. Strunk of Gordon & Rees LLP on, “[c]ourts from around the country have rejected efforts by plaintiff experts to testify that every asbestos exposure is a substantial factor in causing disease.”

But on March 3, “California’s second appellate district went the other way, and held in Davis v. Honeywell International, Inc. that the controversial ‘every exposure counts’ theory is admissible under governing expert witness law.”

The defendant’s primary basis for appeal was that plaintiff’s “every exposure counts” testimony should have been excluded, advancing four arguments:

  • The testimony was speculative and illogical,
  • The regulatory standards relied upon cannot establish causation,
  • No appropriate scientific literature supports the theory, and
  • The theory is contrary to California causation law espoused in Rutherford v. Owens Illinois (1997) 16 Cal.4th 953, which held that not every exposure to asbestos is a “substantial factor” in causing disease.

But the appellate court rejected each of the arguments:

Having reviewed much of the commentary and scientific literature cited in support of and against the “every exposure” theory, we conclude that the theory is the subject of legitimate scientific debate.   Because in ruling on the admissibility of expert testimony the trial court ‘does not resolve scientific controversies (Sargon), it is for the jury to resolve the conflict between the every exposure theory and any competing expert opinions.

. . . While [Defendant] is generally correct that in many (or even most) instances epidemiological studies provide the best evidence of causation, its implied argument that it is improper for an expert to rely upon any other tools to determine causation, such as case reports, is not universally accepted.

Strunk points out that “[t]he decision is not yet final. It is still subject to a petition for rehearing, which could result in a change in the opinion, and to either or both a request for depublication and a petition for review to the California Supreme Court, either of which if granted would make this decision uncitable in California courts, though not necessarily elsewhere.”

Nonetheless, another liability-expanding California court has shown a discouraging eagerness to knock still one more precedential brick out of the wall of reasonableness and sound science, and to invite an even bigger rush of asbestos cases into the once Golden State.

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