Plaintiff Charles Krik, a life-long cigarette smoker, alleged that his lung cancer was caused, in part, by exposure to asbestos attributable to his work as a pipe fitter at an Exxon Mobil refinery. At the trial level, the judge barred plaintiff’s expert Dr. Arthur Frank and his opinion that “any exposure” to a given substance adds to one’s cumulative dose, and that the cumulative dose is the alleged cause of the claimed injury. (Charles Krik v. Exxon Mobil Oil Corp., et al., No. 15-3112, 7th Cir., 2017 U.S. App. LEXIS 16795).
On appeal, the Seventh Circuit upheld the trial court’s ruling. They found that the principle behind the “each and every exposure” theory and the cumulative exposure theory is the same – that it is impossible to determine which particular exposure to carcinogens, if any, caused an illness. In other words, just like “each and every exposure,” the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose. Ultimately Dr. Frank’s opinions did not meet the standards required under Federal Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 589 (1993).
The court was troubled by Dr. Frank’s theory that exposure is either zero or substantial. The theory essentially ignores that the amount of fibers exposed to or length of exposure. The law requires plaintiff to demonstrate that his exposure to defendant’s specific product was a substantial cause of his disease. The burden of proof must be on the plaintiff, not the defendant.
It is unclear what, if any, impact the Krik ruling will have in Illinois state courts hearing asbestos toxic tort cases. The State of Illinois does not follow Daubert but relies on the Frye test as set forth in Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 767 N.E.2d 314 (2002). The Frye standard relies on “general acceptance” of an expert’s methods and techniques. It is clear that general acceptance does not concern the expert’s ultimate conclusion. Instead, the focus is entirely upon the underlying methodology used to generate the opinion. Therefore, even if a novel conclusion is reached, the opinion is still admissible if based on generally accepted methodology. In order to obtain a finding of general acceptance for a methodology used by an expert, universal acceptance in the field is not required. When determining whether a scientific procedure is generally accepted in the scientific community, the issue is consensus versus controversy over a particular technique. However, the existence of a dispute within the field does not preclude a finding that a procedure is generally accepted.
The more widely used Daubert standard takes a more scientific knowledge approach to determining the reliability of an expert’s testimony. The Federal Rules of Evidence 702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Due to the fact that the threshold for the admissibility of expert opinions is less rigorous under the Frye standard, applying the Krik holding in Illinois state court asbestos cases is going to be extremely difficult.
McKenna Storer has a track record of success in mass tort litigation. Our attorneys have successfully defended hundreds of cases battling environmental personal injury, illness and property damage lawsuits. For questions about this topic or any mass tort or asbestos concerns, contact attorney Paul Steinhofer or Gregory Cochran at McKenna Storer.
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