The Foundation filed an amicus letter urging the California Supreme Court to grant the petition for review in Strickland v. Union Carbide Corporation, Case No. S212424, a case with important implications for asbestos litigation in particular and product liability cases generally in California.
Mr. Strickland worked in construction for many years with wall board and joint compound which contained asbestos; in the case of Union Carbides product, it was solely the chrysotile form of asbestos. He was also exposed to many other asbestos-containing products, including some which contained the amphibole form of asbestos. He died of peritoneal mesothelioma.
At issue is whether plaintiffs experts testimony that Stricklands exposure to a pure form of chrysotile asbestos (not contaminated with amphiboles) that Union Carbide marketed in the 1960’s and 1970’s was a substantial cause of Stricklands peritoneal mesothelioma. It is generally accepted that both amphibole asbestos and chrysotile asbestos can cause pleural mesothelioma, a cancer of the lining of the lung. It is also generally accepted that chrysotile asbestos is far less potent carcinogen than amphibole asbestos. There is consensus that amphibole asbestos can cause peritoneal mesothelioma, a cancer of the lining of the chest cavity, but most experts do not believe that chrysotile has been shown to cause peritoneal mesothelioma.
Plaintiffs produced no evidence to show how frequently Mr. Strickland was exposed to Union Carbides chrysotile product. Plaintiffs industrial hygiene expert estimated the momentary levels of a person’s exposure to asbestos fibers during use of the various products that Strickland encountered, including joint compounds, but he did not attempt to calculate Strickland’s overall exposures to chrysotile generally, or to Union Carbides products in particular. As is common in asbestos cases, the plaintiffs sued many companies that made products containing various types of asbestos. By the time of trial, all of the other defendants had settled, leaving Union Carbide as the lone defendant. A biopsy of Strickland’s lung tissues showed that he had been exposed to very high concentrations of amphibole asbestos fibers
Plaintiffs expert on medical causation was Dr. Samuel Hammar, who is a frequent plaintiffs expert in mesothelioma cases. Dr. Hammar testified that in his opinion Stricklands exposure to Union Carbides product was a substantial cause of Stricklands mesothelioma. Dr. Hammars reasoning was as follows:
* Hammar found chrysotile fibers in abdominal cavities of some patients who died from peritoneal mesothelioma. (But he did not examine Stricklands peritoneal tissue.)
* Chrysotile can cause pleural mesothelioma.
* The tissue in the peritoneum is the same as or similar to pleural tissue.
* There is no reason why such chrysotile fibers should cause mesothelioma in the lungs and not in the peritoneum
* Ergo, it is likely that chrysotile fibers can cause peritoneal mesothelioma.
Dr. Hammar relied on several case studies to argue that chrysotile asbestos can cause peritoneal mesothelioma, as well as a number of articles in the medical literature that support this hypothesis. However, Hammar admitted that there are no epidemiological studies that show chrysotile-peritoneal mesolthelioma causation and that there is relatively little proof that chrysotile causes peritoneal mesothelioma. In fact, he cited only one recent case report in which the patient was supposedly exposed only to chrysotile asbestos, and Hammar characterized it as a Black Swan case because it is, in his words, incredibly rare.
In our amicus letter we argued that Dr. Hammars conclusion that chrysotile can cause peritoneal mesothelioma has a number of defects:
* Dr. Hammar ignored the generally accepted distinction between general causation and specific causation. His methodology does not even establish general causation of peritoneal mesothelioma for chrysotile asbestos, and the scientific consensus is that general causation of peritoneal mesothelioma for chrysotile asbestos is very doubtful.
* Dr. Hammar ignored the large body of toxicological studies by government studies and disinterested investigators that shows that chrysotile asbestos has a very small potential for causing mesothelioma.
* Dr. Hammar did not consider the dose or level of exposure of the individual patient. Determining the minimum threshold of fiber levels is critical to any consideration of medical causation.
* Dr. Hammar appears to have ignored or minimized the much greater risk to Mr. Strickland of developing peritoneal mesothelioma posed by his significant exposure to amphibole asbestos. Thus, neither Dr. Hammars methods nor his conclusions satisfies either the scientific or the legal criteria for general acceptance.
* Dr. Hammars hypothesis has not been tested.
* To the extent that Dr. Hammars hypothesis has been tested, it has not been confirmed. In fact, there are several epidemiological studies that show that the risk of persons occupationally exposed to high doses of chrysotile asbestos developing peritoneal mesothelioma is less than that of persons exposed to background levels of chrysotile.
* Dr. Hammar admitted that his hypothesis is not generally accepted, and since California is still a Frye state, his testimony has no probative value.
* Even under the more liberal Daubert tests, Dr. Hammars testimony is deficient because (1) his hypothesis has not been tested; (2) it has not been published in peer reviewed journals, (3) it seems to have been formulated for purposes of litigation, (4) it is not generally accepted, (5) there has been no attempt to calculate an error rate.
In short, we argued, courts should not accept an unproven and untestable theory as evidence.
California proclaims itself to be a Frye state, and general acceptance is a key criterion for admissibility of expert opinion testimony. However, there are California cases that hold that general acceptance is applicable only to new scientific techniques and not to the experts ultimate conclusion. We argued not only that Dr. Hammars conclusion is wrong and not generally accepted, but also that his reliance on isolated case studies and his failure to give proper weight to the lack of epidemiological studies confirming his opinion rendered his methodology incorrect.
In Sargon Enter. v. University of Southern California (2013) 55 Ca1.4th 747, the California Supreme Court recently seems to have moved toward a Daubert-like standard of admissibility of expert testimony. However, Sargon was not a toxic tort or products liability case, and the expert evidence at issue was that of a lawyer/CPA testifying about market share. The California Supreme Court held that under Section 801 of the California Evidence Code an expert opinion must be based on matter that provides a reasonable basis for the opinion, and that expert opinion based on conjecture or speculation is inadmissible. Further, under section 802 of the California Evidence Code, a trial court is empowered to look at the actual reasons an expert has for his opinion, and if there is too great an analytical gap between the data and the opinion proffered then a court may rule the testimony inadmissible. Thus Section 801 governs the type of matter used as evidence while Section 802 governs the reasons for an experts opinion. It is the courts job to analyze the logic of a conclusion, not the persuasive or probative value of the conclusion. If the matter relied on provides a reasonable basis for the opinion, it must be admitted. This principle holds true even if the opinion is held by only a minority of experts. The gatekeeping function should exclude clearly invalid and unreliable expert opinion.
We urged the California Supreme Court to grant review to clarify that lower courts should adhere to the two pronged test for causation in asbestos injury litigation as it was articulated in Rutherford v. Owens Illinois, Inc. (1997) 16 Ca1.4th 953, and not the diluted versions applied by the lower courts in this and other cases, and that the court should provide much needed guidance to trial judges who, while charged with responsibility to act as “gatekeepers” for the admissibility of expert testimony, cannot fulfill that responsibility when the criteria for admissibility of expert testimony are unclear.
To see our amicus letter, click here.