Illinois and Pennsylvania Courts Reject the “Single Fiber” Theory

Posted on January 9th, 2015 by sutteroconnell

Two separate courts rejected the “single fiber” theory in asbestos product liability cases in December of 2014. The “single fiber” theory (or “any exposure“ theory, or “each and every exposure” theory) alleges that each and every exposure to asbestos constitutes a substantial factor in the development of an asbestos-related disease.

In Charles Krik v. Crane Co., Defendant filed a motion in limine to exclude the expert testimony of Dr. Arthur Frank, Dr. Arnold Brody, and Frank Parker, CIH.  Defendant argued that the “any exposure” theory is not scientifically reliable because it lacks a sound toxicological basis and ignores the fundamental principle of toxicology that the “dose makes the poison”.  Defendant also argued that the “any exposure” theory is speculative and not based on any identifiable methodology or research.  The court reviewed the deposition testimony of Krik’s experts, and determined that they did not provide any evidence regarding the amount of exposure Krik may have had to asbestos, and that Dr. Frank readily admitted in his deposition that he had not considered any such information in his analysis.  On December 22, 2014, the Krik court granted Defendant’s motion in limine to exclude any expert testimony espousing the “any exposure”, “each and every exposure”, and “single fiber” theories at trial.

In Nelson v. Airco Welders Supply, Defendants appealed a judgment entered in the Philadelphia County Court of Common Pleas in an asbestos case in the amount of $14.5 million.  On appeal, Defendants challenged the sufficiency of Plaintiff’s sole causation expert, Dr. Daniel DuPont.  Dr. DuPont offered an “any exposure” theory of causation, and testified that Defendants’ products were a substantial cause of Plaintiff’s mesothelioma.  According to Dr. DuPont, mesothelioma occurs as a result of significant exposure to asbestos, defined as any exposure above the negligible amount present in ambient air, and such exposure constitutes a substantial factor in developing mesothelioma.  Dr. DuPont conceded that he could not establish specific causation for any of the asbestos-containing products.  On December 23, 2014, the Nelson court cited to the Pennsylvania Supreme Court cases of Betz v. Pneumo Abex, LLC and Gregg v. V-J Auto Parts, Co., and held that the “any exposure” theory was fundamentally inconsistent with both science and the governing standard for legal causation.  The Nelson court vacated the jury award and remanded the case for a new trial.

In Ohio, the Sixth Circuit Court of Appeals has barred the “single fiber” theory (see Moeller v. Garlock Sealing Techs., LLC and Lindstrom v. A-C Prod. Liab. Tr.).  However, it remains a viable theory in state courts throughout Ohio.  Despite numerous legal challenges in Cuyahoga County, Plaintiff’s experts are permitted to offer the “single fiber” opinions at trial in Cuyahoga County, where the majority of asbestos cases are concentrated on a special docket.  Given the recent rulings in Illinois and Pennsylvania, Defendants in Ohio should reiterate their objections to the “single fiber” theory, based on the persuasive authority of the Lindstrom case and the Krik and Nelson opinions.

Click on Krik and Nelson to read the opinions.