The Every Fiber Theory: Reductio Ad Absurdum
There's been considerable buzz about Betz v. Pneumo Abex; an asbestos case pending before the Pennsylvania Supreme Court. Recently several noted scientists underscored the importance of the case when they filed an amicus brief asking that the court reverse the Superior Court's ruling - a decision which would result in the plaintiff's expert being permitted to testify that each and every fiber of asbestos to which the plaintiff had been exposed was in fact a cause of his illness. The brief itself is somewhat odd and doesn't read much like the other works of the scientists involved; some scientific concepts having seemingly been lost in translation. They do however make one important point. Unfortunately, they don't address the fundamental issue that bedevil this litigation.
The point they make clearly is that the assertion that every fiber of asbestos is the cause of a subsequent disease is not a scientific one. Scientific claims require confirmation, which is to say that they're not merely hypotheses but are ideas that are testable, that have been tested and have survived those tests. In the case of the "every fiber" claim the scientists note that there's no evidence for it and that multiple studies involving exposure to low levels of asbestos have repeatedly refuted the claim. They make an especially strong plea for courts to remember the role that empiricism plays in the scientific method.
What remains unaddressed is what to do with a case in which the illness was allegedly caused by the aggregation of multiple small doses. In other words, as the plaintiffs frame the question, what is to be done when a camel is found with a broken back and a pile of straw the cause? Under what theory could any straw be absolved of blame?
Let's answer that question with some graphics. First up a typical modern case in which a plaintiff with mesothelioma had a combination of exposures from very high to very low. For the purposes of this discussion assume that 100 f yr/mL is a cumulative exposure that is recognized by plaintiffs and defendants as one that would have been sufficient to have caused plaintiff's illness. Here's what one such scenario might look like:
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Let's further define each exposure according to what we think the law is and ought to be with regard to what is called substantial factor analysis. Those exposures which in and of themselves are sufficient to have caused the illness are necessarily substantial factors. Those that pose a significantly increased risk, a question for the court and one that may vary from jurisdiction to jurisdiction, are also substantial factors. Those that produce only a remote or de minimis risk are not substantial factors. The graphic looks like this:
Our slide titled "How It Might Play Out" shows a case in which the court has defined the limits of liability and the jury has thereafter determined which of the substantial factors were foreseeable, which is to say risky in their estimation.
The harder case is the one in which plaintiffs argue that exposures that were substantial as well as those that were de minimis can just as arbitrarily be grouped into a subset of exposures the aggregate dose from which could clearly have been causative. It looks something like this:
As formerly peripheral defendants who were bit players in the asbestos industry have gone bankrupt we've increasingly seen cases with nothing but defendants whose conduct individually never produced more than a nearly infinitesimal risk of illness. And given that trend this is what plaintiffs' cases will look like in the future:
Assuming arguendo that multiple small doses of asbestos which have never been shown to have caused any illness whatsoever are in the aggregate capable of producing mesothelioma, how do defendants argue that they ought not be liable? The answer begins with the fact that an unwritten rule for asbestos litigation has evolved over the years. That rule is "causation equals liability". That was never the rule.
Now however, as with the circumstance of Ms. Palsgraf in which she could not recover because the risk to her created by a guard trying to help a stumbling passenger was too remote, courts wrestling with asbestos litigation are beginning to come to grips with the fact that many of the defendants left in the litigation are being sued for producing risks that were orders of magnitude smaller than those posed by everyday facets of life such as taking a shower, shaking a stranger's hand or eating an extra slice of pizza. And some courts are starting to apply the same rules that they apply to other cases in which the conduct was ordinary and the outcome remote - that it cannot be the law that any action a person takes, however benign or ordinary, subjects her to being hauled into court should she be that one in a million person whose ordinary conduct produces an extraordinary outcome.
And thus to the camel's claim. Ultimately the question is whether some conduct is so common and so unexceptional as to not, as a matter of law, subject the actor to liability; even though by way of one of life's tragic chances her simple action one day manifests in harm to another. The Restatement (Third) of Torts answers "no, never". On the other hand, in every context outside of asbestos litigation, American courts have overwhelmingly answered "yes". "Yes", because they recognize that we all make our way, with rare exceptions, as best we can through a world of inevitable and mostly unknown risks. They hold that the extra straw added to the camel's load then, in every case, asbestos or otherwise, ought not subject she who added it to massive and equally unpredictable liability.
