Mass Torts: State of the Art : Mass Torts Lawyer & Attorney : Vorys, Sater, Seymour & Pease Law Firm : Toxic Torts & Wrongful Death

In Moeller v. Garlock Sealing Technologies, LLC the 6th Circuit held that while the decedent's exposure to the defendant's gaskets "may have contributed to his mesothelioma, the record simply does not support an inference that it was a substantial cause of his mesothelioma. Given that the Plaintiff failed to quantify [decedent's] exposure to asbestos from [Defendant's gaskets] and that the Plaintiff concedes that [decedent] sustained massive exposure to asbestos from [other] sources, there is simply insufficient evidence to infer that [Defendant's] gaskets probably, as opposed to possibly, were a substantial cause of [decedent's] mesothelioma... On the basis of this record, saying that exposure to [Defendant's] gaskets was a substantial cause of [decedent's] mesothelioma would be akin to saying that one who pours a bucket of water into the ocean has substantially contributed to the ocean's volume. Cf. Gregg. v V-J Auto Parts, Col, 943 A.2d 216, 223 (Pa. 2007)."

So what's the problem? The problem is that the court is not asking whether the exposure in question created a substantial risk - one that may have been (though we'll never know because there were other possible sufficient causes) the cause of plaintiff's injury. No, the court is asking whether the exposure was likely to have been the "actual cause" of plaintiff's injury. That's made clear when the court writes: "Substantial causation refers to the probable cause, as opposed to a possible cause". Thus, it's not an inquiry as to the conduct (i.e. did Defendant produce more than a de minimis risk) but rather an inquiry as to the amount of the exposure to Defendant's product relative to other exposures.

For defendants then, who increasingly face a litigation environment in which their product contributed a bucket of water into an ocean the size of a bathtub, a few more victories like Moeller v. Garlock threaten to utterly undo them.

Hat tip Nina Webb-Lawton

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Illinois' "consumer expectation test" does not excuse a plaintiff from proving causation.

Chinese chrysotile asbestos workers have more than a threefold increase in lung cancer risk.

What doesn't kill you makes you live longer.

Toxicology is rethinking recent dogma and its gaze is turning towards Goldilocks and hormesis.

Market economics explain otherwise inexplicable plant-fungi interactions.

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If an expert, or a panel of experts, renders an opinion in the face of considerable uncertainty ought she, or they, be subjected to liability if their opinion turns out to be wrong? When scientists in Italy got earthquake advice wrong, and were sued for damages and prosecuted for manslaughter, scientists from around the world demanded that legal systems understand just how little even experts know about how the world works and how tentative is their knowledge, and how often wrong are even the wisest among us. (Socrates must be smiling). See "Scientists On Trial: At Fault?"

Well, if experts shouldn't be subjected to liability when they opine about cutting edge and uncertain science why should defendants be subjected to liability for claims founded upon the very same unproved and highly uncertain opinions of expert witnesses? Maybe if expert witnesses could be fined or incarcerated for opinions that later turn out to be wrong we'd see a lot more humility, and honesty, among the experts who ply their trade down at the courthouse.

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That's what many have concluded about the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. When one of its reporters co-authored "The New Restatement's Top 10 Tort Tools" for "Trial" magazine the worst fears of those who had fretted that the new Restatement wasn't a restatement at all but rather a stealth effort to unleash new waves of litigation seemed to have been confirmed. Now a new law review article, "Reshaping the Traditional Limits of Affirmative Duties Under the Third Restatement of Torts", by Victor E. Schwartz and Christopher E. Appel, lays out the case.

Especially eye-opening is the discussion of the attempt to impose liability for insufficient risk reduction; and it doesn't just apply to "Bad Samaritans". An affirmative duty of care, the breach of which being a tort, may now be triggered by contracts and promises "which, if [the Restatement is] adopted, would likely [] lead to liability in situations in which a duty has never before been recognized." Of note to insurers is the explicit intention to impose a duty on anyone engaged in risk/loss prevention efforts. Not content with discouraging insurance companies from helping their insureds avoid accidents the Restatement proceeds to make employers think twice before running health screening for its employees to demonstrate they're not at risk of occupational illness.

And how can an insurer or an employer or any would-be Good Samaritan avoid undertaking such duties? It's not clear that they can, write the authors, noting the Reporters' Note to Section 42 tries to cut off Good Samaritans at the pass: "Statements denying an undertaking or about the limited purpose of the inspection must be read skeptically as they are not provisions that are bargained for by adversaries acting at arm's length and often are inserted only to diminish potential liability to third parties who are not parties to the contract."

Schwartz and Appel conclude that "... the new Restatement takes the rule of duty through undertaking in precisely the wrong direction. Public policy should encourage undertakings that help promote public safety and education, and not chill such action through an expansion of duty in tort law." Of course, that assumes that one purpose of the new Restatement was the common good. Oh well.

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What are they? They're responsible for massive worldwide die-offs of frogs and other amphibians. They're killing huge numbers of bats across the United States and threatening some local populations with outright extinction. They've also been convincingly associated with bee-colony collapse disorder which has wiped out 20 - 40 percent of U.S. honeybee colonies.

But they're not all bad. They invented penicillin and make other good things like beer and bread.

So, what are they? Read all about them in the Institute of Medicine's new report: "Fungal Diseases: An Emerging Threat to Human, Animal and Plant Health: Workshop Summary". The partial quote in our blog title comes from one of the participants, Arturo Casadevall, who said "Fungi are the only group of organisms that have been convincingly shown to cause extinction." And if you want more proof that infectious disease have most certainly not been conquered (and in fact have been invisible to investigators until now) be sure to read the story of the Cryptococcus gatti epidemic that emerged on Vancouver Island and has spread to the Northwestern U.S. killing 40 and sickening over 300 so far.

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The "acid bath" of empiricism is reproducibility; which is to ask, to test, whether the results of an experiment, a study, can be obtained by someone else following the same methods and using the same materials as reported by the original study's authors. How often, would you guess, do academic, peer reviewed and subsequently published study results suggesting molecular biological mechanisms susceptible to intervention, a/k/a "new drug targets", survive the bath? Generally? Nope. Usually? Nope? More often than not? Nope. Sometimes? Ok, even broken clocks are right twice a day. See "Reliability of 'new drug target; claims called into question'."

So what's going on here? Unfortunately all the incentives run in favor of confirming pre-existing biases when it comes to academic research and there are no incentives for disrupting the status quo. No one with hopes of getting her or his PhD writes up "How I Propose to Falsify My Department Rainmaker's Pet Theories" when soliciting a grant.

The game's afoot so remember that unreproduced conjectures have a very high probability of being false.

Exeunt.

ht Marginal Revolution

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"Our bodies are like coral reefs": how diet affects the gut virome and our health

A good argument can be made that peer review is pretty much worthless.

Oncogenic viruses may cause cancers of the liver and pancreas among poultry workers.

A new paper concludes chrysotile causes mesothelioma and argues for a worldwide ban.

Keep H. pylori at bay and gastric lymphoma stays away.

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