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On August 31, 2017, the Seventh Circuit Court of Appeals upheld key rulings on the admissibility of expert testimony in light of substantive law regarding causation.  Click here to download the ruling.

Charles Krik alleged that his lung cancer was caused, in part, by exposure to asbestos attributable to his work at an Exxon Mobil refinery in Joliet, Illinois, and to his exposure to products sold by Owens-Illinois. At the trial level, the trial judge accepted the defendants’ arguments that plaintiff’s expert opinions regarding causation were scientifically unreliable and inconsistent with substantive law. Applying the Daubert factors, the Court granted defendants’ motions and barred the Plaintiff’s expert witnesses’ testimony concerning the “any exposure” theory. That theory contends 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. The jury returned a verdict finding that the sole proximate cause of plaintiff’s lung cancer was cigarette smoking, and not the defendants. Krik v. ExxonMobil, et al, No. 1:10-cv-07435 - Document 299 (N.D. Ill. 2014).

On appeal, the Court held that the “proffered expert testimony on causation did not meet the standards required under Federal Rule 702 and Daubert.” The Court explained:

To summarize, 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. The ultimate burden of proof on the element of causation, however, remains with the plaintiff. Shelton v. Old Ben Coal Co., 933 F.2d 504, 508 (7th Cir. 1991); Nolan v. Weil-McClain, 233 Ill.2d 416, 435 (Ill. 2009).

Krik v. ExxonMobil, et al., No. 15-3112. The Court further explained that “requiring a defendant to exclude a potential cause of the illness, therefore, improperly shifts the burden to the defendants to disprove causation and nullifies the requirements of the “substantial factor” test.”

This case is a significant win for all toxic tort defendants who have battled against the “every exposure” or “cumulative exposure” theories of causation on countless occasions. At its core, the decision eliminates this faulty theory, which was generated solely for litigation purposes, and which has been central to the business model of the plaintiff’s toxic tort bar for many years.

ExxonMobil Oil Corporation was represented by H. Patrick Morris and David F. Fanning of Johnson & Bell, LTD., at trial and, Garrett L. Boehm, Jr., of the same firm joined them for the appeal. Owens-Illinois, Inc. was represented by Edward Casmere and Brian Watson of Riley Safer Holmes & Cancila LLP at trial, and Robert H. Riley, Mathew J. Fischer, and Joshua D. Lee of the same firm joined them on appeal.

Related Item of Interest 

Johnson & Bell Secures Not Guilty Verdict in Case Alleging Asbestos Exposure