Posted on November 25th, 2016
According to the proponents of the "any exposure" theory, no level of asbestos is known to be safe, therefore any exposure is a substantial contributing cause of an asbestos-related disease.
Even if the theory cannot meet the Daubert test for the admissibility of scientific evidence, it can be difficult to challenge. There is currently a growing number of jurisdictions that reject it that Florida just joined in September 2016.
According to this theory, an asbestos-related disease is caused by any exposure a claimant may have had to any asbestos products above the background level naturally occurring in the environment. From this perspective, the actual dosage and the level of exposure that a claimant may have had to asbestos do not matter. A medical testimony that a disease is consistent with asbestos exposure, associated with a basic occupational history of the plaintiff's exposure to any level of asbestos is what they rely on.
Also known as "each and every exposure" or the "cumulative exposure" theory, according to the Daubert standard, it is not enough to prove that unquantified exposure to an asbestos-containing product was a substantial factor contributing to plaintiff's disease.
The "any exposure" theory can be difficult to challenge, but recently Florida joined the growing number of jurisdictions that reject the "any exposure" theory of proving causation in Crane Co. v. DeLisle, 41 Fla. L. Weekly D2133a (September 14, 2016).
Even if the trial judge allowed all four of the plaintiff's experts to testify, Florida's Fourth District Court of Appeal reversed and held that such opinions could not meet the rigors of the Daubert standard - used by most states and effective in Florida since 2013.
In short, Florida now requires that expert testimony is based on sufficient facts and should be the product of reliable principles and methods applied to the facts of the case. This remains to be established by the trial court before the jury may hear the expert opinions.
This decision is important as it requires the trial courts to examine more critically to what grounds the expert base their opinions. Also, it should have ramifications far beyond causation in asbestos cases. For instance, it can be expected to affect the admissibility of all expert opinions in toxic tort cases and in every type of case.