Several characteristics of the generation of disease and death by asbestos inhalation have moved courts to adapt the standard of proof of causation. Those characteristics are the prolonged latency of the induced disease, the multiple points of exposure of the victim, and the indistinguishability of contributory exposures. Because the resulting injury may not emerge for years or decades after exposure, the law does not require the plaintiff or his or her witnesses to establish the precise brand names of the asbestos-bearing products, the particular occasions of exposure, or the specific allocation of causation among multiple defendants’ products. Evidence will be sufficient to reach the fact finder if it permits the reasonable inference of the presence at a work site of both the plaintiff and the defendant’s asbestos-containing product for an appreciable period of exposure.
The LegalNewsline article focuses on the potential for toxicogenomics in causation, pointing to better evidence in linking exposure to disease. When science links exposure to disease, this should lead to an explosion in litigation. By the same token, science can lead to better evidence in defense of a toxicant-exposure case.
While all this remains to be seen, the impacts will not be felt merely in causation. Litigation outcomes inform future courses of action for people not parties to the action (or so we learned in torts class). Indeed, is it that hard to imagine that certain employers could require genome testing of their employees? After all, one central theme of products liability is imagining all the inane things that a potential plaintiff could do and defending design in a court. Isn’t a failure to warn claim really a “you should have protected me from myself” claim. Certainly you can see a plaintiff testifying in a case of occupational exposure that his employer should have protected him from his genetic predispositions. Employer-mandated pre-employment genetic testing would be a reasonable means of defense in a lawsuit, but there certainly would be some resistance to this cellular “love pat.”
I would hazard a guess that within ten years, we will see the first wave of pre-employment genome screening. Removal of asbestos from products and warnings on cigarette packs demand this. I’m just glad that, as a lawyer, I personally don’t have to worry about occupational exposure to anything but stress, but maybe the bar will start genome testing for pre-disposition toward substance abuse. Until then, products like Four Loko should be banned from the market. Right?
On April 13, 2006, ReNu with MoistureLoc contact lens solution, manufactured by Bausch & Lomb in its Greenville, South Carolina facility, was voluntarily withdrawn from the market in the United States when an increased number of consumers who used MoistureLoc began to develop Fusarium keratitis. On May 11, 2006, Bausch & Lomb met with the Federal Drug Administration and announced that they decided to remove the product from the market worldwide.
In May 2009, Baush & Lomb moved to exclude the testimony of Plaintiffs’ expert, Dr. Elisabeth Cohen, with respect to non-Fusarium infections. As reported by the Drug and Device Law blog on August 27, 2009, Judge Norton, along with Judge Shirley Werner Kornreich of the Supreme Court of the State of New York, granted Baush & Lomb’s motion to exclude “Dr. Cohen’s general causation opinions relating to non-Fasarium infections.”
The Court concluded that since Plaintiffs’ general causation expert, Dr. Cohen, was excluded, Plaintiffs could not prove general causation, and thus, could not prove the essential causation element of any products liability action. Further, the Court disagreed with Plaintiffs’ assertion that they could prove causation through Physicians’ differential diagnoses. This is a “technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.” Judge Norton stated that Plaintiffs could not rely on this technique to “end-run” the general causation requirement.
Since Judge Norton’s ruling on February 17, 2010, two individual non-Fusarium Plaintiffs have filed motions to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, Baush & Lomb has filed a response to one Plaintiff’s motion, and Baush & Lomb has filed a motion for summary judgement as to all other non-Fusarium Plaintiffs that were inadvertently not included in the February 2010 order. Therefore, be on the lookout for further rulings on the non-Fusarium Plaintiffs in addition to resolution of those claims by Fusarium