This post provides an update on the status of Bell v. Foster Wheeler Energy Corp., pending in the United States District Court for the Eastern District of Louisiana following a previous blog post examining the court's order enunciating a "third view" on the so-called "bare metal defense" for asbestos litigation. Bell v. Foster Wheeler Energy Corp., CV-15-6394, Africk, L., 2016 U.S. Dist. LEXIS 137547 (E.D. La. Oct. 4, 2016). When the court issued its order on October 4, 2016 it provided the parties with an opportunity to re-brief the motions for summary judgment pursuant to the framework for analyzing the bare metal defense as described by the court. On December 21, 2016, the defendants filed their motions for summary judgment applying the court's newly set forth "third view" on the bare metal defense. Plaintiffs filed responses to those motions on January 23, 2017. Accordingly, the issue will now be ripe for the court's decision on these motions for summary judgment by applying its so-called "third view" on the bare metal defense. The court's decision on these motions could have a significant impact on how courts across the country analyze the bare metal defense going forward.
Ruling on "Every Exposure" Theory of Causation
Just days after issuing its order on its "third view" of the bare metal defense, the Bell court made another significant ruling by excluding plaintiffs' experts who attempted to rely on the "each and every exposure" theory of causation. The defendants filed various motions to exclude Dr. Richard Kradin, Dr. Terry Kraus and Mr. Frank Parker III because, among other reasons, each relied on the "each and every exposure" theory for determining causation. Various iterations of the "each and every" exposure theory have become increasingly popular in recent years as plaintiffs' experts attempt to support a causation opinion regarding the plaintiffs' low-dose exposures to asbestos from various products. In a nutshell, the theory is that each defendant who's product the plaintiff may have worked with or around is equally liable, regardless of the evidence regarding the quantitative dose of exposure.
In Bell, the court held that "the each and every exposure theory 'is not an acceptable approach for a causation expert to take' because it is 'nothing more than the ipse dixit of the expert.'" The court noted the experts' subtle shift in testimony such that the experts opine only that each and every "significant" exposure to asbestos caused the plaintiffs' mesothelioma. However, the court dispensed with that theory by saying that it "sees no material difference between the 'every exposure' theory and the 'every significant exposure' theory." As the court explained, the theory is essentially one of general causation only and the experts "provide no testable methodology for determining whether [plaintiff] is one of the members of the population for which a particular exposure level attributable to a particular defendant's products caused mesothelioma or whether Mr. Bell is one of the many members of the population for which a certain marginal exposure level does not in fact result in mesothelioma." Accordingly, the court concluded that the experts' opinions "impermissibly rest on little more than the experts' ipse dixit."
The plaintiffs filed a Motion for Reconsideration of the court's Order excluding the three experts and briefing has been completed on that motion.
Conclusion
As the litigation continues in Bell, the court continues to make significant rulings that could have an impact on crucial issues impacting asbestos litigation nationwide. The court's ultimate decision on both the "bare metal" issue and the "every exposure" issue could play a significant role in shaping asbestos litigation moving forward.
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