On July 9, 2015, the Hon. Richard Ulmer of the San Francisco Superior Court issued an
order ruling that "every exposure" opinions are inconsistent with the causation standard set forth in
Rutherford v. Owens Illinois, Inc. (1997) 16 Cal. 4th 953.
Judge Ulmer noted that "but for" proximate causation - that a defendant's conduct is a cause of plaintiff's injury if the injury would not have occurred "but for" defendant's conduct - is not the law after Rutherford. However, the court went on to state that expert "opinions based on a notion that any and all exposures to asbestos are necessarily substantial factors in contributing to the risk of developing asbestos-related cancer" is contrary to Rutherford.
The court recognized that Rutherford involves a two-step process: First, plaintiff must prove exposure to a particular defendant or third party's asbestos-containing product. Second, it must be proven to a "reasonable medical probability" that the particular party's product "was a substantial factor in contributing to the aggregate doses of asbestos the plaintiff inhaled or ingested, and hence, to the risk of developing asbestos-related cancer."
Plaintiffs must satisfy both prongs of Rutherford, Judge Ulmer noted since "[w]ere it true that any and all exposures are invariably substantial factors, there would be no need for Rutherford's second step for any exposure would qualify."
The court cited two questions raised in Rutherford which also undercut the argument that any exposure would qualify as a substantial factor:
1) whether the risk of cancer created by a plaintiff's exposure to a particular asbestos containing product was significant enough to be considered a legal cause, and 2) which exposures to asbestos-containing products contributed significantly enough to the total occupational dose to be considered "substantial factors" in causing the disease. Judge Ulmer recognized that those questions would not have been asked if every exposure - regardless of number or size - was a substantial factor.
Judge Ulmer concluded his ruling by stating that "it is appropriate under Rutherford to ask whether an exposure to asbestos was sufficient, or significant enough, to be considered a legal cause of the risk of disease. Conversely, it is not appropriate to opine that every asbestos exposure is necessarily a legal cause."
Judge Ulmer's ruling is significant because it recognizes the weaknesses in the "every exposure" theory under California's Rutherford standard. This decision provides further authority for defendants seeking to limit or exclude the opinions of plaintiffs' experts who fail to support their causation opinions with scientific and medical evidence demonstrating that a particular exposure was a substantial factor.
