Mr. Charles Krik, the plaintiff in an asbestos personal injury case, has been barred from using the “any exposure” theory in his claim against defendants Crane Co., ExxonMobil Oil Corporation, Owens-Illinois, Inc., and Marley-Wylain Company. An Illinois federal court deemed the theory “scientifically unreliable.”
The theory – which states that any exposure to asbestos, not just long-term exposure, can result in the development of asbestos-related diseases, such as mesothelioma – was rejected by Judge John Z. Lee in the U.S. District Court for the Northern District of Illinois because it was being used generally, without relying on specific facts from Mr. Krik’s case.
Prior to that decision, Judge Lee denied the defendants’ request to bar certain witnesses that were going to use the theory in their arguments for the plaintiff; however, by dismissing Mr. Krik’s ability to cite the “any exposure” theory in his claim, Judge Lee effectively nullified those same witnesses from being useful to Mr. Krik’s case.
Judge Lee pointed out that Mr. Krik and his experts acknowledged that asbestos-related lung cancer is a dose-responsive disease, meaning they could not simultaneously claim the “any exposure” theory, which denies a “fundamental principle of toxicology – that the ‘dose makes the poison.’”
“Krik’s argument that a single exposure or a de minimis exposure satisfies the substantial contributing factor test under Illinois law incorrectly states the controlling law: it is not that de minimis exposure is sufficient, but that more than de minimis exposure is required to prove causation,” wrote Judge Lee in the court’s opinion. He added, “Krik’s experts tout the any exposure theory with little to no evaluation of the actual facts in this case.”