Daily Blast March 3, 2016

The Court of Appeal, Second Appellate District, Division Four (Los Angeles), issued an opinion in Davis v. Honeywell International, Inc. (Mar. 3, 2016, B256793) __ Cal.App.4th __, analyzing whether the plaintiff’s expert testimony, commonly referred to as the “every exposure” theory, which supported plaintiff’s causation theory in an asbestos case, should have been excluded as speculative and devoid of evidentiary and logical support. (Slip opn., pp. 2-3.) The Court of Appeal held the trial court did not err in allowing the testimony. (Id. at p. 3.)

Plaintiff sued defendant Honeywell International, Inc. (“Honeywell”) for wrongful death after plaintiff’s father died from mesothelioma. (Slip opn., p. 3.) At trial, plaintiff offered expert testimony to support her claim that her father’s exposure to asbestos in brake linings that he used when performing brake jobs in the 1960s and 1970s was a substantial factor in contributing to his risk of developing mesothelioma. (Id. at p. 2.) The jury found in favor of plaintiff. The court entered judgment on the jury verdict. Honeywell appealed. (Id. at pp. 2-3.)

On appeal, Honeywell argued plaintiff’s expert testimony, commonly referred to as the “every exposure,” “any exposure,” or “any fiber” theory should have been excluded under Sargon Enterprises, Inc. v. University of Southern California(2012) 55 Cal.4th 747 (“Sargon”) because it is speculative and devoid of evidentiary and logical support. (Slip opn., p. 3.) The Court of Appeal affirmed the judgment in favor of plaintiff. (Id. at p. 28.) The Court of Appeal noted that the California Supreme Court in Rutherford v. Owens-Illinois, Inc. (“Rutherford”) (1997) 16 Cal.4th 953, acknowledged that a plaintiff may prove causation through the presentation of expert witness testimony that “each exposure, even a relatively small one, contributed to the occupational ‘dose’ and hence to the risk of cancer.”  (Slip opn., p. 21 citing Rutherford, supra, 16 Cal.4th at p. 984.)  The court determined that the “every exposure” theory is the subject of legitimate scientific debate. “Because in ruling on the admissibility of expert testimony the trial court ‘does not resolve scientific controversies’ [citations omitted], it is for the jury to resolve the conflict between the every exposure theory and any competing expert opinions.” (Slip opn., p. 3 citing Sargon, supra, 55 Cal.4th at p. 772.)  Therefore, the Court of Appeal held the trial court did not abuse its discretion by allowing plaintiff’s medical expert to testify. 

Honeywell also argued on appeal that the trial court erred in refusing to give its proposed instruction setting forth “the requirement in Rutherford that causation be decided by taking into account ‘the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, [and] any other potential causes to which the disease could be attributed.’” (Slip opn., p. 24 quoting Rutherford, supra, 16 Cal.4th at p. 975.)  The Court of Appeal held there was no error because Rutherford does not require the jury to take these factors into account when deciding whether a plaintiff’s exposure to an asbestos-containing product was a substantial factor in causing mesothelioma. Rather, those are factors that a medical expert may rely upon in forming his or her expert medical opinion. (Slip opn., pp. 24-25.)

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