Keeping Junk Science Out Of Asbestos Litigation

Abstract

In 1997, the U.S. Supreme Court stated that this country is in the midst of an "asbestos litigation crisis." Claims continue to pour in at an extraordinary rate, scores of employers have been forced into bankruptcy, and payments to sick individuals known to have contracted asbestos-related disease are threatened.

Much of the controversy in the media and in political circles regarding the asbestos litigation crisis involves the issue of whether 'healthy' or 'unimpaired' plaintiffs who have been diagnosed as having an asbestosrelated abnormality should be compensated, or whether compensation should be reserved for claimants who are 'ill' or 'impaired.' This debate neglects another important issue: the frequent reliance by plaintiffs on unreliable 'junk science' medical expert testimony.

There are two primary contexts in which junk science arises in the asbestos litigation. The first is misdiagnosis of unimpaired patients as having an asbestos-related lung or chest abnormality. This occurs when an 'expert' claims to find a lung or chest abnormality and states that this abnormality is a manifestation of asbestosis, and the expert is wrong on one or both counts. The need for care in diagnosing asbestosis-related abnormalities is evident. As one recent article has noted, "incipient or marginal asbestosis as picked up on an X-ray bears at least a superficial resemblance to more than 130 other lung inflammations." Given courts' leniency in accepting unreliable diagnoses, asbestos defendants are likely compensating individuals for "every occupational disease known to man."

The second important context in which 'junk science' arises in the asbestos litigation is when an impaired plaintiff claims an injury that might be, but is not necessarily, related to asbestos exposure. Asbestos exposure can clearly cause lung cancer, and some scientists believe that other cancers, such as colon cancer, can also be caused by asbestos exposure. However, most instances of lung cancer have nothing to do with asbestos exposure, and even taking a generous view of the evidence, the vast majority of colon cancers and other cancers purported to be linked to asbestos have nothing to do with asbestos exposure. Even mesothelioma, which is considered a 'signature disease' closely related to asbestos exposure, can be caused by other factors.4 There is little evidence that brief, minimal exposure to asbestos fibers causes disease. Yet impaired plaintiffs with diseases that can be caused by lengthy and significant exposure to asbestos may proffer an expert who presents claims that the plaintiffs disease was likely caused by fleeting exposure to asbestos.