Southern District Of Illinois Court Denies Motion To Exclude 'Every Exposure' Opinion

On September 21, 2015, the United States District Court for the Southern District of Illinois denied a defendant's motion in limine to exclude expert testimony in an asbestos case. Judge Staci M. Yandle denied General Electric Company's motion to exclude the expert testimony of Dr. Matthew A. Vuskovich in Kochera v. General Electric Company, et al., No. 14-29 (S.D. Ill. 2015).

General Electric argued that portions of Dr. Vuskovich's testimony should be excluded because he was not qualified to render an expert opinion, his testimony was not sufficiently reliable, and he based his opinions on the "every exposure" theory, which is not generally accepted by the scientific community or the federal courts.

General Electric challenged Dr. Vuskovich's use of the "every exposure" theory, arguing that it does not meet the "substantial factor" requirement to show causation and that it has been rejected by some federal and state courts for being "unscientific and unsubstantiated by evidence." Judge Yandle recognized that the "every exposure" theory has been rejected by courts in the past, but said that other courts "have distinguished testimony suggesting that a de minimus exposure to asbestos could cause mesothelioma from testimony that each significant exposure to asbestos could be a cause."

Judge Yandle noted that Illinois uses the "frequency, regularity and proximity rule" to establish causation in asbestos cases. She cited Tragarz v. Keene Corp., 980 F.2d 411, 421 (7th Cir. 1992), which stated that "where there is competent evidence that one or a de minimis number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury." Using the Court's opinion from Tragarz, Judge Yandle determined that "even if Dr. Vuskovich relied on an 'every exposure' theory, such reliance would not render his testimony inadmissible."

Dr. Vuskovich stated in his report that asbestosis is a cumulative disease, meaning that "every exposure to asbestos that is non-trivial in context" contributes to the disease. He further stated that "it is not possible to say, within a reasonable degree of medical certainty, what the threshold exposure requirement is for asbestosis." Dr. Vuskovich reached the conclusion that the plaintiff's exposures were not trivial based on his occupational and military history. Judge Yandle relied on this information to reach the conclusion that Dr. Vuskovich's use of the "every exposure"...