15 Pages Posted: 26 Mar 2004
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. Incipient or marginal asbestosis as picked up on an X-ray bears at least a superficial resemblance to more than 130 other lung inflammations.
Many of the experts who diagnose asbestos-related disease are partisan hired guns. Courts should instead insist that neutral experts, retained by the court itself, be used to determine whether plaintiffs in class action cases show signs of asbestos-related disease. Moreover, any physician who testifies regarding a diagnosis of asbestos-related disease should be properly qualified. The appropriate test is the reasonable patient test: would a reasonable person who thought he had the asbestos-related abnormality that he is claiming in litigation go to the testifying physician for a diagnosis?
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.
The most pressing causation issue in the asbestos litigation is whether fleeting exposure to minute amounts of asbestos causes disease. Until recently, courts were much too liberal about allowing doctors, especially treating physicians, to testify with respect to causation evidence. Fortunately, beginning in the early 1990s as part of a general trend toward stricter scrutiny of expert evidence, the federal courts have started to crack down on the use of unqualified physicians who seek to testify about causation. State courts should follow their lead.
Even if experts testifying regarding causation are qualified, the testimony must, of course, meet the particular jurisdiction's reliability standards. In federal court, this means amended Rule 702, which incorporates the Daubert trilogy. State courts have a hodgepodge of standards. Some states have adopted various versions of the Daubert test, others apply various versions of the Frye general acceptance rule, and still others have idiosyncratic tests. Whatever test is used, courts should serve as gatekeepers that exclude unreliable evidence. If state courts are unwilling to do so, the legislature should step in where appropriate and adopt a state version of federal rule 702.
Keywords: Asbestos Litigation, Expert testimony
JEL Classification: K13, K32, K41
Suggested Citation: Suggested Citation
Bernstein, David, Keeping Junk Science Out of the Asbestos Litigation. Pepperdine Law Review, Vol. 31, p. 11, 2003. Available at SSRN: https://ssrn.com/abstract=521082