Automakers try empty ruse to defeat mesothelioma victims

Courts rebuff automotive manufacturer attempts to suppress from jury evidence of chrysotile toxicity

Automotive manufacturers such as Ford, General Motors, and Chrysler-Daimler have developed a strategy to defeat mesothelioma claims against their asbestos-containing products. The strategy revolves around excluding evidence about the toxicity of chrysotile asbestos in automotive friction products (brakes and clutches), which will in turn prevent juries from concluding that the chrysotile asbestos in brakes and clutches causes mesothelioma.

The tactic tries to prevent highly regarded experts from providing compelling and persuasive testimony about chrysotile toxicity and how its inclusion in brakes and clutches kills mechanics and their families. The manufacturers argue that all expert testimony about chrysotile toxicity should be excluded unless it is based on an epidemiological study. They argue that such studies are the only way to accurately determine whether chrysotile causes disease in a particular group of people. Since there are no definitive epidemiological studies on chrysotile asbestos in brakes and clutches and it’s effect on professional auto mechanics, they argue that any expert testimony about chrysotile’s toxicity should not be admitted for the jury to consider.

On May 9, 2006 Judge Joseph R. Slights of the Superior Court of Delaware for New Castle County rejected the arguments advanced by the auto manufacturers and found that epidemiological evidence is not required when considering the link between chrysotile in friction products and mesothelioma. (In Re: Asbestos Litigation C.A. No. 77C-ASB-2, Superior Court of Delaware, New Castle County.)

The only issue before the court was the issue of general causation: whether the plaintiffs had met their burden to demonstrate that their experts’ opinions on the toxicity of chrysotile in friction products were sufficiently reliable to be presented to the jury. Both sides agreed that the friction products at issue contained chrysotile asbestos fibers and that chrysotile asbestos causes disease. Daimler-Chrysler contended, however, that after the manufacturing process and after use, the chrysotile in its friction products became non-hazardous. The plaintiffs disagreed and provided evidence that the hazardous nature of chrysotile was not changed by use or by the manufacturing process. In order to prove their case, the plaintiffs sought to include expert testimony on chrysotile toxicity from the following experts:

–Ronald F. Dodson, Ph.D. is a researcher with an advanced degree in life sciences and a specialization in biological electron microscopy. Dr. Dodson is a widely published and a highly regarded expert on asbestos and asbestos disease. He testified that with regard to brakes and clutches, it is generally accepted within his field of science that chrysotile asbestos causes asbestosis, pleural plaquing, lung cancer, and mesothelioma. He further testified that chrysotile contained in brake linings and clutches is no different from the chrysotile he has studied in other types of products.

__Samuel Hammar, M.D. is a pathologist  who is board certified in anatomic and clinical pathology. Dr. Hammar testified that the epidemiological evidence with regard to chrysotile toxicity is in conflict, and that it is not appropriate to place excessive weight on epidemiological studies to the exclusion of other reliable sources of scientific evidence. Dr. Hammar endorsed concept of “evidence based medicine.” Under this approach, the physician considers all available evidence, not simply epidemiology. Dr. Hammar concurred with Dr. Dodson that the chrysotile in friction products is no different from chrysotile asbestos found elsewhere, and that it can cause asbestosis, pleural plaquing, lung cancer, and mesothelioma.

–Richard A. Lemen, Ph.D. is an epidemiologist and industrial hygienist who has studied asbestos for more than thirty years. Dr. Lemen testified that he does not believe that definitive guidance one way or the other is provided by the epidemiological studies specifically addressing whether chrysotile in friction products causes disease. Thus, he suggests that scientists must look to the entire body of scientific evidence on the issue. After reviewing the entire body of scientific evidence, Dr. Lemen testified that he has concluded that a positive association exists with respect to friction products and the development of mesothelioma. He also testified that chrysotile from friction products is no different from chrysotile in any other product.

–Arthur Frank, M.D., Ph.D. is an occupational medicine specialist who also holds a doctoral degree in biomedical sciences. Dr. Frank testified that brake workers are exposed to inhalable asbestos dust at a higher level than simply background levels of dust. It is known that the fibers contained within that dust are capable of causing injury. This, in Dr. Frank’s mind, ends the general causation inquiry.

The court agreed with these experts, whose credentials the court described as “impeccable”

First, the court ruled that the experts relied upon sound scientific data to conclude that Daimler-Chrysler’s friction products contained chrysotile asbestos fibers and that, under certain circumstances, these products release chrysotile fibers that can be inhaled and which can cause disease.

Second, the court held that while some jurisdictions require epidemiology to establish causation, the better and more practical approach is to hold that epidemiology is not necessary.

Other courts follow Judge Slights’s lead

Though this decision is barely a year old, other trial courts from other jurisdictions are citing Judge Slights’s thorough and scholarly analysis of this issue. Judge Helen E. Freedman specifically cited to the decision when she rejected Chrysler’s attempt to silence many of these same witnesses in New York. (Nygaard v. Amchem, et. al. Index No. 107690/04, Supreme Court of the State of New York, County of New York.)

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