Insurers Join Court Tilt Over Asbestos Testimony

Insurers have joined a Michigan Supreme Court case challenging expert witness testimony that led to an asbestos injury settlement for a Detroit man who died of mesothelioma.

In a friend-of-court brief they and other business groups argue that courts should not allow a “handful of experts” espousing “speculative opinions” to expand the scope of those who win money damages from alleged exposure to asbestos in the workplace.

The witness in the case at issue, they contended, ignored medical studies and “accepted science.”

Insurers, whose names are on the brief, include ACE-USA Companies; Chubb & Son, a division of Federal Insurance Company; CNA service mark companies; Fireman's Fund Insurance Company; Liberty Mutual Insurance Company; and the Great American Insurance Company, as well as the Property Casualty Insurers Association of America and the American Insurance Association.

According to the brief, the defendants Daimler Chrysler Corp., and a variety of other manufacturers, agreed to two settlements one for Bernie Mae Chapin, the widow of Philip Chapin, and a second for Mr. Chapin that is contingent on an appellate court determining that the plaintiff's expert witness Dr. Richard Lemen is qualified to testify.

Mr. Chapin, a mechanic, was diagnosed with mesothelioma at age 60 after 45 years working as an auto mechanic whose job included grinding brake linings that contained chrysotile asbestos, according to court filings.

His lawyers claimed in the family's complaint that his disease was caused by exposure to asbestos–a claim supported by Dr. Lemen, who testified that even low-dose occupational exposure to asbestos causes mesothelioma.

According to the brief, the doctor made the claim in two lower courts “that virtually any occupational exposure to asbestos causes disease.”

The case went to trial in 2004 after Mr. Chapin died and a settlement was agreed on contingent on the appellate court determination as to Dr. Lemen's qualifications.

The appeals court supported the lower court in allowing Dr. Lemen to testify, saying the trial judge did not abuse his discretion in determining the qualifications of an expert witness. “We hold today that the trial court's role as gatekeeper does not require it to search for absolute truth, to admit only uncontested evidence, or to resolve genuine scientific disputes,” according to that decision.

In asking the State Supreme Court to overturn the case, the brief argued, “Unless and until trial judges take a serious look at the lack of science supporting these cases, courts will continue to be flooded with cases alleging that inconsequential low-dose exposures cause asbestos disease.

“Even more defendants will unnecessarily succumb to the financial pressure already rampant in asbestos litigation,” the brief added.

The brief was submitted by the law firm of Shook, Hardy & Bacon, L.L.P., in Kansas City, with the Washington office of Shook, Hardy serving of counsel.

It was filed by a group called the Coalition for Litigation Justice, which also includes the U.S. Chamber of Commerce, the National Association of Manufacturers and the American Tort Reform Association.

The brief argued that in allowing Dr. Lemen to testify the lower courts “rejected what scientific texts and courts elsewhere have repeatedly established as the primary and by far most probative source of causation evidence–epidemiology.”

According to the brief, “more than 17 published epidemiology studies have uniformly rejected the notion that automobile mechanic exposures cause mesothelioma.”

The brief added, “In a startling departure from accepted science, the courts below decided that these occupation-specific epidemiology studies could not 'trump' far less conclusive evidence like animal studies, case reports and government warnings relied on by Dr. Lemen.”

Second, the brief said, “the courts below accepted a reduced causation standard for asbestos cases–the unproven assertion by Dr. Lemen that virtually any occupational exposure to asbestos causes disease.”