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ARTICLE · 28 JANUARY 2013

"Every Breath" Theory: On Its Last Breaths?

Duane Morris LLP
Duane Morris LLP
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The "every breath," or cumulative exposure opinion, has been proffered by plaintiffs' experts in asbestos cases to prove specific causation, regardless of the type of product or amount of exposure.

United StatesConsumer Protection
Sharon Caffrey
Sharon Caffrey
Alyson Walker Lotman
Alyson Walker Lotman
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The "every breath," or cumulative exposure opinion, has been proffered by plaintiffs' experts in asbestos cases to prove specific causation, regardless of the type of product or amount of exposure. The U.S. District Court for the District of Utah joined the growing trend among courts to preclude the every breath opinion under Daubert and Federal Rule of Evidence 702 in Smith v. Ford Motor Co., et al., 2013 U.S. Dist. LEXIS 7861 (D. Utah Jan. 18, 2013). Dr. Samuel Hammar, plaintiff's expert, was precluded from testifying that "every breath" or "every exposure" to asbestos caused a plaintiff's mesothelioma, including exposures from Ford brakes. This decision signifies another victory for asbestos defendants and continues a line of judicial opinions across the United States precluding the "every breath" theory in asbestos cases. (Duane Morris attorneys Sharon Caffrey and Erin Carter led the briefing.)

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