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88 Tul. L. Rev. 1153 (2013-2014)

handle is hein.journals/tulr88 and id is 1233 raw text is: The Every Exposure Cases and the Beginning of the Asbestos Endgame Joseph Sanders* I. INTRODUCTION. ............................ .....1 153 II. CAUSATION IN ASBESTOS CASES ................ ..... 1157 III. JUDICIAL RESPONSE TO THE CAUSAL ISSUES IN THE ASBESTOS CASES ....................... ............. 1161 A. Borel, Lohrmann, andRutherford ................ 1161 B. Post-Rutherford: The 'AnyExposure Cases................1166 IV SUMMARIZING THE EVERY ExPOSURE CASES...... .... 1176 A. Court Radonales. .................... .....1176 B. Explainhg the Cases... ....................... 1179 V MASS TORT LIFE CYCLES AND THE ASBESTOS ENDGAME........1182 VI. CONCLUSION .............................. .....1184 I. INTRODUCTION Toxic torts have life cycles. They have a beginning, middle, and end. Numerous toxic torts that in their time consumed a great deal of judicial energy have passed from the scene. There are no more Bendectin cases.' There are no more cases alleging that silicone implants create autoimmune disease.2 There are no more Dalkon * C 2014 Joseph Sanders. A.A. White Professor of Law, University of Houston Law Center. J.D., Ph.D., Northwestern University. I wish to thank Victor Roggli and Jane Stapleton for comments on an earlier draft of this Article. 1. The cases began in the 1980s and finally petered out in the mid-1990s. See MICHAEL D. GREEN, BENDECTIN AND BIRTH DEFECTS: THE CHALLENGES OF MASS Toxic SUBSTANCES LITIGATION (1996); JOSEPH SANDERS, BENDECTIN ON TRIAL: A STUDY OF MASS TORT LITIGATION (1998). The most famous Bendectin case, of course, is Daubert v Menell DowPharmaceuticals, Inc., 509 U.S. 579 (1993). As the case suggests, the Bendectin litiga- tion helped to usher in more stringent expert witness admissibility rules. 2. The silicone implant litigation had a relatively short life span. This was due in large part to two influential expert reports, one conducted as part of the multidistrict litigation (MDL) discovery procedure and one conducted by the Institute of Medicine. Both failed to find scientific support for the proposition that implants caused autoimmune or connective- tissue disease. See, e g., Norris v. Baxter Healthcare Corp., 397 E3d 878, 881-82 (10th Cir. 2005). Once the reports were published, the plaintiffs could not get their experts past the Daubert gate. 1153

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