RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Plaintiffs who allege cancer from asbestos often rely on the theory that there is no safe level of exposure.  Because there is no safe level, any exposure can be considered a cause of disease, so the theory goes (I’ve written for this blog on the theory here.).  That causation theory has been criticized on the ground it conflates causation with the risk of injury.  The flaws with that theory when it’s applied to asbestos litigation become all the more apparent when it is applied in other, real-world contexts.  The concept of no safe level can cause policy makers to exaggerate risks and can even lead to unnecessary injuries.

Consider the example of the Environmental Protection Agency’s (EPA) evolving position on radiation exposure cancer risk.  EPA had previously issued guidance that no level of radiation is safe.  See Ari Natter, EPA Says Higher Radiation Levels Pose ‘No Harmful Health Effect,’ Bloomberg Tech. (Oct. 16, 2017).  But last fall, the agency revised that guidance to explain that radiation exposures of 5-10 rem “usually result in no harmful health effects, because radiation below these levels is a minor contributor to our overall cancer risk.”  EPA, Protective Action Questions & Answers for Radiological and Nuclear Emergencies 19 (Sept. 2017) (emphasis added).

EPA’s new position is controversial.  Some have dismissed it as “radiation denial,” such as the executive director of Public Employees for Environmental Responsibility, who stated that “Dr. Strangelove is alive and lurking somewhere in the corridors of EPA.”  See Ari Natter, supra.

Yet EPA’s revised guidance reflects broader concerns that should not be mocked or laughed away.  Many commentators have warned that extremely low or zero-level radiation-level limits can cause “widespread fear and panic over radiation levels that are the same as normal background levels.”  James Conca, EPA Considers Raising Radiation Limits for Emergency Responders—It’s About Time, Forbes (Oct. 24, 2017).

Such irrational fears can have dangerous consequences.  For example, extremely low radiation limits can dissuade first responders and others from assisting in the event of a radiological or nuclear disaster.  Ibid.  Although the radiation from a dirty nuclear bomb would probably kill few people, experts believe that irrational fears about radiation could create “panic and bureaucratic confusion” that would interfere with the response to the bomb, exacerbating the harm and even causing unnecessary deaths.  Ibid.

The evacuation of Fukushima, Japan offers a poignant example.  In 2011, an earthquake and tsunami struck Fukushima and precipitated a meltdown at the Fukushima nuclear station.  Authorities evacuated everyone living within 20 kilometers of the station, including patients at a number of local hospitals.  Andrew Karam, Five Years Later, Cutting Through the Fukushima Myths, Popular Mechanics (Mar. 11, 2016).  It is unclear whether the radiation from the meltdown has sickened anyone.  Ibid.  But the government attributes 2,157 deaths to the stress of Fukushima’s evacuation.  See Fukushima Prefectural Government, Damage Caused by Earthquake and Tsunami

Significantly, that number is at least an order of magnitude greater than the cancer deaths that one expert believes would have occurred in the absence of any evacuation.  See George Johnson, When Radiation Isn’t the Real Risk, N.Y. Times (Sept. 21, 2015).  As another source confirms, “it’s entirely possible that the evacuations meant to get the public to safety might have been deadlier than the accident itself.”  Karam, supra.  The explanation for the unnecessary deaths appears to be:  “‘The government basically panicked.’”  Johnson, supra.

Even in the best of circumstances, risk is difficult to evaluate.  The belief that there is no safe level of exposure to a substance amplifies that difficulty and can cause real harm.  “Trying to avoid the horrors we imagine, we risk creating ones that are real.”  Ibid.

The theory of no safe level of exposure creates similar problems when used in litigation.  Just as the theory exaggerates the risks of exposure by putting undue emphasis on relatively trivial doses, it also exaggerates the basis for any finding of causation.  As the Texas Supreme Court commented, “Just because we cannot rule anything out does not mean we can rule everything in.”  Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 341 (Tex. 2014) (citation omitted); see also Vedros v. Northrop Grumman Shipbuilding, Inc., 119 F. Supp. 3d 556, 560 n.2 (E.D. La. 2015) (criticizing theory as based on the flawed “principle that all exposures should be included as a cause of mesothelioma because there is no way to know which exposures caused it and which ones did not”).

For the same reasons that the theory may have contributed to an evacuation in Fukushima that caused more deaths than it avoided, the no-safe-exposure theory is of questionable value in assessing the causation of injury in cases involving low exposures to substances such as asbestos.