Smokeless Tobacco in the Defense of Asbestos-Related Cancer Claims

4/24/2015

In asbestos personal injury cases, the plaintiff's smoking history is routinely explored by defense counsel to establish both a proclivity to ignore warnings and to prove causation, most notably in lung cancer cases. As part of any such work up, plaintiffs making claims of asbestos-related cancer are questioned about not only their own smoking history, but that of their family members and co-workers.

However, typically forgotten is an exploration of the asbestos plaintiff's exposure to smokeless tobacco products such as chewing tobacco and moist snuff. In addition to the more general harmful effects of smokeless tobacco (including increased risk of nicotine addiction, heart disease and stroke), smokeless tobacco has been linked to an increased risk of several types of cancer. While the number of smokeless tobacco users in the United States is fewer than the number of cigarette smokers, a survey by the US Substance Abuse and Mental Health Administration reported in 2013 that approximately nine million people used smokeless or spit tobacco.

The general lack of attention paid to an asbestos plaintiff's personal use of smokeless tobacco represents a lost opportunity to develop both medical and factual defenses, and is particularly troubling in light of a recent study by scientists at the University of California, Berkley, School of Public Health, which found the presence of elevated levels of two key carcinogens in the dust of smokeless-tobacco households compared to tobacco-free households. Although it is unclear exactly how great a risk this dust contamination poses, the findings nevertheless suggest that both direct users of smokeless tobacco and even their household members are at risk of cancer from smokeless tobacco.

So how best to prevent a plaintiff's smokeless tobacco-related exposures from being overlooked? In addition to insisting upon complete responses to written discovery directed at the plaintiff's use of and exposure to all tobacco products, a careful review of the available medical records and thorough examination at deposition should be employed. The failure to aggressively explore these and other alternative exposures could result in a lost opportunity to develop valuable trial defenses.

To learn more about how we are creating strategies aimed at maximizing defenses for our clients, please contact David M. Governo at dgoverno@governo.com or Michael D. Simons at msimons@governo.com.

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