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By Peter Hayes
July 5— New studies showing a link between the human papilloma virus and lung cancer may provide a new defense to asbestos and tobacco lung cancer suits.
The studies' impact could be widespread as HPV is the most common sexually transmitted disease in the U.S., affecting nearly 79 million U.S. residents, according to the Centers for Disease Control and Prevention.
But while the studies have been used in at least one case to date, whether they are sufficiently reliable to be admitted into evidence and, if so, what exactly they show, has yet to be decided by a judge or a jury.
“The HPV-lung cancer connection has the potential of being a new legal weapon for defendants in asbestos and tobacco cases, but we will probably have to wait for the science to catch up to the legal standards,” Jean M. Eggen, a professor at Widener University School of Law in Wilmington, Del., told Bloomberg BNA.
Eggen specializes in toxic torts, torts, and science and the law.
“Even assuming there is a connection between HPV and lung cancer, further studies will be necessary to determine the nature of that connection. For example, does the presence of HPV infection increase the risk of developing lung cancer, or is there some sort of synergistic mechanism between HPV and the development of cancer in the lung?” she said.
“The answer to these questions could vary depending on the type of tumor involved and on individual differences in patients, including but not limited to types and amounts of exposure to substances such as asbestos or tobacco products. Clearly these are questions researchers need to probe further,” Eggen said.
Professor Richard Henke of Western Michigan University Cooley School of Law in Lansing, Mich., agreed that causation may be problematic.
Henke teaches torts, environmental torts and product liability.
Nevertheless, he said, “the specter of this new finding may serve to motivate the settlement of actual cases. That alone is significant.”
“Asbestos lung cancer cases have often presented challenges, typically due to the synergy between smoking and asbestos exposure. Depending upon the characteristics of the tumor and the strength of the respective expert testimony, these are often valuable claims or claims that fail on causation,” he said.
The authors of one of the studies said their results suggested “a strong association” between lung cancer and HPV.
But, Henke said, the authors also found that it's unclear whether smoking interacts with HPV to promote the development of lung cancer.
“Potentially, this further complicates the smoking issue and the inherent causation problems,” he said.
In what is believed to be the first use of the studies in an asbestos lung cancer suit, defense counsel James Scadden with Gordon & Rees in Oakland said his firm obtained a biopsy of the plaintiff's lung tumor, which tested positive for the HPV virus, in Nicholson v. Akzo Nobel, Cal. Super. Ct., No. RG13700989 .
Defense expert, pathologist Dr. Kahlil Sheibani at Western Medical Center in Santa Ana, Calif., was deposed in the case. “He was the doctor that was most forceful about the HPV as a cause of lung cancer,” Scadden told Bloomberg BNA.
While the case didn't proceed to trial, the HPV evidence was useful in reaching settlement earlier this year, Scadden said.
“It was a light exposure case and there were no asbestos markers, so the defense would argue it wasn't an asbestos-link cancer and the plaintiff had only a remote smoking history. But to our surprise pathologists revealed the presence of the HPV virus.”
Scadden, however, stopped short of predicting a wide-spread use of the defense.
“I don't think it's gotten any traction so far,” he said. “But maybe it will in the future.”
“As far as I know, this theory still has not been tested in front of a judge and jury,” he said.
Plaintiffs' counsel in the case didn't respond to a request for comment.
In order to pursue the defense, companies will need to establish the scientific validity of the studies under Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993).
“Whether these studies would even be admissible as the type to be reasonably relied upon by experts in the field may ultimately be a function of a jurisdiction's approach to the broader question of the admissibility of novel scientific evidence and the predilections of individual Judges to exercise their gatekeeper role,” Henke said.
“One could certainly imagine Daubert hearings that could potentially shape the course of the subsequent litigation. At this stage in the development of the science, I imagine most Judges would proceed with caution,” he said.
Eggen also sees a Daubert hurdle.
“For expert testimony to be admitted, the testimony must be both reliable and relevant to the particular plaintiff. Early epidemiological studies of a causal relationship are often open to much criticism, though the Daubert rule would not prohibit them outright,” she said.
“Meta-analyses such as the one reported in the Journal of Clinical Virology are also open to challenge, often on the grounds of study bias and statistical error,” she said.
“The difficult question would be whether a plaintiff’s lung cancer was caused solely by HPV, solely by exposure to the substance, or by some interaction of both. The science must be able to directly address these issues for it to be admissible in litigation,” Eggen said.
While plaintiffs will attempt to keep the evidence out through a Daubert challenge, Scadden said, “I think they will have problems doing it because there are accepted methods for testing the virus in people.”
Plaintiffs may also argue that HPV is just a co-factor, Scadden said.
“Similar to what we see in smoking cases, plaintiffs concede that smoking contributes but asbestos contributes as well so they're still entitled to compensation,” he said.
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