A new study confirms that asbestos exposure is the primary cause of mesothelioma, challenging the role of genetic predisposition as the driver of this deadly disease.

Many people, including many judges and jurors, believe that lifestyle choices and/or genetic predisposition always causes cancer. But environmental and occupational cancer is different. Asbestos exposure substantially causes about 80 percent of mesothelioma cases in the United States. Substantial cause has a specific meaning in asbestos exposure cases, which is outlined below. 

Despite the asbestos’ industry’s attempts to pawn off responsibility for mesothelioma, the most recent studies put the lie to that claim.

Additionally, vulnerable victims, such as people with genetic predispositions for cancer and other serious diseases, need special protection under the law, not less protection under the law. More on that below as well.

These legal hurdles often deter many lawyers who look for quick, easy settlements in personal injury matters. But a determined asbestos exposure lawyer anticipates and overcomes these and other legal hurdles to obtain maximum compensation for victims. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages are also available in many cases.

asbestos exposure not a genetic predisposition to cancer causes mesothelioma TempleU
The new research by Fox Chase Cancer Center at Temple University confirms that asbestos is the key culprit in mesothelioma, regardless of genetics.

Cancer Risk Factors

The aforementioned risk factors are so strong that many doctors believe cancer is exclusively a genetic or lifestyle condition. We’ve explored the lifestyle connection elsewhere. This post focuses on genetic predisposition.

Some people have genes that increase the risk of developing cancer. 

So far, researchers have identified over a hundred cancer predisposition genes. Recent DNA sequencing breakthroughs may double or triple the size of this list.

However, cancer genes aren’t as strong as other genes. Parents don’t automatically pass cancer to their children. Additionally, the effect is overblown. Genetics, by itself, accounts for less than 10 percent of the cancer cases in the United States.

No-Fault Claims

This discussion is completely irrelevant in most asbestos exposure claims. Therefore, if the legal issues dissected below could be a serious impediment to compensation, and that’s a very big “if,” an asbestos exposure lawyer often steers exposure victims or survivors to a no-fault-style injury claim.

SSDI

Social Security Disability Insurance benefits, such as Medicaid health insurance and a monthly cash stipend, are available if the applicant has a severe disability. 

Basically, disabilities are severe if a doctor believes the condition will last at least a year, or is fatal, and the condition substantially impairs an essential work function.

Mesothelioma is always a severe disability. This rare and aggressive form of lung cancer may be one of the most terrible forms of a terrible disease. Mesothelioma has an extremely low survival rate, even though the overall cancer survival rate has improved significantly since the 1990s.

Additionally, severe mesothelioma pain is usually dull, vague, and generalized. Such pain is difficult to treat. On a related note, the pain from the aggressive treatments is often worse than the cancer pain itself.

A “disability” is a bit harder to establish. An asbestos exposure lawyer must prove the victim’s medical condition is so poor the applicant cannot function. Moreover, the applicant must be unable to work at any other job (RFC, or residual functional capacity), mostly due to the applicant’s vocational and educational background. Roughly the same analysis applies in workers’ compensation cases.

Disabilities have multiple implications, but the medical angle is the biggest one. SSA regulations require “objective medical evidence” from an “acceptable medical source” to establish that a claimant has a medically determinable impairment.

Workers’ Compensation

In most states, workers’ compensation is a hybrid SSDI/civil claim. Job injury victims must prove that a work-related injury (liability) caused injury (damages).

The burden of proof in a workers’ compensation matter is a preponderance of the evidence (more likely than not), which is the same burden of proof applicable in most civil cases.

VA Disability

Abraham Lincoln envisioned the VA disability compensation process in 1865. Today, this system is similar to SSDI, with some important exceptions.

SSDI is all or nothing. Applicants are disabled or they aren’t. The VA system uses disability ratings (10 percent, 20 percent, etc.). The monthly cash benefit usually hinges on the disability rating.

Additionally, an asbestos exposure lawyer must prove liability (service-related connection) and damages as likely as not. That standard of proof is an important step below a preponderance of the evidence.

Instead of 51-49 (more likely than not), 50-50 proof is sufficient in a VA disability claim. A tie goes to the runner.

Bankruptcy VCF/September 11 VCF

These claims must also be established by a preponderance of the evidence. However, since no adverse lawyer challenges the victim’s evidence, a little proof goes a long way.

The aforementioned punitive damages are usually only available in negligence matters, which is why these cases are the preferred vehicle for exposure victims and asbestos exposure lawyers alike.

Negligence is basically a lack of care. Most companies have a duty of care to warn consumers about known product side effects. Failure to broadcast an adequate warning is negligence, which must be proved by a preponderance of the evidence.

Once an asbestos exposure lawyer establishes a prima facie occupational cancer claim, the defendant may respond to that claim, to either deny liability (legal responsibility) or reduce damages (amount of compensation). Two primary doctrines apply.

Substantial vs. Contributing Cause

We mentioned the Civil War above. Many factors too numerous to list here contributed to this conflict, but slavery substantially caused it. Likewise, environmental or occupational cancer often has several contributing factors, such as genetics. But mesothelioma has one substantial cause (asbestos exposure).

Cigarette smoking is the most common contributing cancer cause. But mesothelioma is not a common kind of cancer and does not share its attributes.

As mentioned, asbestos exposure is to mesothelioma what slavery was to the Civil War. Asbestos exposure is far and away the leading cause of mesothelioma cancer. This exposure is usually occupational or environmental. 

Before 1980, construction and shipbuilding firms, as well as companies in many other industries, extensively used asbestos before 1980. Most post-1980 mesothelioma cases are environmental exposure matters. 9/11 victims and talc-asbestos victims are two good examples. 

On a related note, many cigarette smokers were also victims of a conspiracy. For many years, tobacco companies lied about the amount of nicotine in cigarettes and the effect this drug has on the human body. The fact that this contributing cause was involuntary makes it even less of a defense in negligence claims, under the assumption of the risk doctrine (a voluntary assumption of a known risk).

Genetic testing often reduces the role of this contributing factor. If doctors are aware of a genetic risk, they adjust diagnosis and treatment measures.

The Eggshell Skull Rule

Assumption of the risk also affects the eggshell skull rule doctrine. As mentioned, people with genetic predispositions (eggshell skulls) deserve more legal protection, not less. Therefore, asbestos companies cannot use a victim’s physical or other vulnerabilities to deny liability or reduce damages, at least in most states.

In fact, in many states, the eggshell skull rule is so strong that a contributing cause to cancer, like a genetic predisposition, is a non-issue.