According to most doctors, asbestos exposure causes over 80 percent of the mesothelioma cases in America. However, according to a few, the percentage is much lower. A lower percentage could create causation problems in a negligence case. That’s a lot of Legalese, which we’ll translate below.

Regardless of the cause, lung cancer is very painful and expensive to treat. Most of these victims, especially mesothelioma victims, have trouble breathing even as they sit in a reclining chair. Mesothelioma treatments are also very costly, mostly because this cancer, especially advanced mesothelioma, doesn’t respond to most treatments.

Fundamentally, an asbestos exposure lawyer files legal actions to hold responsible parties accountable for the diseases, such as mesothelioma, they cause. Smoking complicates responsibility issues, especially since, before the 1990s, most people didn’t know about the addictive properties of cigarettes. Therefore, although an asbestos and smoking connection makes a claim more complex, compensation is still available.

Health Issues Concerning Asbestos and Smoking

“Lung cancer” is not a disease, but an umbrella term for several diseases that have similar effects. A combination of genetic and lifestyle factors normally causes:

  • Pancoast: Mesothelioma is a pancoast tumor which develops in the upper part of the lung very near the heart.Most of these victims have no family history of cancer, Instead, asbestos fibers, tuberculosis, or perhaps lymphoma usually causes tumors to form.
  • Carcinoid: In terms of their physical; makeup, these tumors are similar to pancoast tumors. However, carcinoid cancer is much less aggressive and usually genetic. This combination makes these tumors much less difficult to treat than other kidneys of lung cancer. Because of the genetic risk, doctors usually administer regular cancer screens. Because of their slow growth, surgery alone usually treats these tumors.
  • SCLC: Cigarette smokers almost always develop small cell lung cancer. THe toxic smoke usually causes tumors to form in the main part of the lung, typically an airway. Chemotherapy drugs, which kill fast-dividing cells, usually manage SCLC.
  • NSCLC: Over 80 percent of lung cancer patients have non-small cell lung cancer. Physically, it’s similar to SCLC. However, NSCLC is much more aggressive. Doctors use a combination of chemotherapy drugs, surgery, and radiation treatments to manage this disease.

The type of lung cancer usually determines the financial responsibility for lung cancer treatments and other damages. Carcinoid tumors, with their genetic causes, usually don’t involve negligence, unless a doctor was negligent. The other three types usually involve third-party responsibility, at least to an extent.

Furthermore, the type of lung cancer determines the type of treatment. The overall cancer survival rate has improved significantly since the 1990s, mostly because treatment technology has improved.

Let’s go back to chemotherapy drugs. Today’s chemotherapy drugs are much stronger than they were forty years ago. However, powerful drugs are difficult to tolerate. Some possible chemotherapy drug side-effects include:

  • Chemo brain, a brain fog that affects concentration and memory,
  • Moodswings,
  • Kidney issues, and
  • Weakness and susceptibility to infection.

Many mesothelioma victims are in their 70s or 80s. They physically cannot tolerate such drugs, especially at high doses.

Normally, health issues and legal issues don’t overlap. The eggshell skull rule states that a tortfeasor, which does our purposes is usually an asbestos provider, cannot blame a victim’s illness, which for our purposes is usually mesothelioma, on the victim’s own vulnerabilities. Smoking complicates the issue, because it’s a voluntary condition, at least in part.

First, let’s examine the eggshell skull rule, the legal doctrine that usually applies in these situations. Basically, a victim’s unexpected frailty, usually a pre-existing condition, is not a valid defense to the seriousness of any injury caused to them.

The eggshell skull rule is very broad. It goes beyond health conditions to include the social and economic attributes of plaintiffs which might make them more susceptible to injury. It may also take into account the victim’s family and cultural environment.

A similar rule applies in criminal cases. Assume Petes and Paul fight, and Paul gets a concussion. Normally, concussions are temporary and not serious. But if Paul had previous concussions, another one could cause CTE. Chronic Traumatic Encephalopathy effects include a progressive decline of memory and cognition, as well as depression, suicidal behavior, poor impulse control, aggressiveness, Parkinsonism, and, eventually, dementia.

One of the earliest eggshell skull rule cases was 1891’s Vosburg v. Putney. A bully kicked a boy in the classroom. The seemingly trivial blow irritated an unknown microbial condition, and as a result, the boy lost the use of his leg. No one, not even the victim, could have predicted the level of injury. Nevertheless, the court found that the kicking was unlawful because it violated the “order and decorum of the classroom,” and the perpetrator was therefore fully liable for the injury.

Cigarette and smoking combine to greatly increase the risk of lung cancer.

Cigarette smoke and asbestos fibers interact to vastly increase the risks of lung cancer. That statement is true, but it doesn’t end the inquiry.

  • Many smokers don’t know asbestos contributed to their lung cancer. The unknown additional risk makes asbestos exposure the classic Volsburg problem.
  • Usually, they didn’t know about the risk because asbestos companies concealed or downplayed that risk. 

The eggshell skull rule applies to unknown and involuntary vulnerabilities. Smoking is a voluntary condition. But the fat that tobacco companies concealed the addictive properties of cigarettes muddies the waters.

Therefore, asbestos exposure victims who smoke are still entitled to compensation for lung cancer or other migratory cancers, such as cervical cancer caused by asbestos-laced talcum powder, or other lung diseases, such as pleural thickening or asbestosis.

Asbestos exposure victims who smoke are still entitled to compensation for lung cancer or other migratory cancers, such as cervical cancer caused by asbestos-laced talcum powder, or other lung diseases, such as pleural thickening or asbestosis.

Courts have consistently held that if an asbestos exposure lawyer apportions separate causes (e.g. smoking caused X and asbestos exposure caused Y), the victim’s smoking is irrelevant.

Once again, legal and health issues overlap. A Board Certified environmental oncologist, using the type of cancer as well as some other information, can separate the effects of asbestos exposure and cigarette smoking. So, the eggshell skull rule is in full effect.

Compensation Issues

The modified eggshell skull rule applies to all forms of legal compensation available to asbestos exposure victims.

Work or service-related exposure victims often file workers’ compensation or VA disability claims. Benefits are available if a work or service-related condition substantially causes illness. If cigarette smoking, or another non-work or service-related condition, only contributes to illness, full benefits are available.

In most states, the same principle applies to civil claims. Compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering, is available if asbestos exposure substantially caused injury. Due to the aforementioned asbestos coverup, additional punitive damages are usually available in these claims as well.

Bankruptcy victim compensation fund claims are often more straightforward in this area. There’s no lawyer on the other side to dispute the eggshell skull rule’s applicability.