MEALEY'STM LITIGATION REPORT Asbestos The Only Known Cause Of Mesothelioma Is Asbestos - Not! by Evan Nelson, Esq . and failles G. Scadden, Esq. Tucker Ellis & West Sail Francisco, Califorllia Gordon & Rees LLP San Francisco, California A commentary article reprinted from the November 1, 2007 issue of Mealey's Litigation Report: Asbestos LexisNexis· MEAL EY'S LI TIGATION REPORT: Asbestos Vo l. 22, #19 November I , 2007 Commentary Th e Only Known Cause Of Mesothelioma Is Asbestos - Not! By Evan Nelson and James G. Scadden [Editors Note: Evan Nelson, Esq. , is Counsel with Tucker Ellis & West in San Francisco, where he develops and pursues litigation strategies and innovative solutions for the defense of ma,.,- tort litigation. James C. Scadden, Esq. is a partner in the San FranciJco and Lo~' Angeles EnvironmentaUToxic Tort group at Gordon & Rees LLP. His practice focuses on defending asbestos personal injury Clnd other toxic exposure cases. Copyright 2007 by the authors. Replies to this commentary are welcome.} "The o nly kn own cause of meso thelioma is asbes£os." For the past 30 years, this statement has been the ma ntra in asbes tos litigation, effecti ve ly repeated by plaintiffs' counsel and their ex perts at eve ry trial. Science and med icine offer another explanat ion fo r rhe develo pment of mesot he lioma that may affect a growing numb er o f cases. Whar is this m he r potenri al cause of mesothelio ma? The a nswer is radiario n ex posure, whi ch comes from a n u m ber of mode rn appl icatio ns includ ing medical treatme nt, nuclear or ot her wo rkplace ex posures a nd , perhaps, even from na mral o r enviro nmen ral exposures. The number of pe rso ns histo rically ex posed to signiflcam amoums of radiarion rhro ugh various so urces and those likely to be exposed in the future, is rapidly increasing; and, as expected, the number of meso thelioma cases involvi ng a radia tion exposu re co mponem is similarly on the rise. W ith perhaps as much as 40 % of the population of aging baby boo mers expecred to comracr one type of cancer o r another (National Resea rch Council, Committee to Assess Health Risks of Exposure to Low Levels of Ion izing R.1diation. 2006. Health Risks From &posure to Low Levels ofIonizing Radiation, BEl R VII, Phase 2, pgs 7-8, and Figure PS-4), the number of people undertaking therapeutic radiation treatmem is o nly going to increase, as is th e risk thar those people will suffer "2 nd tum ors" including mesothelioma as a res ult of rad iatio n treatment. Addicionally. there are over 100 fully licensed co mmercial nuclear power genera ting units in the US, and the Septem ber 6, 2007 issue of The Economist reports that this number of reactors is expected to increase by roughly a third. A growing body of kn owledge indicates that wo rkers at nuclear f..'1.cilities, and eve n peo ple living down wind from fo rmer nuclear test sites are at increased risk for any number of cancers, including meso thelioma. For decades, sailors and shipyard wo rkers have wo rked wirh nuclear powe r plants in the many warships thar make lip th e Un ited States "Nuclea r N avy" with rhe co nco mita nt risk of rad iarion expos ure. Because radiat ion is a un iversal carcinogen capa ble of causing eve ry form of solid mmor ca nce r, the relevant sc ienrifi c and med ical lite rature tends to foc us on cancer ryp~s that acco unt for the larges r numbe rs of reported maligna ncies, such as lung ca ncer and colo n ca ncer. Meso rh elioma, which has a relati vely rare incidence eve n in persons ex posed to asbesros o r radiat ion, has not received as much direct anenrio n. In fac t, under the Internati o nal C lassifi ca rion of Diseases that was in effect in 1999, IC O-9, meso theli oma did no r even have irs own ICD code, rat her it was included in othe r generic cancer catego ri es including "other respiratory ca ncers," o r even simp ly "orher cancers." Howeve r, th e Hte racure sugges tin g a link between rad iatio n ex posure a nd cance rs actua ll y dates back 1 Vol. 22, #19 November 1, 2007 MEALEY' S LITIGATION REPORT: Asbestos for several d ecades. Early published srud ies described indi vid uals who had exposu re as uranium miners and suffered an increased risk of cancers of th e lung (Wago ner, J K, Archer, VE et al. Radiation as the Cause of Lung Cancer Among Uranium Miners, New England Journal of Medicin e, Vol. 273 : pgs 181 - 188, 1965; Archer, VE, Sacco mano,G andJon es,J H , Frequency of significant increased risk of contracting mesothelioma after therapeutic radiation. These authors have concluded that ample evidence exists to demonstrate such a link and, when pressed, virtually all ex perts will agree that therapeutic radiation is now conclusively linked as a cause of mesothelioma. Diffirent Histiologic Types of Bronchogenic Carcinoma as Related to Radiation Exposure, Cancer, Vol. 34, pgs Radiation Workers At Increased Mesothelioma Risk The dose of rad iatio n adnlinistered during therapeutic radi ati on is eno rm OllS, or "ultra high" dose as described in the rel eva nt literature. So, the next question is whether occupational exposures that tend to be 1 [Q 2 orders of magnitude lower than radiotherapy doses are still sufficiently potent to cause mesothelioma. As mentioned above, th e literatu re in this area tends to focus on all cancers and does not rypicaJl y callout a rare tumor such as mesothelioma. Notwithstand ing the lack of a co ncerted focus on mesothelioma. the radi at io n wo rker epidemiological literature srill does support th e proposition thar occupational radiation dose can cause mesothelio ma and statistically increases an individual's risk of developing mesothelioma. As with therapeutic radiation, case reports can be found from 25 yea rs ago suggesti ng a link between lower level radiatio n dose and meso thelioma. In Features of Asbestos-Exposed and Unexposed Mesothelioma (H irsch, A, Brochard. p, et al. American Journa l of Industrial Medicine, Vol. 3: pgs. 4 13-422,1982), Dr. Hirsch and co-authors described a case of an individual with no known asbestos exposure who developed mesothelioma after receiving periodic cr scans over the course of a couple decades for a tota l ofless than 100 mSv (an estimated 8.5 REM or 85 mSv) of total radiation exposure. And. in An Autopsy Case of Peritoneal Mesothelioma in a Radiation Technologist (Horie, A., Hiraoka, K, et al.. Acta ParhologicaJapan, Vol. 40: pgs 57-62.1990), Dr. Horie and colleagues ~escri bed a case of mesothelioma in a radiation technologist who was estimated [Q have received up to 400 or 500 mSv (40 to 50 Rad) of tOtal radiat ion. These expos ure levels are relatively low when compared to the 15,000 to 60,000 mSv of radiation received during therapeutic radiatio n treatment. 2056 - 2060, 1974). Early animal studies in vestigated the possible link between radiation exposures, carcinogenicity in general, and induction of mesothelio ma in particular (Sanders, GL, and Jackson, TA, Induction of Mesotheliomas and Sarcomas from "Hot Spots" of239Pu02 Activity. Health Physics, Vo l. 22, pgs 755-759, 1972). and ot her res earchers reported up on human meso theliomas apparently related ro therapeutic rad iation therapy (Babcock, TL, Powell , OH et aI, Radiation-Induced Peritoneal Me~'othelioma, Journal of Surgical Oncology, Vol. 8: pages 369-372, 1976). Indeed, as ea rly as 1959, with the ex pans ion of th e US Navy's nuclear powered Reet, the Joint Committee on Aromic Energy of the US Congress co nvened hearings on Employee Radi at ion Hazards and Workmen's Compe nsation Problems w ith the su pport of the Industrial Uni on of Marine and Shipbuild ing Workers of America. Radiotherapy Can Cause Mesothelioma Certainly Case Repo rts alone, even when combined with an imal studies. are not enough to demonstrate a causal link. What experts and the co urts call for as the determinative factor are properly conducted epidem iological studies (Reference Guide on Scientific Evidence. 2 nd ed., Federal Jud icial Center, 2000, at pgs 474-475, 480; and see Cas/!)' v. Ohio Medical Products (N.D. Cal 1995) 877 F. Supp 1380, 1385) . Such epidemiological studies certainly exist in regards ro therapemic radiation and have been published in peer-reviewed periodicals. In Second Cancers Among 40516 Testicttlar Cancer Patients: Focus on Long-term Survivors (Travis. TL. Fossa,S et a\, Journal of the National Cancer Institute. Vo l. 97: pgs 1354-1365, 2005), The Risk of Secondary Malignancies Over 30 Years After the Treatment of NonHodgkin Lymphoma (Tward , JO, Wendland, MM et aI, Cancer, Vol. 107: pgs 106-1 15, 2006) and Therapeutic Radiation for Lymphoma - Risk of Malignant Mesothelioma (Tet>, MJ, !.au, E et al, Cancer, Vo l. 109: pgs 143 2- 1438) the autho rs each calcu late a Statisticall y 2 Again) the ani mal studies th at demo nstrate development of mesothelioma in rats, mice and even dogs, provide evidence that radiation expos ure causes mesot helio ma. Relevant animal stud ies include those performed at the direction of Roger McClel lan for the Lovelace Inhalati o n Toxicology Research Project MEALEY'S LITIGATION REPORT: Asbestos where mesothelio mas were found in dogs exposed to radi ation, bur none in t he comrols o r no n-ex posed dogs. J\t1oreover, in vivo and in vitro studies show how rad iation impacts cells and ca uses ge netic damage including ge neration o f free oxyge n rad icals and a neupl oidy or uneven chrom oso mal di vis ion. Fu rth e r, large-scale ep id e mi o logical st udi es have been performed on nuclear or atom ic wo rkers, a nd eve n shipya rd wo rke rs. In Cancer RiJks in Low-Lelle! Radiation in U S. Shipyard Workers (Ma tanoski, GM, Tonascia. JA er ai, Journal of Radi at io n Research - J-STAG E Adva nce Pub licatio n August 10 ,2007) a lo ng-term study of shipya rd workers undertaken by rh e Navy a nd th e Deparrmenr of Energy is reported. The reported findings a re virtually ide ntical to those found in studies in rhe UK (See Atkinso n, WD, Law DV, et aI. , Mortality of Employees of the United Kingdom Atomic Energy Authority, 1946-1997, Journ al of Occupatio nal and En viron mental Med icine, vo l. 6 1, pgs 577-585, 2004) a nd rhe Internat ional Agency fo r Resea rch on Cance r (lARC) in its 15-co u ntry study following nuclear industry workers around rhe wo rld (Ca rdis, E, Vrij heid, M er ai, The 15-Coltntry Collaborative Study of Cancer Risk among Radiation Workers Vol. 22. #19 November 1. 2007 The cancers fo r which claims can be made inclu de mesothelio ma - both pleural and pe ri toneal. This statutOry scheme is sup ported by scientific investigation conunissioned by the federal government and administered by the National Cancer Institute, National Insri[Ure of Healrh, Depanment of Labor and the Narional Instirute for Occuparional Safety and H ealth or N IOSH. l1,e Nario nal Insrirute ofOccuparionai Safety and Health conducred a comprehensive srudy of more than G5,000 civi lian employees of the Idaho Nati onal Engineering and Enviro nmental Laboratory, a sprawling facility in ru ral Idaho thar houses or has housed protOtype US Navy nuclear power plants and various test reactors. An analys is of the data fo rthcoming from that research demonstrates an increased risk of mesothelioma even fo r those workers who do not fall within a broad definir ion of ''AsbestOS Wo rkers" that includes pe rsons who were substantially likely to have worked with asbesros-comaining materials (An Epidemiologic Study ofMortality and Radiation-Related Risk of Cancer Among Work", at the Idaho National Engineering and Environmental Laboratory, a U S. Department ofEnergy Facility, HHS (N IOSH) Publicarion No. 200513 I). The results reponed from [his projecr and orhetS in the Nuclear Industry: Estimates ofRadiation-Related Cancer Risks, Rad iati o n Research, Vo l. I G7: pgs 396- demonstrate th at cause for co ncern exists. 4 1G, 2007). All of rhese studies find staristically significant increased incidence of mesothelioma in th e radi ation wo rkers. Background Radiation Causes All Solid Tumor Cancers Finally, we must co nside r if environ mental exposures ca n cause cancers such as mesothelioma. Again, the federal govern me nt believes so. In the Radiation Exposure Compensation Act (42 USC 22 10 et seq) Congress sta res when d iscussing downwind exposu res fro m nuclea r test sites that "the health of individuals who were exposed ro radiatio n in rhese tests was put at risk to serve th e national securi ty interests of t he Un ited States ..." Research commissioned by the federal government provides the sc;ienrific underpinni ng fo r this conclusion. The conce rn abou t radiat ion ex posures is a t such a level that rhe federal gove rnm e nt has enacted statutes auth o rizin g compe nsa ti o n [Q peo ple who have . contracted cancer fro m workp lace expos ures. In th e Energy Employees OCCllpational Illness Compensation Program Act (4 2 USC Section 7384 et seq.), rhe gove rnme nt has es tablish ed a framework for receiving a nd evaluating claims fro m e nergy industry employees to seek compensatio n when they have co ntracted cancers po tentially rel ated to th eir wo rkplace exposures. As stated in the Ace Ove r t he pas t 20 yea rs, more tha n tWO dozen sciemific findi ngs have eme rged tha t ind ica te that cerca in of such e mplo yees are ex perie ncing increased ri sks of dyi ng from ca n cer a nd no n-malignant diseases. Several of these studies have also es tablished a correlation be twee n excess di seases a nd ex posure ro radiati o n a nd beryllium. The Co mm ittee on th e Biological Effects of Ionizing Radiation, referred to by irs ac ronym of "BEl R" and o rga nized unde r t he authority of th e Natio nal Resea rch Co uncil has evaluated the effects of rad iatio n ex posures for years. The laresr publication by rhe BEIR group, known as BEIR V II Phase 2, focuses o n low dose rad iation exposure, whi ch they defi ne as lifetime background level radi ar ion d ose or doses below 100 mi li iSieverts (mSv). The co nclusio n of rhe BEIR gro up is that even these very low, background radiation levels can cause every form o f solid tu mo r cancer in ma n. 3 Vol. 22, # 19 November I , 2007 MEALEY' S LITIGATION REPORT: Asbestos Mesot helioma is not separately addressed, presumably because it is such a rare cancer th at the re was no appare nt reason for slich foclis. H owever, there is no reasonab le medical o r scientific explanation [Q suppan a conclus ion that mesothelioma is rhe only sol id rumor cancer rha t low dose radiation exposure does not cause. Particularly where low dose radiation exposure is snongly linked [Q lung cancer, other respirarory cancers and cancers in abdom inal organs, it would appear nonsensical to believe that somehow radiation skips through or around the lining of rhe lung (p leura) and abdomen (peritoneum ) to only cause cancer in the organs bur nOt in rhe lin ing of these orga ns. The " Linear-No Thres hold model" (LNT) that the plaintiffs' bar relies upon in low dose exposu re asbestos cases to argue tha t "there is no known safe dose of asbestOs", shou ld and does apply even more convin cingly ro low dose radiat ion exposure cases. Nume rous regulatory agencies, including OSHA, N IOS H and the EPA (See Federal Register, Vo l. 44, N o. 202: pg 60063 fo r a discussio n of this model) have ado pted such a model for evaluating low dose asbestos ex posure situat ions. In BEIR V II , Ph. 2, the Nat iona l Research Council in discussing low ' dose radiati o n exposures has stated: 4 A co m prehensive review of ava il ab le biological and biophysical data supports a " linear-no-thresho ld " (LNT) risk model - that the risk of cancer proceeds in a linear fash io n at lower doses w ithout a thresho ld and that the smallest dose has the potential to cause a sma ll increase risk in humans. In concl usio n, it would seem appropriate in all mesothelio ma, and perhaps lung ca ncer and other cancer cases as well, to exp lore the plainriWs possible exposu res to radiation in the wo rk place and from therapeutic and env iro nmemal sources. Has your plainriff served in the "Nuclear Navy"? D id he wo rk at any one of the ma ny shipyards co nstructi ng, maintaining and ove rhauling nuclear powered sh ips (Puget So und Naval Shipyard, Mare Island Naval Shipya rd, Portsmouth Naval Shipyard and the Electric Boat Shipyard come to mind immediately.)? Has yo ur pla intiff previously received radiat ion therapy? Did he work in a nuclear power plam, o r eve n li ve in the vic inity of a potemial rad iat ion exposure source? Perhaps plain- tiffs' counsel will no longer be able to credib ly argue, "There is only one known cause of mesothelioma in man. " _ MEALEY 'S LITIGATION REPORT: ASBESTOS ediled by Bryan Redding The Report is. produced twice monthly by ~. LexisNexis· 1018 West Ninth Ave. Third Floor, King of Prussia Pu 19406-0230. USA Telephone: (6 10) 768-7800 1-800-M EALEYS (1 -800-632-5397) Fox: (610) 962-4991 Email: mealcyinfo® lcxisnexis.com Web sile: hUp:llwww.lexi sncxi s.com/mealcys ISSN 0742-4647