Attack on Helsinki Criteria
In February 2007, Canadian, UK and U.S. defendant experts published a paper attacking the Helsinki Criteria, a document which has been used in many legal jurisdictions for attributing cases of lung cancer to asbestos exposure.1 There is little doubt that asbestos defendants will use the arguments advanced in this paper as ammunition in future cases brought by claimants with asbestos-related lung cancer. Cases like the one brought on behalf of Australian lung cancer victim Paul Steven Cotton, a smoker who worked with asbestos but had no plaques or asbestosis and a relative risk well under that required by the Helsinki Criteria.2 In the judgment he issued on December 8, 2006, Justice Heenan noted:
Generally speaking, the defendants' submissions ignore the acknowledgement in the Helsinki Protocols themselves that cumulative exposures below 25 fibre years are also associated with an increased risk of lung cancer and that not all the exposure criteria need to be fulfilled for the purposes of attribution. When it is recognised that the Helsinki Protocols were an attempt to meet diagnostic criteria at an epidemiological, that is macro, level and that they specifically acknowledged that in certain cases of low exposure enhanced risk to lung cancer did occur, one should be disinclined to conclude that, if an individual case failed to meet the express quantitative tests formulated by that document, any prospect of a causal link between the asbestos exposure and the lung carcinoma is negatived. I am satisfied that this is not the express or implied meaning of this important statement.3
An effective discrediting of the Helsinki Criteria could adversely impact potential litigation on behalf of sufferers from asbestos-related lung cancer, a category of claimants which has been seriously under-represented in the courts. Fortunately, this paper has neither the substance nor credibility to accomplish such a task. Nevertheless, its contents should be studied by legal experts and plaintiffs' representatives as it illustrates the evolution of an important strategy for asbestos defendants.
February 26, 2007
1 Gibbs A, Attanoos RL, Churg A, Weill H. The Helsinki Criteria for Attribution of Lung Cancer to Asbestos Exposure. Arch Pathol Lab Med Vol 131, February 2007, pages 181-184.
3 Justice Heenan awarded a total of A$1,526,663 to Mr. Cotton's Estate [2006 WASC 270] from three defendants: the State of South Australia., Amaca Pty Ltd., formerly James Hardie & Coy Pty Ltd. and Millennium Inorganic Chemicals Ltd., formerly DCM Chemicals Ltd.