“Along with the increase in the number of cases filed by plaintiffs alleging lung cancer caused by exposure to asbestos comes an increase in the number of such cases in which the plaintiff also had a history of smoking cigarettes,” notes this Westlaw Journal: Asbestos article co-authored by Brendan H. Fitzpatrick, an attorney in Goldberg Segalla’s Toxic Torts and Product Liability Practice Groups.
“The theory in these smoking lung cancer cases, according to plaintiffs, is that the combined effect of smoking cigarettes with exposure to the defendants’ asbestos-containing products created an increased the risk that the exposed individual would develop lung cancer. A recent case in Baltimore, Maryland, provides an example of how the defense of assumption of the risk can be used by defense counsel to defeat such claims.”
Here, the authors analyze the Entwisle v. ACandS, Inc. trial to provide practical tips for defense counsel. The article explores the collection and use at trial of evidence related to the synergistic effect of asbestos exposure and smoking — which ultimately led, in this case, to a successful use of the doctrine of assumption of the risk to obtain a directed verdict as to all damages relating to lung cancer.