Frye hearing inappropriate in this asbestos case

In response, plaintiffs argue that a Frye hearing is inappropriate because the relationship of asbestos to mesothelioma is well established and there is no novel science involved that would warrant a hearing. Plaintiffs also submit the above-criticized studies and papers by Dr. Richard Lemen, former deputy director and acting director of NIOSH as well as Assistant Surgeon General, United States Public Health Service. He has been an epidemiologist for 30 years and is a Ph.D.

In his peer reviewed articles, both entitled Asbestos in Brakes: Exposure and Risk of Disease, and both published in editions of the American Journal of Industrial Medicine, Dr. Lemen deals specifically with arguments advanced by motor vehicle manufacturers that claim that epidemiological evidence does not demonstrate increased risk of contracting mesothelioma.

Although he acknowledges that many of the chrysotile fibers in brake linings are shorter and may be less toxic than longer ones, he concludes that brake workers, particularly those who manipulate and cut brake linings, which are 40% to 50% chrysotile asbestos, are clearly at increased risk of contracting asbestos related diseases. (Richard A. Lemen, Asbestos in Brakes: Exposure and Risk of Disease, 45 Am J Ind Med 229-237 [2004].)

He bases this in part on a study of peer reviewed literature that reveals at least 165 cases of mesothelioma in end-product users of friction products and government studies that have shown even more cases. He concludes that ambient air could not have caused this number of cases in the population involved. The factors that go into his conclusion are: encapsulated asbestos containing brakes do release asbestos fibers when the brakes are both used and manipulated and at concentrations capable of causing disease; short asbestos fibers (less than five microns in length), often found in brakes and brake residue, have been shown to pose a risk of disease; the application of control methodologies has resulted in reduced exposure to asbestos, but has not entirely eliminated exposures; additional asbestos exposures beyond those encountered directly from work with brakes, occur from faulty work practices and clean-up methods which are not appropriate; OSHA has stated that its current standard for asbestos (0.1 f/cc) will not eliminate the risk of asbestos induced cancers, and; the International Program for Chemical Safety has concluded that no threshold has been identified for carcinogenic risks for chrysotile asbestos, the principal fiber type used in asbestos-containing brakes.