Credits to
Vasco Jann - Alexander Bell

The assessment of the causal link in processes for asbestos-related diseases. A chaotic 20-year history

Issue 6/2019

AbstractWith this work we will attempt to provide an overview of the criminal jurisprudence that, from the late 90s to the present, has faced the problem of the causal relevance of exposure to asbestos fibres with respect to the onset and development of asbestos-related diseases.

Following the chronological scan made by Luca Santa Maria in his reflections on the theme of causality, we will retrace the main judgements of legitimacy and merit that, in our opinion, best represent the main orientations developed in this matter, dividing them into four different periods.

We will start, first of all, with the jurisprudence that, from the end of the nineties until the judgement of the United Sections of Cassation in the Franzese case (2002), solved the problem of ascertaining the causal link by accepting the theory of the increase in risk.

We will then see that, in a second period, following the famous judicial arrest in 2002, this theory progressively gives way to the (apparently) different thesis of the dose-dependence of asbestos-related pathologies.

The third period begins in 2010, with the Cozzini judgement, which sought to define a methodological path that had the stated objective of guiding the reasoning of the evidence of the judges called to address the long-standing question of ascertaining the causal link in the case of prolonged exposure to asbestos. We will see how, in the five years following this well-known sentence (2010-2015), many pronouncements, in affirming their adherence to the so-called theory of the accelerator effect, will go so far as to argue that the protracted exposure after the moment of ignition of the tumour pathology would inevitably cause an acceleration of the course of the disease and an anticipation of death, with a consequent sure aetiological effectiveness of any dose of asbestos inhaled by the person who then contracted the disease.

Finally, we will dwell on the jurisprudence after 2015, the year in which the document of the “III Italian Consensus Conference on Malignant Mesothelioma“is published , in which it is stated that the increase in exposure would determine, in addition to an increase in incidence, also a double anticipatory phenomenon: not only the anticipation of the time with which the population reaches a predefined rate of incidence, but also the anticipation of the moment in which each case of disease occurs within that population.

This article was submitted anonymously for evaluation by two expert reviewers, with a positive outcome.


SUMMARY 1. Introduction. – 2. The first criminal case law on asbestos. The establishment of a causal link based on the increase in risk. – 3. The jurisprudence following the Franzese judgement. The entry into the jurisprudential debate of the concept of dose-dependence. – 3.1. The concept of dose-dependence of asbestos-related diseases in the jurisprudence of legitimacy. – 3.2. The concept of dose-dependence of asbestos-related diseases in the jurisprudence on the merits. – 3.3. Judgements that detect scientific uncertainty about the dose-dependent nature of asbestos-related diseases. – 4. An (apparent) turning point in the jurisprudential debate on the ascertainment of the causal link in the trials for deaths from asbestos:the Cozzini judgement. – 5. How jurisprudence changes after the Cozzini judgement. The 2010-2015 five-year period. – 6. The change of course of jurisprudence starting in 2015. – 6.1. The jurisprudence of legitimacy that after 2015 considered proven the existence of the accelerator effect. – 6.2. The case law on the merits that after 2015 has recognized the existence of the accelerator effect. – 6.3. The jurisprudence of legitimacy that after 2015 notes the persistence of a situation of scientific uncertainty regarding the existence of the accelerator effect. – 6.4 The case law on the substance, which after 2015 has ruled out proof of the accelerator effect. – 7. Conclusions.


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