Frequency, Regularity, Proximity Test

The frequency, regularity, proximity test is a standard many courts use to decide whether a plaintiff's exposure to a particular company's asbestos product was enough to be a substantial factor in causing disease. The plaintiff must show exposure to the product often enough, over a long enough period, and close enough to the work, to have breathed its fibers.

Origin

The test comes from Lohrmann v. Pittsburgh Corning Corp., decided by the U.S. Court of Appeals for the Fourth Circuit in 1986. Courts in Maryland, Illinois, Pennsylvania and many other states adopted it in some form; others use different formulations of substantial-factor causation.

Significance in Asbestos Context

Most asbestos plaintiffs were exposed to many companies' products, so the case against each defendant often turns on this test. Evidence usually comes from the plaintiff's own testimony and coworkers who can say which brands were used, how often, and how close the plaintiff worked to the dust. Courts vary in how strictly they apply it, and some apply it more loosely in mesothelioma cases because of the disease's association with low exposures.

Example Sentence

Two coworkers testified that the insulators cut that company's pipe covering a few feet from the plaintiff several times a week for three years, which the court found satisfied frequency, regularity and proximity.

Related Terms

Substantial Factor Test, Product Identification, Fact Witness, Specific Causation, Each and Every Exposure Doctrine, Proximate Cause

Notes

• Write down every product brand you remember and where and how often you were near it.
• Coworkers' memories are often the key evidence; share names and contact information with your lawyer early.
• Being near others' work (bystander exposure) can count.