Pennsylvania Supreme Court

Pennsylvania-supreme-court-buildingOn November 22, 2016, the Pennsylvania Supreme Court issued a 4-2 Opinion in Rost v. Ford Motor Co., No. 56 EAP 2014, 2016 Pa. LEXIS 2638 (Pa. Nov. 22, 2016), in which the court purported to uphold and expand upon prior asbestos causation decisions set forth in Gregg v. V-J Auto Parts, Co., 596 A.2d 274 (Pa. 2007), and Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2010). However, when juxtaposed against the dissents of Chief Justice Saylor—the author of both Gregg and Betz—and Justice Baer, it becomes evident that the majority opinion creates an additional obstacle for defendants (particularly low-dose defendants) on the path toward exculpation.

In the opinion, the majority upholds a plaintiff’s verdict against Ford Motor Company for a plaintiff, Mr. Rost, who alleged he had experienced direct occupational bystander exposure to asbestos from Ford products while working as a “gofer” in an automotive repair garage over a three month time period. Ford challenged the verdict on two grounds: i) the plaintiff’s expert, Dr. Frank’s, causation opinion was impermissibly before the jury when the opinion amounted to an “each and every breath” opinion (which the court explicitly rejected in both Gregg and Betz) and, with respect to substantial factor causation, Dr. Frank’s opinion failed to take into account plaintiff’s other industrial occupational exposure during which Mr. Rost was exposed to asbestos “at pretty high levels” over at least a ten year period; and ii) the trial court erred in consolidating Mr. Rost’s case with other non-related mesothelioma cases.

Dr. Frank testified generally that mesothelioma is a dose-response disease wherein as the dose increases, the likelihood of developing the disease increases. He also testified that it is scientifically impossible to identify a particular exposure that caused the plaintiff’s disease where there were four sources of exposure, but that the causative agent was a series of exposures. Mr. Frank asserted that all documented exposures should be considered as contributing to the plaintiff’s development of disease, and concluded that it is not possible to quantify how much asbestos initiates the disease process and that it also varies according to individual susceptibility. After testifying to those opinions generally, Dr. Frank testified using a hypothetical that exposure to Ford products specifically was a substantial contributing factor to the plaintiff developing mesothelioma. Dr. Frank asserted “if [the three month exposure to Ford products] would have been [Mr. Rost’s] only exposure, I would be sitting here saying that that was the cause of his disease. Given that he had other exposures, it was all contributory.” Rost, No. 56 EAP 2014, 2016 Pa. LEXIS 2638, at *13.

Plaintiff’s Expert’s Conclusory Opinion Satisfied the Causation Standard

The majority began its analysis by revisiting two prior decisions—Gregg and Betz. In Gregg, the court rejected the “each and every breath” theory of causation as insufficient to create a factual issue to submit to the jury. In Betz, the court determined that a plaintiff must adduce evidence that exposure
Continue Reading Causation Standard at Center of PA Supreme Court Asbestos Ruling

Co-authored by Brian Gross

lungsThe health hazards associated with asbestos have been documented, at least to some degree, for many years.  Yet the litigation of asbestos injury claims is as robust and contentious as ever. Why? Well, much of it stems from the fact that there is controversy in the medical and scientific community as to whether all forms of asbestos – “amphibole asbestos” and “serpentine asbestos” – cause mesothelioma, a rare cancer found primarily in the pleura, or lining of the lung, and the peritoneum, or abdominal cavity.  That issue is complicated even further by the fact that many asbestos plaintiffs allege exposure to asbestos from numerous products, and these alleged exposures differ in frequency, intensity, and duration.  As such, one of the major issues in these cases surrounds the proof of which asbestos exposure was a substantial contributing factor to the plaintiff’s disease.  As with most complex litigation, attorneys in asbestos cases must rely heavily on science, which can be a moving target at best and damaging at worst, especially if the findings are not scrutinized thoroughly to ensure a level playing field.

Take for example two friction defendants – Ford and Allied Signal – who recently contested  the “every breath” or “every exposure” theory proffered by plaintiffs’ expert Dr. John C. Maddox to the Pennsylvania Supreme Court.  This theory, in essence, claims that no matter how infinitesimal, every single exposure to an asbestos fiber – regardless of the fiber type, size, or chemical make-up – substantially contributes to the development of an asbestos-related disease.

According to Maddox, “each and every breath” of asbestos one takes is and should be considered a substantial contributing cause to the development of an asbestos-related disease.

His opinion is based on an extrapolation from high to low doses of asbestos and from one type of asbestos to another.  Maddox posits that because the medical and scientific literature has demonstrated an association between high doses of amphibole asbestos (a more potent form of the mineral) and mesothelioma,  low doses of the less potent chrysotile asbestos can as well.  Undoubtedly such an opinion would allow plaintiffs to potentially hold liable any and all defendants who manufactured and/or sold an asbestos-containing product, no matter how infinitesimal the alleged exposure.  During oral argument, however, Ford argued that the average person encounters about 100 million asbestos fibers over the course of his or her lifetime.  Nonetheless, the vast majority of us are not at a high risk for developing mesothelioma from this “ambient” or “background” exposure to asbestos.  This fact alone places serious doubts about the “every single breath” theory – both scientifically and from a legal causation analysis.

Continue Reading Pennsylvania Supreme Court to Rule on Whether “Every Breath You Take” Theory Holds Water in Asbestos Litigation