"Every Breath" of Asbestos Is Not a Substantial Factor in Pennsylvania

The Pennsylvania Supreme Court unanimously found that plaintiffs cannot rely on the theory that "every breath" is a substantial contributing factor in causing an asbestos-related disease in an asbestos case involving friction exposures, i.e., brakes and clutches. The May 23, 2012, ruling in Diana K. Betz v. Pneumo Abex LLC ("Simikian") overturns the en banc decision of the state Superior Court, which the Pennsylvania Supreme Court found to be based on an "unduly cramped perspective." (Note: Duane Morris represented defendant Ford in this case.)

While the Superior Court of Pennsylvania concluded that the "every breath" opinion was not novel, the Pennsylvania Supreme Court disagreed and found that the trial court's decision to conduct a Frye¹ hearing was appropriate. The court noted that challenges to expert testimony are "vetted through the Frye litmus, which winnows the field of the attacks by application of the threshold requirement of novelty."² The court held that the term "novel" is to be given "reasonably broad meaning."³ When the trial judge has "articulable grounds" to believe an expert has not applied scientific methodology, then a Frye hearing is appropriate. Finding that Judge Colville was rightly guarded about the scientific methodology underlying the "any-exposure" opinion, the court found that the any-exposure opinion skirts the need for plaintiffs to prove causation by more conventional routes, such as presenting a full occupational history and details of exposure, as well as distinguishing other exposures as possible causes of the disease.

The standard of review of the trial court's Frye ruling was an abuse-of-discretion standard. The Pennsylvania Supreme Court determined that the trial judge, Judge Colville, did not abuse his discretion. The court found it was also appropriate for Judge Colville to allow the testimony of epidemiologist Dr. Jane Teta and toxicologist and risk assessor Dr. Dennis Paustenbach in response to appellee's proffered expert, Dr. Maddox, a pathologist, according to the Pennsylvania high court. The court appreciated the contribution of the risk-assessment methodology of determining causation in a substantial-factor causation context.

The court turned its focus on the any-exposure opinion, and found ineffectual Dr. Maddox's reliance on case reports, animal studies and regulatory standards to support his substantial-factor causation opinion. The court also found that Dr. Maddox's opinion was inherently at conflict with itself: A single fiber among many cannot be substantially causative in a dose-response related disease. Dr. Maddox admitted that individual exposures differ in the potency of fiber type, the concentration or intensity of exposure and the duration of exposure. The court pointed out that his any-exposure opinion wholly ignores these three factors. Further, while Dr. Maddox discounted the epidemiologic evidence relied upon by the appellants, the fact that he was unprepared to address the epidemiologic studies further undermined his opinion in the eyes of the court.

The court concluded that the any-exposure opinion of Dr. Maddox completely discounts the substantiality causation principles of Pennsylvania law. As a result, the court unanimously concluded that Judge Colville did not abuse his discretion in his Frye analysis.

The Simikian decision changes the face of asbestos litigation in Pennsylvania and may have farther-reaching impact. Plaintiffs can no longer lump together exposures and say all exposures contributed to disease. This brings asbestos litigation in line with the mainstream causation requirements for other substances—plaintiffs must be able to prove that each product was a substantial factor in their disease.

Notes

1. Pennsylvania is a Frye jurisdiction, not a Daubert jurisdiction.
2. P. 43.
3. Id.