The Dose Is the Poison -- The Pennsylvania Supreme Court Questions the 'Each And Every Breath' or "Any Exposure' Theory

In Gregg v. V-J Auto Parts Co., 2007 Pa. Lexis 2935 (Pa. 2007), the Pennsylvania Supreme Court extended the "frequency, regularity, and proximity" test in asbestos cases where the plaintiff's present direct evidence of exposure to asbestos. The Supreme Court had not previously addressed this issue, and this decision now eliminates the artificial distinction between direct and circumstantial evidence as set forth by the plaintiff's bar. In addition, and perhaps just as important, in its ruling, the majority opinion speaks with disfavor concerning the viability of expert testimony that any exposure to asbestos is a substantial contributing factor to an asbestos-related disease. This is a significant decision in that it has long been argued by the plaintiffs' bar that the regular and frequent standard used to prove liability applies only in cases where the evidence is circumstantial and provided by co-worker testimony. The argument was routinely made that if a plaintiff directly testified about his exposure to an asbestos product, a jury question was presented. Likewise, in Pennsylvania and many other jurisdictions, plaintiffs' experts routinely testify that each and every breath of asbestos inhaled by a plaintiff contributes to the particular disease alleged. The basis for this theory is not grounded in medical or scientific literature but is supported by the contention that, because asbestos diseases are cumulative and dose response-related diseases, each and every exposure to asbestos during a person's lifetime, no matter how small or trivial, substantially contributes to the ultimate disease (e.g. asbestosis, lung cancer or mesothelioma).

The plaintiff, John I. Gregg, died of mesothelioma and had worked for 40 years as a cable splicer for various telecommunications companies. In addition, he served a three-year tour-of-duty in the Navy as a boiler technician. The plaintiff also worked at a gas station for four years pumping gas and performing an occasional brake change. The Complaint alleged that the plaintiff was exposed to asbestos in each of his occupations. During the course of discovery, the plaintiff's son and daughter, as well as a neighbor, testified that on several occasions the plaintiff changed his own asbestos-containing brakes and that the brakes were purchased from the defendant V-J Auto Parts. V-J Auto Parts successfully argued before the trial court that it was entitled to summary judgment because the alleged exposure to its brake products was not regular and frequent. According to the motion, the plaintiff could at best demonstrate that Mr. Gregg used brake products purchased from the defendant's store on two or three occasions throughout his entire lifetime and that the plaintiff could not establish that those brake products contained asbestos. Moreover, the plaintiff's own expert witness attributed Mr. Gregg's mesothelioma solely to an "occupational history of exposure to asbestos" and not to non-occupational exposures, such as Mr. Gregg's automobile maintenance activities. In response to the defendant's motion, the plaintiff produced a supplemental expert report wherein the same expert changed his opinion and stated that Mr. Gregg's disease was as a result of "occupational and non-occupational" asbestos exposures. Despite this, the trial court granted summary judgment in favor of V-J Auto Parts.

After a complicated course through the Superior Court, the Pennsylvania Supreme Court granted further review limited to the following issue:

In a products liability suit brought against the manufacturer, the supplier of a product containing asbestos, to survive summary judgment must the plaintiff show frequent use of, and regular close proximity to, the product even if the plaintiff presents direct evidence of inhalation?

The Pennsylvania Supreme Court affirmed the trial court, and in so doing, addressed an issue that, until recently, had gone unchallenged. That is, the notion that each and every breath of asbestos contributes to the disease. This concept came about as asbestos litigation developed into a tort world all its own. In Pennsylvania and throughout the country, courts developed separate sets of rules for asbestos cases in an attempt to efficiently manage their substantial asbestos dockets. In doing this, many courts, including Pennsylvania, dispensed with numerous rules that govern other tort actions; especially the rules dealing with discovery, trial consolidation, and the method by which asbestos cases are tried. Not surprisingly, these developments have resulted in forum shopping by members of the plaintiffs' bar. As new companies are sued, they are astounded to learn how very differently asbestos cases are handled from other tort cases.

The each and every breath or the any exposure theory is one of the most substantial departures from the dose concept, which is widely recognized in both science and the courts as the foundation of causation and the basis for many medical tort decisions. In a typical tort case, a plaintiff must show not only that he was exposed to a defendant's product, but that the exposure was enough of a dose to be a cause in fact of the disease. In other words, the plaintiff must show a toxic dose. Asbestos litigation has morphed into such a world of its own that until recently in Pennsylvania and many other jurisdictions, the causation dose requirement -- real exposure at toxic levels that cause disease -- was reduced to a mere exposure test.

The exposure test holds that any exposure, regardless of duration or frequency, is sufficient to support a multi-million dollar plaintiff's verdict. What occurs in the each and every breath or any exposure theory case is that the plaintiff's expert opines that any occupational or product-related exposure to asbestos fibers is sufficient to cause disease and that there is no minimum level of exposure. These experts regularly render opinions that each and every exposure a plaintiff received from any occupational or hobby-related exposure is a substantial factor in causing disease. The opinions incorporate any activity involving asbestos, regardless of duration or dose, such as: (1) a few recreational brake jobs, (2) an occasional remodeling job using asbestos containing joint compound, or (3) hanging out in a friend's garage while he changes brakes. Even though these experts ascribe to the any exposure theory, these same experts also opine that background exposure to asbestos, which may contribute millions of fibers to an individual's lungs over a lifetime, does not contribute to the development of disease; rather, it is only occupational or para-occupational exposures that contribute. This theory permits plaintiffs' counsel to sue thousands of defendants every year despite the fact that the products contributed a trivial amount to a particular individual's exposure, which is far below the type of dosage actually required to cause disease and, at the same time, exclude the millions of fibers from background exposures as a source of causation.

The Pennsylvania Supreme Court in Gregg clearly questioned the each and every breath or any exposure theory by stating:

We recognize that it is common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor in asbestos disease. However, we share Judge Klein's perspective as expressed in the [Summers v. Certainteed Corp., 886 A.2d 240 (Pa. Super. 2005)] decision, that such generalized opinions do not suffice to create a jury question in a case where exposure to the defendant's product is de minimus, particularly in the absence of evidence excluding other possible sources of exposure (or in the face of evidence of substantial exposure from other sources).

As Judge Klein explained, one of the difficulties courts face in the mass tort cases arises on account of a willingness on the part of some experts who offer opinions that are not fairly grounded in a reasonable belief concerning the underlying facts and/or opinions that are not couched within accepted scientific methodology.

In questioning the viability of the any exposure theory, the court recognized that it would increase the burden on plaintiffs who really suffered harm on account of an asbestos disease that has a long latency period. The court considered alternate theories of liability, but explained:

Such theories are not at issue in this case, however, and we do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every "direct-evidence" case. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.

In sum, the primary holding in Gregg was that the court adopted the frequency, regularity and proximity factors as enumerated and applied in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992). In particular, the court held that the criteria are not an absolute threshold necessary to support liability. Rather, as in Tragarz, they are to be applied in an evaluative fashion to aid in distinguishing cases in which the plaintiff can adduce evidence that there is a significant likelihood that the defendant's product caused harm from those cases in which such likelihood is absent because of causal or only minimal exposure to the defendant's product. The application of frequency, regularity, and proximity factors should be tailored to the facts and circumstances of each unique case.

Nonetheless, what may prove to be more important is the court's pronouncement concerning the each and every breath or any exposure theory, which could prove to be the beginning of the end of this theory. The courts that continue to allow any exposure testimony to proceed unchallenged run the risk of encouraging plaintiffs' counsel to flood their jurisdictions with numerous claims, many of which will be based on speculative or trivial exposures to products that could not have contributed to a particular individual's disease. Unfortunately, a company faces dire financial consequences once its product is targeted by plaintiffs' counsel. This theory encourages the endless search for the solvent deep pocket. Time will tell if the Gregg Court's decision has cast sufficient doubt over the each and every breath or any exposure theory to stem the flow of law suits in Pennsylvania against solvent deep pocket defendants whose products played a trivial role in a particular individual's exposure.