Sound Science Prevails: Pennsylvania Supreme Court Rejects ‘Any Exposure’ to Asbestos Causation Theory

In an important victory for sound science in the courtroom, the Pennsylvania Supreme Court held unanimously on May 23, 2012 that an experts testimony that "any exposure" to asbestos substantially contributes to mesothelioma irreparably conflicts with his testimony that mesothelioma is a dose-response disease. The court held that the trial judge properly held a hearing on the admissibility of that testimony and correctly excluded it.

Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive, the court said. The case is Diana K. Betz, et al. v. Pneumo Abex LLC, successor-in-interest to Abex Corp., et al., No. 38 WAP 2010, Pa. Supreme Court and the full opinion is available here.

In 2005, Charles Simikian filed suit in the Allegheny County Court of Common Pleas against numerous companies that allegedly manufactured or supplied asbestos-containing friction products. Simikian died shortly after filing the complaint, and Diana Betz, one of his daughters, continued the lawsuit. Betz alleged that the decedent was exposed during his 44-year career in the automotive repair industry. The defendants filed a global motion challenging the admissibility of the "any exposure" theory.

Frye Hearing

The parties selected the Betz action as a test case for a hearing on the admissibility of expert testimony pursuant to Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923). After the hearing, Superior Court Judge Robert J. Colville excluded all expert testimony indicating that the decedent had contracted mesothelioma through exposure to automotive friction products such as brake linings, brake pads and clutch plates used in automotive repairs. Judge Colville found that Dr. John C. Maddox’s friction-causation testimony amounted to his best estimate, gut instinct and educated guess because he lacked methodologies utilizing discrete and specific principles logically applied in a manner that can be affirmatively articulated, referenced, reviewed, and tested, and empirically verified. Judge Colville did not consider evidence from the defendants in reaching his ruling, finding that it did not support the Frye challenge.

The Pennsylvania Superior Court reversed, holding that Judge Colville’s decision was based neither on a scientific theory nor on the evidence before him. Friction-product defendants Ford Motor Co. and Allied Signal Inc. then appealed to the Pennsylvania Supreme Court.

Atlantic Legal Foundation filed an amicus brief in the Pennsylvania Supreme Court on behalf of several prominent scientists, including a Nobel Prize winner in Medicine, and several who are experts in lung disease and in the nature and effects of various types of asbestos. Our brief was cited several times in the courts opinion on important points in the court’s analysis, more frequently than any other amicus brief. Our brief addressed science-related questions of proper scientific method, principles of toxicology and epidemiology, and legal issues such as the standard of admissibility of scientific evidence and the requisite proof of causation under Pennsylvania law. We specifically criticized Dr. Maddoxs failure to even estimate the dosage of asbestos to which Mr. Simikian was exposed or the type or types of asbestos to which he was exposed.

The Frye Standard

In its ruling, the Supreme Court first concluded that Judge Colville acted properly in holding a hearing given the controversial nature of the any exposure theory as well as its role in asbestos litigation. The court said a reasonably broad meaning should be given to the term novel for the purposes of conducting a Frye hearing, and the any exposure theory falls within this definition.
The court said any time a judge has grounds to believe an expert has not applied accepted scientific methodology a Frye hearing is warranted. This is a very salutary interpretation of the Frye test, and deals properly with the situation where established scientific theories or methods have been overtaken by more recent research. A more narrow approach would unduly constrain trial judges. The court wrote In the present case, Judge Colville was right to be circumspect about the scientific methodology underlying the any-exposure opinion.

Internal Conflicts in Plaintiffs Expert’s Testimony

Next, the court said that while Dr. Maddox testified that he was presenting the medical literature as he understood it, he never indicated that his opinion was based on a particular clinical diagnosis. Indeed, he expressed no familiarity whatsoever with Mr. Simikians individual circumstances, the court said. Instead, Dr. Maddox offered a broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber above background exposure levels. In doing so, he took it upon himself to address (and discount) the range of the scientific literature, including pertinent epidemiological studies, the court said.

The court said Dr. Maddoxs testimony did not use the language of a methodology or standard applied in the field of pathology. Dr. Maddoxs testimony makes it clear that his opinion was grounded in risk assessment, the court said. This fact makes the doubts expressed by one of defendants’ experts about whether risk assessment falls within the realm of pathologists especially powerful, the court said.

The court concluded that Dr. Maddoxs testimony contained internal conflicts and inconsistencies. While Judge Colville spent considerable time listening to the arguments, he could not discern a coherent methodology supporting the notion that every single fiber from among, potentially, millions is substantially causative of disease, the court said. Judge Colville struggled with how Dr. Maddox could claim both that mesothelioma is dose responsive and that every exposure is substantially causative, the Supreme Court noted.

Justice Thomas G. Saylor wrote for the court and was joined by Justices Ronald Castille, J. Michael Eakin, Max Baer, Debra McCloskey Todd and Seamus McCaffery. Justice Joan Orie Melvin did not participate.

In addition to being cited often by the court, Atlantic Legals brief received praise from several prominent asbestos litigation specialists. One of the leading national asbestos litigation defense lawyers wrote: [I]n my view this was one of the two most important asbestos appellate cases pending right now, and it is just a huge win. . . to have this court come down on the side of rejecting the any exposure theory. . . . I’ve never seen a court cite so frequently to an amicus brief before – very nice job and it clearly made a difference.