Atlantic Legal has filed an amicus brief on behalf of thirteen distinguished scientists, including a Nobel laureate in Chemistry and a Nobel laureate in Medicine, in an appeal in the Pennsylvania Supreme Court in Ravert v. Monsey Products, an asbestos-mesothelioma causation case.
Ravert, who has since died, commenced this action in 2007, alleging that his mesothelioma was the result of exposure to several products manufactured by defendants A.W. Chesterton Co., ACE Hardware Corp., Monsey Products Corp., Pecora Corp. and Union Carbide Corp. Ravert alleged he was exposed to asbestos after using and being around Chesterton’s string packing used to seal pumps, ACE’s and Monsey’s roof coating and roof cement, Pecora’s furnace cement and Union Carbide’s powdered asbestos.
The trial court granted the non-settling defendants summary judgment based upon plaintiff’s failure to establish the ‘regularity, frequency, and proximity’ requirements of the Pennsylvania Supreme Court’s decision inGregg v. V-J Auto Parts, 596 Pa. 274, 943 A. 2d 216 (2007). The Superior Court reversed the summary judgment, completely disregarding the Supreme Court’s holding inGregg and Betz v. Pneumo Abex, LLC 44 A.3d 27 (Pa.2012).
The issues for review in the Pennsylvania Supreme Court are:
(1) Does the Superior Court’s holding, which permits a plaintiff who fails to produce sufficient evidence of regularity, frequency and proximity of exposure to a defendant’s specific asbestos-containing product to defeat summary judgment by submitting generic, non-case specific expert affidavits, conflict with the Supreme Court’s holding inGregg v, V-J Auto Parts, 596 Pa. 274, 943 A. 2d 216 (2007)?
(2) Does the Superior Court’s holding that a plaintiff need not produce evidence that a defendant’s asbestos-containing product produced dust conflict with the Supreme Court’s holding inGregg v. V-J Auto Parts, 596 Pa. 274, 943 A. 2d 216 (2007)?
Our brief argues that this case exemplifies the intermediate Pennsylvania appellate court’s obdurate resistance to the Supreme Court’s tightening of the standards of proof in asbestos product liability cases, such asGreggandBetz. InGregg, the Supreme Court held that, at the summary judgment stage, courts should ‘make a reasoned assessment concerning whether, in light of the evidence concerning the regularity, frequency and proximity of plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury.’ The Superior Court seems to have ignored entirely the recent Pennsylvania Supreme Court decision inBetz v. Pneumo Abex, decided earlier in 2012 in which Atlantic Legals brief was cited repeatedly.
In its brief inRavert, Atlantic Legal contends that the trial court correctly rejected precisely the type of expert testimony labeled as a fiction inGregg. See Betz, 998 A..2nd at 30, 40, 53, 56. The expert affidavits proffered by plaintiffs in this case are bereft of any empirical evidence concerning specific products or Mr. Raverts actual exposure to respirable asbestos fibers from roofing cement or coatings generally or Monseys products specifically. In addition, those expert affidavits do not explain how plaintiffs experts link their conclusions to any clinical data. They are, in other words, the mereipse dixitof the affiants, and thus not competent evidence.
To view a copy of the Foundations brief, please click here.