On September 26, 2013, the Pennsylvania Supreme Court dismissed plaintiffs asbestos in jury claim against several manufacturers of roofing products containing asbestos. In three lawsuits, consolidated under Howard v. A.W. Chesterton, the justices, in a per curiam order, vacated the opinion of the Superior Court and reinstated the decision of a Philadelphia Court of Common Pleas judge to grant summary judgment and dismiss the plaintiffs case.
John Ravert commenced this action in 2007, alleging that his mesothelioma was the result of exposure to several roofing and furnace 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 Monseys roof coating and roof cement, Pecora’s furnace cement and Union Carbide’s powdered asbestos. Mr. Ravert subsequently died and the action continued on behalf of his estate.
The trial court granted the non settling defendants motions for summary judgment based upon plaintiff’s failure to establish the regularity, frequency, and proximity requirements of the Pennsylvania Supreme Courts decision in Gregg v. V J Auto Parts, 596 Pa. 274, 943 A. 2d 216 (2007). The trial court excluded the expert evidence proffered by plaintiffs and dismissed the case. The Superior Court reversed, finding that there was a material issue of fact whether dust from defendants products was a substantial factor in causing Mr. Raverts mesothelioma. In doing so,
the Superior Court disregarded the Supreme Court’s holdings in Gregg and Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa.2012).
The issues for review by the Pennsylvania Supreme Court were:
(1) Does the Superior Courts holding, which permits a plaintiff who fails to produce sufficient evidence of regularity, frequency and proximity of exposure to a defendants specific asbestos containing product to defeat summary judgment by submitting generic, non case specific expert affidavits, conflict with the Supreme Court’s holding in Gregg and Betz?
(2) Does the Superior Courts holding that a plaintiff need not produce evidence that a defendants asbestos containing product produced asbestos-containing dust conflict with the Supreme Courts holding in Gregg?
Atlantic Legal Foundation, representing thirteen prominent scientists, filed an amicus brief in which we argued that this case exemplifies the intermediate Pennsylvania appellate courts obdurate resistance to the Supreme Courts tightening of the standards of proof in asbestos product liability cases, such as Gregg and Betz. The Foundation contended that the trial court correctly rejected precisely the single fiber theory expert testimony characterized in Gregg as a fiction. See Betz, 998 A..2nd at 30, et seq. We argued that the expert affidavits proffered by plaintiffs in Ravert were 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 did not explain how plaintiffs experts linked their conclusions to any clinical data. They were, in other words, the mere ipse dixit of the experts, and thus not competent evidence.
On appeal to the Pennsylvania Supreme Court, plaintiffs conceded that the factual record fails to demonstrate regular and frequent enough exposures during which respirable asbestos fibers were shed by [Appellants] asbestos-containing products. We believe this was a tactical move to avoid another Supreme Court precedent confirming what the Foundation’s scientist clients believe to be a scientifically appropriate standard of proof of causation. As a result of plaintiffs concession, all the parties, including the plaintiffs, agreed that there was not enough evidence to determine that an individuals mesothelioma was caused by inhaling asbestos dust from the defendants’ products.
Notwithstanding this maneuver, the Pennsylvania Supreme Court, in light of the intensely protracted nature of this and other asbestos litigation, chose to provide whatever limited guidance we were able to supply under the circumstances, and reaffirmed the following important principles:
– The theory that each and every exposure, no matter how small, is substantially causative of disease may not be relied upon as a basis to establish substantial factor causation for diseases that are dose responsive. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 55 58(Pa., 2012).
– In cases involving dose responsive diseases, expert witnesses may not ignore or refuse to consider dose as a factor in their opinions. See id.
– Bare proof of some de minimus exposure to a defendant’s product is insufficient to establish substantial factor causation for dose responsive diseases. See Gregg v. V J Auto Parts, Inc., 943 A.2d 216, 225 26 (Pa. 2007).
– The testimony of an expert witness addressing substantial factor causation in a dose responsive disease case must include some reasoned, individualized assessment of a plaintiffs or decedents exposure history. See Betz, 44 A.3d at 55 58.
– Summary judgment is an available vehicle to address cases in which only bare de minimus exposure can be demonstrated and where the basis for the experts testimony concerning substantial factor causation is the any exposure theory. See Betz, 44 A.3d at 55 58; Gregg, 943 A.2d at 227.
The Pennsylvania Supreme Court in Howard sends a clear and unmistakable message to the lower courts that they must follow the Betz decision.
To view a copy of the Foundations brief, please click here.
To view a copy of the Pennsylvania Supreme Court order, please click here.