Foundation Continues to Advocate Use of Sound Science in Asbestos Litigation

The Continuing Fight in Pennsylvania Atlantic Legal files amicus brief in the Supreme Court of Pennsylvania in Rost v. Ford Motor Company.

This case is an appeal from a decision of the Pennsylvania Superior Court, the intermediate appellate court in Pennsylvania, which incorrectly held that the opinion of plaintiffs expert on medical causation was admissible, despite the fact that the experts opinion does not satisfy the legal standard articulated by the Pennsylvania Supreme Court in a line of cases, starting with Gregg v. V-J Auto Parts Co., 596 Pa. 274, 943 A.2d 216 (2007) (rejecting the 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), and continuing with Betz v. Pneumo Abex, LLC, 615 Pa. 504, 552, 44 A.3d 27, 48 (2012) (the every exposure theory is fundamentally inconsistent with both science and the governing standard for legal causation), and Howard v. A.W. Chesterton Co., 78 A.3d 605, 608 (2013) (in cases involving dose-responsive diseases, expert witnesses may not ignore or refuse to consider dose as a factor in their opinions).

The issue we addressed was whether contrary to Howard, Betz, and Gregg a plaintiff in an asbestos action may satisfy the burden of establishing substantial-factor causation by an experts cumulative-exposure theory that the expert concedes is simply an any-exposure theory by a different name, a theory that the Pennsylvania Supreme Court has repeatedly rejected.

Mr. Rost was diagnosed with mesothelioma. Mr. Rosts claim against Ford arose because he alleged he was exposed to asbestos from sweeping the floor in the service area of a Ford dealership while working at the dealership more than 60 years earlier, during the summer of 1950. Mechanics at the Ford dealership did, among other work, brakes repairs and replacement and clutch repairs and replacements which contained asbestos. But Mr. Rost was not a mechanic. Mr. Rosts job included sweeping up dirt and debris in the dealerships service area. Significantly, Mr. Rost was exposed to high levels of asbestos dust in subsequent long-term jobs at a manufacturer of electric parts for several years and at a local electric utility for 34 years.

The plaintiffs experts asserted that there is no safe level of asbestos exposure, based on a cumulative exposures theory, which they conceded was the same as the every exposure opinion advanced in prior asbestos cases.

The trial court instructed the jury that if they found that the Ford products in question contained asbestos and that plaintiff was exposed to them on a regular, frequent, and proximate basis, and this exposure contributed to the plaintiffs mesothelioma, then there must be a finding of liability. The jury found in favor of both Mr. and Mrs. Rost, awarding them $1,000,000 in damages.

The Superior Court affirmed the jury verdict, notwithstanding Fords argument that the admission of the testimony of the plaintiffs experts was contrary to Pennsylvania case law, which precludesthe each and every breath statement in concluding that asbestos exposure causes disease and that testimony should have been excluded.

In our amicus brief we argued that the Pennsylvania Supreme Court, in Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 292, 943 A.2d 216, 226-27 (2007), had ruled that a plaintiff in an asbestos case must present reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm and that the Court noted further that the fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures is not reasonably developed scientific reasoning. Further, in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (2012), the Supreme Court was critical of expert opinions which find no individual differences in the potency of the fiber, the concentration or intensity of the fibers, or the duration of exposure to a particular product. The plaintiffs experts testimony in Betz that each and every exposure to asbestos no matter how small contributes substantially to the development of asbestos-related diseases is essentially no different from the testimony of Mr. Rosts experts in the instant case.

We also argued that the clear and emphatic opinion of the Pennsylvania Supreme Court in Howard v. A.W. Chesterton Co. should have made clear that:

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.
Relatedly, in cases involving dose-responsive diseases, expert witnesses may not ignore or refuse to consider dose as a factor in their opinions.
Bare proof of some de minimis exposure to a defendant’s product is insufficient to establish substantial-factor causation for dose-responsive diseases.
The testimony of an expert witness addressing substantial-factor causation in a dose-responsive disease case, some reasoned, individualized assessment of a plaintiffs or decedents exposure history is necessary.
In short, we argued that the Betz and Howard decisions should have closed the door to the every breath or single fiber theory, but in Rost the lower courts sought to avoid this Courts holdings in the Betz, Gregg and Howard trilogy, by permitting plaintiffs experts to engage in a purely semantic change of the rejected every breath or each fiber theory to a cumulative exposure theory according to which each and every breath contributes substantially to causing mesothelioma.

The case is sub judice.

To read our amicus brief, click here.