Unsupported Assertions Do Not Establish Plausibility Of Causation
Decedent commenced this lawsuit before his death from mesothelioma after a lifetime of alleged exposure to asbestos containing products, including but not limited to those manufactured or supplied by the defendants. Decedent testified that he worked with appellant’s semi-liquid roofing product on a sporadic and limited number of occasions over a four year period. He also used a roofing cement product but could not recall the frequency with which he used appellant’s product as opposed to competitor’s products. Appelant’s products produced no dust because they were liquid. The Occupational Safety and Health Administration the types of asbestos products such as Monsey’s roofing cement from the its asbestos regulations because there is no evidence that such products are “friable” (emit airborne particles) or hazardous to the user. See 29 C.F.R. § 1915.1001(a)(8)(2000).
To oppose summary judgment, plaintiffs produced two expert affidavits, one of which specifically asserts that ““It is generally accepted. . . that all asbestos products, including . . . cement, when abraded, handled or installed release respirable asbestos fibers.” Neither affidavit addresses liquid roofing products.
Issue Areas:
Sound Science
Case:
Howard v. A.W. Chesterton Co., (Supreme Court of Pennsylvania)
Read the Amicus Brief:
Question(s) Presented:
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 this Court’s holding in Gregg v. V-J Auto Parts, 596 Pa. 274, 943 A.2d 216 (2007)?
Does the Superior Court’s holding that a plaintiff need not produce evidence that a defendant ’s asbestos-containing product produced dust conflict with this Court’s holding in Gregg v. V-J Auto Parts, 596 Pa. 274, 943 A.2d 216 (2007)?
Additional Background:
American courts have reached a broad consensus on what a plaintiff must show to prove causation in a toxic tort case. First, a plaintiff must show that the substance in question is capable of causing the injury in question. This is known as “general causation.” Second, a plaintiff must show that this substance caused his injury. This is known as “specific causation.” Because proof of general causation cannot satisfy a plaintiff’s burden without proof of specific causation, and proof of specific causation implicitly requires proof of general causation, the focus of inquiry in toxic tort cases typically is on the existence of specific causation.
ALF’s Amicus Brief:
In an amicus brief ALF argues that the plaintiff’s evidence opposing summary judgement was unrelated and insufficient support to the proposition that appellant’s liquid roofing product can cause any sort of lung disease, given that the product in question produces no respirable particles. In Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 292, 943 A.2d 216, 226-27 (2007), this Court explained that a plaintiff in an asbestos action 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.” It further ruled that 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” is not “reasonably developed scientific reasoning.”
The expert affidavits proffered by plaintiffs in this case are bereft of any empirical evidence concerning specific products or Mr. Ravert’s actual exposure to respirable asbestos fibers from roofing cement or coatings generally or Monsey’s products specifically. In addition those expert affidavits do not explain how the authors link any clinical data to their conclusions. They are, in other words, the mere “ipse dixit” of the affiants, and thus not competent evidence. ALF asks the Court to reaffirm that plaintiffs have a burden of showing plausible specific and general causation beyond unsupported assertions in order to avoid summary judgment.
Status:
The Supreme Court of Pennsylvania, despite an admission by the plaintiff’s that they could not prove that asbestos fibers were shed by Appellant’s products or the frequency of that alleged exposure, issued a favorable opinion that reaffirmed the standard outlined in Gregg.
