Rost, Richard, M., Exec. v. Ford Motor Co., Aplt.
2016 Pa. LEXIS 2638
Pa.2016Background
- Richard Rost developed mesothelioma and sued multiple asbestos-product manufacturers; all defendants but Ford settled and Ford was tried. Jury returned a multi-defendant verdict; judgment was entered against Ford for one quarter of the award.
- Rost worked ~3–4 months in 1950 at a Ford-focused garage where he repeatedly handled brake shoes, was exposed to brake-dust blowouts and swept up asbestos debris; he later had substantial industrial asbestos exposure at Metropolitan Edison for decades.
- Rost’s experts (Drs. Frank and Brody) testified that chrysotile asbestos (in Ford brakes) can cause mesothelioma, that mesothelioma is dose‑responsive but can arise after low/short exposures, and that all documented exposures cumulatively increase risk; Dr. Frank opined Rost’s Smith Motors exposure alone could have been a substantial cause.
- Ford argued Dr. Frank gave impermissible “each and every breath” (any‑exposure) testimony and that the case was prejudiced by mandatory consolidation with two unrelated mesothelioma trials in Philadelphia.
- The trial court denied Ford’s nonsuit and post‑trial motions; the Superior Court affirmed. The Supreme Court of Pennsylvania granted review and affirmed the judgment against Ford.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an expert may rely on “cumulative exposure” evidence without offering an "each‑and‑every‑breath" opinion to establish substantial‑factor causation | Rost: experts may explain that all exposures cumulatively increase dose and, when tied to frequency/regularity/proximity, may opine a defendant’s product was a substantial factor | Ford: Dr. Frank’s cumulative‑exposure testimony is mere repackaged any‑exposure testimony and thus legally insufficient under Gregg and Betz | Held: Affirmed. Court allowed cumulative‑exposure testimony so long as expert does not assert that every single exposure alone is a substantial cause; here Dr. Frank tied testimony to frequency/regularity/proximity and opined Smith Motors exposure alone could be substantial |
| Whether Betz requires experts to perform a comparative, quantitative allocation among all lifetime asbestos exposures when opining on substantial causation | Rost: Betz does not add a separate comparative‑quantification requirement; Gregg’s frequency/regularity/proximity framework governs | Ford: Betz requires comparative assessment of potency, intensity, duration across all exposures to determine relative substantiality | Held: Rejected Ford’s expanded reading of Betz; Betz excludes any‑exposure opinions but does not impose a blanket duty to quantify or comparatively apportion all lifetime exposures; focus remains on whether exposure to defendant’s product was frequent, regular, proximate, and sufficient to support a jury finding |
| Whether consolidation of unrelated asbestos cases by the Philadelphia Court of Common Pleas (mandatory practice) violated Rule 213 or Ford’s due process rights | Rost: consolidation procedures were within local practice and did not prejudice Ford | Ford: Mandatory consolidation (without individualized Rule 213 analysis) denied Ford discretion and caused prejudice (confusing evidence, inconsistent defenses, lost cross‑examination opportunities) | Held: Trial court erred by adopting a mandatory consolidation practice without exercising Rule 213 discretion, and Superior Court erred in declining review; but Ford showed no demonstrable prejudice here, so no relief awarded |
| Whether the trial court should have granted JNOV/new trial based on expert testimony or consolidation | Rost: evidence and expert testimony created jury questions under Gregg/Betz; consolidation produced no prejudicial error | Ford: Expert testimony and consolidation warrant JNOV or new trial | Held: Denied. Viewing record in appellees’ favor, sufficient competent evidence supported jury’s causation findings and Ford failed to prove prejudice from consolidation |
Key Cases Cited
- Gregg v. V-J Auto Parts Co., 943 A.2d 216 (Pa. 2007) (adopts the frequency, regularity, and proximity test to determine when exposure to a defendant’s asbestos product can raise a jury question on substantial causation)
- Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012) (excludes “each and every breath” expert testimony under Frye and stresses that experts must have a coherent methodology for attributing causation)
- Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992) (source of the frequency, regularity, proximity framework and guidance on its evaluative, non‑rigid application)
- Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010) (where competent medical opinion links asbestos exposure to injury, causation is typically a jury question even with competing causes)
- Pittsburgh Corning Corp. v. Bradley, 453 A.2d 314 (Pa. 1982) (upheld limited local procedures to manage asbestos dockets but does not bar appellate review of consolidation abuses)
- Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978) (causation is ordinarily a question for the jury unless reasonable minds could not differ)