Estate of Hicks v. Dana Companies, LLC

943 ¶ alternatively 12 ar Appellants’ persuade failed to us that requiring them attempt to overcome the gue, implicit litigate in an their lawsuit in the county in presumption they forum selection clause’s of va which live and in which the accident lidity, that the clause should be deemed “injure public occurred would the or be public policy against unenforceable as a matter of the public good.” Id. Further- strong policy more, a “Pennsylvania four, because has explained as in footnote supra, allowing plaintiff a his choice of forum.” the forum selection clause does not impair 11). Brief, Again, at we (Appellant’s any dis right by substantive afforded the agree. MVFRL. Accordingly, reject Appel- we lants’ contention that the clause is unen- Initially, 13 we note that while public forceable as a matter of policy. plaintiffs

a choice of forum is to be ¶ 15 Order affirmed. given great weight, and the burden is on choice party challenging the the to show [,] plaintiffs ... improper

it was venue

choice of is not absolute or any

unassailable. If there exists prop-

er basis for the trial court’s decision to HICKS, venue, ESTATE OF Louis A.

grant petition to transfer Deceased, Appellee must stand. decision Hanson, 548, Forrester v. 901 A.2d v. (citation omitted) (Pa.Super.2006) (empha- COMPANIES, DANA LLC f/k/a added). sis Corporation, Dana et al. regard to claims that a With con- Appeal Companies, of: Dana LLC f/k/a tract provision should be deemed unen- Corporation, Appellant. Dana public policy grounds,

forceable on explained: Court has Hicks, Estate of Louis A. contrary public policy,

To be a con- Deceased, Appellee injure public tract must tend to or v. against public good, be or must be Companies, Dana LLC Dana f/k/a inconsistent with good morals as to the Corporation, et al. consideration to be exchanged thing to be done for consideration. Appeal Crane, Inc., of: John f/k/a Only may in the clearest of cases Packing, Appellant. Crane court declare a contract void as Superior Pennsylvania. Court of against public policy. Argued Feb. 2009. D.B., (Pa.Su-

J.F. v. Filed Nov. (citations omitted) per.2006) (emphasis added), denied, appeal (2006). Here, Appellants

A.2d 1290 have because odds MVFRL’s definition of "in- narrowly per- ele” and “insured” more than sured,” statute). Here, purpose thus at odds with the contrary, mitted to the protect provision MVFRL which is to motorists protections does not limit the af- drivers); MVFRL, negligence from the of other Appellants Rich- forded are still Co., Prop. mond v. Prudential pursue & Cas. Ins. entitled to their lawsuit in Delaware (Pa.Super.2004) (invalidating A.2d 1260 County, county they in which live and in policy which construed the term "motor vehi- which the accident occurred. DC, Washington, Q. Briggs, De.

John Corporation. for Dana Nass, Philadelphia, for M. Edward Hicks. IL, Pollard, Chicago, for Crane.

Michael ELLIOTT, P.J., BEFORE: FORD worked at various commercial industrial STEVENS, MELVIN, ORIE LALLY- throughout facilities Philadelphia *, KLEIN, BOWES, PANELLA, area. Plaintiff GREEN decedent was a seventy- DONOHUE, five SHOGAN, year old man who was diagnosed JJ. with malignant mesothelioma in Novem- MELVIN,

OPINION BY ORIE J.: ber of 2002. Mr. Hicks May died on ¶ 1 appeal 2003; This is a consolidated daughter his and administratrix of estate, the judgment against Appellants, entered Denyse his Hicks-Ray, continued Companies, Dana Corpo- LLC Dana action on his behalf. f/k/a filed the denial of reargument firmed the trial court. We have granted ing malignant mesothelioma from alleged asbestos-containing products. ration liability occupational exposure Estate of Louis A. Crane judgment, (Dana) Packing which a action en an appeal to this Court was post-trial and John initiated (Crane), banc, however, panel Hicks, to the motions and of this Court af- Crane, Inc., in this products for his contract- Appellee, Appellants’ Following for the entry f/k/a tos that Plaintiff decedent’s malignant mesotheli- the jury found eleven manufacturers of malignant mesothelioma and awarded his estate Plaintiff decedent was exposed to asbes- share of the verdict was oma, Crane. Each In the including resulted first $5,000,000.00. ^[*] phase, Defendants, Defendant’s ^[*] liable for causing his development of ^[*] In Phase Dana [ and $454,545.45. found that pro ] rata II, principal determining reason of the impact 12, 2005, On April trial grant- [the court] Court’s decision in Gregg [Appellee’s] ed Delay Petition for Dam- v. V-J Auto Company, Parts ages, thereby molding the award [to] (2007). review, 943 A.2d 216 $464,605.65. After reflect[ ] we total amount of affirm. timely [Dana Crane each] filed a motion for post-trial relief that was de- ¶2 The relevant facts procedural appeal nied. [This followed.] history of this matter aptly were summa- Opinion, 10/24/07, 1-2; Trial Court Cer- rized the trial court as follows: (C.R.) tified Record at 95. captioned The above asbestos case ¶ review, Upon initial panel tried before the Honorable James of this Court judgment affirmed the Murray Lynn entered jury and a in a reverse by the trial against Appellants court bifurcated trial. Plaintiff decedent Memorandum July decision filed on Louis A. Hicks initiated this lawsuit on Thereafter, 26, 2008, 2008. on September December seeking recovery for that Memorandum was withdrawn in this personal injuries sustained as a result of Court’s Per Curiam Order which also his work related exposure to asbestos. granted Appellants’ applications for rear From 1948 to decedent worked as gument en banc.1 a laborer for Local Union # From 135.

1956 to decedent worked as a la- 4 In their substituted brief on reargu- borer for Heller & Karpowich. During banc, ment en presents Crane the follow- the course of his employment, decedent ing questions for this Court’s review: * Judge Lally-Green participate did not brief, together filed supplemental with a if decision of this matter. desired, prepare and file a substituted parties brief. All have chosen to do latter. provided 1. The party Order further that each such, panel As we that note of this Court previously shall either re-file brief it had 1. the causation instructions John is entitled to Whether

1. Whether Crane [Appellee] where failed to incorrectly JNOV the burden of stated sufficient evidence present proof? manufactured gaskets packings 2. Dana is entitled JNOV Whether were defective or by John Crane jury correctly because a instructed factual cause of [Louis were the that Dana’s could not have found mesothelioma!?] Hicks’] injuries? gaskets caused Mr. Hicks’

2. evidence of Environmental Whether § 2 (“EPA”) 3. Whether of the Restatement Agency and Oc- Protection (3d) to this strict applies of Torts cupational Safety and Health Ad- (“OSHA”) products liability action? regulations ministration admitted, have been consis- should 402A of the Assuming Section Standing tent Order of the with (2d) Torts, Restatement of rather of litigation master docket than Section Restatement Philadelphia County (3d) Torts, applies to this strict Pleas, disprove causa- Common action, liability whether the tion, and whether the trial court jury have been instructed should evidentiary erred in a rul- series “bystanders” can recover? ings related to this issue[?] the trial court erred in ex- 5. Whether 3. Whether the trial court’s factual prod- that Dana’s cluding evidence jury improp- causation instructions compliance in full with law, ucts were erly stated the whether the applicable government and medical given factual causation instruction safety standards? the trial court misled the attor- neys jury, the trial and the where trial in re- conducting 6. Whether court instructed the on causa- unfairly verse-bifurcated format tion in a manner different from that Dana? prejudiced contemplated by counsel and the tri- brief, Dana’s at 4.2 al court prior closing argument!?] brief, at 7. Crane’s [JNOV], a motion for reviewing be in the light evidence must considered reargument 5 Dana’s brief on winner, en banc most favorable to the verdict presents following questions for our review: he must be the benefit of given Herein, reargument, petition- has that this Court did not concluded on this statement. may any supplemental designate any specific granting er raise in a issue issue in en review, rather, merely substituted brief that could have been raised we directed the banc A.B.K., original panel. before the R.W.E. v. parties applicability of our Su- to address 161, (Pa.Super.2008). doing 961 A.2d 171 preme Gregg,supra, Court's decision in which so, panel prior appellate stressed that completion briefing decided after the of scope court decisions indicate limitations on Therefore, argument appeal. and oral in this recognized the issues to be considered are Appellants’ we will each of the issues consider when included either in a presented in their substituted briefs on grant- remand order or in this order Court's reargument properly en if has been banc it ing reargument. panel Id. The cited to ABG preserved. Inc., Parkway Publishing,

Promotions v. 834 613, filing 2. The trial court did not direct the of (Pa.Super.2003), 2 A.2d 615 n. wherein complained appeal of on desig- statement of matters only this Court considered those issues 1925(b) pursuant of Pa.R.A.P. granting the version nated it in the order en banc 2546(b) support review and to Pa.R.A.P. then in effect. every reasonable inference of fact aris- Id. (quoting v. Long Mejia, 596, therefrom, ing any and conflict in (citations (Pa.Super.2006) omitted)). evidence must be resolved his favor. ¶ 6 With mind, these standards Moreover, a only should be en- [JNOV] we examine Crane’s first issue on appeal any tered in a clear case and doubts argues wherein it it is entitled to must be resolved in favor of the verdict JNOV because no two reasonable minds Further, winner. a judge’s appraise- fail agree could that “the expert testi ment of evidence is not to be based on mony on causation and the testimony on how he would have voted had he been a frequency, regularity proximity and over jury, member of the but on the facts as whelmingly favor John Crane.” Crane’s they come through the sieve of the brief, at 16. Specifically, Crane takes is jury’s deliberations. sue with the opinion by Appellee’s offered There are upon two bases which a expert, Giudice, Dr. James C. which indi one, can be entered: [JNOV] mov- cated that each every exposure to ant is judgment entitled to as a matter asbestos significant in the causation of law, two, the evidence was and/or mesothelioma because each and every ex such that no two reasonable minds could posure adds to the asbestos burden. disagree that the outcome should have Videotaped Deposition Giudice, been rendered in Dr. favor of the movant. 6/8/04, 29; C.R. at With first court reviews the Exhibit record P-6. Crane argues and concludes that even with all that the Supreme factual Court’s reference inferences Gregg, decided adverse to the supra, mov- “generalized” similar ant the law requires nonetheless opinions ver- being insufficient to establish a favor, dict in his whereas with the sec- jury question should likewise be insuffi ond the court evidentiary reviews the cient to overcome the allegedly unrebutted record and concludes that the evidence contrary testimony Appellants’ expert was such that a verdict for the movant witnesses that there is a de minimis re beyond peradventure. lease of respirable asbestos fibers from the Fletcher-Harlee Corp. Szymanski, v. Crane Dana, at issue. in its sec A.2d (Pa.Super.2007), denied, issue, appeal ond advances a similar argument (2008), 598 Pa. 956 A.2d 435 positing cert. that “the Supreme Court [has] — denied, U.S. -, 129 S.Ct. 173 rejected ... ‘each every exposure (2009) L.Ed.2d 675 (quoting Moure v. theory asbestos’ ... as insufficient as a Raeuchle, 394, 402-403, 604 A.2d matter of law to satisfy Pennsylvania’s (1992) (citations quotation causation Brief, standards.” Dana’s at 15.3 omitted)). marks disagree. We

Similarly, when reviewing the denial trial, of a motion for new we prove must deter- 7 To causation in fact in mine if § the trial court cases, committed 402A an plaintiff must abuse of discretion or error of law prove causation, i.e., medical exposure controlled the outcome of the case. to asbestos injury caused the and that it Appellants en, preserved Inc., 1287, have right their (Pa.Su- to 1291 n. 4 by making seek a JNOV an per.2003) oral motion for (stating "cases indicate that in or- directed verdict at the close of all the evi- preserve right der to request the to a JNOV presented. dence post-trial[,] N.T. Trial litigant Volume a request must first a 6/22/04, 94-95, 98; at see binding charge also Pa.R.C.P. jury to the or move for direct- 227.1(b)(1); Hayes Designer trial.”). v. Donohue Kitch- ed verdict at become regularity prongs and asbestos-containing quency the defendant’s in cases less cumbersome” injury. the To satis- “somewhat caused which

product the involving [like mesothelioma] must meet diseases plaintiff fy this burden competent test medical ev- frequency proximity” plaintiffs and the “regularity, Supreme only Court by develop our can after as articulated idence indicates Supreme Gregg, In our supra. fibers. Gregg, exposures minor to asbestos ap- the for the first time explained Court (internal 290, 943 A.2d at 225 Gregg, at “frequency, of the application propriate omitted). summation, the Su- citations criterion this proximity” and regularity preme Court noted: in Eckenrod v. GAF announced Court for appropriate it is believe [W]e 187, 544 A.2d 50 Pa.Super. Corp., 375 courts, stage, summary judgment the at denied, 605, (1988), appeal concern- make a reasoned assessment to (1988). doing, Supreme the In so A.2d 968 whether, the evidence light ing utilized the adopted approach Court concerning frequency, regularity, Circuit Court States Seventh United as- plaintiffs/decedent’s of a proximity v. Keene Tragarz in the case of Appeals enti- would be exposure, serted (7th Cir.1992), explain- F.2d 411 Corp., 980 necessary inference of tled to make the bright-line there is no distinction ing that connection between a sufficient causal circumstantial evidence direct and between the asserted the defendant’s unrelated this distinction is cases “because injury. too of the evidence and is strength to the A.2d at 227. Id. at most eases involve apply, to since difficult of the record in the case 8 Our review and circum- combination of direct some reveals that sufficient evidence judice sub A.2d Gregg, at evidence.” stantial Appellants’ products presented (footnote omitted). specifical- More at 226 inju- causally connected to Mr. Hicks’ were ly, opined: the flexible the evidence met ry. We find criteria do explains that these Tragarz adopted by Pennsylvania Su- standard an rigid standard with not establish Gregg, supra, a standard preme Court necessary support absolute threshold courts to “tailor the standard that directs Rather, they applied are to be liability. circumstances in the case.” to the facts and an aid in an evaluative fashion as Clearly, Ap- 943 A.2d at 225. Id. at plain- distinguishing cases in which Hicks that Mr. worked pellee established is a evidence that there tiff can adduce regular basis in close frequently or on sufficiently likelihood that significant asbestos-containing proximity to harm, his product caused defendant’s by Dana and supplied manufactured or likelihood is those in which such provided Mr. Hicks Specifically, Crane. or mini- only on account of casual absent testimony that through evidence his direct product. exposure mal defendant’s forty-one-year throughout the course of his Further, ap- that the Tragarz suggests laborer, he was career as a construction tailored to of the test should be plication gaskets asbestos-containing exposed case, the facts and circumstances asbestos-containing rope packing, that, application its example, such for of asbestos-contain- types which were the critical” become “somewhat less should Appel- manufactured ing products plaintiff puts forth [direct where Videotaped Deposition of lants herein. evi- only than circumstantial] rather 1/21/03, 18-33, 50-53, Hicks, 70- at Louis prod- to a defendant’s exposure dence of 73; respect Exhibit P-3. With Tragarz, the fre- C.R. Similarly, uct. under asbestos-containing gaskets, Mr. Hicks dust which was created from the rope stated that he closely worked pipe with packing rope because the would have to be fitters who used gaskets asbestos which cut to length in order to fit around the went into flange pipe. of the Mr. pipe. Id. Mr. Hicks identified the manu Hicks stated gaskets that the had to be cut facturers of the asbestos rope packing as flange, for the and dust was created from Crane, as well as Chesterton and Palmet this process. 22-23, Id. at 70-73. Mr. to. Id. at 102. Mr. gave Hicks the follow Hicks identified the manufacturers of the ing description of this packing: “It’s a gaskets Crane, as Dana and as well as rope. It comes in a box with packing. Palmetto, Chesterton and who par- are not And so they have untangle it and get ties to this appeal. Id. at 89-90. He the amount of what they are going to use testified that he used all four brands at a time. And there’s dust in it when equally throughout his forty year career. they cut it.” Id. at 100. Mr. Hicks testi Id. at 90. Mr. Hicks testified he worked fied that he worked plumbers around who around pipe fitters who were installing were packing joints with asbestos rope for gaskets “most of the time” during the almost his whole career in construction. course of his career as a laborer. Id. at Id. at 101. Mr. Hicks also personally han 89. Mr. Hicks also indicated that he per- dled the rope packing, and he assisted the sonally handled all four manufacturers’ plumbers in installing the rope packing. gaskets. Mr. Hicks explained that he had Id. When asked how often he worked gaskets handle the because of his role around Crane rope asbestos packing dur pipefitter’s as a helper. 90-91, Id. at 94- ing career, his Mr. Hicks testified “Most of 96. Mr. Hicks knew that Dana and my career in the [sic] construction.” Id. at gaskets Crane’s contained asbestos be- 102. Mr. Hicks also testified that Appel cause the word asbestos was on the pack- lants’ asbestos did not contain aging gaskets that the came in. Id. at 90- warning 52-53, labels on them. Id. at 110— 91, 95. Mr. Hicks testified that Dana’s 111. and Crane’s gaskets came in both pre-cut form and in sheet 92-93, form. Id. at 10 Additionally, Appellee’s expert, Dr. Mr. Hicks testified that dust was Giudice, created James C. physician who is board when the Dana and Crane gaskets were certified internal medicine and pulmo- cut, and he frequently breathed in the dust nary medicine, testified, in relevant part, gaskets. Id. at 93-98. Mr. as follows: Hicks explained that the asbestos sheet Q: Doctor, among those major three gaskets had to be cut to fit the flange. Id. types of asbestos fiber you’ve just at 93. Dust was also created from the Jury about, told the chrysotile, pre-cut gaskets. Mr. Hicks explained that amosite, crocidolite and the which one of dust was created when the pre-cut gaskets those fibers are potentially dangerous or were taken out carton, and dust was hazardous to human health? created when the gaskets were installed A: All three. All three into are flanges potentially of the pipe systems. Id. dangerous certainly at 94-95. Mr. hazardous to Hicks also indicated that he the health of people exposed exposed them. and inhaled that dust. Id. ¶ 9 Mr. Hicks further Q: testified that the And among those three types of rope packing was used plumbers fibers, the chrysotile, erocidol- pipefitters for packing joints. Id. at amosite, 22-23. ite and which ones are potential Mr. Hicks testified that he breathed cancer-causing agents? accumulation that results from that ease are carcino- three All All three.

A: so, that And in incidence. increases also cancer. can cause three All gens. Videotaped 6/8/04, A: Yes. those asbestos, Q: dangerous Doctor, products 18-14; are Deposition if fibers ^[*] are those C.R. into products the air? at ^[*] products are Exhibit released ^[*] Dr. that contain potentially P-6. Giudice, from that is that eases, earity. increase mulates body. dose-response associated the incidence they In terms of as the amount and with asbestos dose-response all relationship, which increases essentially exhibit of a asbestos-related of asbestos specific in the human will, in curve or disease means accu- fact, this dis- lin- at 17. Id. malignant specific about Q: What mesothelioma? make way to Doctor, any is there Q: Well, malignant specifically A: or non- safe themselves fibers asbestos true, mesothelioma, it hold does health? human dangerous asbestos, likely spe- the more more make to—to possible not It’s A: No. fact, will, and occur malignancy cific asbestos safe. problem The increases. incidence the asbes- make any way to there Q: Is thresh- is the lower mesothelioma with into the go fibers that tos to be judged exposure which old below fibers, safe themselves, those asbestos There been defined. that has never safe health? to human non-dangerous clearly that’s been threshold is no lower make them No, possible not A: it’s workplace that within identified products. into them by placing safe asbestos from protect the worker would causing disease. capable of They’re still malig- of a development exposure the medical Doctor, does what Q: nant mesothelioma. mean, how response dose phrase Doctor, has been if an individual Q: at all to asbestos-related that relate does say a hundred for to asbestos exposed diseases? an to asbestos exposed then is days, and Well, simply stated response A: dose what, if day, 101st day, the additional of a sub- amount higher that the means day’s that additional does any, effect body, or a system in a present stance is per- have on to asbestos exposure of the dam- incidence increased the—the developing an asbestos-re- risk of son’s from that that can result age or disease disease? lated that to asbes- apply And to substance. the risk. It increases THE WITNESS: that accumulates tos, asbestos the more burden, it the asbestos it increases If the more example, lungs, for within of the dose- the risk because increases accumula- from that that results disease discussed, relationship just I’ve response dose-response tion, as a known that’s amount of as- linearity between as a—as described It’s also curve. from that results and disease bestos asbestos relationship between linear by the amount is determined substance injury-forming which is the stated, accumulates, a hun- I that re- disease causing disease than a more days is—is and one As dred material. that —that sults result, And, the asbestos aas hundred. and the up goes collection one—as the and the accumulating increases accumulates, amount the dis- amount of asbestos disease that results is also increased or suit of exposure to asbestos has been at least the incidence of that exposed disease. to the fibers from types various of Doctor, asbestos-containing products Q: through- what is meant the term lifetime, out his or her you do cumulative disease? have an opinion you that hold to a reasonable Well, A: that’s another term for what degree of certainty medical as to the just I’ve described. It’s—an accumula- relationship between each and every ex- tive asbestos burden expres- is another posure to each one of those and sion of the dose-response relationship the subsequent development of their ma- and the linear relationship between the lignant mesothelioma? asbestos accumulation in body that diseases result from that accumula- A: Yes. I opinion have an which I hold tion. to a degree reasonable of medical cer- tainty that the Doctor, asbestos that’s Q: contained if an individual has devel- in each and every product that was in- oped malignant mesothelioma aas result haled an individual who asbestos, developed a exposure you will tell the malignant mesothelioma was contributo- Jury your members of the profession- ry in a substantial fashion causally al opinion to a degree reasonable the development of the mesothelioma certainty medical what the relationship because of the increased asbestos between bur- every is each and inhalation of den that results from that type of expo- person asbestos that that had during the sure. course of their lifetime and the develop-

lates, the more significant or the risk for as—has been—as I’ve thelioma, by the asbestos. And the rea- ously, the more asbestos that accumu- significant is that ment of that malignant the causation of son that each sure each and THE WITNESS: adds to the asbestos burden. every exposure this each and It’s every malignancy, my opinion described mesothelioma? significant exposure is every previ- meso- expo- And, that A: No. been telling the members of the Jury about? terms of his exposure to asbestos and thing about Mr. Hicks’ situation in general princip[le]s thelioma that would take him out of the the development Q: All right. ^[*] And of his Doctor, malignant you ^[*] is there any- have meso- just Id. at 19-31. mesothelioma higher and the incidence

of that malignancy. That’s one thing we ¶ 11 Specifically, respect with to Mr. do know. We do know that the more Hicks, and after taking into consideration collects, asbestos that the more—-more exposure asbestos Mr. Hicks testified significant the incidence—the number of types and the of asbestos-containing mesotheliomas will increase. What we products to, Mr. exposed Hicks was Dr. don’t know so, is how that occurs. And opined Giudice they were a substan- each and every asbestos fiber that’s in- tial contributing factor to the development haled contributes the asbestos bur- of Mr. Hicks’ malignant mesothelioma. den—that contributes to the asbestos Id. at 31-33. Dr. explained that, Giudice burden is a causative factor in the devel- “the burden of asbestos that collected be- opment of malignancy. cause of those exposures collectively re- Doctor, Q: if an individual who has de- higher sulted incidence of a risk for veloped malignant cancer, mesothelioma aas re- on [Mr. went to develop Hicks] examination, con- Buccigross Mr. cross increased because

mesothelioma products do that Crane’s exposure ceded type developed risk fibers, although time.” off some asbestos give significant period over a rather Moreover, nothing” “next to experts, John that it is maintaining Dana’s at 33. Id. most, 1/100,- release, at hygienist packings industrial certified that Spencer, a W. and Dr. by comparison safety professional, many fibers as and certified 000th M.D., some corroborated Id. at 102- Kerby, R. like insulation. products Gerald other testimony. For expert’s Appellee’s testified in similar experts of the 103. Dana’s acknowledged on instance, Spencer Mr. fibers below that asbestos opining manner gaskets give Dana’s that cross-examination cubic centime- per .1 fibers a threshold of of asbestos. fibers respirable effects, some off (f/cc) no adverse health cause ter 6/21/04, 6, at 39-40 Trial Volume 107-108, N.T. 4, 6/17/04, at Trial Volume N.T. even at 85 product, is a (stating: “[i]t very only release small gaskets and that of gasket, because asbestos percent fibers. Id. chrysotile asbestos amounts rubber, off gives it to the due capsulation of whether On the issue at 102-103. asbestos, if levels extraordinarily low are asbestos-containing products Crane’s all.”). of whether the issue at On any through dust causing disease capable of causing dis- capable are gaskets Dana’s emissions, likewise ac- Buccigross Mr. emissions, Spencer Mr. through dust ease that he cross-examination knowledged on 1985, warning aput Dana that admitted warning placed a that Crane was aware asbestos-containing gaskets their on label asbestos-containing products its label on said, contains asbes- material “this which stated, asbestos contains that “Caution: dust, may tos, inhalation creating avoid Breathing creating dust. fibers. Avoid bodily serious or other asbestosis cause bodily may cause serious asbestos dust Kerby Dr. acknowl- Id. at 40. harm.” 6/18/04, 5, at Trial Volume harm.” N.T. that mesothe- edged on cross-examination 72-73. cancer to the response lioma is a dose clearly pres- record evidence 13 The enough have to inhale “you that extent causa- expert opinions on conflicting you So once ents the threshold. fibers to cross tion, threshold, expert “[t]here affect states Appellee’s doses additional cross clearly threshold that’s been slightly greatly.” but not no lower incidence is 6/17/04, Dr. workplace at 50. that would Trial Volume within N.T. identified exposure that mesothelioma devel- Kerby from asbestos admitted the worker protect level than asbestos- malignant a lower dose meso- ops development at of a lung fibrosis and asbestos-related thelioma,” Deposition related of Dr. Videotaped Kerby agreed 96. Dr. Id. at 6/8/04, cancer. Giudice, Appellants’ while at enough accumulated Mr. Hicks had only de- that mesothelioma submit experts to contract lungs in his fibers lev- to concentration velops exposure with from the disease. and die mesothelioma a threshold of fibers above els of asbestos Id. at 97. f/cc, not emit their did .1 N.T. levels above .009 concentration f/cc. Henry L. Bucci- expert, 12 Crane’s 4, 6/17/04, at 107-108. Con- Trial Volume initially testi- engineer, a chemical gross, have in this case is what we sequently, examination Crane’s on direct fied common experts” “battle proverbial re- do not packing products gaskets is not and which litigation, tort to most are not they fibers because lease asbestos See grant to the JNOV. subject properly N.T. Vol- encapsulated. friable and are “the supra, (stating However, Corp., 55-56, 6/18/04, on Fletcher-Harlee ume evidence must be considered in the light every breath” contributed to cause Mr. winner, most favorable to the verdict and Hicks’ disease rejected should be as a mat- given he must be the benefit of every ter of law because it would allow plaintiffs reasonable inference of fact arising there to recover after establishing exposure to from, any conflict in the evidence must only very small amounts of asbestos fibers favor.”); also, be resolved his see Cauth opposed to a substantial number of v. orn Corning Fiberglas Carp., Owens fibers. We believe this an overly expan- (Pa.Su 1028, 1033, 1038-1039 sive reading of the holding in Gregg. We .2004) per (holding that the was free to note, Tragarz clear, as the court made disregard expert defendant’s testimony the substantial factor test is not con- that product the respira- emitted levels of quantity cerned with the of injury- the harmful); ble asbestos too low be Junge producing agent or force but rather with Garlock, Inc., 592, v. 427 Pa.Super. legal significance. its ... Where there 1027, 1029-1030(1993) A.2d (holding that a competent is evidence that one aor de plaintiff prima establishes a by case facie minimis number of asbestos fibers can showing that he or frequently, she regular cause a injury, jury may conclude the ly proximately inhaled asbestos fibers fibers were a substantial factor in caus- shed the defendant’s even ing plaintiffs injury. where presents the defendant “unrebut- Tragarz, 980 at F.2d 421 (quoting Weh ted” expert reports contending that Industries, Inc., meier v. UNR 213 Ill. defendant’s “encapsulated” product could 6, 31, App.3d 157 Ill.Dec. 572 N.E.2d only emit a level of asbestos too low to Dist.1991)). 320 (Ill.App.Ct. 4th The plain have been a substantial factor in causing tiffs medical expert in Tragarz gave simi disease). the plaintiffs asbestos-related lar testimony to that of Dr. Giudice noting record, From our review of the we cannot that “even a exposure minimal to asbestos conclude that the evidence was such that a can induce or contribute to the develop verdict Appellants for the per was beyond ment of mesothelioma” and “that there is adventure. Id. no level of exposure at which a ¶ 14 Appellants’ arguments attempt person is safe from contracting mesothelio- equate de exposure minimis under the ma.” Id. frequency, regularity, test, proximity ¶ 15 We can articulated discern in Supreme nothing our in Gregg decision Gregg, mandating with a that de minimis the medical release of res- pirable presented evidence by Appellee fibers to defeat a prima herein is facie showing automatically Contrary causation. insufficient to to Crane’s raise a factual arguments, question Rather, and Dana’s we do not find that causation. we find Appellee’s expert’s that “generalized” majority’s so-called pronouncement opinion in this case Gregg they contravenes the that sub- share the “perspective” of stantial-factor test for causation our colleague as stated esteemed Judge Klein must in Gregg. As argu- we construe be these viewed in the context of the facts of ments, opinion the medical that “each and each case.4 In Gregg, the proceeded case Corp., v. proffered Summers Certainteed evidence could not survive sum- case, mary judgment 244 (Pa.Super.2005) (evenly divided in that en noted: opinion affirmance), support banc ap- Just expert legal because a hired makes a peal granted, judge conclusion does not 897 A.2d 460 mean that a trial Klein, (2006), adopt has Judge supported by it if it making point is not his record and is devoid of common sense. com- in the Court’s highlighted decedent died theory plaintiffs

on perspec- Klein’s concerning Judge ments exposure to asbes- due to of mesothelioma tive. purchased tos-containing brake for his parts auto store

at defendant’s that the important to note 17 It is also activi- maintenance automotive personal vastly different were facts Summers evidence, most, at showed ties. The plain- case. One of from the instant asbestos-containing “installed the decedent Summers, as hav- tiffs, diagnosed Mr. store purchased [defendant’s] brakes which had disease” pleural “asbestos ing five-year period, three occasions over on years and for a number of been stable to airborne fibers exposed he was and that from his obstructive disease significant each time that thirty than minutes for less smoking. Conse- long history cigarette Gregg, shoes.” new brake he installed summary granted the trial court quently, also 221. Plaintiff had 943 A.2d at the asbestos defen- in favor of judgment that the complaint made averments thickening asymp- pleural because dants through- exposed to asbestos decedent due, litany of to Mr. Summers’ tomatic and history. forty-year out his work say impossible to problems, it was other were at- any symptoms discernable ¶ Here, are not Gregg, unlike in we It in this con- to asbestos. tributable a rela- asserting a plaintiff confronted with Klein criticized the viabili- Judge text that contacts with a tively non-occupational few opinion, which ty expert’s Mr. Summers’ of of periods short defendant’s for stated: lengthy period a comparison time in with degree of my opinion, to a reasonable In to some other occupational exposures of certainty, exposure to asbestos medical Rather, we have the products. asbestos workplace in the is cause converse, expo- forty-year occupational a sub- disease and is pleural asbestos as Appellants’ products sure to each of contributing factor to his diffu- stantial Much like the products. well as other abnormality dyspnea and to his on sion Tragarz, in who died plaintiffs decedent every exposure to exertion. Each and twenty career year mesothelioma after a contrib- has been a substantial who often worked as a steel metal worker the abnormalities noted. uting factor to who pipefitters insulators and alongside Summers, 886 A.2d at containing prod- installed and cut asbestos ucts, forty-one years spent Hicks than an Mr. case is more 18 The instant alongside plumbers pipefit- exposure type or trivial working “any exposure” cutting Appel- by Judge Klein under installing analogized ters who were case as in and now capacity presented in his as laborer facts Summers lants’ un- upon by Appellants This is not relied company. improperly for an excavation in case. presented this exposure minimal case rela- der the facts the casual or Summers, aptly Klein noted the exposure Judge tive to some other substantial contributing factor” is not plaintiffs a "substantial example, Dr. [the For Gelfand every phrase, past "Each and a mechan- expert] used the If someone walks accurate. exposure brakes, been a substantial to asbestos has changing exposed to he or she is ic contributing to the abnormalities not- factor thirty person for If that worked asbestos. However, suppose expert an said ed.” making lagging, factory years at an asbestos dumped it if took a bucket of water and one hardly whiff of it can be said that the one ocean, con- that was a "substantial a "substan- from the brakes is the asbestos tributing the ocean. factor” to the size of causing disease. tial” factor saying every breath Dr. Gelfand's statement incongruity blaming single job brake Appellants Thus, this appeal.5 it must for plaintiffs mesothelioma when he was a be light considered most favorable lifelong insulator. The Appellee winner, as the verdict who Gregg similarly recognized incongruity receives the benefit every reasonable in questioning why plaintiffs were trying inference of fact arising evidence, from the take parts supplier a brake to trial when and that any conflict in the evidence must complaint alleged forty-year history be resolved in the verdict-winner’s favor. Here, however, of occupational exposure. Corp., Here, Fletcher-Harlee supra. Ap we are not confronted with evidence that pellee presented evidence that Mr. Hicks Mr. experienced only Hicks “one whiff of inhaled dust shed Appellants’ asbestos- Appellants’ asbestos” from the prod- containing gaskets and packing over a sub comparison ucts in “thirty years period stantial [of of time. Appellee further exposure] at factory an asbestos making presented evidence that this cumulative lagging.” opposite, Just this is the exposure, even if only at low-dose levels case occupational exposure forty time, for each was a substantial contributing Furthermore, years. there is no indication factor in his development of malignant in this case that Appellee’s expert ignored Thus, mesothelioma. no basis for entering far more significant exposures exists, that almost JNOV and Appellants’ multi-lay- certainly caused the disease that were not argument ered attacking the sufficiency of being upon sued in this cause of action. Appellee’s evidence, which in essence is We do not read Gregg as precluding an merely an assertion that judgment should expert opining that Mr. Hicks’ meso- have been entered based on the evidence thelioma resulted from the cumulative ef- them, favorable to is completely devoid of fect of repeated, exposures low-level over a merit.

forty-year history. work ¶ Moreover, 20 we take issue with

¶ Instead, Crane’s assessment 19 we that our Gregg read in Gregg recognizing principally that the amount of relied upon evidence the needed decision of the satisfy to the Court of frequency, regularity Appeals for the and Sixth proximity test so Circuit in as to survive Lindstrom sum v. A-C Product mary Trust, judgment Liability (6th will differ from 424 case to F.3d 488 Cir. 2005), case due to the various diseases in announcing which are the frequency, regu associated with exposure, larity test, asbestos and proximity the ergo, and a casu medical presented, evidence the types of al or minimal exposure equates with “low- involved, asbestos the manner in exposures.” which the dose Brief, Reply Crane’s products handled, are tendency and the of 6. The Supreme Court merely referenced products those asbestos to release asbestos Lindstrom as an example of one of the fibers into important the air. It is to keep many courts that believed as it does that in mind that the admissibility of Dr. Giud- frequency, the regularity and proximity opinion ice’s has not been challenged by “criteria should have application broader recognize many 5. We Appellants’ argu- that epidemiology established capa- studies to be challenging Appellee’s expert's ments opinion causing ble of disease. pre- Whether or not a premised upon are underlying the belief challenge trial on that appropriate basis is products because their allegedly were encased appeal, not before us in this did not Gregg encapsulated plaintiff’s expert or should be address that express opinion issue. We no required to assess the dose from an individual this case on the ultimate resolution of that product workplace defendant’s and dem- issue. onstrate that it is the kind of dose shown in

960 that, ¶ we conclude Consequently, 22 sufficiency courts’ assessment in the exposure evidence 298-290, viewing the factual Gregg, at proofs.” plaintiffs of a Lindstrom, light evidence expert medical case The 225. A.2d at rejecting Appellee to most favorable stan- the Sixth Circuit’s simply reiterated evidence, it cannot be contradictory all Armstrong in Stark v. dard announced Appellee’s a matter of law said as Indus., Inc., Fed.Appx. World the ver- support to proofs were insufficient to (6th Cir.2001), plaintiff required which Appellee by The evidence adduced dict. for a substan- exposure “substantial show Gregg applicable under the was sufficient “mini- merely not time” and tial period that Mr. jury to infer permit test product to a defendant’s exposure” mal caused mesothelioma Hicks contracted inference that for the a basis provide lengthy place in work over breathing, his causing factor in a substantial product time, prod- asbestos fibers period of Id. at injury. and, Appellants, manufactured ucts Stark, had shown plaintiff 21 In therefore, not entitled Appellants were prod- exposure to defendants’ a JNOV. less than limited basis for very ucts on Ap- asserts that Additionally, Crane Fed.Appx. at 381. Such two months. because was insufficient pellee’s evidence Circuit, evidence, failed the Sixth reasoned establish that he Mr. Hicks failed to expo- of “substantial to the level to rise re- products. In this exposed to Crane time.” Id. period of sure for a substantial Hicks’ de- complains that Mr. gard, Crane added). Further, not- the court (emphasis prod- packaging of those scription of the failed to submit plaintiff had ed that testimony Mr. ucts conflicted with testimony exposure that his any expert manager. product McKillop, Crane’s hazard- had been products the defendants’ testimo- McKillop’s that Mr. asserts Crane Indeed, stated: expressly the court ous. Hicks de- that Mr. ny “demonstrates testi- presented expert plaintiff] “Had [the exist, and that do not scribed a boiler even cleaning mony to show have, line.” never in John Crane’s times) (or is sufficient- a few perhaps once brief, agree. cannot at 21. We Crane’s of meaningful a level ly hazardous to add correctly points Appellee 24 As risk, might well summary judgment cancer out, jury the weight one of for this claim is (Emphasis Id. add- improper.” have been legal of bearing on the issue ed.) Lindstrom, likewise, and has no present did not Indeed, sufficiency. weight “[t]he exposure over of low-dose situation for evidence is credibility [Appellee’s] Consequently, nei- period of time. long jury to determine. Conflicts ther, Stark, Gregg, equated the Lindstrom nor jury the to resolve.” evidence for long period [a]re exposure over low-dose Corp., 416 v. expo- “minimal Juliano Johns-Manville exposure with workplace 238, (1992), 321, 240 A.2d event, Pa.Super. that 611 the fact remains any sure.” denied, 645, 622 A.2d 1376 533 Pa. adopt appeal not Gregg did our (1993). Pittsburgh v. & West Hershey See for a sub- exposure “substantial the Stark 158, Co., 366 Pa. 76 A.2d Virginia Railway Quite of time” standard. period stantial (1950) that JNOV cannot be (noting the 379 contrary, explained, previously the solely his based on entered for a defendant “agree[d] with specifically Gregg majority jury because the exculpatory evidence applied oral approach Tragarz [that court’s but disbelieve such evidence may properly it.” adopt[ed] standard] a flexible that trial on basis grant of new upholding 290, at 226. Gregg, at 943 A.2d 961 against weight Systems, Bureau, verdict Inc. v. Better Business evidence 1202, the exercise of the sound 872 1212 (Pa.Super.2005), A.2d af court), discretion of the trial Andaloro v. firmed, 66, 66, 592 Pa. 592 Pa. Industries, Inc., Armstrong World 799 (2007), denied, 1076, 389 cert. 552 U.S. (Pa.Super.2002) A.2d (rejecting simi (internal (2007) S.Ct. 169 L.Ed.2d 606 reason), argument by lar Crane for same omitted)). citations Additionally, “Evi- Evans, 496, 505, and Martin v. 711 dentiary rulings which did not affect the (1998) (citation omitted) A.2d provide verdict will not a basis for disturb (stating all, “A is entitled to believe ing jury’s judgment.” Callahan v. part presented.... or none of the evidence AMTRAK, 132, ¶ 8, 2009 PA Super juryA can any part believe of a witness’ A.2d 866 (Pa.Super.2009) (quoting Betz v. choose, testimony they may disre Erie Ins. Exchange, 957 A.2d gard any portion testimony (citations (Pa.Super.2008) and quotation disbelieve.”). they Instantly, Appellants omitted)). marks preserve weight did not of the evidence ¶ 26 Appellants question next whether Therefore, challenge. opinion we offer no the trial properly court Appel excluded on whether a new trial would have been lants’ government evidence of standards appropriately granted on this basis. relating to the levels of asbestos exposure issue, 25 In next Crane’s and in workplace that are per considered issue, fifth Appellants Dana’s assert that missible under OSHA regula and EPA the trial court in precluding erred evidence Appellants that, tions. submit at a mini of government safety standards to dis mum, these regulations were relevant and prove defect respect or causation. With prove admissible to their evidence, the admission of we observe: were not the factual cause of Mr. Hicks’ Admission of evidence is within the Moreover, injury. Appellants submit that sound discretion of the trial court and jurisdictions most have determined that

we review the trial court’s determina- such standards are admissible in strict lia tions regarding admissibility of evi- bility actions for purpose of proving dence for an abuse of discretion. To lack of defect. Appellants further main error, constitute reversible an evidentia- tain that there is a split authority ry erroneous, ruling must not only be Pennsylvania concerning govern whether but also harmful or prejudicial to the ment standards are admissible disprove complaining party. For evidence to be defect as represented by this panel Court’s admissible, it must be competent and decisions in the cases of Spag Jackson v. relevant. competent Evidence is if it is nola, 471, Pa.Super. 349 503 A.2d 944 material to the issue to be determined at (1986), denied, appeal 643, 514 Pa. 523 trial. Evidence is relevant if it tends to (1987), A.2d 1132 and Sheehan v. Cincin prove disprove or a material fact. Rele- Co., Shaper 579, nati Pa.Super. 382 555 vant evidence proba- is admissible if its (1989), denied, A.2d 1352 appeal tive value outweighs prejudicial its im- 633, (1989), 564 A.2d 1261 and that this en pact. rulings The trial court’s regarding banc Court should therefore resolve the the relevancy of evidence will not be by matter overruling Sheehan. spe More overturned absent an abuse of discre- cifically, Dana asserts that Sheehan was tion. wrongly decided government because stan Rosenwald, Conroy 409, dards, v. standards, 417 unlike industry “do not (Pa.Super.2007) (quoting American Future address the manufacturer’s level of care.

962 consumer, to the user or quate warning, product whether the

Rather, they address of dangerous propensity the defect or at of Reply Brief Dana’s itself is defective.” is defective product ... A product. the out that these Moreover, they point prod- the where to a failure-to-warn appropriate more due even are standards Standing without sufficient the uct was distributed light case this asbestos user of notify the ultimate litigation warnings to the asbestos on Order entered County product. inherent in the Philadelphia dangers the master docket use permits Pleas of Common Co., 936 A.2d v. Lincoln Elec. Donoughe disprove causation.6 of such standards (internal cita- 52, (Pa.Super.2007) 61-62 in strict counters Appellee 27 omitted), marks rear- quotation tions com- “evidence of liability actions products denied, 2007 and reconsideration gument in- regulations or government pliance with 2007). (Dec. 13, 6044 Pa.Super. LEXIS because is inadmissible dustry standards Moreover, has been standards with such compliance alleged an de- of whether question [t]he concepts of into the case interject held to “unreasonably product renders a fect Brief, at 32. Appellee’s negligence law.” Accordingly, law. is one of dangerous” v. of Lewis to the cases Appellee cites to sub- judge required, prior the trial Division, Co., Hoist Coffing Duff-Norton jury, the to “decide the case to mitting (1987), 334, Inc., A.2d 590 Pa. 528 whether, plaintiffs aver- under [the] Co., Machine Majdic v. Cincinnati facts, justi- recovery would be ments of (1988), appeal 537 A.2d 334 Pa.Super. decision, at its arriving fied.” When (1988), denied, A.2d 249 Pa. philosopher both a social court acts “as Sheehan, supra. analyst.” A risk-utility economic and a Initially, we note that may be taken into many factors great cases, plain liability all [i]n its conducting the court in account (1) the existence of prove tiff must analysis, including, present that was product defect by the danger posed gravity left the control product the time the likelihood that challenged design; the (2) manufacturer; that the de occur; the me- danger such would The injuries. plaintiffs fect caused design; feasibility of a safer chanical prod of whether the question threshold consequences to and the adverse in two may be shown uct is defective and to the consumer manufacturing defect ways: proof of design. would result from safer A design defect. subcate proof or However, ... includes inade- design defect gory of they a "state-of-the-art” be used to establish the Honorable was entered 6. This Order DiNubile, January defense. Jr. on Victor J. 2) disprove causa- If used to establish and states: tion, government regulations and standards regula- government [R]egarding use of alleged expo- plaintiff's must be relevant sure; II in Phase tions and standards is, seeking regu- party to use a trials, hereby ORDERED that such it is subsequent promulgated lation or standard following may used under the materials be alleged exposure must show plaintiff's circumstances: limited compliance with such compliance or lack of 1) regulations and standards Government plain- regulation or standard at time only disprove may to establish or be used causation; exposure. tiff's may they not be used estab- may R.R. at 1513. product defect nor disprove lish or risk/utility analysis [a] not to prevent accidental activation of the inadequate well[-]suited to an warn- hoist. trial, Prior to the start of the court case, ings case, for in a warnings barred the defendant from putting into distinguished from a design defective evidence publication of the American So- case, utility product of a ciety will re- (ASME) of Mechanical Engineers main constant whether or not a warn- setting forth standards respecting the added, ing is but risk will not. manufacture of electric hoists and other industrial lifting equipment. (citations The trial omitted). Id. at 66 court excluded this evidence on the ground ¶ 29 We begin analysis our with a review publication the ASME totally was si- of our Court’s decision in Lewis. lent on subject of the design and question The for decision in Lewis was guarding of buttons on the pen- control “whether the trial properly court excluded dants of electric hoists. The trial court evidence of industry [manufacturers’] also ruled that the defendant could not practices[, standards and sometimes also present testimony, through expert its wit- custom,] referred to as relating to the ness, that “at ninety least percent” of the design of control boxes for electric hoists.” electric hoists made in this country had Lewis, 515 Pa. at 528 A.2d at 592. In control boxes devoid any type guard case, Mr. Lewis seriously injured around the activating buttons. In exclud- while operating an overhead electric chain- ing evidence on point, this the trial court hoist to lift position into a large metal concluded that proof of the defendant’s carriage assembly. The overhead electric compliance with industry-wide standards, hoist was such that it could be started and practices and inject customs would into the stopped, and its load maneuvered into vari- case concepts law, of negligence and that positions, by ous means of a pen- “control under the decision in Azzarello v. Black dant,” which comprised of a control Co., Bros. 391 A.2d 1020 box attached to a leading cable to the hoist (1978), negligence concepts have no role in motor overhead. Protruding from the sur- a case entirely based on strict liability face of the box were push-type buttons under Section 402A of the Restatement which the operated. hoist was The injury (Second) of Torts. Following affirmance to Lewis occurred when a carriage assem- Court, our Supreme granted Court bly jammed became on one of the hoists appeal allowance of to the manufacturer. because of a stuck chain. In an effort to situation, correct the he moved the control ¶ 31 Our Supreme agreed, con- pendant to a certain position relative to cluding that question “the of whether or the suspended load. the course of do- not the defendant has complied with indus- fell, ing that he stumbled and causing his try standards improperly focuses on the thumb to strike the down button on the quality of the defendant’s conduct in mak- result, control box. aAs the front end of ing choice, design its and not on the attrib- the carriage assembly swung forward and utes of the itself.” Id. at hit legs Lewis both resulting in contu- A.2d at (citing Lenhardt v. Ford Motor sions, lacerations and fractures of the fibu- Co., 102 Wash.2d 683 P.2d 1097 la tibia right of his leg. (1984)). Accordingly, the Supreme Court ¶ 30 Plaintiff asserted that the control held that “such evidence should be exclud- box for the hoist was defectively designed ed it because tends to jury’s mislead the because there guard was no or pro- other attention from proper inquiry,” their tective feature over the buttons on the namely box quality “the design prod-

964 time, using a he was At that Id.; injured. Spino v. also see question.” in uct manufactured, and sold designed, Co., shear Tilley Ladder S. John (Shaper). Company Shaper the Cincinnati (noting “[ev- that 1172 A.2d lia- brought a strict his wife Sheehan is both by a defendant care of due idence alleging, inter Shaper, bility against action in a and inadmissible irrelevant During alia, was defective. that the shear may be manufacturer a liability case since trial, attempted Shaper course of the the utmost if it used the even strictly liable OSHA standards. into evidence to admit proposition the care,” for citing Lewis this evidence. precluded trial court The are practices industry standards that the Sheehans end, awarded the the actions be- liability in strict inadmissible $150,000. inject negligence they improperly cause also indi- Supreme The ¶ principles). Court, Shaper to this appeal On in the is no relevance that “there cated the trial court’s challenged propriety the design widespread a that such inadmissibility fact the concerning ruling Lewis, 342-343, at industry.” Sha- characterized standards. We OSHA follows: argument as per’s the trial alleges that Principally, Shaper Majdic, in Subsequently, this Court by refusing permit to Sha- erred court trial court committed that the supra, found into evi- OSHA standards per to admit objec- over by permitting, error reversible proffered standards The OSHA dence. tion, testily witness the defendant’s buyer of show that the allegedly would time for at that customary practice it was PBI, duty pro- has a equipment, implement- party another employer an the shear mechanisms for safety vide forming into a metal brake ing press Shaper contends injured Sheehan. necessary safety system provide safety guard providing because introduc- permitting further devices and failure to PBI’s responsibility, PBI’s Stan- American National of the 1973 tion to them guard offered buy improved (ANSI) safety standards Institute dards of causation and to the issue is relevant that the to demonstrate presses power for admitted. have been therefore should as the in was the same standard couch its attempts to Although Shaper in 1949 when prevalent custom trade causation, it fails argument in terms Relying employer. sold to the press was are rel- how OSHA standards explain Lewis, in decision our Court’s on The of Sha- that issue. essence evant to erred the trial court found that this Court Shaper acted rea- argument is that per’s evidence of this permitting in introduction without designing the shear sonably by it related to liability case since in a strict OSHA standards safety guard since of a manufacturer’s reasonableness providing responsibility place conduct. buyer/employer. safety guard on Sheehan, ¶33 we supra, in Similarly, Sheehan, A.2d at 1354. Lewis, determining Majdic and followed we rejecting Shaper’s argument 35 In refusing not err trial court did that the noted: where the rea- regulations OSHA to admit liability action will a strict Liability pro- failure to of defendant’s

sonableness distrib- the manufacturer attach where in strict was irrelevant safety device vide existing and the utes a defective was work- John Sheehan liability action. causing factor a substantial defect is Pittsburgh for operator machine ing as a The reasonableness (PBI) injury to another. when he was Iron Works Bridge and in ingly, the manufacturer’s conduct choos- the trial of court did not err in pre- cluding an ing particular design is not issue. introduction of this evidence. regulations that the We conclude OSHA (citations Sheehan, 555 A.2d at 1354-1355 into a proffered would introduce strict omitted).

liability action the reasonableness of argues 36 Crane Shaper’s provide failure to the new safe- Jackson, panel Court’s in decision supra, machine, ty device for this an issue irrel- directly is on point and has not been over liability evant to whether attaches. Ac- Therefore, ruled. urges Crane this en cordingly, the trial court not err by did panel apply banc Jackson and overrule sustaining objections Sheehan’s to the contrary holding of Sheehan. We find introduction of this evidence. that Jackson implicitly, has been if not [Cjourt the question This addressed of directly, overruled our Court’s industry whether customs and standards Lewis, subsequent decision and Sheehan may be introduced to show that an em- properly applied Lewis precluding the manufacturer, ployer, rather than the of government use standards. As in Lewis the responsibility provide had neces- Majdic, this Court’s determination sary safety equipment Majdic, supra. governmental regulations are inad action, liability In that strict the plain- missible in strict liability cases was based seriously injured tiffs hands were when upon general premise that the intro they came point into contact with the of duction of such evidence has the effect of operation power press machine. At shifting the jury’s attention from the exis trial, the court permitted the defendant tence of defect to the reasonableness industry to introduce evidence of stan- conduct, the manufacturer’s which is irrel dards and customs which directed the evant in strict liability Such actions. of supplying protective burden equip- premise regardless holds true prof upon ment for the machine the employ- fered reason for introducing governmental er. Specifically, proffered industry regulations into evidence. safety standards were federal standards ¶ 37 The strength of this conclusion is published by

which had been American by examining bolstered the underlying ba- (ANSI). National Standards Institute panel’s sis for the decision Jackson. Jackson, Relying on our supreme court’s decision panel concluded that “[w]hile ], in Lewis we that the [ held introduc- compliance with Motor [Federal Vehicle tion industry standards in a Safety strict Standards] is not conclusive as to liability impermissible case liability the absence of a theory under because such evidence had the effect of liability, compliance strict of probative introducing the reasonableness of the value in determining whether there was a Id., manufacturer’s conduct into an action defect.” In reaching A.2d at 948. focuses, reasons, public for policy which panel this decision the Jackson believed upon the existence of a defect. We find the issue was our controlled decision in indistinguishable Co., the case before us is Brogley v. Chambersburg Engineering Majdic. from Shaper sought (1982), also Pa.Super. 452 A.2d 743 government regulations negligent introduce which design which was a case where- have shifting would had the effect of in we held that regula- evidence of OSHA jury’s attention care, existence of a tions is admissible as a standard of defect to the negli- reasonableness of man- the violation of which is evidence of [Shaper’s] gence. ufacturer’s conduct. Accord- In Brogley, we noted that “[a]l- 966 liability misleading. Appellants are of this state have not cases the courts

though admissibility provide any fail to instructive discussion to rule on had occasion negli they rely upon why as to those evidence of the cases as regulations OSHA to be courts chose to allow such evidence gence, uniformly held admissi they have review of the cited authori- regulations in admitted. Our safety codes and ble other upon by the cases relied safety.” ty Id. at 745 reveals that enhance tended to added). Thus, by plain- claims Brogley Appellants was either involved (emphasis negligence in both and strict principle sounding tiffs merely the well-settled applying upon the defi- liability7 predicated can be or were of a violation of statute proof by juris- articulated those to the use nition of defect negligence evidence of used as dictions, which from the one articu- supplying as differs regulations of OSHA (Sec Azzarello, by Supreme lated our Court care. See Restatement standard of ond) 286; and, 175, jurisdictions allow- supra. Typically, § 27 P.L.E. § of Torts safety standards have ing “Proof admission of of Statute or Ordinance: Violation “unreasonably their definition of the violation of a statute or ordinance is derived (i) neg dangerous” from comment to Restate- proof as conclusive permissible, not Torts, 402A, (Second), pro- § which ment ligence, evidence to be considered but as (em that “the article sold must be dan- vides with all other evidence case.” added). beyond to an extent that which gerous Clearly, phasis Jackson ordinary contemplated would be upon negligence principles that premised it, purchases consumer who with the ordi- in definitively precluded being were nary knowledge community common to the terjected liability into a strict case Lew characteristics.” Restatement as to its Petroll, is. See also Harsh v. 840 A.2d (i). (Second), 402A, § comment supra, (Pa.Commw.2003) 404, (refusing 425 to fol This is sometimes referred to as the “con- Lewis), appeal upon low Jackson based expectations” sumer test. Under this defi- denied, 693, (2004), 864 A.2d 531 nition, in an in- the evidence of wide use Co., v. Ford Motor 976 A.2d Gaudio prove relevant to a defect dustry may be (Pa.Super.2009) (applying the rule probative, while because the evidence is finding in Lewis and error the admis conclusive, not on the issue of what the comparing safety sion of rat evidence reasonably expect. consumer can ings Highway from the National Traffic Safety Administration for the Ford F-150 Lewis, Supreme 39 In our Court in a strict and those of other vehicles acknowledged approaches various to defin case, manu liability design defect because design in a case. The ing product defect may attempt prove facturers not expec noted that under a “consumer court quality design product by or of their show approach, adopted by tations” the Califor ing comports industry gov that it with Engi nia in Barker v. Lull widespread ernment or is in in standards Co., neering Cal.Rptr. 20 Cal.3d use). dustry (1978), product 573 P.2d 443

¶ Moreover, “if it design deemed defective failed to Appellants’ we note that ordinary consumer secondary perform safely citations for their as an sources when used in an intended or govern- expect contentions that most courts allow would Lewis, reasonably manner.” mental to be admitted in strict foreseeable regulations See, L.P., Forklift, involving negligence e.g., Arnoldy case forklift where v. (finding (Pa.Super.2007) no error in ad alleged). also liability mitting regulations OSHA in strict 528 A.2d at 593. The given Lewis court industry. safety The requirements cognizance took of the risk-utility ap- found in the regulations OSHA seem more proach, under which a design is analogous to building codes and other in- balance, defective where “on the benefits dustry-specific safety guidelines than to of the challenged outweigh feature the risk scientific or medical developments repre- danger id., of inherent in design,” such but senting the cutting edge of asbestos-relat- went on to state the Azzarello Court ed Here, disease causation. the OSHA yet “sets forth another approach” to deter- standards direct employers, and not manu- mining design defects—the intended use facturers, whose business makes use of Thus, approach. Id. in Pennsylvania “de- asbestos in some manner to satisfy certain fect” in is defined terms safety of for conditions for their safety. workers’ In use; jury may intended “the find a defect regard, this the OSHA standard at issue product where the left the supplier’s con- provides nothing more than a code of con- lacking any trol necessary element to duct employers for much like building or make it safe for its intended use or pos- electrical codes are codes of conduct appli- sessing any feature that renders it unsafe cable to those Moreover, trades. Azzarello, for the intended use.” 480 Pa. OSHA standard does not even direct man- at at A.2d 1027. Accordingly, the of ufacturers asbestos-containing products prevailing test for design defective in design products their to meet the estab- Pennsylvania rendered evidence of indus- permissible lished (PEL). emission level try standards irrelevant to the existence of The fact that the quality or design of the a defect.8 product in question comports with industry

¶ Moreover, standards or we are not customs or in per is widespread by suaded Appellants’ industry Lewis, use attempt as distin or comports with guish industry government standards from government standards as in Majdic and Sheehan, standards or regulations. Industry is no stan different than the fact that practices dards outline the quality common to design product given industry. They question are often set comports forth with standards estab- code, in some type of such as a building by government lished agencies that bear code, code or electrical or they may upon be workplace safety or environmental adopted by the trade organization of a concerns.9 In either situation the use of 8. We further Supreme note that our majority Court in called jurisdictions that have ad- reaching acknowledged its decision in Lewis dressed the issue and have allowed evidence split that there authority existed a among of industry of standards to be admitted. jurisdictions courts of other "when it relevance, comes to the and hence admissi- Department 9. The U.S. of Labor utilizes bility, of showing evidence industry stan- protect against OSHA to many health con- dards, practices cerns, customs and concerning the including asbestos. See 29 C.F.R design products.” of Id. 1910.1001(a)(1). at § 528 A.2d at Occupational "Under the choosing align juris- with Safety those and Health Act of OSHA’s role dictions that hold such evidence is inadmissi- tois safe working assure and healthful con- ble, rejected Court women; the reason- working ditions for men by and ing of the same line of cases from authorizing other enforcement of the standards jurisdictions, Appellants which Act; developed now advocate by under the assisting majority as the allowing view evidence encouraging the States in their efforts to as- industry holding standards. In so conditions; Lewis sure safe and working healthful implicitly recognized uniqueness research, information, providing for edu- Pennsylvania cation, justification test as for its training in the field occupa- divergence from the view shared the so- safety tional Department health.” U.S. any without the inclusion of as con- interjects negligence evidence

such to divert One who asserts cepts products. and tends bestos focus, remain which must proper their not defective because product that their is when it product, not the upon whether or industry or compliance it with either manufacturer, left the control of necessarily impli governmental standards necessary to make it any element “lacking seeing to it that cates their behavior any possessing use or safe for its intended Consequently, complies.10 their so for the in- renders it unsafe feature that read Lems and its preclud progeny we Azzarello, A.2d tended use.” standards ing the introduction of OSHA In the context of asbestos-related at 1027. establishing the exis purpose for the prod- renders the injuries, the feature that product or absence of a defect. tence pres- use is the uct for its intended unsafe spoken has on a Supreme Where the Court product or more ence of asbestos subject, obligation it is our as an particular inhalation of dangers from accurately appellate court to follow the intermediate from that can be emitted asbestos fibers Court, Supreme dictates of our absent Lewis, it was the reason- product. legally relevant distinction. Malinder v. choosing design without re- ableness Co., Elevator & Machine Jenkins 371 opposed to with recessed cessed buttons as (1988) (en 509, 513 Pa.Super. 538 A.2d buttons, and here it buttons or shielded banc). No exists here. such distinction to jury’s would tend to draw the attention Lewis to Accordingly, apply we are bound to Appellants’ the reasonableness of choice until our chooses to re products encapsulate their to design the matter.11 opposed designing asbestos as to their examine Labor, recognize Wampler Occupational Safety We in Cave v. and Health 11. that Foods, Inc., (Pa.Su- Administration, Role, 869 http://www. OSHA's (last per.2008), panel decision filed two months osha.gov/oshinfo/mission.html visited granted 18, 2009). after we en banc review this mat- August helps The EPA to mini- ter, Appellants sought to introduce evidence produced by mize the harms Regulations the Code of Federal sets through utilizing two environmental laws: forth a tolerance for a small amount of bone protected through are school environments processed panel material in meat. The held Emergency Response the Asbestos Hazard proffered that the evidence was admissible and, (AHERA) pursuant Clean Air Act to the products unique facts of this food "under Act, for the National Emission Standards distinguishable claim” found case (NESHAP) ad- Hazardous Air Pollutants government the usual bar on standards general U.S. Envi- dresses toxic emissions. liability where the in strict cases standards Agency, Region Protection 4: As- ronmental impermissibly are used to introduce an infer- bestos, Information, http://www. Asbestos ence of reasonableness into the manufactur- (last epa.gov/region4/air/asbestos visited Au- opinion ing process. While the Cave does not 18, 2009). gust proceeded solely whether the on disclose suit manufacturing in- a claim of defect or also Additionally, Dana cites to Blacker v. Olds- claim, adequately cluded a failure to warn Div., Corp., F.Supp. 313 mobile GM 869 language suggests the extent that this Co., (D.Pa.1994), E.W. and Christner v. Bliss relevant, though kind evidence of this conclusive, not (D.Pa.1981), support F.Supp. manufacturing or of whether a argument that there is a difference be- its exists, design disapprove defect we of that industry governmental tween standards. language. However, provide any sup- cases fail to both Jackson, which, upon holding port as Blacker relied in Cave cannot be We find that the discussed, inappropriately expanded beyond scope previously facts before we Court, premised upon negligence principles, especially when to do so would re-working of the fun- represent an enormous Christner was decided before Lewis. ¶ Appellants also submit that even if deemed it unnecessary for an employer to OSHA prove standards are inadmissible to any take measures to protect its workers a lack they of defect should be admissible from a certain exposure level of to asbes- disprove causation. We can discern no tos. The PEL has no relevance to deter- and, therefore, difference disagree. We mining whether or not the levels Mr. argument view this attempt as backdoor Hicks exposed to can cause mesotheli- to have the OSHA standards admitted to oma. Appellants’ What arguments in this disprove defect. original argu- Crane’s regard fail recognize or acknowledge is ment as to admissibility makes clear that that the basis for OSHA’s establishment of it was its purpose intended to use the a PEL policy was OSHA’s for carcinogens regulations OSHA prove its that assumed that no safe threshold level Brief, was not defective. See Crane’s and, therefore, was demonstrable that the (stating “[Appellants] would have been Act required the Agency to set the PEL permitted to argue that their re- at a level as low as technologically and lease asbestos fibers in amounts below the economically feasible. See 59 Reg. Fed. permissible level, OSHA exposure and are 40964-01, 1994) 40967 (Aug. (stating defective.”). event, therefore not any In OSHA believes that the regulatory limit of in causation asbestos related disease cases .1 fiber per cubic centimeter of air as an is, is essentially a medical question, that eight-hour time-weighted average is “the plaintiffs can the asserted level expo- of practical lower limit of feasibility for sure to the product, defendant’s provided measuring asbestos levels reliably.”).12 plaintiff the has already satisfied the dic- Consequently, apprising jury the Ap- that tates of Gregg, have caused his illness. pellants’ theory of lack of Resolution of causation this cause-in-fact is question is premised upon not by regulation furthered promulgated reference to OSHA’s PEL. only The matter demonstrated OSHA does nothing to jury’s add to the this standard is government that the has understanding in resolving the causation damental law expressed at ufacturing issue as in process Lewis. they and marketed their Rather, we permitting read Cave as limited product in a safe condition because it com- government introduction of standards food plied regulation. with the Such use violates product warning only defect cases where the the principle well-settled expressed first specifically standard incorporated is into the Brantly Helicopter Berkebile v. Corp., 462 Pa. warning. Cave, example, respect For with (1975), consistently product if the warning was labeled with a Azzarello, applied in progeny, Lewis and it defining "boneless" to include meat negligence that concepts holds place have no having up by weight per bone 1% the in a case liability. based on strict regulation, federal regulation then that would be bearing relevant and upon admissible as creation, 12. immediately Almost after its question the warning of whether or not the OSHA promulgated regulation an initial im- adequate was to inform the consumer of the posing time-weighted (TLV) average of ingesting fragments risks of product bone in a per twelve fibers cubic centimeter. See 36 marketed as "boneless." In other words the (table Reg. G-3) Fed. (May

jury charged would be to consider whether 1971). later, yearA it reduced TLV the to five the light warning was safe in per fibers cubic centimeters. OSHA If, however, given. that warning the did further reduced the TLV per to two fibers definition, not include such a then introduc- later, cubic years centimeter. Ten OSHA re- tion impermissibly of this evidence calls into duced the question overall TLV to per the 0.2 fibers cubic reasonableness of the manufac- centimeter, turer’s manufacturing product. conduct in then to the current 0.1 fibers is, That per the manufacturer’s cubic contention would centimeter in 1994. 29 C.F.R. during be that there mishap § was no the man- 1926.1101. develops [sic] with does ops, and it of fully apprised The

question. present ac- theories above concentrations causation competing accepted present testi- expert’s cepted at the Appellee’s accept chose —and workplace fiber mony. which is .1 level in the workplace. That per air in the cc of ¶ Appellants that the extent 42 To present standard. this evi of preclusion arguing are entered standing order violated dence of Dr. James Giud- Videotaped Deposition DiNubile, fail to cite Appellants by Judge added); 6/8/04, ice, (emphasis at 243-244 they the record where place to the at Exhibit P-6. C.R. preclusion trial court’s objected to the ¶ con- began, Appellee trial 44 Before Accordingly, that basis. on this evidence Dr. Giudice’s portion tended ap concerning the argument any find we im- highlighted we have testimony that waived. that order plicability of stan- governmental referenced properly argues next 43 Crane already dards, trial court had which the it de excluding what erred trial court this upon Based ruled were inadmissible. testimony [Ap- “exculpatory scribes as contention, requested that Appellee witness.” Crane’s expert pellee’s] own testimony be of Dr. Giudice’s portion dur Brief, way background, By stricken, the re- granted and the court Dr. expert, Appellee’s ing deposition, his quest. Giudice, if he was famil was asked James articles which any epidemiologic iar with that Dr. Giudice’s maintains Crane concentration to fiber specific relate a any mention of not include testimony did Dr. Giud- of mesothelioma. development standards; therefore, even if governmental as follows: responded ice ex- properly were governmental standards I indirectly. only I answer can did by the trial court said exclusion cluded spe- that looked anybody know of don’t generic Dr. apply not Giudice’s equate cc and per the fibers cifically at relevant answer.13 im- because it’s it mesothelioma [sic] convincing present fails to 46 Crane that kind of controlled to have possible as that Dr. Giudice’s statement argument can’t do that. You study. You can’t not in refer- standard” was “present to the anal- kind of second-to-second have that fact, In standards. governmental ence to in the to asbestos work- ysis exposure makes clear argument in its brief Crane’s years and then re- many so place over Dr. Giudice’s “work- that it did not want only It can mesothelioma. late that to testimony to be stricken been, standard” place indirectly as it has be obtained then cross-examine could response rela- so Crane the dose and it deals with governmental stan- Dr. as to the established with Giudice tionship which is well (citing Brief at 28 dards. See Crane’s and asbestos. mesothelioma propo- for the opinion court federal district again, So, your question, in answer to cross- that a is allowed sition defendant not defined above limit is lower expert regarding plaintiffs examine a devel- know mesothelioma which we do highest degree Argu- lo be considered rule is issue in the 13. Dana included similar admitting exception; mandatory, of no ordi- Brief at 36- its brief. Dana's portion ment however, which is Dana, narily point will be considered an no failed to include such Questions questions in the statement of not set forth In- issue in its “Statement thereby.”). 2116(a) suggested (stating involved or “This volved.” See Pa.R.A.P. expert OSHA standards when the referred “absent a clear abuse of discretion or an to the standards his or her testimony). S.B., error of law.” In re Pa.Super. (2008) (citation 943 A.2d omit-

¶ 47 A fair reading of Dr. Giudiee’s testi- ted), denied, appeal mony leaves little doubt that the standard (2008). argues Crane that because the to which he referred was a governmental language on the label was taken directly standard. Had the trial court Ap- denied from regulation promulgated by OSHA pellee’s request to strike Dr. Giudice’s tes- Appellee’s opened counsel timony standard, door to al- regarding this such a lowing testimony regarding government decision would not have been in accord by standards with the previous cross-examining court’s Mr. ruling to Bucci- exclude gross on the such evidence. contents of warning Given that we already label placed have Appellants determined that on products. have Crane’s present failed to a meritorious claim that rejecting the instant claim the the trial court erred excluding evidence trial opined court as follows: governmental standards regula- During cross-examination, Mr. Bucci- tions, we further conclude that the trial gross testified that John Crane asbes court did not abuse its discretion strik- tos-containing products did not create ing portion of Dr. Giudice’s testimony dust, nor it fibers, did release respirable question. We further note that Crane did, they but if the amount insignifi Dr. mischaracterizes response Giudice’s cant. In response, [Appellee’s] counsel being “exculpatory” or “corroborative” of asked Mr. Buccigross if he was aware of Crane’s defense theory. When quoted the warning labels that John Crane passage is read context with preced- placed on its asbestos-containing prod ing response, it clear that before he (N.T. 6/18/04, 61-65). ucts. pp. Pursu acknowledges that mesothelioma does de- ant v. Smalls Pittsburgh-Corning, velop with concentrations above the level al, (Pa.Su Corp., et 843 A.2d 410 f/cc, of .1 he opinion reiterated his per.2004), [Appellee’s] counsel per there is no known threshold level below mitted to cross-examine Buccigross Mr. which mesothelioma will not develop. regarding the warning labels placed on Therefore, testimony was not “excul- John Crane’s asbestos-containing prod patory” or “corroborative” of Crane’s de- Smalls, ucts. In the Superior Court theory fense but merely cumulative of evi- determined that where the [defendant] already dence before jury. the presented evidence it’s [sic] asbes ¶ 48 In its final claim under its tos[-]containing products not did release issue, second Crane maintains that the tri significant dust, amounts of asbestos al court by allowing erred Appellee to therefore, could not have been a sub cross-examine expert Crane’s witness stantial factor causing [plaintiffs] as about warning labels on Crane disease, bestos[-]related the trial court by then disallowing ques Crane from properly allowed evidence of the warn tioning the same regarding witness the ing impeach to and rebut the witness’s governmental standards underlying the claim that the product prone was not to warning labels. create dust. Id. Initially, case, 49 we note In the [Appellee’s] instant coun- scope and limits of cross-examination question are sel did not Mr. Buccigross within the trial court’s broad discretion about warning placed label on the ruling and its thereon will not be reversed asbestos-containing product to prove

972 trial on error grant a new based We will on its warning labels put that [Crane] if, considering upon charge court’s in the man- government pursuant record we determine evidence of all the fact, voluntarily [Crane] dates. misled” jury “probably was that the The products. on its labels those placed that an omis the court’s instructions was subsequent answer questioning to “fun charge amounted sion testi- Buccigross’ Mr. impeach used Guy, Price v. error.” damental asbestos-con- that John Crane’s mony (1999); 668, 42, [46,] see 735 A.2d 671 dust. not create did taining products Mitchell, PA 2004 Su Carpinet v. also label on the language author of The (Pa.Su 366, 197, A.2d 371 853 per permitted was [Crane] irrelevant. 706, denied, Pa. appeal per.2004)[, on redirect Buccigross Mr. question (2005) Conversely, ]. “[a] A.2d 1212 the issue regarding examination if it accu upheld will be instruction jury therefore, [Crane] warnings, and law sufficient to rately reflects the and is ruling by the [c]ourt’s prejudiced not in its deliberations.” guide be asked Buccigross could Mr. PA Hosp., 2002 v. Northeastern Cruz question- label. The warning about (Pa.Su 602, 611 801 A.2d Super to the intro- “open not the door” ing did per.2002). regulations argued of OSHA duction Betz, (quot- A.2d at 1260-1261 supra, 957 [Crane], Diamontoni, v. 871 A.2d ing Angelo 10/24/07, at 13-14. Opinion, Trial Court denied, appeal (Pa.Super.2005), analysis the trial court’s agree with

We (2005)). Further- Pa. 889 A.2d 87 the trial court’s dis- no abuse of and find more, re-direct exami- limiting Crane’s cretion charge, the reviewing judge’s a trial [i]n on this matter. nation por- not whether certain proper test is erro- appear out of context tions taken final its third and 51 Under charge to the in its neous. We look complaints issue, a number of raises Crane background of the entirety, against the the trial court’s instructions concerning case, to deter- particular evidence jury. or not error was commit- mine whether regarding jury review Our standard prejudi- that error was ted and whether determining limited to instructions party. complaining cial to the court committed a the trial whether Co., v. Boardman Schmidt error of law of discretion or clear abuse appeal granted, 601 (Pa.Super.2008), the outcome of controlled which (2009) (quoting Reil A.2d 411 Pa. case. SEPTA, 204, 231, A.2d ly v. ground charge in a is sufficient Error (1985)). 1291, 1305 as a whole charge a new trial if the for the trial contends that 52 Crane not clear or has a inadequate or is regarding erred in its instructions court or confuse rather tendency to mislead pro that it first asserts causation. Crane a material issue. clarify than Pennsylvania read the the court posed Jury Instruction Costello, Standard Civil Suggested 1211- v. Gorman omitted). (PSSCJI) (citation concerning causation.14 Accord- (Pa.Super.2007) prove you that asbes- plaintiff must to The proposed which Crane 14. The instruction injury. This is plaintiff’s tos caused stated: ques- The to “factual cause.” referred as CAUSE FACTUAL Crane, the ing erroneously to trial court must have been a factual cause of his supplemented proposed this instruction mesothelioma. with from language this Court’s decision in The product seller of a is liable for all

Andaloro, supra. Crane maintains the tri- harm from which or his her defective al parties court indicated to the before product cause, is the factual whether closing arguments give that it would not user, such harm consumer, be to a aor charge by the Andaloro written Appel- bystander. The seller or defendant lee; however, contrary the court acted to manufacturer placing product their that indication. Crane contends that the into the stream of commerce is responsi- charge given by Andaloro the trial court ble to all who come within the bound- incorrectly proof stated that nothing aries of its use. more than mere exposure to asbestos is Pennsylvania provides law that causa- prove sufficient causation. other tion injuries of asbestos-related words, the charge Andaloro failed to state upon proof plaintiff shown that, causation, in- prove in order to Appellee haled some fibers from the “required prove both that the dece- dent inhaled defendant asbestos fibers from the manufacturers. de- requirement There product plain- is no fendant’s and that the that a inhalation tiff in provide was the factual an cause of the asbestos case decedent’s how many asbestos-related injury.” Crane’s Brief asbestos fibers are contained in Additionally, Crane claims that it was the dust particular emissions by the prejudiced trial court’s decision to asbestos-containing product. read the charge jury Andaloro to the be- Similarly, plaintiff need not dem- cause, had it known that the court was specific onstrate the lengths of fibers going give charge, it would have contained in the prod- manufacturer’s accordingly.15 closing tailored its argument uct, length inhaled, of fibers he causation, 53 As to factual the trial the overall concentration of fibers in initially court instructed the as fol- the air.

lows: 9, 6/24/04, N.T. Volume at 28-30 (emphasis Factual cause. If you find that the added).16 defective, the defendant is ¶ 54 After the completed

liable for all court in- harm caused its such defec- structions jury, tive to the the parties lodged condition. A defective condition is their objections factual if Appellants cause of harm the harm thereto. had would not have several complaints occurred absent the as to the de- court’s factual fect. In order for plaintiff to recov- causation instruction. Appellants claimed case, er in this the defendant’s conduct that the court contrary acted previ- its tion is: "Was factual presents substantially cause in 15. Dana argu- similar bringing plaintiffs damages?” about the ments under quoted its first and second issues Asbestos is factual cause harm when above. the harm would not have occurred absent exposure. the asbestos expo- The asbestos portion 16. The of the instruction which we if, sure is a factual cause of an outcome emphasized have is the so-called Andaloro exposure, the absence of the the outcome Andaloro, charge. See 799 A.2d at 86. would not have occurred. Proposed Charge Points of on Behalf of 6/10/04, [Crane], PSSCJI, (citing § at 3 3.25 (2003)). in- court read this at 51. After the the Id. not read to that it would ruling

ous struction, any additions counsel if it asked charge. Dana’s Andaloro jury Appellee’s were to the instruction or corrections misrepre- charge that this argued counsel neg- responded All counsel needed. causation, proof what constitutes sented jury the The court then sent ative. warranted. a mistrial was much so that so deliberate. for a mistrial. the motion The court denied ¶ subsequently requested for Dana two-and- deliberating for over Counsel 56 After jury the to disre- hours, instruct with the the court returned jury the a-half in the factual language we gard “Judge Lynn, the Andaloro can following question: The court denied instruction. to what a ‘factu- cause have verification as please jury such, the eventually informed we but do request is? To determine al cause’ misspoke part. that it individu- company’s product each consider The collectively?” Id. at 52. ally or all statement, the making After this that it parties’ the counsel informed court following the instruction provided court by questions to address these intended jury: the re- jury to the the instructions restating has the burden plaintiff In case the this factual cause. proof garding burden following propositions: the proving to the court objected for Dana Counsel fi- plaintiff the inhaled asbestos That instruction proof the burden of reading bers, the defendants manufactured objec- overruled the again, and the court the defective product, that the defective tion.17 the the factual cause of product was into called the back 57 The court mesothelioma. plaintiffs to the factual cause the courtroom. As 6/24/04, Following at 50. N.T. Volume the court jury’s question, the portion of proof of the burden this restatement following instruction: read any if there were additions inquired court asbestos- you that a defendant’s If find corrections, parties replied and all defective, the de- containing product The court negative. Id. at 50-51. all harm to the is liable for fendant factual cause as follows: explained then by such defective condi- plaintiff caused I thing, other factual cause. Now one is [sic] tion. A defective condition you. The again am to read that going asbestos-containing product defendant’s that. parties have asked me to do of the mesothelioma is the factual cause if the mesotheli- plaintiff suffered was defec- you product If find that the not have occurred without oma would tive, for all harm the defendant is liable defective to the defendant’s exposure A defective condition. caused such cause. product. That’s factual the factual cause of condition is defective up by giving The court followed Id. 62. if harm would not have oc- harm the the burden of regarding for the instruction absent the defect. order curred case, part second to answer the proof recover in this plaintiff each de- whether to consider question a fac- on must have been defendant’s defect individually. Counsel fendant’s tual cause of his mesothelioma. discussion, previously ruled had contention that the court During for Dana counsel as writ- give the instruction upon that it would not based "cumulative moved for a mistrial gave the instruction ten but then nonetheless prior to read and the court's decision errors” Counsel, proposed it. The court denied Appellee jury. instruction to the the Andaloro motion. counsel's part, premised this motion on Dana the clarify for asked court to that for Dana being satisfactory. See N.T. jury, for the and the 9, 6/24/04, instruction court did Trial Volume Moreover, at 42. if any contrary so. The court then asked correc- Appellants’ assertion, the trial necessary, tions or additions were and all court did not give conflicting factual cau- responded negative. counsel Rather, The sation instructions. the trial jury returned to deliberate. merely court gave an initially incomplete instruction which it completed later fol- ¶ Upon our careful review of lowing objections. Therefore, counsels’ the exchange above-summarized and the the trial court did not err in refusing to whole, charge as a we find that the court grant a new trial on this basis.19 did not err the manner in which it jury instructed the regarding causation. 59 We now turn our attention to the Admittedly, prior giving the jury remaining (is- its presented issues by Dana instructions, 3, 4, 6) the trial court explic did not sues that we have already not itly incorporate state how it would Appel- addressed in our discussion of Crane’s is- charge lee’s Andaloro into its “factual issue, sues. Under its third Dana “main- However, cause” § instruction. the (Third) court tains that the [of Restatement only language Torts, read the Andaloro once to of Liability, (1997),] Products rath- jury original the its § factual causation er (Sec- than 402A the [of Restatement instruction, ond) (§ and Appellants’ objection18 402A) of Torts should govern ] language was any action, addressed and con for the reasons stated in Jus- jury fusion the might have had regarding Saylor’s tice ... concurring opinion in original court’s instructions was elimi Phillips v. Lighters, Cricket (2003).” nated when the court restated its instruc 841 A.2d 1000 Dana’s Brief at 23. proof tions as to the burden of and cau Initially, we note that our Supreme Court sation. Most importantly, Phillips court’s was divided. The late Chief causation jury instructions to the clearly Justice Cappy authored the opinion, lead that, adequately expressed in order reiterating the firm distinction in Pennsyl- to meet her proof, Appellee burden of vania law between strict liability neg- required to demonstrate that ligence Mr. they theories as apply were, Hicks’ injuries asbestos-related in liability Saylor cases. Justice wrote a fact, caused each of the Appellants’ concurring opinion, joined by Justices fact, products. defective Eakin, the trial Castille and taking issue with as- subsequent court’s instructions pects utilized opinion’s lead statement specific language proposed by “negligence counsel concepts have no place Appellants' objection 18. We charge. note to the supporting Further this determina- language only Andaloro that, that it addressed occasions, tion is the fact on three elements, requisite namely, one of the two charged jury trial court on factual causa- requirement plaintiff adduce evidence of in a tion manner pro- consistent with Crane’s inhalation of prod- fibers from the defendants' posed charge on the issue. pursuant Eckenrod/Gregg ucts to the test and Moreover, our conclusion that the trial court proximate not the causation element. adequately jury instructed the on causation 19. Given our conclusion that the trial court necessarily defeats Dana's first issue wherein causation, adequately jury instructed the on Dana claims that it is entitled to JNOV be- prejudice we can by Ap- discern no suffered cause, jury had the properly been instructed (as pellants they prepared to how their clos- causation, regarding could not have ing arguments) due to the manner in which found Dana liable in this case. See Dana’s the trial court communicated its intentions Brief at 11-12. regarding Appellee’s proposed Andaloro 976 under proceed to have this matter law,” request as related particularly liability

strict (Third) Torts, § on a de 2 liability claims based of the Restatement to 1012, user,” 1014-15 A.2d at § 841 to an “intended sign only applies defect. 402A J., Nigro concurring). Justice (Saylor, Dana asserts that “bystander.” to a not Newman the result. Justice concurred Hicks was establishes that Mr. the record dissenting opinion. concurring and wrote user; bystander, rather than an intended par not Zappala did Justice Former Chief thus, sufficient Appellee present failed to Saylor’s concurrence ad Justice ticipate. that Dana is liable for prove to evidence of the Third Restate adoption vocated injuries. In Mr. Hicks’ asbestos-related approach. risk-utility balancing ment’s mo- nearly thirty-seven page post-trial its the law in However, § has remained 402A tion, specifically to raise this Dana failed adoption its our Su Pennsylvania since issue. Zern, 424, 422 Pa. v. preme Webb Court (1966). acknowl A.2d 853 While 220 ¶ is preserve 61 order expressed by the that the view edging party review “a must file appellate sues for dicta, Dana, Phillips concurrence from a trial court’s deci post-trial motions nevertheless, seeks to have this Court following the conclusion of sion and order § 2 have of the Re overrule Webb Shermer, v. 910 A.2d a trial.” Warfield (Third) become the law of Torts statement 734, (Pa.Super.2006) (quoting Chalkey 737 this Neither in this Commonwealth. Roush, 462, 468, 491, v. 569 Pa. 805 A.2d authority court has the nor the trial Court denied, (2002)), 737, Pa. 921 appeal 495 591 Fo Supreme Court. See to overrule 227.1(c). (2007); A.2d 497 Pa.R.C.P. Zemel, (PC), 420 Pa.Su M.D. flygen v. R. litigant post-trial files mo “Even when (1992) 18, 1345, (stating 1353 per. 615 A.2d issue, tions but fails to raise certain court, this appellate “As an intermediate purposes waived for issue is deemed obligated precedent to follow the Court is Sovereign review.” Bank v. Va appellate Court.”); Supreme our see set down lentino, (Pa.Super.2006) 914 A.2d Co., also, Bugosh v. Allen Refractories (citation omitted); see Pa.R.C.P. wherein (Pa.Super.2007), A.2d 227.1(b)(2) may relief (stating “[P]ost-trial argument the same rejected this Court granted grounds unless the therefor not be (“[u]ntil our Su noting that and unless ... specified ... are in the motion. preme approach alters its strict specified Grounds not are deemed waived to es liability, we will continue to adhere granted upon leave is cause shown unless principles.”), appeal granted, tablished grounds.”). additional specify Am., Inc., v. N. Bugosh I.U. (2008).20 Consequently, 942 A.2d in the record to only 62 The reference Ap err when it denied trial court did not that we can find is in specific this issue request pro to have this matter pellant’s conjunction preceding argu- with Dana’s (Third) to the Restatement pursuant ceed concerning propriety of the trial ment (1997). Torts, § 2 Liability, Products Apply court’s denial of Dana’s “Motion to (3D) OF TORTS.” Un- that, RESTATEMENT as 60 Dana next submits issue, stated, “Moreover, Dana properly trial denied its der suming the court light Supreme moot in Court’s Additionally, that this issue now Crane asserts appeal subsequent Bugosh, decision to dismiss Supreme our Court in is now before Bugosh granted. R. improvidently See Judith supra, Court decide and should -Am., -, grant N. Pa. adopt § a new trial v. I.U. then we should (2009). possibility is matter. We note that this

977 commerce, Phillips liability only also holds that strict responsible to all who applies to intended users and [Mr. Hicks] come within the boundaries of its use. was not such an intended user.” Dana’s Id. The trial court read this instruction Relief, 7/6/04, 84, Motion for Posh-Trial at almost verbatim with exception the that he passing 94. conclude that this We state- changed “substantial” cause to “factual” ment, presented support posi- of Dana’s cause and included “defendant manufac- by tion that the trial court erred denying turer” in addition to a seller of the prod- Apply its “Motion to RESTATEMENT 9, 6/24/004, uct. N.T. Trial Volume at 29. (3D) TORTS,” OF pre- insufficient to Following giving charge Dana’s serve the issue Dana now seeks this Court counsel lodge objection did not an on this to consider. Furthermore, basis. during charge ¶ 68 Dana next avers that the trial court conference, counsel for Dana stated his by instructing jury erred Appel- belief Phillips, supra, requires warn- lants are hable for the harm by caused ings given to be to intended users and not their products, defective “whether such to vicinity.” “others N.T. Trial Vol- user, consumer, by- harm be to a a or a 5, 6/18/04, ume at 120-123. re- Counsel stander.” N.T. Trial Volume at 6/24/04 quested that the court utilize the “intended added). (emphasis Again relying 29 on language user” jury its instruction with Phillips, supra, Dana maintains that re- Warn). respect § to (Duty PSSCJI 8.03 covery § under 402A is limited to the “in- However, there objection was no Thus, product. tended user” of a the ar- Dana wherein it specifically exception took gument goes, the trial erroneously court to the use of the bystander word when jury instructed the bystander could describing who can injured recover when recover in liability this strict case. by a product defective under PSSCJI

¶ 64 We note that the instruction Cruz, § 8.10. See 801 at A.2d 610-611 8.10, at § issue was taken from PSSCJI (stating “where party fails to specifically which reads as follows: object instruction, to a trial court’s objection

The seller is liable for all harm is waived and for which cannot subse- his product quently defective is the be appeal.”) substantial raised on (quoting cause, user, whether such harm be to a Randt Corporation, v. Abex Pa.Super. 448 consumer, bystander. seller, (1996)). by The According- placing product his into the ly, stream of we find this claim is waived.21 J., Eakin, primary premise We note that Saylor, concurring J. on this arguments Dana’s under this 674-675, issue and its point); accord id. at 841 A.2d at previous scope issue overstates the J., 682-683, (Saylor, concurring); id. at that, holding Phillips. Dana insists in Phil- (Newman, J., 841 A.2d at concurring lips, Supreme recovery our Court "ruled that dissenting). Finding that a child is not § under 402A is limited to the 'intended lighter an intended user of a and therefore the product.” users' of a Dana’s Brief at 25 plaintiff lighter failed to show that the (citing 1006) Phillips, at 841 A.2d at analogous unsafe for use adults is not added). Court, (emphasis Phillips The how- laborer, finding that required part who is ever, recovery § did not rule that under 402A job closely of his to work with tradesmen who is limited to product; "intended users” of a asbestos-containing products, handle is not an rather, our Court concluded that “in Moreover, products. intended user of those claim, liability design plain- strict defect Appellants seriously cannot contend that tiff must establish that the was unsafe plumbers pipefitters are not intended 656-657, Phillips, for its intended user." users. As such we find it hard to fathom how (plurality opinion 841 A.2d at 1007 authored C.J., Castille, J., Newman, J., Cappy, with procedure Dana because the challenges prejudiced issue Dana’s final that it is promote the efficiencies failed a re to conduct decision trial court’s advance, such as settlement. intended such a review trial. We

verse-bifurcated post-trial this issue in its presented Dana stan of discretion an abuse decision under that, motion; however, assuming even Dana’s A.2d at 72. Donoughe, 936 dard. case, pro- did not reverse-bifurcation this two-fold. this issue is under argument a per- Dana fails to offer efficiency, mote “auto the trial court that Dana first claims a failure war- that such argument suasive reverse-bi to conduct a matically” chose so severe that finding prejudice rants a bifurca and that “automatic” furcated trial As to Dana’s new trial is warranted. error. reversible per se tion constitutes Appel- like the prejudice, much claim However, specific not raise this Dana did that Donoughe, argues Dana lants Accordingly, motion. in its post-trial claim hotly is contested liability cases where above, Dana explained we for reasons proce- “employing the reverse bifurcation this claim. waived considering jury from preclude dure to ¶ that it is Dana next contends could that the at issue evidence the use of to a new trial because entitled until plaintiffs injuries not have caused procedure this reverse-bifurcation awarded damages already after have been “Re prejudicial to Dana. highly case was Brief, at 43. prejudicial.” Dana’s highly is for most practice is ‘the verse bifurcation “prejudice that be- Dana further submits of medical where ‘issues asbestos cases’ plaintiffs when the comes even more acute are tried damages I] [Phase causation stronger than the injury evidence of is liability involving theories of before issues essence, Id. In liability evidence....” ” [Phase II].’ identification jury already had Dana asserts v. (quoting at 71 Fritz Donoughe, 936 A.2d liability Dana’s reached its conclusion as to A.2d 239 n. Wright, 589 Pa. of Phase I. by the conclusion (2006)). supports Dana 1095 n. 10 claim in Do- rejecting 68 In a similar First, claims. with two this contention noughe, panel noted: the reverse-bifurca complains Dana allega- wholly this is a unsubstantiated right its to due procedure tion violated anything not tion that is deducible the Penn guaranteed by both process as Moreover, Lincoln and Ho- of record. States constitutions. sylvania and United fully present their bart were able argues Dana that it was not regard, In this II, following Phase Do- during evidence to be meaningful opportunity provided a expo- noughe’s more detailed evidence Dana failed to include this Again, heard. prod- their sure to asbestos shed from motion post-trial claim in its process due jury ucts. Phase II was when and, thus, has waived the claim.22 which, any, if to determine asked for Do- seemingly many defendants were liable Secondly, Dana injuries estab- noughe’s of the re asbestos-related complains that the utilization Thus, there is during Phase I. in this case lished procedure verse-bifurcation process fair trial. This helper to due and a plumber's pipefitter's is not also or allegation they argument an intended user. is based on the deprived 'opportunity to be heard.’ were of an rejected Donoughe, supra, wholly, argument plainly, and indis- This stating: nearly argument "Lincoln identical A.2d at 71 n. putably without merit." Id. 936 argue that the reverse bifur- and Hobart also omitted). (citations rights cated violated their constitutional trial simply no basis to conclude that Lin- necessary mesothelioma, to cause the evi- coln’s and Hobart’s defense was ham- dence is still sufficient.

pered prejudiced by being raised at 2. The evidence of EPA and OSHA the liability stage of the proceedings any regulations was properly excluded. more than if the trial had not been 3. The case should not be reversed for parties bifurcated. The participated in the trial court’s factual causation charge single trial, bifurcated not two trials because what might have been significant where Lincoln and Hobart were found objections to the charge were not made liable each time. and should be considered waived.

Donoughe, 936 A.2d at 71. We find that ¶ 2 I write separately first, to note that the same equally rationale is applicable in following the Pennsylvania Supreme case, this and Dana was not hampered in opinion in Parts, Gregg v. V-J Auto Com- presenting Moreover, its defense. we find pany, (2007), A.2d 216 the argument Dana’s regard this prem- is testimony of Plaintiffs expert, James C. upon ised the same misconception, which Giudice, that “each every exposure and [to many underlies arguments Dana’s in asbestos is significant fibers] in the causa- this appeal, that its was capa- not tion of this malignancy, mesothelioma, by ble of causing injury. For all of the rea- the asbestos”1 improperly admitted. above, sons discussed we find that Dana However, there objection was no to this has failed to establish that the trial court trial, testimony at so this issue is waived.2 abused its discretion in deciding to utilize ¶ Second, particularly under the cir- Thus, reverse-bifurcation procedure. case, cumstances of this I believe the this claim warrants no relief. charge on “factual cause” was improper. ¶ 69 Accordingly, for the above-stated All the judge said was that something is a reasons, we affirm judgment entered “factual cause” if the harm would not have Appellee. favor of occurred exposure without to the defen- dants’ product. defective I note that while

¶ 70 Judgment affirmed. part this of the Pennsylvania Suggested Standard Jury Civil Instruction on factual ¶ KLEIN, J. files a Concurring read, cause was a major omitted, part was Opinion. leaving the resulting charge incomplete confusing. However, and objection no KLEIN, CONCURRING OPINION BY made to reading part of this of the J.: charge, so although it might have been ¶ 11 agree with the majority that: error, reversible any error is waived. presented 1.Plaintiff enough evidence 1. The every” “each and breath testi- of exposure to products defendants’ to sus- mony. tain a Although verdict. the amount of exposure defendants’ is less 4 In deposition his for the “causation” than types other of asbestos-containing phase of trial, the reverse-bifurcated products, II, because of the prolonged expo- Phase Plaintiffs expert, medical Dr. sure to the product and the Giudice, smaller dosage testified: Giudice, Deposition D.O., 1. reason, of James C. Perhaps 2. for this majority as the II,” notes, 8, 2004, 29-30, "Phase June at appeal R.R. this issue was not raised on so is not before us. 244; Summers, accord every ex- that each my opinion It’s Lindstrom,4 (reasoning at 493 424 F.3d causation of significant is posure mesothelioma, permitted opinion an were that if such malignancy, control, each and would the reason that factor test And the substantial asbestos. that each significant is meaningless). is every exposure rendered be to the asbestos adds every exposure at 226. Gregg, 943 A.2d de- been—as I’ve as—has And burden. expert physician an testimony of 6 The the more previously, scribed beyond physi- legal causation as to accumulates, significant the more invades improperly expertise cian’s higher and the risk for mesothelioma guided by the province That’s malignancy. of that incidence Therefore, that this we now know judge. do know know. We thing we do one been admitted. testimony not have should collects, the more asbestos that the the incidence— significant ¶ However, objection was although more—more an in- will of mesotheliomas the number a review videotape deposition, made at how that know is What we don’t crease. objection was shows that this the record so, every each and asbes- And occurs. nor judge, the trial renewed before not the contributes to that’s inhaled tos fiber N.T. appeal. in this See it raised to the contributes burden —that asbestos 3-7; 6/15/04, Ac- Trial, at R.R. 345.3-.7. a causative factor burden is merit, it argument the has cordingly, while malignancy.3 of this development the us. is not before the kind of testimo precisely This is charge. cause” The “factual found 2. Pennsylvania Supreme Court ny the Gregg, quoting inappropriate recharged the judge The trial in Summers v. Certain statement judge’s issues with cause” after some on “factual (Pa.Super.2005). A.2d 240 Corp., 886 teed judge to whether the charge initial as The Court said: had to cause that the “conduct” charged for it is common recognize We charge on factual cause harm. The at- expert affidavits to submit plaintiffs finally read was: asbestos, no any exposure to testing that defec- find that the you If minimal, is substantial matter how harm tive, liable for all the defendant is in asbestos cases. contributing factor A defective condition. caused such However, per- Klein’s Judge we share is the factual cause condition defective expressed the Summers spective, as have if the harm would not the harm decision, generalized opinions that such In order for absent defect. occurred jury question to create a not suffice do case, the recover in this plaintiff to to the defen- exposure where in a case a fac- must have been defect defendant’s minimus, particu- product is de dant’s mesothelio- plaintiffs of the tual cause of evidence exclud- larly in the absence ma.5 exposure possible sources ing other asked, “Any then additions judge The trial (or fact of evidence substantial sources). See, reading of that?” and to the or corrections from other exposure 51; Trial, 6/24/04, Giudice, at R.R. 1015.165. 5.N.T. Deposition of James C. II" 3. "Phase 29-30; D.O., 6/8/04, R.R. 1305. Trust, Liability v. A-C Product 4. Lindstrom Cir.2005). (6th 424 F.3d 488 Therefore, any negligence com- The of a may

all counsel said “no.” defendant be “actual, found to be a factual of plaintiffs cause real” factor was plaints harm though relatively even it was mi- any that there was complaints omitted and nor compared negligence to the have charge no on concurrent causation plaintiff. other defendant [the or] been waived. effect, the test for factual causation ¶ I charge 9 note that the draft standard has been met when the in ques- conduct effect, then in to some of the and similar tion producing has such an effect in version, wording of the current adds the harm as to lead persons reasonable that: language regard it as one of the [contributing Therefore, cause, in determining factual causes that is insignificant neither nor you negligent must decide whether the inconsequential considering all the cir- of the more than conduct defendant was cumstances.]

an factor in about insignificant bringing ¶ 10 In a similar situation v. Gorman any plaintiff. harm to the Penn- Under Costello, (Pa.Su- law, sylvania conduct can be found to be per.2007), ju- this Court held that “when if the contributing factor action or given instructions, ries are incomplete alleged omission to have caused the new trial required.” Because the trial actual, factor, harm was an real not a court in only gave Gorman the “but for” factor, negligible, imaginary or fanciful portion charge, this Court held that having only or a factor no connection or charge was inadequate and remanded inju- an with the insignificant connection for a new trial.7 However, ry. factual cause does not ¶ However, a careful review of the primary mean it is the or even the only, record objection shows no to the important most factor in causing the basis, charge was made on this so this injury. may A cause be found to be a argument Objections is waived. were it long factual cause as as contributes to portion made the further of the charge injury way in a that is not minimal stating that there is particular no amount insignificant. composition of fibers or fibers factor, a contributing To be the defen- required. part charge That of the only dant’s conduct need not be the fac- Likewise, correct. there was discussion tor. The fact that some other causes applying proof about the burden of to set- negligence concurs with the of the de- tled defendants. Since there was no ob- fendant in an producing injury does not jection portion to the “factual cause” of the liability relieve the defendant from as charge, although charge may have long negligence erroneous, own is a incomplete [his][her] been and therefore injury. objection factual cause of the no ground preserved. on this (Civ) (2003). course, § imaginary 6. SSJI 3.25 Of cause cannot be an or fanciful fac- language would have to modified for a be having only insignifi- tor no connection or an product liability case. say cant connection with the harm” and does that the harm "would not have occurred ab- 7. I note that the new Section 3.15 of the 2008 (2008). (Civ) § sent the conduct.” SSJI 3.15 Supplement Pennsylvania Suggested Stan- However, I believe the absence of a fuller Jury dard Civil Instructions eliminates some may incomplete charge in an discussion result language in the earlier draft. Howev- judges charge and caution trial the new to use er, charge I am not the new certain peril. at their comports with Court law. The new suggested charge say that "A does factual sig- of the waiver of these 12 Because issues, nificant I concur in the result. Pennsylvania

BISHOPS, INC., a

Corporation, Appellant

v. INSURANCE,

PENN NATIONAL Company, Appellee.

Mutual Inc., Pennsylvania

Bishops,

Corporation, Appellee

v. Insurance,

Penn National a Mutual

Company, Appellant.

Superior Pennsylvania.

Argued Aug. 2009.

Filed Nov. 2009.

Reargument Denied Jan.

Case Details

Case Name: Estate of Hicks v. Dana Companies, LLC

Court Name: Superior Court of Pennsylvania

Date Published: Nov 18, 2009

Citation: 984 A.2d 943

Docket Number: 3088 EDA 2006, 3089 EDA 2006

Court Abbreviation: Pa. Super. Ct.