Lead Opinion
OPINION BY
In this asbestos action, the parties appeal from the judgment entered in Philadelphia County Court of Common Pleas in favor of Darlene Nelson, both individually and as Executrix of the Estate of James Nelson, in the amount of $14.5 million. Appellants/Cross Appellees consist of Crane Co., Hobart Brothers Company, and Lincoln Electric Company (hereinafter, the latter two will be referred to as “the Welding Companies”). Darlene Nelson cross-appeals solely in her capacity as executrix. We vacate and remand for a new trial consistent with the following opinion.
James Nelson developed mesothelioma, allegedly the result of occupational exposures to various asbestos products during his career at Lukens Steel Plant in Coates-ville, Pennsylvania.
James Nelson and Darlene Nelson commenced this product liability action in December "2008. Following James Nelson’s death, Darlene Nelson was substituted as executrix. The Nelson case was consolidated with four other actions in which plaintiffs had contracted mesothelioma,
It was undisputed that Nelson was exposed to respirable asbestos fibers during his career at Lukens Steel. During the first several years of his employment, Nelson worked with and around significant quantities of asbestos insulation. See, e.g., Nelson Video Deposition, 03/06/2009, at 2125 (describing the general work environment in the open hearth and electric furnace areas of the steel plant and testifying that asbestos insulation dust fell constantly from thousands of feet of steam piping with such intensity that “[y]ou could hardly see in them buildings”).
Nelson also described his exposure to Appellants’ products. According to Nelson, the “flux,” or outer coating, of welding rods used by him on a daily basis would release dust when he removed them from a box or otherwise manipulated them. Nelson used many different types of rods, depending on availability and the type of job performed. It was acknowledged by the Welding Companies that certain rods manufactured by Hobart and Lincoln contained encapsulated asbestos fibers until approximately 1981. Nelson testified that airborne dust was visible, that it would get on his work gloves, and that he inhaled the dust. Id. at 76-80.
While welding, Nelson also used a Crane Co. product known as “Cranite,” a sheet gasket made of chrysotile asbestos. See, e.g., Notes of Testimony, 03/17/2010, at 65-66. Nelson used Cranite for two “shielding” purposes, either to protect plant equipment from overspray during spray welding or to protect other workers from the flash of the welding arc. See Nelson Video Deposition, 03/13/2009, at 187-89, 197-98. As needed, Nelson used a utility knife to cut the Cranite sheet into a size useful for his purposes, releasing visible dust into his work environment. Id. at 198-99.
In order to establish that Appellants’ products were a substantial factor in causing Nelson’s mesothelioma, Nelson introduced the expert testimony of pulmonologist, Dr. Daniel DuPont. Dr. DuPont was Nelson’s sole causation witness during the liability phase of the trial. According to Dr. DuPont, “[mjalignant mesothelioma ■ occurs with significant asbestos exposure,” which he defined as “[t]he inhalation of fibers above the negligible amount already contained in the environment.” DuPont Video Deposition, 03/11/2010, at 32, 50.
Dr. DuPont acknowledged that he was not an expert in Appellants’ products and could not opine whether the products actually released respirable asbestos fibers.
In response, Appellants challenged Nelson’s contention that use of their products resulted in significant exposure to asbestos. For example, among the several expert witnesses to testify on behalf of the Welding Companies, Dr. John DuPont,
The Welding Companies also presented expert testimony from Dr. Mary Finn and Dr. Louis Burgher, who each testified, in part, to the absence of an epidemiological association between the use of welding sticks and mesothelioma. See N.T., 03/15/2010, at 59; N.T., 03/16/2010, at 27-31. Nelson presented no testimony disputing this evidence. See, e.g., DuPont Video Deposition, at 82, 88-89.
For its part, Crane Co. focused on the form of asbestos fibers contained in its product and the extent of Nelson’s exposure to it, particularly in light of his cumulative exposure to numerous products over his career at Lukens Steel. For example, forensic pathologist Dr. Michael Graham distinguished several different types of asbestos fibers, including crocidolite, amo-site, and chrysotile fibers, suggesting that the latter represented the least toxic form of asbestos. See N.T., 03/11/2010, at 92-98.
In addition, Mr. Charles Blake, an industrial hygienist, testified on behalf of Crane Co. Mr. Blake testified that Cranite sheets contained compressed chrysotile fibers that could not be released merely by handling the product or using it as a freestanding shield and that Nelson’s infrequent cutting of the sheets would not release asbestos fibers in quantities sufficient to create any significant risk. N.T., 03/17/2010, at 70-72. Mr. Blake similarly concluded that Nelson’s mesothelioma was the result of significant exposure to amo-site asbestos insulation and that his exposure to Cranite was “not at all” a significant source of exposure. N.T., 03/17/2010, at 74.
Crane Co. also sought to challenge the manner in which Nelson used its product,
At the close of the liability phase of the trial, the jury found Appellants’ products defective and that the products lacked any warning sufficient to make them safe for use, thus imposing strict liability. During closing arguments in the damages phase of the trial, Appellants objected to certain remarks made by Nelson’s counsel on the ground that counsel had improperly suggested to the jury a specific dollar amount for non-economic damages. See N.T., 03/08/2010, 80-83. Appellants sought a mistrial, which was denied by the trial court. See id. at 97. Thereafter, the jury returned a verdict in favor of Nelson, awarding $1 million in stipulated, economic damages to the estate, $1.5 million to Darlene Nelson for loss of consortium, $7 million in non-economic damages pursuant to the Survival Act and $5 million in non-economic damages pursuant to the Wrongful Death Act. See 42 Pa.C.S. §§ 8301 (defining wrongful death action), 8302 (defining survival action).
All parties filed post-trial motions, which were denied by the trial court. The Welding Companies and Crane Co. appealed; Nelson cross-appealed. The parties submitted court-ordered Pa.R.A.P. 1925(b) statements, and the trial court issued a responsive opinion.
The Welding Companies present the following issues for our review, concisely restated as follows:
1. Whether the trial court erred in permitting Nelson’s expert, Dr. Daniel DuPont, to testify premised upon the “any-exposure” theory of causation;.
2. Whether the court erred in holding that Nelson proffered sufficient evidence to prove exposure to respirable asbestos fibers released from their products;
3. Whether the court erred in denying a mistrial or not granting a new trial where counsel for Nelson (1) improperly suggested a specific amount of non-economic damages; (2) injected alleged settlement discussions in his closing argument; (3) attributed bad motives to the Welding Companies; and (4) further injected conduct and punitive elements into a strict liability case; and
4. Whether the court erred in permitting reverse bifurcation and consolidation of four unrelated mesothelioma cases.
See Welding Companies’ Substitute En Banc Brief, at 7-8.
Crane Co. presents the following issues:
1. Whether the court erred in holding that Crane Co. could be held strictly liable where Nelson was neither an intended user of its product nor did Nelson use its product in an intended manner;
2. Whether Nelson’s expert witness offered legally sufficient causation testimony, in that it was premised upon an “any-exposure” theory of causation;
3. Whether Nelson’s evidence was sufficient to meet the requirements of the“frequency, regularity, and proximity” test;
4. Whether the court erred in conducting a consolidated and reverse bifurcated trial;
5. Whether the court erred in permitting counsel for Nelson to suggest a specific amount of non-economic damages or to discuss the conduct of a defendant in a claim for strict liability;
6. Whether a plaintiff may recover all of the jury-awarded damages from solvent defendants, and then recover additional amounts, based upon the same injury, from “asbestos bankruptcy trusts.”
See Crane Co. Refiled Original Brief, at 4-5.
Finally, Nelson presents the following issue:
1. Whether the court erred “in assigning a share of the judgment to a defendant who, although adjudged a joint tortfeasor by the jury, filed a bankruptcy petition before paying plaintiff any of the agreed-úpon settlement amount and before the court entered a judgment.”
Nelson’s Substituted Brief (filed in response to Welding Companies’ appeal), at 4; see also Nelson’s Substituted Brief (filed in response to Crane Co.’s appeal), at 5.
Appellants raise several challenges to the sufficiency of Nelson’s liability evidence. We will first address Appellants’ assertions regarding Nelson’s expert testimony.
In relief, Appellants seek judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The following standards apply.
In reviewing a motion for [JNOV], the evidence must'be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable'inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a [JNOV] should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge’s appraisement of evidence is not to be based onhow he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations.
There are two bases upon which a [JNOV] can be entered: one, the mov-ant is entitled to'judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first a court reviews the record and concludes that even with all factual inferences decided adverse to the mov-ant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
Estate of Hicks v. Dana Cos., LLC,
Similarly, when reviewing the denial of a motion for a new trial, we must determine if the trial court committed an abuse of discretion or error of law that controlled the outcome of the case.
Id. “When improperly admitted testimony may have affected a verdict, the only correct remedy is the grant of a new trial.” Collins v. Cooper,
The guidance recently provided by the Pennsylvania Supreme Court in Betz is clear and proves to be dispositive. In that ease, the Supreme Court considered the “admissibility of expert opinion evidence to the effect that each and every fiber of inhaled asbestos is a substantial contributing factor to any asbestos-related disease.” Betz,
Asbestos-related mesothelioma, like other diseases induced by toxic exposures, is a dose response disease: each inhalation of asbestos-containing dust from the use of products has been shown to contribute to cause asbestos-related diseases, including mesothelioma. Each of the exposures to asbestos contributes to the total dose that causes mesothelioma and, in so doing, shortens the period necessary for the mesothelioma to develop ... [E]ach exposure to asbestos is therefore a substantial contributing factor in the development of the disease that actually occurs, when it occurs.
Id. at 31 (quoting Affidavit of John C. Maddox, M.D., 8/4/2005, at 12) (emphasis supplied by the Betz Court).
The Supreme Court reviewed both the scientific support for the any-exposure theory and the legal requirements of specific causation. Following a comprehensive analysis, the Supreme Court reiterated its observations set forth in Gregg:
We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable. Other jurisdictions have considered alternate theoriesof liability to alleviate the burden. Such theories are not at issue in this case, however, and we do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every “direct-evidence” case. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.
Id. at 56-57 (quoting Gregg,
In his attempt to dissuade this Court from rejecting Dr. DuPont’s testimony, Nelson submits that his expert did not rely upon the any-exposure theory. Rather, according to Nelson, “Dr. DuPont found as causative only significant exposures, such as when a person inhales visible dust from an asbestos-containing product. Thus, as Dr. DuPont’s testimony was not dependent on an ‘each and every breath’ analysis, [Appellants’] argument ... must be rejected out of hand.” Nelson’s Substituted Brief (filed in response to Welding Companies’ appeal), at 18.
Accordingly, we review Dr. DuPont’s testimony. As set forth above, Dr. DuPont opined that mesothelioma occurs with “significant asbestos exposure.” DuPont Video Deposition, at 32. In this context, he acknowledged that asbestos is present in the ambient air but suggested that the impact of such exposure is negligible. Id. at 33. In response to counsel’s question, asking him to define “non-negligible exposure,” Dr. DuPont replied, “Anything above ambient air in the opinion of many publications.” Id. at 34. Thereafter, Nelson solicited the following testimony from Dr. DuPont:
Q. All right. So now how do you make a determination? What these folks have to do is they have to decide, did one asbestos product cause these men to get the disease? Did two? Did three? Did five? Did ten? Did all of them? What kind of help can you provide in that area?
[A.] The help that I can provide is to say the following, it is accepted or believed that there are no innocent respirable asbestos fibers.
Id. at 43 (emphasis added). Dr. DuPont concluded, then, in the following manner:
Q. ... If I ask you now specifically, to a reasonable degree of medical certainty what caused ... Mr. Nelson to develop ... mesothelioma, please tell me your answer[.]
[A.] The inhalation of fibers above the negligible amount already contained in the environment is the type of exposure that causes this disease, and that all of the fibers involved in that above the negligible amount, should be considered substantial in their causation. And furthermore, no fibers can be considered innocent or not involved with the understanding that we’ve already talked about.
Id. at 49-50. And, finally;
Q. Did each individual exposure that [Nelson] had above a non-negligible level, were [sic] [he] inhaled airborne asbestos dust constitute a substantial and contributing factor to the disease that they developed?
[A.] Yes.
Id. at 58.
Thus, according to Dr. DuPont, (1) mesothelioma occurs as a result of significant exposure to asbestos, defined as (2) any exposure above the negligible amount present in ambient air, and (3) such exposure constitutes a substantial factor in developing mesothelioma. In this context, we cannot ignore Dr. DuPont’s admonition that no fibers are innocent and his conclusion that each individual exposure is substantially causative. In our view, this testimony is congruous with the expert opinion proffered in Betz.
Dr. DuPont’s reference to the presence of asbestos in ambient air also reveals a paradox in his theory of causation. According to Dr. DuPont,
[A]sbestos is present in the ambient air, and that is the air that we breathe. And in an urban area or like where I’ve practiced in an industrial area, there is a certain amount of asbestos in the air.
Right. And the point of what I was saying was that that is considered the ambient area. And the impact of that is felt to be negligible.
Id. at 33. Moreover, Dr. DuPont acknowledged that ambient levels of asbestos differ, depending on location:
Q. Ambient exposures can range in exposure levels, correct?
A. Correct.
Q. Okay. So if we’re in [ ] rural Kansas without a factory nearby, it might be very low, but if you’re in an industrial urban setting, it might be much higher, correct?
A. Correct.
Q. And we would lump all of those into the category of ambient?
A. We would[.]
Id. at 104. According to Dr. DuPont, different levels of ambient exposure are non-causative, yet Dr. DuPont finds causative each incremental exposure of an individual product, however small. Id. at 53.
Q. All right. [] The jury has heard exposures to a number of different asbestos-containing products over whatever frequency the jury heard it, and they’ll rely on their memory. Do you separate those exposures out for each individual product, assuming every exposure was above a non-negligible level? A. You don’t.
Q. Why?
A. You can’t.
Id. at 39 (emphasis added). And the following:
Q. ... A lot of mention have [sic] been made that these men worked at job sites where there was a lot of pipe covering around, with a lot of amphiboles in it, as well as other products that contained only chrysotile. Even in that situation, do you as a scientist, as a medical expert,. get to say, “Oh, it must have been the pipe covering that did it?”
A. I cannot.
Q. Again, why?
A. There is no literature that I could go back to and quote to say that this product did it and this product didn’t. And you can say that one type of asbestos has a higher risk, but we’re not talking about risk here. Risk is the potential of getting a condition. There is no risk here about potentially getting a condition. The condition was there.
Id. at 51 (emphasis added).
However, these are precisely the questions an expert must answer in order to establish that Appellants’ products were a substantial factor in causing Nelson’s disease. See Fisher v. Sexauer,
For the above reasons, we conclude that Dr. DuPont’s testimony was inadmissible. Moreover, as this expert testimony was necessary to establish legal, or substantial-factor, causation, its improper admission controlled the outcome of the case. Accordingly, we vacate the judgment entered and remand for a new trial on liability.
Appellants also assert that Nelson introduced insufficient evidence of exposure to respirable asbestos, citing in support Gregg,
Separately, Crane Co. asserts that it is entitled to relief on the ground that Nelson failed to use Cranite in an intended manner. In Pennsylvania, strict liability does not extend beyond the use of a product in its intended manner.
[A] manufacturer can be deemed liable only for harm that occurs in connection with a product’s intended use by an intended user; the general rule is that there is no strict liability in Pennsylvania relative to non-intended uses even where foreseeable by a manufacturer. The Court has also construed the intended use criterion strictly, holding that foreseeable misuse of a product will not support a strict liability claim.
Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co.,
Here, Crane Co. solicited testimony to establish that Cranite was intended for use as a gasket to seal fluid systems, and not as a welding shield. Crane Co. proffered further testimony in this regard, but was precluded from doing so. Moreover, at various stages of the litigation, Crane Co. argued that Nelson failed to meet its evi-dentiary burden to establish that Cranite was unsafe for its intended use.
The trial court rejected Crane Co.’s arguments, suggesting in its Rule
It is well settled a dangerous product can be considered “defective” for strict liability purposes if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product. Such warnings must be directed to the understanding of the intended user. The duty to adequately warn does not require the manufacturer to educate a neophyte in the principles of the product. A warning of inherent dangers is sufficient if it adequately notifies the intended user of the unobvious dangers inherent in the product.
Mackowick v. Westinghouse Elec. Corp.,
The trial court further suggested that Nelson established that Crane Co. “failed to provide a warning of the health risk inherent in exposure to its product[] for its intended user.” TCO at 13. However, this conclusion finds no evidentiary support. Indeed, Nelson failed to introduce any evidence that he, or anyone else, was an intended user of Cranite, and the court expressly and repeatedly declined Crane Co.’s attempts to introduce evidence relevant to the intended use doctrine.
The trial court’s position is untenable, but that does not end our inquiry. As noted by Nelson, this Court has stated previously that the feature that renders an asbestos product unsafe for its intended use derives from the presence of asbestos in the product, and specifically, “the dangers from inhalation of asbestos fibers that can be emitted from the product.” Estate of Hicks,
Nelson’s concise argument is persuasive but asks too much from this Court. We infer from Nelson’s argument that “intended use” of a product is more than simply its “purpose,” a proposition with which we agree. Intended use necessarily includes those intermediate steps required to fulfill a product’s purpose. For example, Crane Co. asserts that Cranite was a fluid systems sealant. This describes the purpose of Cranite. However, Cranite was produced and distributed in a sheet form requiring user modification. It is readily apparent that its purpose could be fulfilled only after certain intermediate steps were taken by the user, including, e.g., cutting sheets of Cranite into a useful form or size, or otherwise manipulating the product by hand — precisely the manner in which Nelson suggested he used Cranite.
Thus, it may well be that Nelson presented sufficient evidence for a jury to find that he used Cranite in a manner consistent with its intended use, a finding that would negate Crane Co.’s argument. It will be for the trial court to define what precisely constitutes an intended use of Cranite. However, the jury must be afforded an opportunity to make a finding, and we will not presume which facts will be accepted by the jury. See DGS,
Crane Co. also suggests that Nelson’s employment as a welder is relevant to the doctrine. According to Crane Co., because Nelson was not an intended user, such as, e.g., a plumber, strict liability must not attach. We disagree.
The “intended user” formulation is merely a derivative of the intended use doctrine. As we have previously observed, “a plaintiff must establish that the product was unsafe for its intended user.” Estate of Hicks,
Absent evidence suggesting that Nelson’s employment as a welder was material to an unintended use of Cranite, his job title is of little consequence. On remand, the relevant questions will remain whether Nelson used Cranite in a manner consistent with its intended use; and, ultimately, whether Crane Co. provided warnings sufficient to insure the safety of those who used it accordingly.
We now turn to Appellants’ claims regarding the damages phase. Collectively, Appellants also contend that improper remarks by Nelson’s counsel during closing arguments in the damages phase warrant a new trial.
[W]hether to declare a mistrial is yet another decision within the discretion of the trial court, whose vantage point enables it to evaluate the climate of the courtroom and the effect on the jury of closing arguments.
Clark v. Phila. Coll. Of Osteopathic Med.,
According to Appellants, Nelson’s counsel urged the jury to award a specific dollar amount for non-economic damages.
In Joyce, the plaintiff was struck and injured by the defendant’s automobile. Joyce,
While it is true in the present case, no definite amount was mentioned, yet, if plaintiffs version be accepted, the language contained a suggestion to the jury that ‘thousands of dollars’ were claimed for pain and suffering. This expression suggested the amount to the minds of the jury almost as clearly as if counsel had stated a definite number of thousands.
Id.
Nelson counters that there is no prohibition against arguing that a plaintiffs non-economic damages are worth substantially more than an amount of proven economic loss, echoing the analysis of the trial court below and citing in support Clark, supra. In Clark, the appellants similarly claimed that the plaintiffs counsel had improperly suggested a formula for pain and suffering during closing argument. Clark,
However, based upon the record before us, Clark is distinguishable. Here, during closing argument, counsel displayed the verdict sheet to the jury. On the verdict sheet, twelve elements of non-economic damages were listed, seven under the Survival Act and another five under the Wrongful Death Act.
How [do you decide on a number?] Think of these, if you would, as different awards. Even though it’s all going to go on one line, I think it will be easier for you if you think of these as different elements of damages.
N.T., 3/8/2010, at 78. In this context, counsel referred to the economic damages agreed to by the parties and, thereafter, addressed the elements of non-economic damages under the Survival Act in the following manner:
Economic loss ... We have agreed. We have stipulated ... we have agreed that the economic losses that you can accept as true equal $1 million. I repeat, $1 million, and that’s where you start at. You start there.
You haven’t even gotten to the physical pain yet. You haven’t gotten to that anguish yet. You haven’t gotten to the embarrassment and humiliation, the disfigurement, discomfort and inconvenience. Again, I need somebody to remember you must start at $1 million.
It’s so important it' bears repeating. You start at $1 million, and I believe each of those elements of damages starting at physical pain are worth infinitely more than that $1 million figure.[21 ] Now, you add a million plus whatever other numbers you assign for these and you write that number there.
Id. at 79-81. After discussing Darlene Nelson’s claim for loss of consortium, counsel addressed the elements of non-economic damages under the Wrongful Death Act:
You now move. You may think this is somewhat similar but the measuring periods are different now. This is the loss of society, comfort, support, assistance and companionship to Darlene Nelson because her husband died.
Again, what you might say is those things aré the same. I told you, this number should be significant and substantial. This should be more so. Much more than this.
Id. at 82.
Effectively, counsel (1) identified twelve individual elements of noneconomic damages; (2) suggested to the jury that it consider a different award for each element but then add the individual amounts onto a single line, and (3) in rather express language, suggested that the jury award Nelson at least $1 million for each. Thus, unlike the closing remarks in Clark, where the plaintiffs counsel metaphorically referred to economic damages as the “tip of the iceberg,” here counsel for Nelson provided the jury with a formula to calculate damages and an amount to plug into that formula. Here, counsel’s express reference to the stipulated economic damages was not evocative, but declarative and algebraic. It is no coincidence, therefore, that the jury’s award to Nelson comprised $7 million in non-economic damages- pursuant to the Survival Act and $5 million in non-economic damages under the Wrongful Death Act. Clearly, counsel’s remarks were inappropriate.
Moreover, the trial court did not address the jury concerning counsel’s inappropriate remarks. It administered no curative instruction and denied Appellants’ immediate request for a mistrial. We have also reviewed the court’s instructions on damages, and while we discern no error in their substance, they provided no curative effect to counsel’s inappropriate remarks. We deem the court’s failure to cure an abuse of its discretion.
Has it dawned on any of you yet that the reason we’re here, and the only reason we’re here, is because I can’t agree with these people [on] the value of my client’s life?
I can’t agree with any of these people on how much money should be awarded to these families for what has been done in this- case, for taking Jim Nelson’s life, ... for having the tumor eat through [his] chest, sucking the life [out of him.] We can’t agree. That’s why we need you.
N.T., 3/8/2010, at 48. Appellants also complain that counsel inserted a punitive element into his discussion of damages:
[A]t the end of the day, ladies and gentlemen, you represent the conscience of the community, and I’m asking you to award an amount of money that is so significant and substantial that it will do justice that everyone will know that justice is done, not just the Nelson family, ... but everybody that’s in this community. Do not let [this man] die in [vain].
Id. at 83-84.
Such language is inflammatory, particularly to the extent that it attributes improper motives to Appellants. Thus, we admonish counsel to refrain from needlessly inflaming the passions of the jury. See Young,
Finally, Appellants contend that the trial court erred in consolidating this case with four other, unrelated cases, and in ordering the case to proceed in a reverse-bifurcated manner. Following an examination of its Mass Tort Program, the Philadelphia Court of Common Pleas directed the implementation of certain revisions affecting the conduct of asbestos trials in the county. See Order of Court, 02/15/2012 (implementing General Court Regulation No. 2012-01). In particular, we observe that (1) reverse bifurcation will not occur, absent agreement by all counsel involved, and (2) consolidation is now subject to several express criteria. Id. Accordingly, we deem Appellants’ contention moot.
In conclusion, we vacate the judgment entered February 23, 2011, and remand for a new trial, both on liability and damages. Regarding liability, Appellants are entitled to a new trial, as Nelson introduced causation evidence premised upon the any-exposure theory. See Betz,
Judge BOWES, Judge SHOGAN, Judge ALLEN, Judge STABILE, and Judge JENKINS join this opinion.
Judge WECHT files a dissenting opinion in which President Judge EMERITUS FORD ELLIOTT joins and Judge OTT concurs in the result.
Notes
. The record in this case is voluminous, consisting of thousands of pages of testimony and argument, and hundreds of pages of briefs submitted to this Court. We have reviewed it thoroughly. In light of our disposition, however, we will limit our discussion of the facts and procedure in a manner sufficient to address the issues before us. As is readily apparent from the caption of this case, Nelson initiated this suit against dozens of named defendants. However, for various reasons not relevant to this appeal, only Appellants remained at the close of trial.
. Hereinafter, for convenience, we will refer to James Nelson and Darlene Nelson, individually and as executrix of her husband’s estate, as "Nelson,” unless it is necessary to distinguish between them.
. Our review will proceed in a more traditional manner, discussing first liability and then damages.
. Appellants filed motions seeking to preclude Dr. DuPont from testifying. According to Appellants, Dr. DuPont premised his opinions on the so-called "any-exposure” theory of causation. Appellants asserted that such testimony was devoid of scientific support and impermissible under Pennsylvania law, citing in support Gregg v. V-J Auto Parts, Co.,
. John DuPont is the brother of plaintiffs expert, Daniel DuPont. We will refer to John DuPont as "Prof. DuPont.”
. Cranite sheet gasket contained chrysotile asbestos. See supra.
. The trial court also declined Crane Co.’s motions for nonsuit and directed verdict, denied Crane Co.’s request for jury instruction, and declined their motions for JNOV or a new trial based on the intended use doctrine.
. In light of our disposition, the parties’ claims regarding recovery of damages are moot. We will not address them.
. Collectively, Appellants present similar arguments. Thus, we will not distinguish between the Welding Companies and Crane Co. unless warranted.
. Betz was decided during the pendency of this appeal. "[A] party whose case is pending on direct appeal is entitled to the benefit of changes in law[,] which occur[] before the judgment becomes final.” Passarello v. Grumbine,
.Appellants also cite Howard v. A.W. Chesterton Co.,
. Such opinion evidence is commonly referred to as the “any-exposure," "any-breath,” or "any-fiber" theory of legal causation. Id. at 30. As the Supreme Court appears to have settled upon the "any-exposure” terminology, we adopt it for our purposes. See id. at 52-58.
. The candor with which Nelson argues that his causation evidence does not rely on the any-exposure theory is questionable, as it is at odds with the position taken before the trial court. See, e.g., N.T., 3/9/2010 p.m., at 66 (joining in argument suggesting to the trial court that “the opinions having to do with each and every exposure have been allowed in courts far more exponentially more than the few cases ... where it's been excluded”); see also Nelson’s Answer to the Welding Companies’ Miscellaneous Motion (seeking to preclude Dr. DuPont from testifying), at 2 ("Where there is competent evidence that one or a de minimus number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff’s injury.”) (citation omitted in original).
. Notably, Dr. DuPont does not quantify the amount of asbestos found in different areas— a troubling omission in light of his reticence to testify to the impact of incremental exposure to asbestos contained in products in any but hypothetical terms. See id. at 58-62. We are not the first appellate court to voice this concern:
Simply stated, plaintiff's experts in this case, as well as in other asbestos cases, have never been able to explain the scienti-fie and logical implausibility of agreeing to the premise that a lifetime of breathing asbestos in the ambient air will not harm a person, while on the other hand arguing that every breath of asbestos from a defendant’s product, no matter how inconsequential, will.
Betz,
. Considering the impact Betz has on asbestos product liability law in Pennsylvania, and the fact that the Supreme Court delivered its holding during the pendency of this appeal, we decline to grant Appellants JNOV.
. Crane Co. asserts that Nelson failed to establish exposure with sufficient frequency, regularity and proximity. See Eckenrod,
The Welding Companies challenge Nelson’s failure to proffer expert testimony to establish exposure to respirable asbestos fibers emitted from their products. To date, the courts of this Commonwealth have not imposed a requirement to establish exposure with expert testimony. See Fisher,
The Welding Companies specifically contend Donoughe was wrongly decided and encourage this Court en banc to overrule that panel decision. We decline to do so, except to the extent it treats favorably a plaintiff’s expert causation testimony based upon the any-exposure theory. Donoughe,
. The doctrine is not without exception. See, e.g., DGS,
. In light of our disposition of the other issues presented, we decline to address Appellants' arguments directed toward counsel’s closing argument in the liability phase of the trial.
. The Welding Companies contend that counsel suggested the jury award $12 million in pain and suffering. Crane Co. submits that counsel requested at least $ 1 million for each of twelve elements of damages. Appellants further contend that the trial court’s subsequent instruction on damages provided no curative effect.
. The verdict sheet listed seven elements under the Survival Act: physical pain, mental anguish, embarrassment, humiliation, disfigurement, discomfort and inconvenience; and five under the Wrongful Death Act: loss of society, comfort, support, assistance, and companionship. See Jury Verdict Slip, 3/9/2010, at 1-2.
. Referencing the stipulated economic damages.
Dissenting Opinion
DISSENTING OPINION BY
I write principally to note my respectful dissent from the learned majority’s resolution of a dispositive question regarding the admission of expert testimony, which I fear sets a precedent that will narrow further the avenues for relief available to plaintiffs who suffered often-fatal injury from extensive exposure to asbestos. I also disagree with the majority’s holding that comments made in the closing argument of counsel for plaintiff Darlene Nelson (“Appellee”) require us to intrude upon the trial court’s discretion in denying Appellants relief.
I begin, however, by noting one point upon which I agree with the heart of the majority’s analysis but differ with its result. The majority’s discussion and analysis of the intended-user constraint on strict products liability litigation is among the finest I have seen. See Maj. Op. at 159-61. The majority relates with clarity and probity the contours of a restriction upon such claims that has bedeviled Pennsylvania courts. The majority distills from existing law an excellent account of what constitutes an intended use, and I join that analysis.
That being said, I cannot join the majority’s application of that doctrine in the instant case. The majority finds insufficient evidence from which the jury could have concluded that James Nelson’s use of Crane’s sheeting constituted an intended use or that Nelson was an intended user of that product. Furthermore, even if there was sufficient evidence to establish intended use by an intended user, the majority finds that the court’s jury charge was insufficient to put that question squarely before the jury. I do not dispute the general accuracy of the majority’s characterization of the record. And yet, for two reasons neither of these points of agreement permits me to join the majority in reversing the trial court’s ruling on this issue.
It is hornbook law that the decision of whether or not to admit evidence lies in the trial court’s discretion. The contested exclusion of evidence will not furnish grounds for relief unless the court abuses its discretion. McManamon v. Washko,
The same proposition holds for errors in jury instructions, which will provide grounds for overturning a verdict only when they are not harmless in context. Stevens v. SEPTA,
The majority’s analysis makes clear that, to find Crane strictly liable, Appellee had the burden of establishing that Nelson was an intended user and that the sheeting manufactured by Crane and used by Nelson was unsafe for want of an adequate warning. The majority’s analysis, however, compels the conclusion that Nelson was an intended user, that his interaction with the asbestos sheeting was consistent with its intended use, and that the product had no warning whatsoever. While Crane observes that the trial court prevented it from presenting evidence regarding its product’s intended use, it does not specify what evidence it had to present on that point. This is problematic insofar as Crane conceded that, in its intended use as a gasket material, the sheeting would have to be cut to fit the application precisely as Nelson attested he did to make the sheeting suit his purposes.
In order to establish prejudice arising from the evidentiary ruling and the jury charge, Crane effectively must rely on its own more narrow definition of “intended user,” which the majority correctly rejects: Fact-finding, however trivial, might be warranted if establishing that the intended end use was the governing consideration. However, the majority correctly concludes that, where steps toward the intended end use are common to different end uses, the manufacturer may still be liable. Under this rubric, Crane effectively admitted that its product was used as intended, ie., Nelson cut the sheeting to size in the same manner an intended end user would have done to facilitate the intended end use. Crane’s lack of foundation for establishing prejudice on this point is underscored by its conclusory proffer: Crane offers no comment as to how its intended evidence would have been such that a jury might have ruled otherwise than it did had it been charged with the intended use doctrine as explained by the majority.
In finding Crane liable, the jury credited Nelson’s testimony that he used Crane’s product in the way that he attested. The jury also concluded that the sheeting contained and emitted asbestos in sufficient amounts to have caused Nelson’s mesothe-lioma. Finally, the jury concluded that Crane had a duty to warn of hazards associated with its product and that Crane breached that duty. These findings, paired with Crane’s lack of a non-concluso-ry assertion or proffer to the effect that Nelson’s cutting of the product differed in any material way from another user’s performance of the same act, lead me to conclude that there was, essentially, no dispute of material fact relative to intended use for the jury to resolve. While the presence of any doubt on these points would militate in favor of a clearer jury charge on the question, and while the trial court apparently misconstrued the interplay between failure to warn liability and the intended user principle, I believe that Crane has failed to establish that the errors complained of could have changed the outcome of the jury’s determination of liability. Consequently, I dissent from the result reached by the majority, notwithstanding its excellent analysis of the applicable law.
Turning to the next issue, I respectfully dissent from the learned majority’s determination that the testimony of Daniel DuPont, D.O., was subject to exclusion as a matter of law pursuant to Frye v. United States,
The case before us, however, is distinguishable. James Nelson undisputedly was exposed regularly to numerous asbestos-containing products over many years. See Maj. Op. at 150-51. Moreover, he testified to frequent, regular, and proximal use
Notably, Dr. DuPont, while acknowledging a degree of dose-responsiveness
The majority’s reading of Betz transforms expert testimony acknowledging the essentially uncontroversial proposition that there are “no innocent fibers” of asbestos into a totem that precludes the admission of that expert’s testimony as a matter of law, no matter the quantum of case-specific evidence of the plaintiffs exposure to a given product. Maj. Op. at 154-58. That interpretation and its application to this case are problematic inasmuch as the exposure at issue in Betz, as in Gregg, was de minimis, rendering the any-exposure testimony indispensable to a finding of substantial causation. See Betz,
Substantial exposure to many products does not equate to substantial exposure to one or more of Appellants’ products. But that Dr. DuPont was unable to testify to the relative exposure to each product does not preclude submission of the case to a jury regarding the degree of exposure to Appellants’ products. No Pennsylvania court has held that product identification and the nature of a plaintiffs exposure
In Junge, this Court made the following observation:
Our case law includes no requirement that a plaintiff in an asbestos case prove through an industrial hygienist, or any other kind of opinion witness, how many asbestos fibers are contained in the dust emissions from a particular asbestos!-] containing product. Instead, in order to make out a prima facie case [sufficient to avoid summary judgment], it is well[-]established that the plaintiff must present evidence that he inhaled asbestos fibers shed by the specific manufacturer’s product. A plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use.
Id. at 1029 (emphasis in original; citation omitted). Thus, despite the presence of problematic any-exposure testimony, the Gregg Court declined to rule upon “whether, in light of [the ajppellee’s evidence concerning the frequency, regularity, and proximity of Mr. Gregg’s exposure to asbestos-containing products sold ' by Appellant, the common pleas court correctly determined that a jury issue was not present.”
In Junge, we held that the plaintiff had made out a prima facie case requiring submission to a jury based upon his own positive identification of the product in question, his own testimony that he worked in close proximity to the product on a regular basis and that his work produced dust, and the manufacturer’s acknowledgment that the product in question contained and emitted asbestos.
In contravention of this consistently-applied rule, the majority holds that “the questions an expert must answer in order to establish that [a defendant’s] products were a substantial factor in causing” the
Stripping the question to its essentials, this much is clear: In order to sustain his claim, Nelson had to adduce evidence based upon which a jury could conclude (1) that Nelson used Appellants’ products frequently, regularly, and proximally; (2) that those products released asbestos into the air; and (3) that his disease was substantially caused by asbestos. However, given the nature of multiple alleged exposures to numerous asbestos-containing products over decades, neither could his expert reasonably assert, nor could the court reasonably expect him to assert, that product A, to which Nelson frequently was exposed, caused Nelson’s mesothelioma to the exclusion of product B, to which Nelson also frequently was exposed. The inference juries long have been allowed to make, the one that animates the frequency, regularity, and proximity test, is that a manufacturer of an asbestos-releasing product to which the plaintiff was exposed to the requisite degree caused the plaintiffs meso-thelioma, notwithstanding that he also was exposed to other asbestos-containing products.
Nelson plainly satisfied each of these burdens, if not conclusively then sufficiently to warrant submission to a jury. First, he testified extensively to the frequency with which he used each of the asbestos-containing products manufactured by Appellants. He identified them affirmatively, anchored their use in certain time periods, and associated them with certain tasks that he performed. Second, evidence was adduced that these products contained asbestos at the time Nelson attested to using them. Third, Dr. DuPont testified that such asbestos, if inhaled in sufficient amounts, could cause mesothelioma.
Betz, Gregg, and other such cases are defined by the unavailability of the sort of evidence that we have in this case of frequent, regular, and proximal exposure to products that' undisputedly contained asbestos. Cf. Summers v. Certainteed Corp.,
The Gregg Court approvingly quoted the trial court’s opinion in that case to the following effect:
[T]here is no requirement that plaintiff must prove how many asbestos fibers one must inhale necessary to a determination of causation; however, evidence of exposure must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product and that his contact with same was of such nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it.
Gregg,
In my view, even a modest extension of the Betz holding beyond cases involving only de minimis exposure threatens to eclipse a considerable proportion of asbestos litigation, given the challenges confronting plaintiffs in establishing substantial ■ causation decades after the allegedly causative exposure. See Gregg,
Our legislature has had decades to impose a bright-line rule precluding all testimony that contains any reference to an any-exposure theory of causation, but it has declined to do so. Nor has our Supreme Court imposed such a bright-line rule, despite its opportunity to do so in Gregg, Betz, and other asbestos cases. Each body, in its own sphere, is more qualified than this Court to embark upon change of such sweeping consequence.
Even if I allow that this is a case closer to Betz than I believe it to be, I encounter a second problem with the majority’s ruling. It is beyond cavil that a trial court’s decisions regarding the admissibility of evidence, including expert testimony, lie in that court’s discretion. We -will overturn such decisions only when that discretion is abused. See Grady v. Frito-Lay, Inc.,
Finally, I also disagree with the majority’s determination that certain comments made by Appellee’s counsel’s during closing argument so prejudiced the jury that a new trial was required. “[I]t is well-settled that whether to declare a mistrial is [a] decision within the discretion of the trial court, whose vantage point enables it to evaluate the climate of the courtroom and the effect on the jury of closing arguments.” Clark v. Phila. Coll. of Osteopathic Med,.,
In this case, the issue is the propriety of Appellee’s counsel’s comments to the general effect that the noneconomic damages in this case should be assessed at a level greater than the $1 million award for economic damages to which the parties stipulated. It certainly is true that attorneys may not propose that a jury award an amount certain in non-economic damages. See, e.g., Joyce v. Smith,
At the sidebar prompted by Appellants’ objections, Appellee’s counsel admitted that he was precluded from proposing a specific award of damages as to any category of non-economic damages. See N.T., 3/8/2010, at 84-87 (Appellee’s counsel: “The law provides that I am not allowed to suggest a monetary amount.”). Moreover, counsel for Crane acknowledged that Ap-pellee’s counsel “absolutely” could “say to [the jury that] you can start at a million dollars[, the stipulated economic damages,] and this other stuff is even more valuable than that.” Id. at 86 (emphasis added). As well, counsel for Appellee made quite clear to the jury that calculating a just award of non-economic damages was the jury’s task and no one else’s. See id. at 78 (“It’s up to you folks. Use your common sense. You have a sense of what these things are worth.... I’m not permitted by law to give you a number. I can’t tell you a damage award, that I would be happy with and say I think that’s great, I think that’s fair.... It’s up to you folks to do that.”).
The majority conflates counsel’s references to the stipulated economic damages with the complained-of comments:
Effectively, counsel (1) identified twelve individual elements of non-economic damages; (2) suggested to the jury that it consider a different award for each element but then add the individualamounts onto a single line; and (3) in rather express language, suggested that the jury award Nelson at least. $1M for each.
Maj. Op. at 168. However, counsel’s comments read in context do not so enjoin the jury, and certainly not “in rather express language.” It is at least equally reasonable to understand counsel’s comments as conforming to the rule as interpreted in Clark. Counsel’s complained-of argument culminated in his suggestion to the jury that it “start at $1 million, and I believe that each of those elements of damages starting at physical pain are worth infinitely more than that $1 million figure. Now you add a million plus whatever other numbers you assign for these.” Maj. Mem. at 35 (quoting N.T., 3/8/2010, at 80-81). It is not at all clear that counsel directed the jury to start at $1 million as to each of twelve factors; it is at least equally reasonable to interpret the last sentence as counsel returning to that $1 million figure one last time to remind the jury that it had no discretion to assess fewer than $1 million in stipulated economic damages, and encourage them to award “whatever other numbers you assign” for the twelve categories of non-economic damages.- See N.T., 3/8/2010, at 80 (“I need somebody to remember you must start at $1 million.”).
In urging noneconomic damages in excess of the economic damages, counsel did nothing more objectionable than what counsel did in Clark, albeit in words rather than a pictorial representation. In Clark, we held that the trial court did not abuse its discretion in declining to award a mistrial. Here, as in Clark, we are bound to defer to the trial court’s assessment— based upon the context of a live and dynamic courtroom rather than our distanced review of a cold record — that this at-most implied attempt to urge the jury to award a specific value for non-economic damages did not fall afoul of the Joyce rule. The majority acknowledges that “it discern[s] no error in the[ ] substance” of the trial court’s “instructions on damages.” Maj. Op. at 163. Moreover, “[i]t is well-established that juries are presumed to follow the trial court’s instructions.” Commonwealth v. Jones,
After a professional career that involved pervasive and persistent exposure to res-pirable asbestos from a wide variety of products, Nelson began to suffer from diminished lung function at the age of fifty-three.
Our law speaks clearly of the considerable deference we must afford to trial courts in their evidentiary decisions and their decisions regarding whether and when to grant a mistrial or JNOV. Our law also reflects our faith that a jury, properly charged, can reconcile and measure complex factual circumstances against the applicable law governing causation and damages. Given our absence from the courtroom, where much information that cannot be recorded by a reporter is available to the judge, I believe that it is error to reverse the trial court’s exercises of discretion in connection with Dr. DuPont’s testimony and Appellee’s closing argument. It is precisely to acknowledge close cases that our standard of review calls for deference.
President Judge EMERITUS FORD ELLIOTT joins the dissenting opinion.
Judge OTT concurs in the result.
.Our Supreme Court recently granted allowance of appeal in yet another related case. See Rost v. Ford Motor Co., — Pa. -,
. The well-established frequency, regularity, and proximity test governs the sufficiency of proof to establish sufficient exposure to a given product to establish substantial causation. See Weible v. Allied Signal, Inc.,
. Nelson’s deposition spanned several days, but is paginated continuously across the transcripts.
. "With dose-responsive ailments, generally, exposure to higher levels carries with it a higher risk, and exposure to lower levels is accompanied by a reduced risk.” Betz,
. The majority stops once it determines that the trial court erred in admitting Dr. DuPont's testimony. Because I disagree with that ruling, I also would take up Appellants’ related challenge to the sufficiency of Dr. DuPont's testimony to establish substantial causation. Nelson's testimony standing alone established a basis upon which a jury, crediting Nelson's testimony, could conclude that he was frequently, regularly, and proximately exposed to asbestos released from products manufactured by one or more of the Appellants during many years of Nelson’s employment. Pennsylvania case law establishes that questions of proximate causation should be submitted to a jury. Summers,
. In a non-trivial mischaracterization, the majority treats infinity as though it were a number, both implicitly — in its reliance on Joyce and similar cases — as well as explicitly. See Maj. Op. at 163 C‘[C]ounsel for Nelson provided the jury with a formula to calculate damages and an amount to plug into that formula. Here, counsel’s express reference to the stipulated economic damages was not evocative, but declarative and algebraic."). However, an injunction to assess damages by "infinity's" measure is no more numerical or "formulaic” than the suggestive use of geometry at issue in Clark; infinity is no more a number than a triangle is. Cf. David Foster Wallace, Everything and More: A Compact History of Infinity § 1 (Atlas Books Reissue ed. 2010) ("Beware of thinking that °° is just an incredibly, unbelievably enormous number. ... Take some ... transcomputational numberf, i.e., 10x], imagine it's a grain of sand, conceive of a whole beach, or desert, or planet, or even galaxy filled with such sand, and not only will the corresponding 10 x number be < oo, but its square will be < co, ... and so on; and actually it's not even right to compare 10x and °° arithmetically in this way because they're not even in the same mathematical area code — even, as it were, the same dimension.”); id. (quoting Galileo, specific source omitted) ("The fundamental flaw of all so-called proofs of the impossibility of infinite numbers is that they attribute to these numbers all of the properties of finite numbers, whereas the infinite numbers ... constitute an entirely new type of number....”).
. The majority observes that the trial court issued no curative instruction. Naturally, my analysis would not require such an instruction. However, the majority concedes that the trial court’s instructions on damages betray “no error in their substance," Maj. Op. at 163, and provides no analysis as to why the failure to issue a curative instruction furnishes a separate basis for relief under the circumstances of this case.
. This, discussion of Nelson’s clinical history is derived from the trial court’s opinion. Trial Court Opinion, 6/13/2011, at 8-11.
. The majority also acknowledges “Appellants’ other complaints regarding counsel's closing arguments in the damages phase,” including oblique references to settlement discussions and suggestions of punitive considerations in the assessment of damages. Maj. Op. at 163. While I agree with the majority that such language may be "inflammatory, particularly to the extent that it attributes improper motives to Appellants,” id., these brief comments, which only indirectly touched upon problematic matters, would not sway my analysis.