*1 151A.3d 1032 ROST, Richard M. Executor of Estate Richard Sipley, J. Rost & Erin Executrix of the Estate Rost, Joyce Appellees
v. COMPANY, Appellant FORD MOTOR No. 56 EAP 2014 Supreme Pennsylvania. Court of 6, 2015 May
ARGUED: April REARGUED: 22, 2016 DECIDED: November *5 630 LLP, Duane Morris 30 Byer, Caffrey, L. Sharon L.
Robert 19103-4196, Street, PA for Ford Motor Philadelphia, S. 17th Company, Appellant. LLP, Beck, Bird, Michael Reed Smith
David James James 1200, Pittsburgh, PA LLP, 225 5th Ave. Ste Reed Smith Inc., 15222-2716, Council, Liability Advisory for Product 510, Drive, Park Amicus Curiae. Appellant Centennial Suite Hare, Marshall, Warner, Dennehey, Coleman & John Jacob 2300, PA P.C., Street, Philadelphia, 2000 Market Goggin, Suite Industry, Pennsylvania for Chamber Business and Institute, Amicus Curiae. Pennsylvania Appellant Defense Evans, Johnston, Har- Alice Sacks James Michael Schnader LLP, 2700, Pittsburgh, 120 Fifth Segal rison & Lewis Ave Ste America, Inc., Appellant 15222, Volkswagen Group PA Amicus Curiae. Foundation, Palmer Kaufman, Legal Atlantic
Martin S. Avenue, 104, Larchmont, Joseph NY Patrick Suite Floor, LLP, Street, 12th Foley, Market Hughes, Connell Tower, Legal PA for Atlantic Foun- Philadelphia, East dation, Amicus Curiae. Appellant Neeson, III, Peter J. Carl D. Buchholz Rawle & Henderson LLP, The Building, Widener S Penn Sq., Philadelphia, PA Heim, Angela Marie Rawle & LLP, Henderson One *6 Square, South Penn The Widener Building, Floor, 16th Phila- delphia, 19104, PA for Honeywell International, Inc., Appel- lant Amicus Curiae. Wajert, Shook, Peter Hardy Bacon,
Sean L.L.P., & Two Street, Commerce 2001 Square, 3000, Market Suite Philadel- phia, 19103, PA for American (The), Insurance Association American Tort Reform Association, Coalition for Litigation Justice, Inc., Association Manufacturers, National Appellant Amicus Curiae.
Clayton Layne Thompson, Maune Raichle Hartley French Mudd, LLC, & 211 Broadway, 2940, Louis, N. Suite St. MO 63102, Cooperstein, Brookman, Steven J. Rosenberg, Brown & Sandler, FI, 30 15th Philadelphia, 19102, S St 17th PA for Erin Sipley, Executrix of of Joyce Rost, the Estate Appellee and Rost, Richard Rost, M. Executor the Estate of Richard J. Appellee. Leh, Firm,
Michael B. Locks Law St Walnut Ste Roux, East PA for Philadelphia, M.D., PhD., M.P.H., Diez, Ana Appellee Amicus Curiae.. Mattock, Goldberg, White,
Bruce E. Persky P.C., & FI, Fifth Pittsburgh, Baur, Ave 3rd PA Prof. Dr. Xaver, Bedrossian, MD, (Hon), FIAC, Carlos, Med. PhD PhD, Eula, Bingham, MD, MSc, MM, Bonnier-Viger, CMSQ, FRCPC, Yv, PhD, James, Massimiliano, Bugiani, MD, Brophy, Cattleman, ScD, DSe, MPH, Richard, Consonni, Barry, Clapp, Counil, PhD, Dario, Emilie, Dalvie, MSc, PhD, MD BSc, Hons, Dement, Ph.D., CIH, M., Fletcher, Mohamed Aqiel, John PhD, Fubini, Gassert, Tony, Bice, MD, MSc, Professor Thom- H., Gochfeld, MD, PhD, Michael, MSPH, PhD, Goldsmith, F., Hadell, PhD, Lennart, MD, Huff, PhD, James, David Infante, DDS, DrPH, F., MBChB, Jeebhay Peter MPH OeeMed), PhD, F., Joshi, FFOM, FRCS, T.K., Mohamed Keith, PhD, Margaret, Keyserlingk, MD, MSC, FRCS(C), FACS, R., Khatter, MD, Kramer, CCFP, MES, John Kapil, J., MSc, FAAP, Philip MD,
MHS, PhD, Shira, Landrigan, MSPH, A., Lemen, PhD., Richard MD, MPH, Bruce, Lanpher, Charles, PhD, Abby, Mar- Levenstein, PhD., MS, Lippman, Mikkelson, DrMedSci, Mir- Gerald, MD, Sigurd, kowitz, PhD, DrPH, MPH, Celeste, Dario, Monforton, Muge abelli, MD, Baur, al., MPH; Xavier et M.D., Prof. Dr. Med. Akpinar-Elci, FACE, Oliver, MD, PhD, C., Rama Nair, BSc, MStat, MSc, Paek, MPH, Christine, Ozonoff, MD, David, MPH, MS, L. FRCPC, MD, (Epi- MD, MSc, ScD, Pakhale, MSc Domyung, Petersen, Rolf, Smita, PhD, Rosen- Biostatistics), & demiology FACPM, Beth, Rosenman, MD, FACE, ScD, MPH, berg, Wise, H., Ami- Rosner, PhD, David, Appellee Kenneth, Ethel cus Curiae. McClain, Kazan, Satterley Green- Satterley, D.
Joseph & Street, Market, Suite wood, Jack London Harrison Oakland, Disease Awareness CA for The Asbestos *7 Organization, Appellee Amicus Curiae. P.C., White, Goldberg, Persky Timothy Shipp,
Jason & Baur, FI, 15219, for Prof. Dr. Pittsburgh, Fifth Ave 3rd PA (Hon), FIAC, Carlos, MD, Xaver, Bedrossian, PhD Med. MD, MSc, MM, CMSQ, PhD, Eula, Bingham, Bonnier-Viger, James, Massimiliano, FRCPC, Yv, PhD, MD, Bugiani, Brophy, Consonni, DSc, MPH, Cattleman, ScD, Richard, Barry, Clapp, MSc, PhD, Emilie, Dalvie, BSc, Hons, PhD, Counil, Dario, MD Fletcher, Ph.D., CIH, M., Dement, John Aqiel, Mohamed Bice, Gassert, MD, MSc, Thom- Fubini, PhD, Tony, Professor PhD, Goldsmith, MSPH, H., Gochfeld, MD, PhD, Michael, PhD, Huff, James, Hadell, MD, PhD, Lennart, F., David F„ MBChB, DrPH, Jeebhay MPH Infante, DDS, Peter T.K., Joshi, FFOM, OeeMed), PhD, F., FRCS, Mohamed FRCS(C), MD, MSC, Keith, PhD, Keyserlingk, Margaret, Kramer, Khatter, CCFP, MES, R., MD, Kapil, FACS, John J., MD, MSc, FAAP, MHS, Shira, Landrigan, Philip PhD, PhD., MSPH, A., MD, MPH, Bruce, Lemen, Richard Lanpher, PhD, MS, Charles, Abby, Levenstein, PhD., Lippman, Mar- MD, DrMedSci, Mikkelson, Mir- kowitz, PhD, Gerald, Sigurd, Monforton, MPH, Celeste, DrPH, Muge abelli, MD, Dario, al., MPH; Baur, Xavier et M.D., Prof. Dr. Med. Akpinar-Elci, Nair, BSc, MStat, MSc, PhD, FACE, C., Oliver, Rama MD, MPH, MS, L. Christine, Ozonoff, MD, MPH, David, Paek, MD, MSc, ScD, MD, Domyung, Pakhale, FRCPC, MSc (Epi- demiology Biostatistics), Smita, Petersen, PhD, Rolf, Rosen- & ScD, MPH, berg, Beth, Rosenman, MD, FACE, FACPM, Kenneth, Rosner, PhD, David, Silverstein, MD, MPH, Mi- chael, Sc.D., Slatin, MPH, Soskolne, Craig, PhD, L., Colin Stayner, PhD, Thomas, Leslie Takhashi, MD, PhD, MPH, Ken, Teitelbaum, MD, Thau, Terracini, Daniel Benedetto, Thebaud-Mony, Annie, Turcotte, MD, MPH, FRCPC, Fer- nand, Watterson, PhD, CFIOSH, Andrew, Wegman, MD, MSc, H., Welch, MD, Wise, David S., Laura H., Ethel Woitow- itz, Pro. Em. Hans-Joaehim, Dr. Med. Appellee Amicus Curi- ae.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
OPINION JUSTICE DONOHUE again
We address
the proper application of the “frequency,
regularity, and proximity” criteria in
product
liability
litigation, seeking
provide
further illumination
princi-
on the
ples
Gregg
set forth in our decisions in
area,
v.
Auto
V-J
Parts, Co.,
(2007),
Pa.
Betz
v.
Abex, LLC,
(2012).
Pneumo
615 Pa.
In 2009, October Appellees Joyce Richard and Rost1 suit against filed multiple asbestos, averring manufacturers that to the defendants’ asbestos-containing products (“Rost”) caused Richard Rost to contract Be mesothelioma. trial, fore the Rosts against settled their claims all defendants Joyce passed away during pendency 1. Richard and Rost both of this action, and his and her been executor have substituted as executrix identification, parties. For ease of Appellees herein will referred to as be "Rosts.” (“Ford”). Over Company Motor for Ford except Appellant for trial the case trial court consolidated objections, the Ford’s Sep- Trial commenced cases. two other mesothelioma with court reminded the the trial 2011, at which time tember Gregg, pre- with ruling, accordance pre-trial of a parties testimony that “each and offering from any expert cluding evidentiary basis may constitute of asbestos every breath” was a product that the defendant’s jury to find (AM), at of mesothelioma.2 cause substantial 9/12/2011 37. from high trial, upon graduation testified
At Rost in Washington, Motors 1950, job took a at Smith school in he months, working full time to four Jersey, for three New Saturday. N.T., day half a through Friday and Monday a full 101, Motors was (AM), at 114. While Smith 9/14/2011 ninety eighty-five it garage, approximately serviced service stipulated at 151. parties vehicles. Id. The percent Ford 1950, until used vehicles, from 1945 Ford year all model clutches, that Ford’s brakes brakes and asbestos asbestos by chrysotile asbestos forty sixty percent clutches were job as 5. Rost described his Rost Exhibit weight. Stipulation, tasks involved maintenance “gofer,” a which basic being at 103. It was oil, lubrication, undercoating). Id. (changing Approximately area clean. Id. job keep garage also his week, when mechanics removed per to five times three job, pop Rost had performing brake shoes before brake it Id. away. throw lining from each shoe and off the asbestos shoe, so this on each brake linings There were two 103-05. with eight linings connection necessitated he remove lining each released as job. Id. Asbestos dust was each brake action, plain- Pennsylvania requires products liability law that a In defective, product was and that prove elements: “that the tiff two Spino injury.” John causing v. factor defect was the substantial Tilley Co., (1997). apre- Pa. S. Ladder required were not ruling, that the Rosts the trial court concluded trial manufactured Ford were defective prove that brakes 12/28/2011, Superior The Court product. Opinion, at 6-7. Trial Court Company, WL at *11-12 Rost v. Ford Motor affirmed. (Pa. 2014). request, declined May Despite this Court Super. Ford's grant allocatur on issue. *9 off, popped and Rost testified that he would breathe this in on every dust occasion. Id. at 105. Once a day, the mechan- ics would use air to compressor out blow the dirt and debris drums, inside the brake and this in would result significant amount of dust circulating asbestos throughout garage. Id. at 106. typically Rost was thirty forty within feet these blowouts. Id. at 149-50.
Rost was also exposed asbestos upon proximity based his to mechanics sanding brakes, clutches, replacing perform- and (head ing engine asbestos). gaskets work containing at Id. 129-31. At the day, end each Rost that he testified cleaned up all of the asbestos dust and generated debris from the jobs, outs, brake engine blow and clutch and at work. Id. 113— 14. He push used a gather broom to from waste areas, mechanics’ work typically deposited three coal shovelfuls waste into the garbage at the of each day. end Id. at 114. Smith Motors did not have an system, exhaust with only single ventilation, fan in the window Rost testified that in “there was smell from garage the dust the air the whole time we were 111. working there.” Id. at Smith Motors also no facilities, had shower and so Rost wore his dirty dust-covered home at day clothes the end each job. Id. 131.
Rost also regarding subsequent testified his occupational history asbestos connection therewith. Motors, After Smith he for Washington worked Woodcraft and (a Griffith <&Williams construction company), but was not exposed jobs. those 159-61. Id. at He then went for Tung-Sol, work a manufacturer of television vacuum tubes, and, from 1952-53 after a term in Army, from 1955- 115,166. 60. Id. Rost exposed did not believe that he was Tung-Sol, asbestos at although perform he did maintenance work on the boiler once a week and worked on the turbines year “twice a for a couple during hours” seasonal annual 115-16, maintenance. Id. at 165-67. he went to work for Metropolitan power plant Portland, Edison at its near Pennsylvania, where he until his remained retirement 1994. 116. began janitor handler, Id. at He as a and served as a coal operator, instrument attendant, pump operator, boiler and controls. Id. of instrumentation finally as the chief *10 Edison, exposed he was Metropolitan During his time with at boilers, Id. 131. generators. in its turbines asbestos and in connec- especially exposure, that his asbestos agreed Rost turbines, “pretty high was at his proximity tion with testified, however, (PM), at 62. He also N.T., levels.” 9/14/2011 of dangers of the aware Metropolitan Edison became he wore a in or around and asbestos areas. high his mouth mask over nose and asbestos face (PM), 122-23; at (AM), N.T., 62. N.T., at 9/14/2011 9/14/2011 incrementally also re- company the ten-year period, Over a equipment. Id. asbestos-containing its placed on and causation expert Rosts called witnesses medical The Ph.D., Dr. Arthur issues, including Brody, Dr. Arnold and a Frank, Brody experimental pathologist M.D. Dr. is an N.T., University. at North Carolina State professor 9/20/2011 professor physician Dr. Frank is a (AM), at 7-8. the of Health Drexel University School Public Drexel (AM), N.T., at 8. University College Medicine. 9/19/2011 eause of regarding specific the Brody testify Dr. did not more condition, general offered and instead Rost’s medical He ex- how causes mesothelioma. testimony about asbestos types two or “families” asbestos there are plained (AM), at 82. fibers, chrysotile. amphibole and 9/20/2016 asbestos-containing products ninety-five percent the About fibers, chrysotile including in the United States contained used Dr. case. Id. at 86. products of the Ford at issue all basis, amphibole fiber-per-fiber that on a Brody testified fibers, that both potent chrysotile more than but are fibers their smaller 83-119. Given Id. at types cause mesothelioma. size, likely get lymphatic into chrysotile are more fibers (the lining on the outside pleura reach the membrane flow target site examine lungs), investigators and when predomi- they typically find lung, mesothelioma chrysotile Id. nance fibers. jury precisely how Brody described for the
Dr. cancer the me- is a Mesothelioma causes mesothelioma. sothelial cells of the pleura. Id. at 52. When asbestos fibers reach the mesothelial cells of the pleura, through either blood stream or lymphatic system, they act a “complete as carcinogen,” they can lead to cancer without any other contributing agent. Id. at 56. Asbestos damage fibers DNA in the mesothelial cells that control reproduction. cell Id. Some damaged cells and tumor genes die suppressor stop others from reproducing. Id. 64-65. suppressor Where genes do not stop reproduction however, process, damaged divide, cells replicating damage in the sister cells. Id. at 68. As the division decades, continues over a tumor is formed. Id. This explains why has mesothelioma an ex- tremely long latency period,3 as cells mesothelial have a very growth slow rate. Id. at 55.
The Rosts Dr. called Frank as an “asbestos- *11 related causes, diseases and their ability asbestos, of including chrysotile asbestos, to cause mesothelioma hu- mans, the risk imposed from inhalation chrysotile of asbestos brakes, from the epidemiology disease, of asbestos asbestos industrial hygiene, asbestos toxicology public and health.” N.T., (AM), at testimony, 40. his Dr. Frank 9/19/2011 referenced epidemiological studies, studies, animal and case reports, and that indicated he performed epidemi- had himself ological, animal, cell organ and on culture studies individu- asbestos; exposed als to he also a participated study development of mechanics, asbestos-related disease brake published many and has peer articles and book reviewed chapters on asbestos-related 15-40. He disease. Id. at stated practice that his studies, and research he has seen “hun- dreds, if not thousands” of to people exposed asbestos. Id. at 25.
Dr. Frank that testified is a dose-response mesothelioma disease, by increases, which “as the dose of likelihood developing disease carry increases”: “small amounts small risks; larger larger amounts cause risks.” Id. at 82-83. Ac- mesothelioma, average 3. Dr. Frank latency period testified that the exposure N.T., diagnosis, from to approximately thirty-five years. is (AM),at 85-87. 9/19/2011 identify to scientifically possible Frank, it is not to Dr. cording patient’s that caused a exposures particular exposure is agent “the series mesothelioma, instead the causative contribute exposures All asbestos Id. exposures.” asbestos, the cumulative dose dose of cumulative that Frank testified Accordingly, Dr. causes mesothelioma. should all be that can be documented “[a]ll his contributory developing disease.”4 [Rost’s] considered scientifically possible quantify how It is also at 122. Id. id. process, to initiate the disease required is much asbestos a Id. plays also role. susceptibility individual varying work, in (“Asbestos who people will cause disease at 72 (PM), work.”); N.T., at 13 see also who people don’t 9/19/2011 [disease].”). (“It develop all They don’t creates risk.... exposure precise Frank Moreover, Dr. testified while cannot for the contraction mesothelioma be levels threshold differ- require diseases asbestos-related quantified, different asbestosis, the non-cancer- Contraction exposure levels. ent tissue, amount” of lung requires “significant scarring ous appear. the condition will exposure asbestos before contrast, Mesothelioma, in (AM), significant at 83. 9/19/2011 case Dr. Frank testified both exposure. far less requires reflect that there is evidence and animal studies reports contract mesothelioma after may and humans animals both (“very Id. at 84-85 low day single asbestos. mesothelioma”). Even the disease produce will still levels single that a month more, there evidence contracting risk of meso- double individual’s may *12 case, exposed Rost was asbestos thelioma. Id. this months, high in potentially for more than three Motors Smith upon by a mineralo- daily on a basis. Based studies amounts an air a mechanic used testified that when gist, Dr. Frank testifying opinion, as follows: Brody with this 4. Dr. concurred say, just pick one and exposures. You can’t out is the series of [I]t just It’s of errors.” You can’t do that. caused this set "This exposures that are possible. is that all So answer development of the history have contributed to the of that individual cp rliQppi (AM), 9/20/2011 compressor blow out inside of a drum, brake resulting dust contained approximately seventeen fibers chrysotile per asbestos cubic air, centimeter of that if even (he Rost was as far sixty away as feet testified typically was n within thirty forty feet), the dust the air would have been at elevated levels. Id at 100. Dr. Frank also found it signifi- cant that Rost wore his dust-covered clothes home each day work, after it brought home, asbestos fibers into the which extended his exposure beyond well the three months he worked at Smith Motors. Id. at 118-19.
In response hypothetical to a question that detailed Rost’s exposure to asbestos Motors, while at Smith Dr. Frank testi- fied that it opinion, was his within a degree reasonable certainty, medical that Rost’s products Ford was a “significant contributing cause to developing mesothelioma.” Id. at then 111-17. He offered the following testimony: Now,
Q. Frank, Dr. you I’ve asked to assume that these
exposures 1950 for the three months approximately Now, were at the dealership. were—now, Ford if those you case, know in this that there are other exposures after correct? Yes,
A. sir. Now, Q. if only exposures Mr. Rost were those had would those have enough any been alone without
of the ones he had for you later say significant contributing factor to his mesothelioma? A. Yes.
[*] n [*] Q. Now, Okay. we do know that in this case that there are
other exposures. Given the fact that there were case, Doctor, other asbestos exposures is there any way you say early 1950s didn’t contribute ones afterwards did? scientifically A. There’s no plausible way They to do that. all contributed, his early exposures exposures. and his later *13 mind that Now, Doctor, your any is there Q. doubt Mr. from contributed chrysotile asbestos brakes Rost’s mesothelioma?
* * * No A. None whatsoever. doubt. exposures his any your mind that Is there doubt
Q. his to mesothelioma? contributed insulation A. No doubt whatsoever. to asbestos
Q. exposures experienced all the he Are his of mesothelio- that can be demonstrated causes ma? all that can documented should be
A. All be the disease. contributing developing as his considered Frank, just mind, any your Dr. Q. Is there doubt working -with those those brakes around brakes caused his 1950 at the Ford could meso- dealership have thelioma?
* * [*] I be only exposure, A. If would that would have been his his that that disease. sitting saying here was the cause all contributo- he had other it exposures, Given that ry.
Id. 120-23. case-in-chief, for a the Rosts their Ford moved When rested nonsuit, contending “each and that Dr. Frank had offered every opinion testimony prohibited breath” evidence Gregg. N.T., substantial causation this Court in 9/26/2011 so (AM), at Frank done Concluding 98-99. Dr. had to send that the Rosts had sufficient presented evidence jury, trial the motion. the case court denied Id. evidence, the Rosts jury At the close awarded 99. Rost). $150,000 Joyce to Rost $994,800 ($844,800 10/7/2011, jury products found that the The also at 8-11. at Metro- equipment companies asbestos-containing three with (General Electric, Ingersoll-Rand, West- politan Edison also causes Rost’s mesothelioma. inghouse) were substantial it into four by dividing molded the verdict The court Id. trial
CD equal parts, entering judgment against thus Ford in the $248,700, amount Id. at post-trial filed motions for Ford *14 judgment notwithstanding trial, verdict new and/or arguing, alia, (1) inter that the trial court had erred in failing to rule that alleged Dr. Frank’s every and “each breath” testimony legally was insufficient to establish substantial cau- (2) law, sation as a matter of failing grant and Ford’s motion in opposition to consolidation of its case with two other mesothelioma By 28, cases. 2011, order dated December trial court post-trial denied Ford’s motions and judg- entered ment favor the Rosts.
Ford raised same two on these issues appeal Superior Court. an unpublished decision, memorandum the court issue, affirmed. On the first Court Superior concluded that Brody Drs. and Frank “provided detailed testimony about the nature of causes, mesothelioma its up by published backed subject. research Their testimony internally consis- tent by the admission of experts, Ford’s supported by own at least 50 asbestos scientists around the world.” Rost v. Ford Company, (Pa. Motor 2014 WL *10 Super. May 19, 2014) memorandum). (unpublished Superior The Court further that “while it ‘every indicated is true that the exposure’ theory not, by itself, does meet the standard for substantial causation sense, in a legal this record is more than sufficient to establish general its scientific legitimacy.” respect Id. With consolida- tion, Superior Court noted that this Court had previously Philadelphia instructed the courts of pleas common to imple- procedural ment measures handle volume of mesothelio- v, Pittsburgh Corning Corp. Bradley, ma litigation, 499 Pa. (1982), such, that, as it did have any authority address procedural issues this instance Rost, claim of “absent a violation of rights.” constitutional WL at *12. granted
This Court petition Ford’s allowance of appeal following issues, consider two stated Ford: Howard, Betz, Gregg—a 1. Whether—contrary to plain- tiff in an asbestos action may satisfy the burden establishing substantial-factor causation by expert’s an concedes is that the theory exposure”
“cumulative name[?] a different theory by simply “any exposure” man- Court of Common Pleas’ Philadelphia 2. Whether consolidating unrelated datory practice prejudice severe suffer cases—even where the defendants Pennsylvania Rules consistent with the as a result—is Process; whether consolidation Procedure and Due Civil Court Superior and whether proper; in this case was case-consolida- to review a trial court’s authority has the in asbestos cases[?] tion decisions 11/6/2014, 1. Order, Allocatur issue, presents two to the first Ford respect With that this argument, For its first Ford contends arguments. rule in mesothelioma bright line Court has established *15 may namely, expert that a causation liability cases: products causation, rely theory on the not, on substantial opining when of substantially to is causative asbestos every exposure that that Dr. Frank’s argues Ford Ford’s Brief 17. the disease. that including all exposures, cumulative testimony5 regarding to his disease and to of Rost’s asbestos contributed develop ... causative ... would be “any exposure that 82-83, (AM), disease,” of Mr. Rost’s ment 9/19/2011 if he did not 120, every testimony even was “each and breath” or “substantial” before precise place use those words word According 5. to Reply Brief at the word “causative.” Ford’s shows surrounding Dr. Frank’s statements Ford, the context jury every that convey to that his intention was of meso- cause Rost’s exposure to asbestos was substantial at 6. thelioma. Id requires law conversely, Pennsylvania that argue,
The Rosts liability action products in a mesothelioma plaintiff that a was fre- his or her asbestos demonstrate that a causation and that quent, proximate regular, motions, argued trial court erred in post-trial Ford that the In its every testimony, breath” permitting Brody offer “each and Dr. (i.e., Brody competency grounds Dr. is a cell although it did so on doctor). Motions, 10/17/2011, biologist Post-trial not medical ¶¶ appeal. on this issue 78-79. Ford has not raised
643 rely cannot merely proposition every is a substantial cause of the disease. Rosts’ Brief at 26-27. The Rosts posit Dr. Frank testified in accordance with these principles. Rosts, basic According Ford simply confusing, or intentionally conflating, the basic scienti- fic axiom that “every exposure impermis- contributes” into the sible “every exposure is a substantial cause.” Id.
Ford asks this Court to judgment enter notwith standing or, the verdict its favor alternatively, grant it new trial. We will reverse a trial court’s grant denial of a request judgment notwithstanding only the verdict when we find an abuse discretion or an error of law. Reott v. Asia Trend, Inc., 228, 1088, (2012); 618 Pa. 55 A.3d Dooner v. DiDonato, 209, (2009). 601 Pa. 1187, 971 A.2d An award judgment notwithstanding only if, verdict is appropriate reading the record in light most appellees favorable winners, the verdict affording them the benefit all inferences, reasonable we would conclude that there is insuffi Pennsylvania competent cient evidence to sustain the verdict. Dep’t Co., 236, Gen. Servs. v. U.S. Mineral Products 587 Pa. (2006). 898 A.2d appellate reject The court must all Fitzpatrick evidence which does not support the verdict. v. Natter, (2008). 599 Pa. Regarding Ford’s contention that from prejudice resulting Dr. “any exposure” Frank’s testimony trial, entitles it a new our standard of review is one of of discretion. Bruckshaw v. abuse Hosp. City Philadelphia, Frankford 619 Pa. *16 Borah,
102, (2012); 106 Harman v. 562 Pa.
1122 (2000). Gregg begin
We
with a review of our
decisions
and Betz.
Gregg,
the estate
John Gregg,
(“Gregg”),
Jr.
a mesothe-
victim,
lioma
to
sought
against
recover
a manufacturer and a
supplier
products, contending
brake
that Gregg had install-
Gregg,
ed and
linings during
removed brake
his lifetime.
943
court,
A.2d at 219. The trial
on
relying
Superior
Court’s
Corp.,
decision in
Eckenrod v.
544
Pa.Super.
GAF
375
(1988),
granted summary judgment, concluding
the record most supported Gregg’s use of asbestos-contain-
or
occasions.
three
two
by the defendants
ing products sold
successfully
to the
(“Whether
get
could
plaintiff
Id. at
a
by showing
judgment
motion for summary
a
jury
defeat
of the use
frequency
upon
depends
evidence
circumstantial
plaintiffs employment
regularity
product
of the
and the
reversed,
thereto”).
Superior Court
A
panel
proximity
a
could
apply
plaintiff
that Eckenrod did
when
holding
to a defendant’s
concerning exposure
testimony
offer direct
Gregg,
This Court “frequency, of the Eckenrod application in its court erred summary judg- on motions for test regularity, proximity” at 221. In so we doing, cases. Id. ment in mesothelioma in this and similar facing plaintiffs “the difficulties recognized harm on suffered they unquestionably have settings, where and must having long latency period account a disease Pennsylvania law prevailing under causation prove specific Nevertheless, we Id. at may which be insurmountable.” the indul- did not warrant these concluded difficulties asbestos, every exposure “in a fiction that each and gence exposures, impli- in relation other minimal no matter how concerning causation a fact substantial-factor cates issue such, As we held at 226-27. case.” Id. every ‘direct evidence’ does “not suffice generalized opinion exposure” that an “every in a where jury question case to create a is de minimis....” at 226. Id. product defendant’s determi- Instead, to make reasoned trial courts permit as to whether the summary judgment stage nation permit jury proffered has sufficient evidence plaintiff causal connection “necessary inference a sufficient make the injury,” the asserted id. product and between the defendant’s proximity” “frequency, regularity, we adopted Court the United States test, applied refined Tragarz Corp., v. Keene Circuit for the Seventh Appeals 1992): (7th F.2d Cir. Tragarz rigid not establish a that these criteria do explains necessary support with absolute threshold standard Rather, an evaluative they applied are to liability. be *17 fashion as aid in distinguishing cases which the can plaintiff adduce evidence that there is a sufficiently significant likelihood that the product defendant’s caused his harm, from those in which such likelihood is on absent account of only exposure casual or minimal to the defen- Tragarz dant’s product. Further, suggests that applica- tion of the test should be the facts tailored and circum- case, that, stances such its example, application should become critical” plaintiff “somewhat less where the puts forth specific exposure to a evidence defendant’s Tragarz, product. Similarly, regu- under frequency larity prongs become less “somewhat cumbersome” cases involving diseases that plaintiffs competent medical evidence develop only indicates can minor after asbestos fibers.
Gregg,
Tragarz,
421)
exclude “each
every
expert
testimony
under
breath”
States,
Frye
from
principles derived
v. United
6. Ford also relies
this Court's decision
v.
Ches-
Howard A.W.
Co.,
(2013).
not,
terton
621 Pa.
In offering
testimony,
Dr. Frank never indi-
cated that a
single exposure
a substantial cause of Rost’s
*19
Dr.
explained
mesothelioma.
Frank
to
jury,
detail,
the
some
response
the
relationship
about
dose
between
to
exposure
of
possibility
asbestos and the
contracting mesothelioma. Id. at
(“As
asbestos,
82
the
of
increases,
amount
as the dose
increases.”).
developing
likelihood of
Brody
disease
Dr.
opinion. N.T.,
(AM),
offered the same
In an
71.
9/20/2011
brief, fifty-eight physicians
amicus
and scientists describe the
notion that
exposure
fundamental
each
to asbestos contributes
to the total
person’s
dose and increases the
of
probability
or
developing mesothelioma
other cancers as an “irrefutable
scientific fact.” Amicus Brief
Fifty-Eight Physicians/Scien-
at 2. According
physicians
scientists,
tists
to these
cumula-
exposure
“merely
tive
is
extension of
concept
an
the ancient
dose-response, which
maxim in
is
“oldest
the field.” Id. at
Goldstein,
(citing
12
Bernard D.
Toxic
Torts: The Devil is
Dose, 16(2)
(2008)).
Pol’y.
time,
J.L.
661
At
&
the same
ACandS,
severally
plaintiff's damages.
liable for the
Baker v.
562 Pa.
(2000). Accordingly,
this
Court did not consider
any
countervailing
potential
policy implications
adoption
to
Gregg,
“frequency, regularity,
proximity”
See
test.
Similarly, regarding Frank’s testimony Dr. of different to asbes- separate effects causative scientific convey tos an effort to certain limitations was concurred, just pick “You can’t out jury. Brody testifying, Dr. set of say, one and ‘This caused this errors.’ You exposure (AM), just can’t do that. possible,” not It’s 9/20/2011 or Ford has agree We must the Rosts that confused with exposure fact” every conflated “irrefutable scientific (which in dose turn cumulatively the total contributes disease), question legal increases the likelihood with Pennsylvania particular exposures law as to under whether It causing factors” disease. asbestos are “substantial Gregg intention, in either certainly this Court’s Betz, juries informing from about preclude expert witnesses to a clear under- necessary certain fundamental scientific facts if mesothelioma, even standing process of the causation (substantial fac- legal those do facts not themselves establish tor) case, clearly testified causation. Dr. Frank while every cumulatively contributed mesothelioma, he never testified development Rost’s was a factor” every to asbestos “substantial *20 contracting the disease.
Instead, of, alia, that by way lengthy hypothetical inter asbestos-containing entirety exposure of Rost’s detailed Motors, that at Smith Dr. Frank testified products Ford while exposures Motors over to asbestos Smith Rost’s actual substantially causative of his mesothelioma. three months N.T., words, Frank did (AM), at other Dr. 9/19/2011 single of at Smith testify that a asbestos while breath mesothelioma, that the en- Rost’s rather Motors caused but he worked during of his the three months tirety exposures Frank regard, his In this Dr. stressed there caused disease. that, unlike with some other asbestos-related (e.g., diseases asbestosis), mesothelioma may develop after only relatively exposures. small Moreover, Id at 83. in offering his testimony (substantial factor) on legal the issue of causation, Dr. Frank strictly testified in accordance with this Court’s dictates Gregg and Betz—namely, that exposures Rost’s asbestos Smith Motors were sufficiently frequent, regular, proxi- to permit mate exposures inference that these were sub- stantially causative. Id. at 111-17. Dr. Frank reviewed the nature of the multiple exposures asbestos at Smith Motors (e.g., removing brake linings, shoe his proximity mechanics drums, brakes, out blowing brake sanding replacing clutches, replacing gaskets, head sweeping up dust and debris at the end of each day8), length id. and the of time the (in exposure months, continued excess three noting while showing studies that a single month of regular exposure to asbestos can double one’s of developing likelihood mesothelio- ma). Id. at 84. He also exposure reviewed Rost’s history elsewhere, acknowledging that his exposures at Metropolitan Edison were also causative of his disease. Id at all 122. Given information, of this Dr. Frank totality testified exposure Rost’s Motors, asbestos at standing alone, Smith was sufficient to mesothelioma, have caused his even if there (at no had been Metropolitan other Edison elsewhere). Betz,
Unlike the expert witness in who unabashedly offered “each every testimony, breath” this case Frank Dr. relied upon generally accepted into methodology, taking consideration exposure history, susceptibility, individual bio- indicated, previously 8. As significant Frank it Dr. also found Rost wore day, may his dust covered clothes home each which have resulted home, deposit in the fibers in extending the Rost thus (AM), length exposure. case, of his at 118-19. In one 9/19/2011 Company, (2013), Dixon v. Ford Motor Md. A.3d 328 Appeals Maryland Court of found no abuse of in a trial discretion to, alia, finding court’s that a wife’s inter asbestos fibers her sufficiently "frequent, regular, husband’s work clothes was proximate” to submit jury. the issue causation to Id. (holding brought fibers “because the asbestos on each occasion time, period remained in the a considerable home effect”). was continuous and cumulative *21 (including evidence scientific and relevant plausibility, logical studies).9 Physicians/Sci- Fifty-Eight Brief epidemiological Gregg, testimony regarding Moreover, his per at 6. entists exposures to of Rost’s proximity and frequency, regularity provided a sufficient basis Motors while Smith causal the existence regarding jury question create Ford asbestos-containing his connection between In development mesothelioma. subsequent and the products and Gregg, “frequency, regularity, adopted the this Court factor as a refinement the substantial test proximity” in cases. for causation mesothelioma proving requirement factor causa- testimony on expert substantial the context Gregg test, test, legal not an legal additional tion, provides involving in cases factor causation substantial proving exposure. from asbestos resulting disease of its first issue argument support For its second this Betz established Ford contends Court appeal, regularity, proxim test, “frequency, in addition to another meet to cases must estab plaintiffs mesothelioma ity,” Betz, noted that causation. In this Court factor lish substantial Maddox) (Dr. that individual in that case indicated expert “in of the to which potency fiber exposures differ intensity of the to the concentration exposed, individual one is the duration exposed, to which fibers Betz, at 56. particular to that material.” considerations, Maddox, go “try to Dr. into according These exposures” relative effects of different to estimate the ing as matter of science.” Id. for causal attrition “required are Betz, that a argues Ford upon language 58. Based Indeed, agree Superior observation that we with the Court's image in Betz. The nearly the mirror of that described this record is testimony nature experts provided about the detailed Rosts’[] causes, up by published on the research mesothelioma and its backed consistent, internally by testimony the admis- subject. Their experts, supported by least 50 asbestos scien- of Ford’s own sion contrast, critiques expert’s were at world. In Ford's tists around the subjective internally generally consisted of inconsistent and times subjected appropriate peer-review beliefs that had not been community. scientific Rost, 2178528, at *10. 2014 WL causation a mesothelioma compare ease must all of *22 plaintiffs exposures to over his or asbestos her lifetime “determine which a among plaintiffs substantially exposures caused mesothelioma.” Reply Ford’s Brief at 11-12. According Ford, “question for an expert is not whether plaintiffs to a exposure given alone, is product standing ‘substantial’ but whether to that in product is a cause substantial light of other exposures.” Id at 12. Dr. Frank not Because did compare exposures Rost’s at exposures Smith Motors with his Metropolitan at (including type, intensity Edison fiber duration), Ford insists that his testimony satisfy failed to second test. Id at 12.
Ford misconstrues our in for decision Betz several reasons. First, Betz any did not involve consideration of multiple asbestos any attempts parse causally signifi- Instead, cant exposures exposures. from de minimis in Betz we a trial court’s every addressed exclusion “each and Frye expert testimony breath” after a hearing. doing, so we expressly disregarded appellant’s contention that we into should take consideration that his history four-decade an auto mechanic a of a occupational was “not case de minimis Betz, 44 exposure.” A.3d at 55. We indicated because (Dr. Maddox) opinion testified that his did causation not depend upon any knowledge of a plaintiffs exposure history, our consideration of the issue presented pro- would regard ceed without to the appellant’s actual asbestos. Id. Since no issues with multiple expo- associated Court, sures were before the Betz could not and not did add significant requirement plaintiffs new to establish substan- tial factor causation in involving multiple expo- cases asbestos presented, any attempt sures. Because the issue not such an legal create additional hurdle would have been mere Pennsylvania generally obiter dicta. See Rendell v. State Comm’n, (2009) Pa. (holding Ethics “unnecessary that statements which were to the resolution of dicta). controversy” non-binding were Betz, Second, language Ford the relevant takes that a specifically “comparative impact among assessment ... for causal attrition required exposures ... is differing Betz, of context. law,” out Pennsylvania under Superior in Betz was intended disabuse language This Tragarz a statement upon further reliance any Court from one or a de evidence that competent “there is where injury, jury can cause number fibers minimis causing factor were a substantial may conclude the fibers 421). Tragarz, Of 980 F.2d injury.” (quoting Id. plaintiffs Gregg holding our course, reaffirmed merely in Betz we Tragarz, causation that, quoted statement contrary (i.e., “one or a single exposure may testify that a experts fibers”) substantially caus- minimis of asbestos number de A,2d Gregg, Rather than 56-57; at 226-27. Id ative. constructs, causa- theoretical every “each and breath” offering *23 testimony of causal attribu- must concrete experts provide tion proximity and frequency, regularity, by assessing tion Gregg, 943 product. exposure to the defendant’s plaintiffs assessment, turn, requires in a focus 226-27. This at defen- plaintiffs exposure nature of the precise asbestos-containing As product, products. not on other dant’s Tragarz Gregg, regularity, and “frequency, in we advised “in an fashion applied evaluative factors should be proximity” in can plaintiff cases which the distinguishing an aid sufficiently significant likeli- that there evidence adduce his harm.” Id at caused product that the defendant’s hood Trust, 424 F.3d 225; A-C Prod. see also Lindstrom v. Liab. 2005) (“The (6th is that the requirement ... 488, Cir. 493 that to each defendant showing respect make a with plaintiff in plaintiffs factor product was substantial the defendant’s that, consistent with Tra- Moreover, injury.”). we indicated garz, criti- “somewhat less the factors becomes application expo- forth evidence plaintiff puts specific cal” where frequency and that and product, to a defendant’s sure less prongs “somewhat cumbersome” regularity become medical competent that the involving plaintiffs diseases cases only exposures minor develop can after evidence establishes Gregg, 225.10 fibers. 943 A.2d asbestos case, less critical” are “somewhat applied As this three 10. all factors exposure Ford’s of direct put forth evidence specific because Rost
653 case, In this Rost’s testimony frequent, regu- his confirmed lar proximate products from Ford asbestos Motors, Frank, while at Smith Dr. part through hypothetical question incorporating history, opined within a degree certainty reasonable that medical the exposures sufficient, at Smith Motors were and of themselves, to cause Rost’s mesothelioma.11 Comparison Rost’s other occupational exposures to was unneces- asbestos sary. We are unaware of any state or federal court requires such a comparison. While some states continue testimony, e.g., permit “each and every breath” Morin v. Ne., Inc., AutoZone 39, 495, 79 Mass.App.Ct. 943 N.E.2d 500 Weakley Corp., (2011); (D.C. 1167, 1177 v. Burnham 871 A.2d Corp. Ltd., 2005); Ct. App. Purcell v. Asbestos 153 Or.App. 415, Owens-Corning 89, (1998); 959 P.2d Sheffield v. Fiberglass Corp., (Ala. 1992), the majority So.2d of state and federal courts have adopted “frequency, Georgia and proximity” test.12 See Holcomb v. regularity, Pacific, LLC, (Nev. (“The 2012) 289 P.3d majority of
product, frequency regularity prongs become "somewhat less cumbersome" competent because Rost's medical evidence estab- lished develop only that mesothelioma can after minor asbestos fibers. so, required While to do Dr. Frank in his included assessment Betz, the three factors that Dr. Maddox referenced in Betz. See supra and discussion He A.3d at 1047. considered the fibers, potency chrysotile testifying amphibole while potent, fibers are more really question chryso- "there should be no mesothelioma,” can part upon superior tile fibers cause based their *24 ability 9/19/2011, pleura quickly greater quantities. to reach the more and 90-95, intensity exposures, He considered the of Rost’s including potential generate the for blowouts of brake to drums seven- air, chrysotile per teen asbestos fibers cubic of centimeter with elevated (well up away sixty range levels to feet within the where Rost was 100, situated). typically regarding Id at And he testified the duration of months), (in exposure Rost’s at Smith while Motors excess of three referencing revealing reports exposure case that consistent to asbestos person’s for even developing one month could double a risk of mesothe- lioma. Id. at 82-84. Virginia test, appears developed to requiring proof have its own exposure the illness would not have occurred without to the defendant's exposure asbestos or that independently to the defendant’s asbestos was Boomer, 141, sufficient to cause the illness.” Ford Motor Co. v. 285 Va. 724, (2013). 736 S.E.2d 732
654 addressing question courts federal circuits state the proximi- “frequency, regularity, to the apply” chosen have his has satisfied plaintiff the whether ty” test “determine products caused specific that a defendant’s showing burden Determining Liability disease.”) Greene, T. (citing Charles his Assign Liability Decades The Battle Cases: in Asbestos (2008)). Exposure, 571, Not Trial 572 31 Am. J. Advoc. After any stringent most test Texas, employs the which even testimony establish state, requiring detailed of the intensity plaintiffs extent and precise quantum (including approximate product defendant’s analy- a inhaled), upon similarly detailed insists actually fibers to other lifetime asbestos- plaintiffs sis Corp., Georgia-Pacific 439 See Bostic v. containing products. Gregg (Tex. 2014). and Betz Our decisions S.W.3d adopt- courts majority of other with aligned Pennsylvania proximity” test. “frequency, regularity, ing products Rost’s to Ford’s focus on The exposures, on is also Motors, rather than other lifetime Smith factor causa law on substantial Pennsylvania with consistent causation, must adduce plaintiff proximate tion. To establish was a the defendant’s act substantial to show that evidence Jones v. Montef plaintiffs about the harm. bringing factor Hospital, (1981); Ford v. Pa. A.2d iore (“[T]he Jeffries, (1977) 111, 114 issue is 474 Pa. was, hand, one conduct whether the defendant’s or, on the other or a cause’ factor’ ‘substantial ‘substantial ‘insignificant was an hand, conduct whether defendant’s ”). consistently Court has or a cause.’ This ‘negligible cause’ of causation are mat held that issues exception without jury of fact for the decide: ters bur- [plaintiffs in a case that standard particular Whether has evidence] with the proof preponderance den normal- element of causation is respect with been met jury; question fact for the is be question ly it is clear only consideration where jury’s from the removed issue. ... [I]t not differ on the that reasonable minds could are to conclude that reasonable minds able enough
655 of preponderance the evidence shows defendant’s con- to have been a duct substantial cause of the harm to plaintiff. Bashline, 256,
Hamil v. 481 1280, (1978); Pa. 1284-85 Hosp., Inc., see Vattimo v. also Lower Bucks 502 Pa. (1983) (holding
A.2d that where reasonable minds may differ, Topelski questions of causation are for jury); Autos, Inc., v. Universal 339, 180 South Side 407 Pa. (1962) (holding that where “reasonable of opin- difference
ion as to whether the the, act proximate defendant’s or a of, cause the injury, decide”). is for matter jury Corp., Indeed, in v. Summers Certainteed 606 Pa. (2010),
A.2d 1152 this Court held that if a plaintiff presents expert opinion, within degree reasonable medical certain- ty, that his or debilitating injuries her caused, were least part, by occupational asbestos, the issue of sub- stantial causation is for the jury decide, if even the evidence also presented other causative forces of lung (e.g., disease history cigarette smoking). Id. 1164-65. In ruling that our law regarding proof substantial causation is the same for exposure to it asbestos as is other contexts, tort we held that “under this Commonwealth’s jurisprudence, where it is clear that reasonable minds could differ the issue of causation, precluding litigants from pursuing causes action, supported by competent evidence, merely medical because of the of competing conditions, existence health unsustainable.” Id. at We further noted that this Court has issued a “plethora juries decisions ... require competing causation,” n.19, resolve theories of id. at 1165 “we now instruct juries very on the of competing idea issues of (Civ) factual causation.” Id. at 1165 n.19 (citing Pa.SSJI (“The §§ 3.15 defendant’s only conduct need not factual be cause. The fact that some other causes ... concur does ”); liability relieve the defendant of (instructing .... 8.04B that, in a action, strict products liability when a defendant proffers manufacturer a different factual cause the sus- injury, tained “the manufacturer has the of proving by burden a fair preponderance plaintiffs injuries ... that the are divisi- *26 to this not contribute product] and defective did [the
ble injury.”)). particular Gregg, liability in products
In this Court that asbestos held regular, proximate” expo- cases, “frequent, evidence and for question a fact to the defendant’s creates product sures 226-27, Gregg, This Court has to A.2d at jury the decide.13 948 possi- every that other plaintiff insisted a must exclude never fact, consistent- for his or her in we have injury, ble cause and may combine and that substantial causes ly multiple held See, resulting plaintiff. to to the cooperate produce the harm Petroll, (2006); e.g., Harsh v. 606, 209, 218 584 Pa. 887 A.2d Drumheller, (1995); v. 539 Pa. 653 A.2d Powell Hamil, (“In facie establishing [p]rima at a 1284-85 causation], the not exclude plaintiff case need [of substantial .,..”). un- testified every explanation possible Rost’s a substan- equivocally exposures products that to Ford’s were the further in Rost’s causing tial factor mesothelioma. Given Baer, dissenting Court Contrary opinion of Justice to the Gregg comparative promote necessity of assessment did not the causation, suggest the "fre- purposes that of substantial or otherwise comparative part quency, regularity, proximity” test was differing exposures. Dissenting Op. 151 A.3d at at assessment hereinabove, J„ (Baer, dissenting). contrary, explained To the as Gregg adopted three-pronged causation we the for substantial test forth described in Seventh Circuit's decision it was set the Tragara Tragara. Gregg, (“We agree the at 226-27 with Tragara, here.”). Circuit approach adopt the Seventh court's it comparative rejected any requires specifically that its asbestos, notion test clear analysis instead made that of different to product: exposure level of the defendant's the focus must be the plaintiff exposure that it received Suppose a shows that amount of product to cause was alone sufficient from defendant A’s asbestos any exposed other plaintiff If was not mesothelioma. such a support a products, plaintiff would have sufficient evidence product plaintiff finding exposure the defendant A’s but for hand, comparative gotten [a ill. On the other under would not have plaintiff exposed to numerous other asbestos approach], if the might in a plaintiff prove not be in fact products, able to cause A’s against to defendant A the same suit defendant because comparison to the product might not be substantial promote purposes of the Such a result does not products. other test, alleviating inequities which is at aimed substantial factor case, applying but-for a multi-defendant test that result when inequities. creating such not at Tragara, added). (emphasis 980 F.2d scientifically testimony of Drs. Brody irrefutable Frank and that the threshold of exposure level for developing mesothelioma is very may low and disease be caused by a of exposures time, over series a short period (AM), 84-85; N.T., (AM), it is 9/19/2011 9/20/2011 hardly surprising exposure multiple asbestos-contain- ing products will lead a fact-finder to decide that there were multiple substantial factors causative of a plaintiffs mesotheli- case, oma. In this jury found that Rost’s exposures to four products asbestos-containing were substantially causative of disease, Rost’s including products Ford’s at Smith Motors and Edison, three other products at Metropolitan used The dissenting justices learned are of the view that our *27 in jurisprudence asbestos-related cases has exceptions created to substantial factor causation principles plain- beneficial to Dissenting Op. 668-69, tiffs. at at (Saylor, A.3d 1057-58 C.J., dissenting). Having proffered expert excluded the scienti- Gregg testimony fic on substantial in in factor causation favor of the “frequency, regularity proximity” and in approach Tragarz, the dissenting justices that, recommend now based Betz, upon in obiter dicta we from “frequency, retreat the regularity and proximity” standard substantial causation and instead erect even more onerous obstacles to recovery. Minimizing “frequency, regularity proximity” and as mere risk (or, worse, assessment even as nothing guideline more than a for establishing product identification), and contrary the Gregg Tragarz in holding that the approach provides jury the with necessary “the of a inference sufficient causal connection the between defendant’s and the product injury,” asserted Gregg, justices 943 A.2d at dissenting the now insist that Tragarz approach is protect insufficient to in defendants from asbestos cases liability. Dissenting Op. at A.3d [Tragarz] C.J., (“After (Saylor, all, at 1064 dissenting) test undeveloped is degree-based terms of metrics or standards and, of any kind involving mesothelioma, cases tends to into devolve the any-exposure theory.”). Rather than Gregg, “frequency, regularity adopted test proximity” justices the dissenting contend that experts all asbestos- minimum, to should at a required, related cases be disease from the defendant’s quantify product dose plaintiffs (which exposures dose from all would well as cumulative require quantification plaintiffs of all of the turn a detailed exposures), jury compare and the must then these lifetime causation. Id. quantifications considering when substantial C.J., 670-79,151 (Saylor, dissenting); at 1059-65 see also A.3d (“Dr. n.6, 151 n.6 Frank made no id. at 671 roughly quantify experienced either dose attempt even or Rost at Motors or Mr. Smith his cumulative dose.”). overarching problems proposal.
There with this are several First, record, such this there is substantial doubt whether the amicus quantification possible. According is the brief of scientists, it physicians require quantification where “[t]o so, always impossible unnecessary is almost to do would is, That this the effect public travesty. be health would have creating impossible proof, burden no claim would ” impossible .... Amicus Brief be able meet standard Moreover, at 9. Dr. Frank Physicians/Scientists Fifty-Eight testified it is not scientifically possible quantify precise quantity required of asbestos inhalation identify process particular expo- initiate or to disease N.T., sure caused the disease. 9/19/2011 (Dr. (AM), 121-22; (AM), at see also 9/20/2011 Brody).
Second, exposures in goal comparison a lifetime only exposure could to determine to was be which asbestos bottom, plaintiffs the most mesothelioma. At causative justices to dissenting exposure contention of the is Rost’s duration, Edison, at its Metropolitan given longer asbestos more than at was causative was his shorter Smith Motors, As ex precluding recovery against Ford. thereby hereinabove, however, multiple asbestos-containing plained factors of a products may plaintiffs be substantial causative fact, courts, It for the and not the mesothelioma. is finder causation. regarding make these substantial determinations Third, given Dr. Frank’s testimony case, in this a such comparison is entirely unnecessary. hereinabove, As reviewed Dr. Frank testified that the totality of Rost’s exposures Motors, standing asbestos at alone, Smith was sufficient to have mesothelioma, caused his if even there had been no exposures. N.T., other (AM), result, at 121. As a 9/19/2011 (at Rost’s exposures other to asbestos Metropolitan Edison elsewhere) were jury’s irrelevant to the consideration substantial causation this case. justices’ The dissenting concern about whether the jury could understand whether the bucket of water placed in a an ocean, bathtub Dissent- ing Op. C.J., A.3d at 1061-63 (Saylor, dissenting), entirely, misses the mark since Dr. Frank testified that Rost’s exposures Motors, more, Smith without were sufficient to cause his cancer. Gregg Betz,
Pursuant
for all
that satisfy
the “frequency, regularity,
proximi
test,
ty”
when coupled
competent
with
medical testimony
establishing
causation,
substantial factor
jury
it is for the
decide the question of substantial causation. The dissenting
justices implicitly
concede
the Rosts
these
satisfied
re
quirements,
simply
square
but
cannot
Dr.
expert
Frank’s
opinion
quantum
the low
of asbestos
sufficient to
cause mesothelioma with opposing views on
mesothelioma
how
Gregg,
is caused. See
C.J.,
(Cappy,
dissenting).
To bridge
apparent
gap,
dissenting justices seek to
place on
plaintiffs
asbestos disease
evidentiary
cases an
burden not
by plaintiffs
borne
other tort actions. Plaintiffs
in other tort actions
no obligation
every
have
to eliminate
potential
other
cause of
development
through
disease
See,
ranking of
e.g.,
exposures by type
different
and duration.
Jones,
(“A plaintiff
The record of Dr. this, through lengthy its cross-examination precisely alia, exposures to on, Rost’s other asbes- focusing Frank inter Edison) review (including Metropolitan at and detailed tos the incidence asbestos-related regarding studies published in brakes. chrysotile to to asbestos exposure disease related two N.T., also called (P.M.), at 16-55. Ford 9/19/2011 Dr. Frank’s and contradict witnesses efforts discredit M.D., Graham, a professor testimony, including Dr. Michael Gibb, Dr. Herman pathology University, at Louis St. Pro- Ph.D., at United Environmental who worked States years. Drs. thirty for than Graham and Agency tection more chrysotile exposure opined length both that Rost’s Gibb his was not causative of mesothe- products from Ford asbestos that his occupational lioma and instead (which Metropolitan Edison included while at asbestos) of the for his contraction responsible amphibole (P.M.), N.T., 9/27/2011, 62-114); disease. 9/20/2011 100-146. jury testimony by verdict, its credited
As reflected of Dr. rather Drs. Graham and Gibb. Frank than record, conclude, our review upon Because we based satisfy presented the Rosts sufficient evidence Dr. Frank test and “frequency, regularity, proximity” establishing testimony substantial provided competent medical causation, that the trial court did err we conclude factor jury submitting the issue causation substantial non-suit, notwithstand- judgment motions for denying Ford’s trial. verdict, a new ing Ford respect appeal, to its second issue With its case for to the trial court’s consolidate objects decision cases, Estate of trial other mesothelioma Wasekanes with two Sears, exposure to asbes plaintiff alleged in which the v. his brakes caused mesotheli- changing while sold Sears tos Corporation, in which the oma, v. Foster and Graver Wheeler *30 plaintiff alleged that to occupational exposure a built boiler Foster Wheeler caused his mesothelioma. Ford contends the local of practice mandatory of consolidation asbestos cases contrary to practices statewide consolidation under Rule 213(a) of the Pennsylvania Rules of Civil procedure, which requires alia, a discretionary analysis upon, com- based inter of fact monality or law.14Ford’s Brief 43-45. further Ford claims that the trial court’s refusal to sever its case for trial rights process, violated its constitutional to as the intro- due duction of argument evidence in other contrary the cases to in the present Ford’s defense case resulted Id. prejudice. Finally, argues at 58-63. Superior Ford that the Court erred refusing challenge review Ford’s consolidation appeal. Id. at 53. 2011),
At (September the time of trial in this ease the Court of Philadelphia Common Pleas followed an apparently of policy15 mandatory unwritten tort consolidation mass solely upon type asbestos cases (apparently) based When, trial, disease issue. at the outset of reasserted Ford case, its its prior the trial court requests again sever denied it for request, stating all been doing “[w]e have mandatory policy 14. Ford also claims that the is inconsis- consolidation and, 213(a) Pennsylvania tent with Rule Rules of Civil Procedure such, powers as the trial court encroached on Court's exclusive this V, 10(c) govern- Pennsylvania under Article Section Constitution ing practice post- in our state courts. Ford not raise this issue in its did Court, however, Superior trial or before motions and thus has not 302(a). preserved appeal. been it for Even if issue had Pa.R.A.P. this preserved appeal, grant been Court to consider did allocatur Hacker, (2011). it. Commonwealth v. 609 Pa. 336 n.6 15. As of policy promulgated been rule or had not into a local published regulations. pleas The included in court's common court adopted policy first a formal consolidation with the issuance 2012-01, Regulation year General Court which was amended later 2013-01, Regulation General Court 2013-01. Pursuant asbestos cases of, alia, may only be consolidated after consideration for trial inter state) (meso- (by applied, law theliomas, to be the identical nature of the disease cancers, cancers, lung cases), non-malignancy other counsel firm, may in the law applicability. same and Fair Share Act The court appropriate also weighing consider "other determined factors parties litigation prompt just whether all receive The trial.” backlog overriding court's be cases "shall not factor in the consolidation determination.” its (AM), 21. Ford reasserted N.T., at When years.” 9/12/2011 trial, the trial court day on the fifth again request to sever (AM), don’t sever cases.” responded, “We 9/16/2011 1925 of the pursuant Rule opinion In its written Procedure, trial court Appellate Rules of Pennsylvania have noting Philadelphia, that “in we ruling by its defended 12/28/2011,at 5. Opinion, Trial Court years.” so for doing been 213(a) pro- that this was error. Rule Ford agree with We if only they “involve may that cases be consolidated vides arise from the same of law or fact which question common 213(a). has This Court or occurrence.” Pa.R.C.P. transaction (rather than only requires) permits that Rule 213 long held *31 of consolida- cases, and that “the matter of the consolidation ” Ragano of v. the court .... tion in the sound discretion rests (1954). Socony Co., 271, 686, Pa. 101 A.2d 687 Oil 376 Vacuum trial not reflect the court record this case does The respect to either the consolida- discretion with any exercised issue, at or in connection with Ford’s of the three cases tion from Rost case the Wasekanes requests to sever the cases. Graver Superior with Ford that the agree
We likewise rulings to the trial court’s consolidation Court’s refusal review upon its Pitts The Court based decision Superior was error. burgh Corning Corp. Bradley, 291, 499 Pa. A.2d 314 v. 453 Bradley, (1982). for writ of a a request Court denied a regulation establishing a local challenging 1982 prohibition claims, of trials for with program non-jury asbestos-related trial Id. at 315. right jury to a de novo thereafter. separate cases, not of such this Court did heavy the backload Given of common had the pleas the issue of whether the court reach permitted authority promulgate regulation, the and instead effect, subject supervision, to our close policy the remain cases disposition it “the efficient promoted of an unfairly any litigant opportunity depriving without at adjudication rights.” fair his Id. 318. full and obtain Bradley, Court Superior upon Based our decision it “to authority procedural had no address determined
663 issues such as this absent claim violation of constitutional Rost, 2178528, rights.” WL *12. decision in Our Bradley, however, did not preclude appellate review abuse- of-discretion relating determinations to consolidation of cases for trial. To it contrary, merely permitted continuation (not here) of a particular one procedure designed issue to expedite Bradley, resolution of asbestos-related cases. plainly A.2d We did hold that trial court (even any was free to if adopt procedures other such inconsis- tent with rules), statewide consolidation neither said we nor suggested we intended eliminate intermediate appellate court review consolidation decisions.
Whether Ford entitled form relief of a errors, new trial for these on its claim of a of its violation rights to process, depends constitutional due upon whether Com., Dep’t Ford was the consolidation. prejudiced of Gen. Co., Servs. v. Mineral Products U.S. 598 Pa. 956 A.2d (“The (2008) governing require review principles award of trial only a new trial where a court has committed error of law or abuse discretion which may have affected Boyle Independent Truck, Inc., verdict.”); v. Lift Pa. 311, 6 494-95 (2010); Harman ex Harman v. rel. Borah, 455, 467, (2000). 562 Pa. Ford prejudiced First, claims that in three ways. it was consolida tion away ability Ford’s cross-examine “stripped adverse *32 witnesses,” Millette, including in Dr. James particular plain expert tiffs’ in the case who Wasekanes used tests Ford to his into from brakes research explain asbestos release Second, brakes. Brief at Ford that Ford’s 38. contends the pursued defendants in the three cases all defense different case, In theories at trial. the Graver for Foster example, plaintiffs Wheeler to that the to its attempted prove exposure plaintiffs mesothelioma, boiler not cause the which Ford did argues that attempt was inconsistent its to with demonstrate Rost’s Metropolitan boilers at Edison was the similarly cause of his at 40-41. com mesothelioma. Id. Ford (Dr. plains that an witness called Sears Andrew Sporn) that be differ- epidemiological might testified research amateurs) (as to work on who professionals opposed for
ent indirect have understood as brakes, jury could which addition, In at Smith Motors. Id. to Rost’s reference work for Sears closing arguments, counsel Ford that complains brakes, in a mere attempted distinguish to itself as retailer at 41-42. of such Id. products. contrast to manufacturer Third, consolidation of three cases without Ford insists that 42-43. overlap jury. Id. at any significant confused the factual record, support find little of the upon Based our review we Millette, to contrary respect to Dr. arguments. for these With contentions, opportuni- court offered Ford the trial Ford’s so. him, Ford declined to do to but ty cross-examine addition, instructed court (AM), at 84. the trial 9/16/2011 “in way” could no be testimony that Dr. jury Millette’s in the at 133. to Ford case.”16Id. “attributed Rost that it is that Wheeler contended Foster While true of the it 1950s was a cause constructed in the not boiler case, argument in the Graver its was based mesothelioma exposure—well plaintiffs principally upon timing replaced. in the boiler have been after asbestos would not N.T., 10/5/2011, argue 221-23. Foster Wheeler did mesothelioma, thus, boilers could cause no to Ford’s efforts prejudicial there was inconsistent defense Metropolitan Edi- asbestos-containing boilers at show Like- substantially Rost’s mesothelioma. son were causative whole, wise, testimony not, prejudicial Dr. as Sporn’s Ford, consistently experts, testified, he with Ford’s own as segment testimony dissenting justices from The reference a short closing argument case as the for in the counsel Sears Wasekanes 679-80, Dissenting Op. point” prejudice against "tipping Ford. context, however, CJ., (Saylor, dissenting). Viewed was, "grand conspiracy” anything, if more counsel’s reference to a prejudicial. Ford it was counsel referred favorable to than Sears’ alleged “grand sarcastically, part of an effort discred- conspiracy” regard credibility with a contention that studies it Dr. Millette’s contracting showing no disease from increase in risk asbestos-related chrysotile products been asbestos in friction brake had "grand immediately industry conspira- followed financed. his Counsel (to jury object) by reminding cy” remark which Ford did not (referenced testimony performed in his studies Dr. Millette himself had *33 that chrysotile asbestos fibers from brakes do not cause N.T., mesothelioma. (PM), at In any event, 32. Ford 9/26/2011 did not object to portion any Sporn’s Dr. testimony, or to portions relevant of closing arguments by counsel for Sears. regard
With to its final claim of prejudice, that consolidation of the three cases led to jury confusion, Ford cites academic research indicating that consolidation generally favors plain- tiffs, as results suggest that where or two three are cases trial, consolidated for plaintiffs are fifteen percent likely more to prevail than in individual trials. Ford’s Brief at 42. More- over, Ford contends that the jury clearly in confused ease, as during deliberations it asked the trial court to be income, advised Rost’s last annual even no claim for though lost wages had been asserted. Id. at 43. upon Based our record, review of the however, we find no of any evidence significant jury confusion. The trial court repeatedly instruct- ed the jury treat each of the individually cases apply and to evidence each separately case to decide it on its own See, e.g., N.T., 8/12/2011, 13417; merits. N.T., 10/6/2011 (AM), at 12. question The regarding Rost’s last annual income any is not clear indication of jury confusion. During delibera- tions, jury asked a number questions connection with cases, each of the three all reasonably related the issues Moreover, the case at issue. no there is indication the jury included lost wages in its award to the Rosts. Ford did not propound jury interrogatories.
In the of any absence prejudice demonstrable resulting consolidation, Ford from no basis exists to conclude Sears) against by plaintiffs’ attorneys. that had been financed 10/5/2011, at 156-58. Immediately upon swearing jury, the trial court its advised members as follows: Now, mind, keep going emphasizing I’m to be this from the beginning, you’re sitting separate you on three cases. So what do one you going case doesn’t thing follow are do the same in the got analyze other case. separately, You’ve all three cases and that's your trials, what you function will be in trial if want to use it way. N.T., 8/12/2011, at 134. *34 trial. As a denying in Ford new erred that the trial court appeal.18 issue on on Ford’s second result, no relief is due Judgment affirmed. join opinion. the and Wecht Todd, Dougherty
Justices dissenting file Baer Saylor and Justice Chief Justice opinions. SAYLOR, dissenting
CHIEF JUSTICE dissent, discussion I center the I as would respectfully I reaf- on would principles; risk-based question the causation Pneumo Betz v. opinion not Court’s firm—and cabin—the (2012); I have a 504, 44 LLC, 615 Pa. A.3d 27 Abex role and limits concerning appropriate the view different Pennsylvania. proximity test frequency, regularity, and the finding of no issue, I with the also differ On the consolidation prejudice. Signifícance of a Risk-Based Focus
The Central actual, prod- to examine attempting involved The science such carcinogens to long-latency causation relative uct-specific extensively as is indeterminacy, with fraught as is asbestos Majority generally record. See present on the manifested the 647-48, (discussing present at 1045 Opinion, Ap- Supplement the Record on "Application to The Rosts filed an non-privileged original seeking supplement the record with peal,” discovery during allegedly produce Ford failed to documents that deny application, testimony. We will supportive of Dr. Frank’s are court at the time of its were before the trial as these documents not part testimony, of the relating and were to Dr. Frank's decisions Superior its Rule appeal when Court rendered decision. record generally Pennsylvania limits the Rules of Civil Procedure of the original the lower courts at the record to items before contents of (describing appeal the record on Pa.R.A.P. 1921 time of decision. court, ... containing "original filed in the lower papers and exhibits copy any, ... a certified transcript proceedings, if entries....’’). Also, appellate permits while Pa.R.A.P. 1926 docket record, original in the such corrections correct omissions courts to truly ensuring what that "the record discloses must be directed to Compen- generally Workmen's Fotta v. occurred in the trial court.” See 1144, (1993) Appeal Board, 1147 n.2 534 Pa. sation by report (refusing medical not considered to consider a revised below). tribunals record as it inability relates to distinguish causative effects of different exposures). For example, the plaintiffs experts acknowledged the human body’s efficiency substantial in removing fibers, asbestos and that the lower dose, See, the more effective are these defense mechanisms. e.g., N.T., Sept. 99,103 (reflecting testimony plaintiff expert, PhD, Arnold Brody, biology, cell body ninety ninety-nine percent efficient fibers). removing Moreover, from what is known scientists, rare, discrete, idiosyncratic occurring events (or them) the cellular level a series of are required cause See, mesothelioma. e.g., Sept. (A.M.), at 141-42 *35 (reflecting the explanation plaintiffs specific causation expert, Frank, M.D., Arthur that scientists do not know how cancer, asbestos alters the DNA to yield but process cell).1 begins a single with of light great assessing uncertainties involved
actual product-specific, causation, substantial-factor plain- tiffs sole expert testifying witness on the matter of specific causation—Dr. Frank—acknowledged that his testimony was premised on an assessment of the presented by increased risk See, exposures. N.T., discrete e.g., Sept. (P.M.), 2011 at 51 Dr. (reflecting Frank’s acknowledgement that not every expo- mesothelioma, sure causes the predicate DNA alteration what can be every exposure but said is that increases the risk); (“Scientists accord Amici Scientists’ Brief at 2 are concerned because it is indeed scientific fact irrefutable that each does actually person’s contribute to a total dose and to that person’s risk or probability developing added)). mesothelioma and other (emphasis cancers.” The plaintiffs general expert, causation Mr. Brody, recognized also See, very clearly. (A.M.), this e.g., Sept. 20, 2011 at 78 1. One court summarized the science as follows: precise If changes place, series takes one cell becomes a malignant cell. A mesothelioma tumor consists of billions of cells but single Attempting started from one cell. to find that one cell to determine which malignancy "looking fiber caused initial is like haystack.” for a needle in a Crane, Inc., (N.D. 2004) F.Supp.2d v.
Bartel
John
609-10
Ohio
(citation omitted).
get
You don’t
(“You
given exposure
does.
say what
can’t
638,
669 special rules’ that plaintiffs ‘asbestos ease proofs”). causal such, as I Viewed believe that some perspective balance and is implicated, in particularly terms of degree of the relax- ation of the traditional burden that is involved.
Along the lines of
I
perspective,
note that the courts were
asked
take the
leniency
has been
to an
extended
extreme with the advancement of
any-breath
or any-
exposure theory
as means
establishing
legal
require-
ment of substantial-factor causation. As is
amply developed
Court’s decision in
elsewhere,
Betz
is
theory
such
fundamentally inconsistent with the
legal requirement
sub-
See,
stantial-factor causation.
Betz,
e.g.,
The fact’ that the ‘irrefutable scientific or conflate[] “confuse[] to the total dose cumulatively every exposure contributes disease), (which likelihood of with increases the turn particu- to whether Pennsylvania under law as legal question causing factors’ in the disease.” are ‘substantial lar I However, agree at 1045. Majority Opinion, its amici degree that—to the that Appellant with his distinguish fails to offer a scientific basis expert witness specific causa- concerning general and oft-repeated opinions of specific matter opinion about the discrete tion from his expert. of the lies source confusion with causation—the expo relatively case involves low-dose Notably, present regard, In this Mr. products. from Ford sure to asbestos jurors candidly explained at trial attorney Rost’s approxi from experienced during the dose Ford brakes low relatively period exposure mately three-month “was 5, 2011, at exposures.” to some other Oct. compared dose (at years largely unpro least ten 49.4The time differential months of versus three tected industrial worker) illustrative, addressing even without alone garage Coal, Inc., Justice, semantics.”); Litig. beyond Brief for Amici look Mfrs., Ass’n, Reform & Am. Ins. Ass’n at Ass’n of Am. Tort Nat'l alleged exposures and (asserting “simply Dr. Frank recited opinion they is irrelevant to his were sufficient—dose concluded [them]”); Honeywell Inc. at Brief for Int’l appears nowhere in Amicus “discounts, ignores, (indicating opinion indeed that Dr. Frank’s any exposure”). substantiality particular cases, many layers tend to complex of abstractions toxic tort example, majority repeatedly refers For obscure the material issues. wells including in automobile wheel residue accumulated to material Majority Opinion, at 634- linings dust.” and around brake 35, as "asbestos underlying premises A.3d at 1037-38. At least terms however, expert accepted such accumula- opinion, Dr. Frank’s N.T., Sept. generally percent See tions are 99.6 asbestos free. (P.M.), at 16.
ÍO the differences between to exposure friction products,5 versus exposure to friable insulation materials and loose powder and See, e.g., Majority Opinion, at spray setting. the industrial 635-36, 151 at (discussing 1038 it pertains record as to Mr. Rost’s exposures). industrial Frank, however,
Dr. not provide did the jury any with standards, benchmarks, or or other scientifically-accepted premises assessing of substantiality the risk associated with Mr. “relatively Rost’s dose” exposure Appellee’s low products of the context Mr. Rost’s Rather, overall exposure. in response hypothetical to a question generally presenting exposure circumstances Mr. Rost’s products, to Ford affirmed, Dr. Frank in a merely fashion, conclusory his belief causative. See that the exposure substantially N.T., Sept. (A.M.), 2011 at By way 116-17.6 or explanation other- regard products, 5. With to new friction since most the asbestos is material, encapsulated agreed in a binder or resin Dr. Frank that the material is asbestos-containing not considered friable as are thermal See, products applications. insulation such as were used in industrial (P.M.), Moreover, e.g., Sept, that, acknowledged at 14. Dr. Frank friction, upon exposure to heat and much of the asbestos material substance, forsterite, in brake shoes is converted into different which Frank Dr. did not claim was causative of mesothelioma. See id. at 14- 15. view, my majority’s point From assertion that Frank took Dr. "exposure history, into susceptibility, biologi- consideration individual plausibility, (including cal scientific epidemiolog- relevant evidence studies)," 649-50, 1046-47, Majority Opinion, ical at 151 A.3d at represents an abstract assessment the record in case as it relates to the matter of substantial-factor causation. Dr. Frank made no at- tempt roughly quantify experienced by to even either dose Mr. Rost See, N.T., exposure Smith or e.g., Motors his cumulative or dose. (P.M.), Sept. (reflecting recognition at 22 Dr. Frank’s aspects high, of Mr. Rost’s industrial "could have been it could have been low” his speak statement that: “I can't what his was.”). nothing level of I have found on record far as susceptibility goes, Mr. Rost's anything individual such relate concept opinion concerning to Dr. Frank’s substantial-factor causation. Biological plausibility goes general in the abstract more to causation causation, establishing particularly than to substantial-factor where the presented issue epidemiological in terms of risk. In terms of the workers, pertaining evidence mesothelioma auto Dr. Frank’s vague, specific-study focusing mostly discussion was with on treatment discounting his position. of ones that were with his See inconsistent (A.M.), Co., Sept. Compare at 103-05. Yatesv. Ford Motor of his reaffirmations wise, then reverted various ie,, causation, “all specific opinions general and other Id, see id. also 121-22; [exposures] contributed^]” all (“All that can should be be documented his developing contributory to [Mr. Rost’s] considered as disease.”). litigants concerning dispute between
There is no relative proposition cumulative matters essential dose The dispute as mesothelioma.7 dose-dependent diseases such to ad- plaintiff whether a required now should be concerns fashion, factor, meaningful any this critical sort dress *39 to substantial- proof of establish component as a burden factor causation.8 (“Rather (E.D.N.C. 2015) engage any F.Supp.3d 861 than 113 plain- meaningful comparison data with specific, [the of the scientific attempt over- exposures, expert’s] opinions essentially to
tiff’s] [the studies, juror lacking guidance to how a with statistics and whelm case, joining expert’s] ought apply [the them in the aside from instant plaintiff's] by was caused [the ultimate that mesothelioma conclusion method, products. is not a and it will not assist defendants’ This reliable (E.D. Co., jury.”); F.Supp.3d 635 Gen. Ins. a Comardellev. Pa. 2015) (offering of an witness’s substantial- La. similar criticisms studies, cases, and grounded array factor on a broad of causation cursorily’’). regulatory to which witness "referred] materials the A,3d (“All See, Opinion, exposures to e.g., Majority at 1039 7. asbestos, of the cumula- asbestos contribute to the cumulative dose and added)); Appellee (emphasis Brief for dose tive causes mesothelioma.” (“[T]he exposure collectively a dis- total causes cumulative ease.”); Org. at 13 Brief for Asbestos Awareness accord Amicus Disease ("[Cumulative explains of mesothelioma in dose best the increased risk epidemiological population is used in the the metric standard disease,”). Joseph generally V. dose and See that evaluate risk studies Science, Rodricks, Exposure Guide on Manual on Reference Reference 2011) (Fed. ("Ultimately Judicial 3d ed. Center Evidence Scientific by populations or is the measure needed the dose incurred individuals quantify experts the risk of by toxicity,”). health fact, meaningfully point accepts address Appellee the burden to dose exposures products of his cumulative to Ford in the context (including exposure) to causa- his industrial establish substantial-factor See, (indicating Court's e.g,, Appellee for that this tion. Brief at 42-43 Betz, "Gregg, balance” and Howard maintained fair [a] decisions in proximity, "they required experts frequency, to consider both when the plaintiff’s from the defen- regularity of the to asbestos expo- place other products, this in context with dant’s ensure, history, plaintiff exposure that s sures wider context Where the simply issue is risk—I fail appreciate how substantiality relatively low-dose fairly can be demonstrated the absence reasonably- of some sort of developed comparative risk assessment accounting higher- for dose industrial exposures. Surely the courts would not sanc- tion liability part of individual an automobile if accident the plaintiff not proffer did some form of evidence that would fair establish a probability was, that defendant fact, one actual Although drivers. not perfect is analogy, that, it highlights degree accept we amorphous possibilities probabilities with no real effort to address the risk exposure, overall the substantive law of substantial-factor causation is being applied a highly idio- syncratic fashion in toxic tort cases.9
From point my view—again, plaintiff where the plainly is proceeding to address causation by reference jury to risk—a not provided is with meaningful information concerning cumulative simply dose lacks sufficient information to make a decision concerning Instead, rational substantiality. the fact conjecture finder left to speculation, colored liberal reaffirmations of the opinion concerning general and ie., (sans specific causation aspect), substantial-factor merely contribution a 'substantial and not defendant’s factor’ added)). (emphasis factor.” my perspective, whether, only From remaining question should be *40 trial, meaningfully Mr. Rost testimony, did so via Dr. Frank’s or whether, contend, expert’s as Ford opinion and its amici the concern- ing merely collapsed substantial-factor causation general into his other (i.e., specific opinions causation that all are contributo- however, ry). majority, proceeds The of its own accord to overturn the requirement to address substantial-factor causation in the context of dose, 651-60, 1047-53, Majority Opinion, cumulative see 151 A.3d at yielding concerning the prevailing legal thus differences the standards that are discussed below. vein, 9. In this I approach believe plaintiff that an that reheves the of addressing exposure product to a defendant's in the context of the plaintiff's overall shifting, tantamount to a form of burden which this Court has otherwise refused to extend into the tort toxic See, Ass’n, Inc., e.g., 224, Skipworth arena. 32, Lead Indus. 547 Pa. v. 231- 169, (1997). below, 172 As further discussed I would any changes along submit that to the such lines law should be attended by matters, policy consideration of the full host of relevant which are beyond scope presentations well of the here. 674 frequently of the Put in terms contributory.10
all are doses by former coined analogy bucket-in-the-ocean referenced 240, A.2d Corp., 886 Klein, v. Certainteed see Summers Judge 2005) “if one took a the notion that (Pa. (rejecting Super. 244 ocean, that was a it into the dumped of water bucket ocean”), I size contributing factor’ ‘substantial assess the substantiali- meaningfully cannot jury that a submit into a introduced of a water impact of the bucket ty with no means provided jurors have been where receptacle bathtub, a or a pond, receptacle is whether such assess lake, or an ocean. in eases facing plaintiffs I the difficulties
Again, recognize Given, how- note 2.11 supra See involving long-latency disease. central tort-law long-standing ever, that alteration causa- substantial-factor requirement such as the concepts effects, I social to have broad-scale potential tion has the appropriately most considered such matters are believe generally See government. branch by policy-making Servs., Inc., Pa. 652-54 & 618 v. Prison Health Seebold (2012) (discussing the 1232, 1245-46 & n.19 n.19, 57 (6th Inds., Inc., Fed.Appx. Armstrong World. Stark v. 10. Cf. subjected 2001) not be (expressing concern that "defendants Cir. inexpert speculation on liability solely jury’s based on a open-ended omitted)); (citation Dep’t Crimi- v. Texas proximate Burleson cause” (5th 2004) Justice, (explaining F.3d Cir. nal to conduct a dose assess- opinion "fail[s] where the causation gap great analytical between the data and produces ment” "too Gold, (citation omitted)). generally When Certain- opinion proffered” See ("The Rev. at 320-21 Probability, 70 Wash. & ty Dissolves Into Lee L. proof on evidence when of causation rests mechanistic model fails of disease and population-based on the association from data derived ...[;] must test its belief cases the fact-finder [i]n such risk contribu- supported evidence of frequentist-probability value tion.”). difficulty attempt- acknowledge expense regard, I In this See, N.T., Sept. e.g., ing to address dose in concrete terms. (A.M.), part plaintiff’s (reflecting recognition, on the at 84 hygienist to Brody, "you need an industrial expert, Mr. would be,” present might that Mr. Rost did not explain dose albeit [the] what however, degree sorts of Again, that these testimony). such opposed to a conventional are at work—as practical considerations maintain that a principles of tort law—I *41 application of established implicated. policy assessment is wider-scale
675
nature of
adjustments
common-law
law,
to the substantive
the
necessity for a fully developed policy analysis,
the superi-
and
or
of
position
the General Assembly to undertake
assess-
such
ments).12
degree
To the
judiciary
the
should continue to
example,
12. For
governing
further
proof
relaxation of the
standards of
obviously
Supreme
can exacerbate
the
what
Court of the United States
"elephantine
has
litigation
characterized as an
mass of asbestos
...
customary judicial
[which] defies
administration and calls for national
815, 821,
legislation.”
Corp.,
v. Fibreboard
527 U.S.
119
Ortiz
S.Ct.
2295, 2302,
(1999).
scale,
For in the absence these I Ford’s central agree with proportionality, ful assessment opinion concerning Dr. Frank’s the basis for position materially distinguishable causation is not substantial-factor causa- concerning general specific from his other opinions ie., tion, every exposure counts.13 many layers perspective points provide one of the I mention these making considered before further I believe need to be which would adjustments law in cases. to substantive any way suggesting causation can that substantial-factor 13. I am not eliminating "every potential only by other cause proved be
Reaffirmation of Betz above, Consistent with the I would take this opportunity reaffirm, cabin, and not in Betz. opinion Court’s I Initially, not agree do majority’s with the position that requirement for a plaintiff address, in some meaningful fashion, plaintiff’s cumulative dose was unnecessary to the decision Betz. See Majority 651-52, Opinion, at 1047-48. Rather, Betz Court proceeded through essentially the analysis, above recognizing that the liability was risk theory based, and only concluded rational way assess substantiality a risk (particularly calculus in lower-dose *43 scenarios) is to compare the risk to particular attributable a defendant Betz, plaintiffs with the risk exposure. See overall 615 Pa. Moeller, 549-54, 55-58; at 44 accord A.3d at 660 F.3d (“The at 954 question whether acts probably [of] [defendant’s] [plaintiffs] caused mesothelioma be must viewed the con- of [plaintiffs] text other to substantial asbestos[.]” Co., Cardinal (quoting Norris, Indus. Insulation Inc. v. Nos. al., et 2004-CA-000525-MR, 2009 slip op., WL at *8 v. N. Am. (Ky. 6, 2009))); Ct. App. Mar. Bailey Refractories Co., Martin, 2001); (Ky. S.W.3d App. Ct. F.3d (“[0]ne at 443 measure of is a whether an action substantial factor is the of factors which number other contribute development through ranking exposures.” of of disease different believe, however, Majority Opinion, at I do A.3d at 1052. that plaintiff meaningfully long-term exposure must address his industrial asbestos-containing to products premised friable in a case on short- exposure
term byproducts. to non-friable their materials and low-asbestos-content Techs., LLC, Sealing Moeller v. Garlock 660 F.3d Cf. (6th 2011) ("Given [p]laintiff[-executrix] 955 quantify Cir. that failed exposure [her from decedent’s] [a defendant's] gaskets [p]laintiff and that the [the concedes that decedent] sustained sources, exposure massive simply to asbestos from there is [other] gaskets probably, insufficient evidence to infer that [the defendant's] as opposed possibly, were a actor of [the substantial meso- decedent’s] thelioma.”). certainly Indeed, plaintiffs I setting. would not hold to exactitude in this are, question "[l]arge there is no put of tort swaths law it Gold, charitably, highly approximate.” Certainty When Dissolves Into view, Probability, point 70 Wash. & Lee my L. Rev. at 326. From however, and, engage drawing, courts must in some present line in the context, rough approximations Mr. Rost’s failure offer even of dose either as to the approximately period three-month products garage friction long-term the Smith Ford or industrial dispositive be liability. should deemed relative to Ford's they of the effect which harm and the extent
producing it.”). in producing have theory any-exposure Betz, precisely
In it because (which the overall drives for cumulative dose to account fails theory a means disease) rejected the as the Court risk See, Betz, 615 Pa. e.g., causation. to establish substantial-factor ("[O]ne maintain simultaneously cannot 550, 44 at 56 A.3d causative, substantially millions is among fiber single that a responsive.”). is dose disease conceding also while merely otherwise, I do not view Betz regard test. proximity regularity, frequency, circling back 659, 151 at 1052-53. Majority Opinion, See Proximity Regularity, Frequency, prox frequency, regularity, my perspective, Prom exposure-related rough as a conceptualized is best imity test purposes product for identification test, most useful screening Faigman, et stage. generally summary judgment See at the that, given § 25:5 al., (explaining 3 Mod. Sex. Evidence by plaintiffs hailed into court being volume defendants a set of cases, develop forced to have been “[c]ourts individual from should taken judging which cases be tests sufficiency all, undeveloped in terms the test jury”). After and, in cases kind any standards degree-based metrics or *44 mesothelioma, any-expo into the tends devolve involving theory. sure one, the present the toxic tort cases such as complex ex testimony—to connect competent expert for
requirement a central one. disease—obviously remains with actual posure 1280, 267, Bashline, 256, Pa. v. 481 Accord Hamil (“[I]t (1978) complexi that the generally acknowledged is 1285 of pain to the cause body place questions human of the ties knowledge average layperson[;] the injury beyond or testimony that medical be therefore, requires the law omitted)). (citation the recognized The Betz Court employed.” and the testimony expert witnesses nature of the influential and, therefore, laypersons for mislead distortions potential role rela gatekeeping maintain a courts should decided that
679 to expert testimony tive about the critical issue of substantial- Betz, tort 545, factor causation in toxic cases. 615 See Pa. at 44 A.3d at 53.
To degree decision in v. Tragarz Corp., Keene (7th 1992), 411 F.2d Cir. suggests 980 that no risk comparative or probability required, assessment is this Court plainly de- from that on parted approach developed based reasoning Betz. Betz, 553-54, See 615 Pa. Again, A.3d I respectfully majority’s differ with decision overturn and other material portions such decision.
The Error in Structural Consolidation consolidation, On the issue of the majority recognizes that blatant, the trial court committed structural error by consoli- dating toxic tort complex, merely unrelated cases the basis all from plaintiffs suffered Majority same disease. See contexts, at 1054. In Opinion, other courts difficulty have recognized facing litigant charged with establishing See, from prejudice resulting structural errors. Shearer, State 181 Wash.2d e.g., v. 334 P.3d (2014). view, In my given the present breadth record— subsuming among the plaintiffs differences and defendants and all of the attendant relative to the three circumstances materially cases high potential unrelated involved—the evident, is if prejudice even one were to the emerging discount empirical for Appellant evidence referenced Ford. See Brief alia, at 42 (citing, inter Kenneth Bordens & Irwin A. S. Horowitz, The Sampling Limits and Consolidation in Altered?, Improved Mass Tort Trials: Justice Justice Psychol. (1998), proposition for the Law & Rev. the patterns consolidation “can alter of verdicts and awards by jurors”). handed down
If I needed, that to tipping point would find have been reached, alia, argument inter in the presented jury by attorney representing Sears another the consolidated cases:
And, oh, companies, brake companies automotive *45 Well, grand conspiracy. gentlemen, have this I ladies represent store, are a a department Sears. retailer. You We funding about anything about Sears studies
didn’t hear brakes. added). (emphasis at Oct. to a reasons, I Ford be entitled would these believe
For to substantial- proof of trial, for the failure relative new but I failure, reverse In of would such light factor causation. notwithstanding judgment verdict. entry the remand BAER, dissenting JUSTICE Gregg in v. V-J Auto decisions Pursuant to this Court’s Parts, Co., (2007), Betz v. 943 A.2d Pa. LLC, (2012), I the join 615 Pa. Pneumo Abex dissenting opinion, diverging in analysis Justice’s his Chief Ford granting in than only regard to Rather disposition. verdict, I judgment notwithstanding the Company Motor trial to allow the parties for new would reverse and remand Betz, in which trial this Court’s issued after apply decision my additionally prior I to address in the case at write bar. Gregg. reasons, I following For dissenting opinion in colleagues Majority, in the while respectfully my from dissent dissenting part. joining opinion the Chief Justice’s Gregg, asbestos he inhaled plaintiff claimed several on his automobile changing personal brakes while development a factor his mesotheli- times was substantial oma, This professional exposure. despite forty years over that, involving direct as well as Court cases concluded appropriate it is exposure, circumstantial evidence judgment stage summary for a court consider regu- “whether, concerning frequency, light the evidence expo- asserted larity, and proximity plaintiffs/decedent’s inference necessary sure, jury would make the be entitled prod- of a sufficient causal connection between defendant’s doing, In so Court injury.” Id. uct and asserted in a to indulge that it not “a viable solution concluded asbestos, no matter every exposure fiction that each fact implicates exposures, how minimal relation other every ‘direct- causation in concerning issue substantial-factor 226-27, The Court remanded case.” evidence’ Id.
681 Superior Court for application of the “frequency, regularity, proximity” and standard.
I dissented to what I viewed that majority’s unwarranted criticism of the experts’ testimony at the summary judgment stage in a ease involving direct evidence of exposure, asbestos and recommended that the proper challenge to the expert’s “each and every exposure” Frye theory should through arise challenge through cross-examination the at trial. expert Frye States, Id. at 229-30 (citing (D.C. v. United F. 1923) Cir. forth (setting an exclusionary rule of evidence that applies only when a party wishes introduce novel scientific evidence from obtained the of an conclusions scientific witness)). Notably, the majority of Court the concluded other- wise. later,
Five years
this Court considered Betz v. Pneumo
LLC,
(2012).
Abex
Pa.
My colleagues in the Majority the case at bar deem the discussion of comparative assessment Betz to be dicta. Maj. Op. 651-52, 151 A.3d at To 1047-48. the contrary, comparative analysis assessment is the heart the unanimous holding D of Betz. Subsection the opinion addresses the “Any-Exposure otherwise Opinion,” referenced as the “each every exposure” theory. the first paragraph of Subsec- D, tion agreed the Court with the trial court “primary that the conceptual concern” plaintiffs theory with the was that if risk of mesothelioma attached to each fiber then each fibers, millions of asbestos to which a plaintiff had been causing mesothelio- factor would be substantial
exposed, Betz, Each cannot be “substantial” at 55. fiber ma. of similar if there are millions disease causing factor in upon plaintiffs court further relied factors. The unanimous that one must consider opined he testimony, which expert’s concentration, of asbestos and duration potency, Id. at exposures.” effects different to “estimate the relative theory every exposure each criticism the The Court’s signifi- recognition hinged causation of substantial *47 assessments: cance of comparative in Dr. Maddox analogies offered regard, In this fundamentally it is convey position of his support governing standard science and inconsistent with both marbles-in-a-glass illus- force of his causation. The legal for that, recognition materially upon the changes tration analogy, one rough in of even a this scenario terms visualize in non-uniform size must be accept that the marbles must and (as microscopic, potency), are in size and asbestos fibers reference, very it is difficult From this frame of million-fold. microscopic of of that a one the smallest say single glass in water causing factor is a substantial marbles overflow.
Betz, continued, “Dr. boxer Maddox’s at 57. The Court it is with experience as is as inconsistent with human analogy to the glancing blow science, the difference between as jaw commonly is punch a knockout shoulder and We, therefore, rejected Superior Court’s M. understood.” Corp., Tragarz in v. Keene contrary language prior reliance (7th 1992), concluded that a 411, 421 Cir. F.2d “is re- exposures plaintiffs assessment of the comparative Betz, 44 law. Pennsylvania under for causal attribution” quired Gregg, in the unani- this author’s dissent A.3d at 58. Unlike binding precedent in Betz is of the Court mous decision why Court, explanation an of this absent current members followed. should be of stare decisis legal principle purposes for assessment necessity comparative While in our percolating had factor causation been substantial Gregg, 226-27, clarified decisions, Betz see prior requirement. parties case, The however, the current did not have the benefit Betz’s dictates trial. I Accordingly, would remand new trial to allow the plaintiff opportu- nity to present testimony line requirements with the set forth Betz.
Additionally, my colleagues dispute “frequen- the role of the cy, regularity, and proximity” test adopted applied Gregg. I view the “frequency, regularity, and proximity” test part a comparative assessment of which is exposures, necessary to determine factor substantial causation sufficient trigger a defendant’s legal responsibility. many Unlike tort actions, latent disease eases cannot be through demonstrated but, instead, direct causal link imposition involve the of liabili- ty on an based assessment of the risk resulting increased from Gregg, the alleged exposures. Pursuant to contact with asbes- tos cannot be deemed a substantial causal it factor unless involved frequent, regular, proximate creating exposure a de minimis risk of developing the than more Once disease. to asbestos sufficiently fibers is determined to be frequent, regular, proximate, a fact-finder should consider factors such potency, concentration, as the and duration of the light of plaintiffs other if it determine reasonable deem the product defendant’s *48 legally responsible aas substantial causal factor the devel- opment of disease, the merely contrast to being cause-in- fact.
Notably, jury may conclude that several products are plaintiffs substantial causes of a development of a disease. Indeed, a jury may find that Mr. Rost’s three months exposure to Ford brakes was a substantial cause his Betz, mesothelioma, but plaintiffs under the must first provide jury the a comparative of Mr. assessment Rost’s to allow jury to place to Ford products context. Although jury testimony heard re- garding Mr. Rost’s exposures, testify later Dr. Frank did not during direct examination to the details of Mr. Rost’s asbestos (MetEd) exposure at Metropolitan employ- Edison and other Indeed, ers. when asked during cross-examination Mr. about MetEd, Dr. Frank experiences repeatedly testified Rost’s he what did” and specifically did “know Mr. Rost his was.” “speak could not to what level 20-22, Session, 19, 2011 1406a-08a. Sept. P.M. R.R. Given Frank of Mr. Rost’s specifics Dr. was not aware of history, provide jury with the he was unable work of exposures. Accordingly, assessment required comparative above, trial to allow discussed I would remand a new plaintiff present necessary testimo- opportunity ny.1 trial, potential As I would I need for a new not address remand cases, prejudice of the this case with consolidation of other asbestos procedure longer practiced which no the Court Common Pleas Philadelphia.