Frederick S. and Lynn SUMMERS, H/W, Appellees v. CERTAINTEED CORPORATION and Union Carbide Corporation, Appellants. Richard Nybeck, Appellee v. Union Carbide Corporation, Appellant. Frederick S. and Lynn Summers, H/W, Appellants v. Certainteed Corporation and Union Carbide Corporation, Appellees. Richard Nybeck, Appellant v. Union Carbide Corporation, Appellee.
Nos. 19 EAP 2006, 20 EAP 2006, 21 EAP 2006, 22 EAP 2006
Supreme Court of Pennsylvania
Decided July 21, 2010
Resubmitted May 1, 2009
997 A.2d 1152
Argued April 17, 2007.
Robert B. Lawler, Stephen M. Fitzgerald, Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Philadelphia, for Certainteed Corp. and Union Carbide Corp. in No. 19 EAP 2006.
Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Robert N. Spinelli, Catherine Nancy Jasons, Kelley, Jasons, McGowan, Spinelli & Hanna, L.L.P., Philadelphia, for Union Carbide Corp. in No. 20 EAP 2006.
Richard P. Myers, Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, for Richard Nybeck in Nos. 20 EAP 2006 and 22 EAP 2006.
Peter J. Neeson, Carl D. Buchholz, III, Rawle & Henderson, L.L.P., Philadelphia, for Allied Signal Inc. in Nos. 19 EAP 2006 and 21 EAP 2006.
Louis M. Tarasi Jr., Tarasi & Tarasi, P.C., Pittsburgh, for Amicus Curiae Pennsylvania Trial Lawyers Association.
Richard P. Myers, Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, for Frederick S. and Lynn Summers in Nos. 19 EAP 2006 and 21 EAP 2006.
Robert B. Lawler, Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Philadelphia, for Union Carbide Corp. and Certainteed in No. 21 EAP 2006.
Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Robert N. Spinelli, Catherine Nancy Jasons, Kelley, Jasons, McGowan Spinelli & Hanna, L.L.P., Philadelphia, for Union Carbide Corporation c/o CT Corporation in No. 22 EAP 2006.
Michael Lee Martinez, Crowell & Moring, L.L.P., for Amicus Curiae Coalition of Litigation Justice, Inc.
James Michael Beck, Dechert LLP, Philadelphia, for Amicus Curiae Product Liability Advisory Council, Inc.
Kenneth M. Argentieri, David G. Klaber, K&L Gates, L.L.P., Pittsburgh, Bruce H. Bikin, Rebecca F. Kraut, Philadelphia, Montgomery, McCracken, Walker & Rhoads, L.L.P., for Amicus Curiae The BOC Group, et al.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, ORIE MELVIN, JJ.
OPINION
Justice BAER.1
Appellants, Frederick Summers and Richard Nybeck, appeal the Superior Court‘s per curiam order, which affirmed the trial court‘s grant of summary judgment to Appellees, Union Carbide Corporation, Certainteed Corporation, and Allied Signal, Inc.2 After careful consideration, we reverse the Superior Court‘s order affirming the trial court, and remand this action to that court for proceedings consistent with this opinion.
I.
This appeal comes to us via strict liability, asbestos litigation commenced by Frederick Summers (and his wife, Lynn) and Richard Nybeck (collectively, Appellants). Appellants filed separate actions in the Philadelphia County Court of Common Pleas in 2001, seeking damages related to each man‘s exposure to asbestos during various employments. After many named defendants, by either stipulation or court order, were dismissed from the cases, Appellees filed motions for summary judgment in the respective actions, which the trial court granted. Appellants filed separate notices of appeal, and two separate panels of the Superior Court entertained oral arguments. Following oral arguments and the issuance of a panel decision in the Nybeck case, the Superior Court consolidated the two appeals, and listed them for oral argument before the court en banc. The court then divided evenly, 4-4, affirming the trial court‘s order granting summary judgment.3 Summers v. Certainteed Corp., 886 A.2d 240 (Pa.Super.2005) (en banc). We granted allowance of appeal to determine whether the Superior Court misapplied the precedent of this Court in affirming the order granting summary judgment. As proper disposition of the instant appeals is based partly upon each Appellant‘s individual health conditions, our analysis commences by addressing each in turn.
A. Frederick Summers
In 1959 and 1960, Mr. Summers worked as a saw operator at an asbestos manufacturing plant. With his daily cutting and sawing of asbestos material came the unavoidable consequence of constant inhalation of asbestos dust. After leaving employ at the plant, Mr. Summers further encountered asbestos through subsequent careers at the Southeastern Pennsylvania Transit Authority and as an independent heating and plumbing contractor.
In 1999, Mr. Summers sought treatment for his breathing difficulties. By 2003, Mr. Summers’ condition had become so debilitating that he was forced to retire. Since retirement, Mr. Summers has been unable to enjoy many of life‘s activities, such as fishing, jogging, or flying in airplanes, due to extreme shortness of breath. Indeed, Mr. Summers cannot climb one-half of a flight of stairs without losing his breath.
In 2003, after several medical examinations, which revealed the presence of pleural thickening, Dr. Jonathan L. Gelfand diagnosed Mr. Summers with asbestos pleural disease related to his years of asbestos exposure. Dr. Gelfand concluded that the disease was a substantial factor in his reduced lung diffusion4 and extreme shortness of breath. Contemporaneous with this diagnosis, however, Dr. Gelfand further opined that Mr. Summers suffered from obstructive lung disease contributable to a forty pack-year history of smoking cigarettes.5 Although Mr. Summers ceased smoking over thirty years ago, Dr. Gelfand opined that Mr. Summers’ breathing difficulties could also be attributed to his past smoking. Finally, Mr. Summers’ prior medical history was notable for a spontaneously collapsed lung in the 1960s, asthma, removal of his gallbladder, and surgery for an ulcer.
Notwithstanding the diagnostic complexities, as noted, Dr. Gelfand concluded, to a reasonable degree of medical certainty, that the asbestos-related pleural disease was a substantial factor in Mr. Summers’ diffused lung condition and debilitating shortness of breath. In so finding, Dr. Gelfand noted that, while the obstructive lung condition due to smoking showed “some improvement,” in general, the reduction in lung diffusion remained severe. See Report of Dr. Gelfand concerning Frederick Summers, Reproduced Record (R.R.) at 45a. Accordingly, Dr. Gelfand opined that, while occupational exposure to asbestos dust substantially contributed to his condition, id. at 46a, the obstructive lung disease, caused by cigarette smoking, also played a role in his breathlessness.
While Mr. Nybeck was enlisted in the Navy in the 1950s, 1960s, and 1970s, he was exposed to asbestos dust and fibers from materials used in boilers, automobile brakes, and steam pipes. Mr. Nybeck, like Mr. Summers, was forced into premature retirement due to debilitating shortness of breath, and can no longer enjoy life‘s activities, such as fishing, or even walking on level ground, without becoming short of breath. His condition has worsened, and his limitations have increased, over the past decade.
Dr. Gelfand, also Mr. Nybeck‘s treating physician, diagnosed Mr. Nybeck with asbestos-related pleural thickening and the more severe disease of asbestosis. Mr. Nybeck also smoked cigarettes until approximately ten years ago, and thus suffers from severe obstructive lung disease related to an eighty pack-year history of smoking. Again, however, notwithstanding the case‘s complexities, Dr. Gelfand was able to conclude to a reasonable degree of medical certainty that occupational exposure to asbestos fibers and dust over the years caused Mr. Nybeck‘s pleural disease and asbestosis, which are significant contributing factors to his debilitating condition. See Report of Dr. Gelfand concerning Richard Nybeck, R.R. at 183a.
C. Procedural History
As noted, Appellants initially filed separate products liability actions against a number of defendants, some common to the two actions, others not. The defendants in each case filed motions for summary judgment; and, relevant to this appeal, argued that neither Appellant could survive summary judgment because their respective smoking-related diseases prevented them from proving that exposure to asbestos was the cause of their debilitating conditions.
Although the cases had not been formally consolidated, the trial court, entering one order and supporting opinion, granted the defendants’ motions for summary judgment and dismissed Appellants’ cases.6 In support of its order, the trial court cited to the Superior Court‘s 2003 decision in Quate v. American Standard, Inc., 818 A.2d 510 (Pa.Super.2003), which states as follows:
where a plaintiff suffers from a non-asbestos-related medical condition, the symptoms of which are consistent with medical conditions arising from exposure to asbestos, the existence of those non-asbestos-related medical conditions negate his ability to establish the necessary causal link between his symptoms and asbestos exposure. Under these circumstances, summary judgment is proper.
Id. at 511. Thus, because both Mr. Summers and Mr. Nybeck suffer from lung diseases associated with both asbestos-related and non-asbestos-related conditions, the trial court found it “impossible ... to causally relate [Appellants‘] shortness of breath to any particular medical condition ....” Tr. Ct. Slip Op. at 4 (Dec. 29, 2003) (citing Quate).
Appellants filed separate appeals to the Superior Court, and, as noted, the cases were eventually consolidated for oral argument before the court en banc. The eight-member court split 4-4, resulting in the affirmance of the trial court‘s order granting
The OISA further discredited Dr. Gelfand‘s expert reports, which, while cataloging the numerous medical problems from which Appellants suffered, still concluded, to a reasonable degree of medical certainty, that Appellants: (1) suffered from an asbestos-related disease, which was (2) a cause of the debilitating breathing conditions, and (3) substantially contributed to by “each and every exposure to asbestos.” Id. at 244 (quoting Reports of Dr. Gelfand, R.R. at 46a, 183a). In rejecting these conclusions, the OISA, in conformity with Quate, opined, “just because a hired expert makes a legal conclusion does not mean that a trial judge has to adopt it if it is not supported by the record and is devoid of common sense.” Id. With that, the OISA concluded that Appellants’ numerous medical ailments made it impossible to relate their shortness of breath causally to any particular medical condition, despite the diagnoses of asbestos-related pleural disease (Summers) and asbestosis (Nybeck). Id. at 246.
Judge Panella authored the Opinion in Support of Reversal (OISR).9 The OISR first noted that, over recent years, the Superior Court has espoused differing standards for establishment of a prima facie case in asbestos-related litigation. See Cauthorn v. Owens Corning Fiberglas Corp., 840 A.2d 1028 (Pa.Super.2004) (outlining the competing standards for establishment of a prima facie case).10 The OISR then opined that Appellants, through Dr. Gelfand‘s reports and conclusions concerning their respective conditions, had established prima facie cases capable of surviving summary judgment motions, under each of the inconsistent tests established in Superior Court caselaw. Specifically, the OISR found that Dr. Gelfand had, to a reasonable degree of medical certainty, concluded that Appellants were exposed to asbestos, suffered from asbestos-related conditions, and that those conditions were fac-
tual causes of the debilitating breathlessness from which each man suffers. Thus, the OISR would have reversed the trial court‘s grant of summary judgment, and permitted a jury to decide the issues.
Appellants and Appellees both filed for allowance of appeal, which we granted to consider three issues: (1) whether the Superior Court used an improper standard in reviewing the trial court‘s order granting summary judgment; (2) to clarify whether plaintiffs, in pursuing asbestos-related
II.
Appellants begin their argument by contending that the Superior Court applied the wrong standard and scope of review when analyzing the trial court‘s orders granting summary judgment. Specifically, they aver that the OISA improperly applied an abuse of discretion standard, rather than conducting plenary review of the trial court‘s decision and, by doing so, did not view the evidence of record in a light most favorable to them, as the non-moving parties. In other words, Appellants essentially argue that the trial court erred by failing to view the facts in a light most favorable to Appellants, and, by adopting an abuse of discretion standard in reviewing the trial court‘s decision, the OISA accepted the trial court‘s faulty findings, compounding the error. Appellants assert that if this Court conducts a de novo review, properly viewing the facts, it will be clear that summary judgment should have been denied. While Appellees dispute any error on the part of the lower courts, they primarily contend that Appellants waived this challenge by stating, in their brief to the Superior Court, that the standard of review is whether there was an abuse of discretion or error of law.
As has been oft declared by this Court, “summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002);
an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals.
Weaver v. Lancaster Newspapers, Inc., 592 Pa. 458, 926 A.2d 899, 902-03 (2007) (internal citations omitted). To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record. Id. at 903.
With these standards in mind, we agree with Appellants that the OISA
III.
Unlike the members of the Superior Court who joined the OISA affirmance of the grants of summary judgment, we view the remainder of these appeals as concerning three additional issues: one of both law and fact, and two pure questions of law. Specifically, the mixed issue of law and fact revolves around the trial court‘s and OISA‘s review of the record and of Dr. Gelfand‘s conclusions and diagnoses in general, and whether the record supports the trial court‘s decision that Appellants failed to establish causation as a matter of law. The legal issues concern: (1) whether Messrs. Summers and Nybeck suffered from asbestos-related, compensable injuries under this Court‘s jurisprudence; and (2) whether the fact that each man smoked cigarettes precludes their cases from surviving a motion for summary judgment on the issue of causation. In deciding the appropriateness of Appellants’ litigation under these issues, we must keep in mind a paramount function of juries under Pennsylvania law: the resolution of conflicting facts and theories of causation.
A.
The Superior Court OISA concluded that Dr. Gelfand‘s opinions were factually and legally insufficient to establish the causes of Appellants’ conditions. Summers, 886 A.2d at 244. Specifically, Dr. Gelfand concluded,
In my opinion, to a reasonable degree of medical certainty, exposure to asbestos in the workplace is the cause of the asbestos pleural disease and is a substantial contributing factor to this diffusion abnormality and to his dyspnea on exertion. Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted.
Id.
It has long been Pennsylvania law that, while conclusions recorded by experts may be disputed, the credibility and weight attributed to those conclusions are not proper considerations at summary judgment; rather, such determinations reside in the sole province of the trier of fact, here, a jury. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525, 528 (1995); In re Estate of Hunter, 416 Pa. 127, 205 A.2d 97, 102 (1964) (“The credibility of witnesses, professional or lay, and the weight to be given to their testimony is strictly within the proper province of the trier of fact.“). Accordingly, trial judges are required “to pay deference to the conclusions of those who are in the best position to evaluate the merits of scientific theory and technique when ruling on the admissibility of scientific proof.” Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1045 (2003) (citing Frye v. United States, 293 F. 1013 (D.C.Cir.1923)).
At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. Toy, 928 A.2d at 195. This clearly includes all expert testimony and reports submitted by the non-moving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, see Grady; Frye, and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact. Miller, 664 A.2d at 528.
Instantly, the OISA overlooked Dr. Gelfand‘s testimony that Appellants each suffered from debilitating conditions related to occupational exposure to asbestos and focused almost exclusively on the statement that “each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted.” Id.; see also R.R. at 46a, 183a.14 In our view, Dr. Gelfand testified to a diagnosis or medical conclusion supported by the record: both Appellants had
already demonstrated prolonged and intense occupational exposure to asbestos, and such exposure was not disputed. Moreover, their medical histories and examinations each showed evidence of asbestos-related diseases, including pleural thickening. Whether pleural thickening was the proximate cause for Appellants’ symptoms was a disputed issue that should have been reserved for the jury rather than decided
B.
The question of the adequacy of Dr. Gelfand‘s conclusions now examined, we move to what we view as the two separate legal issues that surround not just the instant litigation, but also the scores of asbestos-related cases that continue to daunt the courts of this Commonwealth.
The first, discussed in this part, is whether Appellants, in the first instance, suffered from a compensable injury under our jurisprudence. Prior to 1996, a plaintiff possessed a viable cause of action against asbestos manufacturers upon a mere diagnosis of an asbestos-related condition. See e.g. Marinari v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992). That changed, however, when this Court held that diagnosed, but asymptomatic, asbestos-related pleural thickening failed to state a cognizable cause of action. Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232, 237 (1996).15 Accordingly, only upon the development of symptoms and physiological impairment could a plaintiff commence litigation for an asbestos-related injury. Id. In determining what actually constituted “symptoms and physiological impairment,” we noted that “when the pleural thickening is asymptomatic, individuals are able to lead active, normal lives, with no pain or
suffering, no loss of an organ function, and no disfigurement due to scarring.” Id. at 236. It is thus unassailable that the converse is equally true: when pleural thickening becomes symptomatic, and individuals are no longer able to lead normal lives, Simmons is satisfied and a viable cause of action exists, as a plaintiff is then, in the legal sense, harmed.
Even before our pronouncement in Simmons, however, confusion began to mount in light of different panels of the Superior Court espousing inconsistent views concerning what are, and are not, compensable symptoms and physiological impairments. In 1995, a panel of the Superior Court held that shortness of breath alone was non-compensable when unaccompanied by physical symptoms, functional impairments, or disabilities. Taylor v. Owens-Corning Fiberglas Corp., 446 Pa.Super. 174, 666 A.2d 681, 687-88 (1995) (citing Giffear, supra note 15). The same panel, in a separate case argued the same day, then permitted litigation to continue when the asbestos-related breathlessness prohibited life activities such as walking, climbing stairs, or driving nails with a hammer. White v. Owens-Corning Fiberglas Corp., 447 Pa.Super. 5, 668 A.2d 136, 139-40 (1995). Inconsistent with Taylor and White, however, a different panel of the Superior Court, two years later, found a prima facie showing sufficient to undergird recovery when a plaintiff merely established (1) an asbestos-related condition; (2) shortness of breath; and (3) a causal connection between the two. McCauley v. Owens-Corning Fiberglas Corp., 715 A.2d 1125 (Pa.Super.1998).
As noted above, an integral part of the analysis of this case is whether Appellants, in the first instance, even suffer from a compensable injury under Simmons and its progeny. To that end, we agree with the OISR below that, under either the Taylor/White standard, or the McCauley
breath is the proper standard, as I conclude that the plaintiffs in the present cases have satisfied both.“).16
An analysis under the Taylor/White test is simple: both men clearly suffer from “physical symptoms” and “functional impairments.” They have been forced into retirement, cannot walk short distances without becoming short of breath, nor can they enjoy fishing. Likewise, under McCauley, each man suffers from shortness of breath, has been diagnosed with an asbestos-related condition, and their shortness of breath, at least in part, has been causally linked to asbestos exposure. Accordingly, under Simmons and its (contradictory) progeny, Appellants suffer from compensable injuries.
C.
The answer to the first legal issue concerning the establishment of a cause of action under Pennsylvania law now ascertained, we turn to the second legal issue in this case: whether, regardless of the compensability of their injuries, Appellants have no viable cause of action because the cause of their symptoms may be attributed to either their asbestos-related or the non-asbestos related conditions. In resolving this issue against Appellants, the trial court and the Superior Court OISA extensively relied upon the Superior Court‘s panel decision in Quate v. American Standard, Inc., 818 A.2d 510 (Pa.Super.2003), for the proposition that Appellants’ cigarette smoking and obstructive lung diseases “may have caused [their] shortness of breath upon exertion and therefore [the]
medical conditions] cannot be causally related to asbestos exposure sufficient to sustain a compensable injury.” Tr. Ct. Slip Op. at 4; “Neither of the plaintiffs can currently meet his burden of demonstrating that asbestos exposure created impairment or disability beyond the severe breathing problems he has from smoking and other ailments.” Summers v. Certainteed Corp., 886 A.2d at 246-47 (OISA).
As noted, supra Part II, “summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221-22 (2002). Equally clear is that [w]hether in a particular case that standard [plaintiff‘s burden of preponderance of the evidence] has been met with respect to the element of causation is normally a question of fact for the jury; the question is to be removed from the jury‘s consideration only where it is clear that reasonable minds could not differ on the issue. In establishing a Prima [sic] facie case, the plaintiff need
Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284-85 (Pa.1978) (emphasis added); see also Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241, 465 A.2d 1231, 1234 (1983) (holding, where reasonable minds may differ, questions of causation are for the jury); Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A.2d 414, 419 (1962) (holding where “reasonable difference of opinion as to whether the defendant‘s act was the, or a proximate cause of, the injury, the matter is for the jury to decide“); Finney v. G.C. Murphy, Co., 406 Pa. 555, 178 A.2d 719 (1962) (holding issues of fact in dispute are solely for the jury); Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (1961) (holding proximate cause almost always a question solely for the jury); Jones v. Port Auth. of Allegheny County, 136 Pa. Cmwlth. 445, 583 A.2d 512 (1990) (holding that tion of a uniform test or prima facie standard at this juncture would be dicta. questions of proximate cause are within the exclusive domain for the jury and may only be removed when reasonable minds cannot differ); Dep‘t of Pub. Welfare v. Hickey, 136 Pa. Cmwlth. 223, 582 A.2d 734 (1990) (same); Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525 (1988) (same, quoting Hamil); Vernon v. Stash, 367 Pa. Super. 36, 532 A.2d 441 (1987) (same);
In Quate, expert testimony revealed that the plaintiff suffered from both asbestosis and shortness of breath after having been exposed to asbestos, but also presented with an extensive medical history, which included complications due to smoking, diabetes, prostate cancer, and heart disease. Quate, 818 A.2d at 512-513. Mr. Quate‘s shortness of breath, however, did not restrict his daily activities, nor prevent normal functioning. Id. at 514. Rather than concentrating on Mr. Quate‘s condition being asymptomatic in nature,17 the Superior Court panel instead decided that Mr. Quate‘s myriad of medical conditions, all of which may cause shortness of breath, precluded Mr. Quate from establishing the necessary causal connection between the breathlessness and asbestosis to survive a motion for summary judgment:
we hold that where a plaintiff suffers from a non-asbestos-related medical condition, the symptoms of which are consistent with medical conditions arising from exposure to asbestos, the existence of those non-asbestos-related medical conditions negate his ability to establish the necessary causal link between his symptoms and asbestos exposure. Under these circumstances, summary judgment is proper.
In applying Quate to the instant cases, the courts below dismissed Dr. Gelfand‘s conclusions, made to a reasonable degree of medical certainty, that Appellants each suffer from debilitating conditions caused at least in part by occupational exposure to asbestos, and instead focused on Appellants’ other medical conditions (specifically, obstructive lung disease due to smoking) as being dispositive of their claims. In the context of negligence actions, we have held unequivocally that “the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability unless he can show that such other cause would have produced the injury independently of his negligence.” Hamil, 392 A.2d at 1285. While asbestos litigation implicates concepts
Turning, then, specifically to this appeal from the grant of summary judgment, the holdings of the courts below cannot withstand the aforementioned jurisprudence. While, certainly, portions of the record support Appellees’ contentions that a non-asbestos related condition is the root of Appellants’ debili-tating conditions, the same record also readily supports Dr. Gelfand‘s conclusions concerning causation. The resolution of any conflict between competent, competing medical evidence, under clear precedent, must be left for a jury.19 At least absent further proceedings, wherein the competence of proffered medical testimony might be challenged,20
Jurisdiction relinquished.21
Justice ORIE MELVIN did not participate in the consideration or decision of this case.
Chief Justice CASTILLE, Justices TODD and McCAFFERY join the opinion.
Justice SAYLOR files a concurring opinion.
Justice EAKIN files a dissenting opinion.
Justice SAYLOR, concurring.
I am sympathetic to the task of the common pleas and intermediate appellate courts in addressing the “elephantine mass of asbestos litigation ... [which] defies customary judicial administration and calls for national legislation.” Ortiz v. Fibreboard Corp., 527 U.S. 815, 821, 119 S.Ct. 2295, 2302, 144 L.Ed.2d 715 (1999). Ultimately, however, I agree with the majority that the common pleas court‘s summary judgment decision, which turns on Quate v. American Standard, Inc., 818 A.2d 510 (Pa.Super.2003), was not an adequate resolution of Appellants’ claims in the present case.
Initially, I agree with the majority that Quate is unsound to the degree that it rejects, outright, the possibility of a valid differential diagnosis by a medical expert, and/or the potential for concurrent causation, in applying the injury threshold under Simmons v. Pacor, 543 Pa. 664, 674 A.2d 232 (1996). See Majority Opinion, at 314-15, 997 A.2d at 1164-65. While the common pleas court cannot be faulted for relying on Quate as prevailing Superior Court precedent, such reliance obviated an evaluative examination of Dr. Gelfand‘s methodologies, which I believe belongs—explicitly—at the center of these cases. See, e.g., In re Asbestos Litigation, No. 001 Oct. Term 1986, slip op., 2008 WL 4600385 (C.P.Phila.Sept.24, 2008) (reflecting an evaluative assessment of the “any breath” theory, on a developed record, upon a defense challenge pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923)); In re Toxic Substances Cases, No. A.D. 03-0319, 2006 WL 2404008, at *3-4 (C.P.Allegh.Aug.17, 2006) (same), rev‘d on other grounds sub nom Betz v. Pneumo Abex LLC, 9 A.2d 1134 (2010), petition for allowance of appeal filed, No. 278 WAL 2010.1
The difficulty in these cases, highlighted at length by Appellees and their amici, is that, at least on the face of his report, Dr. Gelfand‘s differential diagnosis is explained solely in terms of the “any breath” theory of causation. See, e.g., Report of Jonathan L. Gelfand, M.D. (Summers), at 3 (June 25, 2003). Notably, in Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (2007), this Court recently credited the opinion announcing the judgment of the Superior Court in the present case, authored by Judge Klein, to the degree it rejected the “any breath” theory as establishing a jury issue in cases in which the plaintiffs’ exposure to a defendant‘s asbestos-containing product is de minimus. See id. at 291, 943 A.2d at 226.2
The difference here arises from the fact that Appellants have surpassed the de minimus threshold, which was the issue in Gregg. Thus, presently, the underlying questions are whether the “any breath” theory suffices to support a differential diagnosis and/or to establish concurrent causation, and whether there is some other undisclosed methodology or basis supporting Dr. Gelfand‘s opinions.3 It is my considered position that, to the degree a plaintiff surpasses the de minimus threshold, such matters are best addressed via the procedure established under
It may be that the common pleas court believed that an inquiry into the admissibility of Dr. Gelfand‘s opinion under Frye was not implicated, on the theory that the methodology employed was not novel. See Commonwealth v. Puksar, 597 Pa. 240, 255, 951 A.2d 267, 276 (2008) (explaining that the Frye test is limited to novel methodologies). However, as developed in my dissenting opinion in Commonwealth v. Smith, 606 Pa. 127, 995 A.2d 1143 (2010), I believe that Pennsylvania common pleas courts should maintain a meaningful screening role in determining the admissibility of evidence adduced from those laying claim to special expertise. Thus, I would interpret the term “novel,” in the
Moreover, under our evidentiary rules not all proffered expert testimony must be admitted.
If that had been done here, the Superior Court, and this Court, might have had an adequate foundation to evaluate whether the trial court correctly determined that Dr. Gelfand‘s reports did not raise a genuine factual issue. As it is, the Superior Court plurality would place judges in the role of independent scientific experts, which, obviously, is not their central area of expertise. See Summers v. Certainteed, 886 A.2d 240, 243, 245 (Pa.Super.2005) (Opinion in Support of Affirmance); see also supra note 1.7 The plurality opinion also depends, in material part, on the scientific conclusion that it simply is not possible for a medical expert to assess substantial-factor causation relative to a diffusion reduction. While this may well be true, I believe Appellants were entitled to be informed, prior to an appeal, that this was a central basis for the determination that they have no present remedy. This would have sharpened the controversy and assured that it was channeled through appropriate procedural avenues, with fair notice and opportunity for response and development to all. Cf. In re Asbestos Litigation, slip op., 2008 WL 4600385; In re Toxic Substances Cases, 2006 WL 2404008, at *3-4.
Accordingly, while recognizing the profound social impact of asbestos litigation, I support the remand directed by the majority to allow for appropriate process.8 Since, however, I maintain respectful but material differences with the majori-ty‘s reasoning, my agreement with its opinion is limited to the result.
Justice EAKIN, dissenting.
I respectfully dissent.
Regarding the proper standard of review, the majority fails to address the fact
Further, although the Superior Court‘s Opinion in Support of Affirmance (OISA) did not explicitly set forth a de novo standard of review, it did review the record in its entirety, as well as the applicable case law, before affirming the trial court‘s grant of summary judgment. The majority‘s finding the OISA erred in using an abuse of discretion standard of review hinges on its perception the OISA “deferred to the trial court‘s resolution of the legal question of whether genuine issues of material fact existed.” Majority Op., at 307, 997 A.2d at 1160. In contrast, I find the OISA merely relied on Superior Court precedent for the conclusion appellants could not meet their burden of demonstrating their asbestos exposure caused impairment or disability beyond breathlessness attributable to smoking and other non-asbestos related causes. See Summers v. Certainteed Corporation, 886 A.2d 240, 242-43 (Pa.Super.2005).
In Giffear v. Johns-Manville Corporation, 429 Pa. Super. 327, 632 A.2d 880 (1993), Giffear had asymptomatic asbestos-related pleural thickening.1 Giffear, at 882. The trial court granted the defendant‘s motion for judgment notwithstanding the verdict. Id. at 883. The Superior Court affirmed, holding “as a matter of law, that pleural thickening, absent disabling consequences or manifest physical symptoms, is a non-compensable injury and is therefore not a cognizable claim in the Commonwealth.” Id. at 884. The court concluded, “[w]ithout evidence that such a condition is causing ascertainable physical symptoms, impairment, or disability, pleural thickening is a non-compensable injury and, therefore, does not give rise to a cause of action.” Id. at 888.
This Court affirmed Giffear in Simmons. In Simmons, we were asked to determine “whether asymptomatic pleural thickening, i.e., unaccompanied by disabling consequences or physical impairment, is a compensable injury.” Simmons, at 236. This Court concluded “asymptomatic pleural thickening is not a compensable injury which gives rise to a cause of action.” Id. at 237. In reaching that conclusion, we noted no physical injuries had been established by the appellants. Id.
Between the time Giffear was decided and reviewed in Simmons, the Superior Court decided Taylor v. Owens-Corning Fiberglas Corp., 446 Pa. Super. 174, 666 A.2d 681 (1995), which affirmed the trial court‘s grant of summary judgment in the defendants’ favor as to three of the four consolidated plaintiffs. Id. at 684. The court stated the three plaintiffs who were diagnosed with asymptomatic asbestosis-related disease had not suffered any discernible physical symptoms or functional impairment. Id. at 684-85. The court explained:
Shortness of breath alone is not a compensable injury under Giffear ... because it is not a discernible physical symptom, a functional impairment, or a disability. It is common knowledge that breathlessness is also associated with any number of non-asbestos-related ailments including lung can-cer, excessive cigarette smoking, heart disease, obesity, asthma, emphysema and allergic reactions.
The condition the majority herein describes as compensable injury is “shortness of breath.” Majority Op., at 315, 997 A.2d at 1164. Despite Simmons, let us assume this is a compensable injury; there is divided authority on that point, but the issue is not before us. Both appellants have shortness of breath, and both have Dr. Gelfand saying “each and every” exposure to asbestos was not just a factor, but a substantial contributing factor to that shortness of breath. Report of Dr. Gelfand Concerning Nybeck, 8/19/03, at 2; Report of Dr. Gelfand Concerning Summers, 6/25/03, at 3 (emphasis added). Based on that conclusory statement alone, must we send the case to the jury?
It is certainly true that further discovery or proceedings could discredit the doctor‘s “every breath is substantial” theory—then again, further proceedings might bolster that theory. We, however, review the trial court‘s decision on the record at the time of the motion. Neither position is substantiated at this point, and we cannot tell if support or destruction of the doctor‘s expansive theory may be forthcoming.
The true question is whether it is the burden of the proffering party, appellants here, to support that theory at this stage, or whether it is the burden of the defense to challenge the conclusion by means of a Frye hearing or the like. If a conclusion that forms the basis of liability is founded on a manifestly questionable causation theory,2 does the trial court have the authority to grant summary judgment when there is no support of the theory in the record?
There are two reasons I would find the trial court‘s actions appropriate. First, the “every breath” theory is indeed suspect on its face. See Summers, at 244. Secondly, each appellant has so many other conditions that finding the asbestos exposure to be a significant contributing factor is difficult even if Dr. Gelfand‘s theory were facially plausible.
Judge Klein‘s analogy to the bucket of water in the ocean is spot on. See id. Each exposure may contribute, but no single exposure can be substantial—by definition, “substantial” cannot modify every bucket of water in the ocean, and while each bucket counts, no bucket is substantial. Each and every exposure can be no more a significant contributing factor than is each and every cigarette, or each and every meal that led to the obesity.3 That is, the medical conclusion offered is, on its face, not credible in terms of the legal notion of “substantial contributing factor.” Each asbestos fiber, each cigarette, each cheeseburger is literally but a drop in the proverbial bucket—a bucket unquestionably full, but to call each drop substantial
Even ignoring this basic failing in the doctor‘s premise, was appellant‘s proffer sufficient for a jury to conclude the product was a “substantial contributing factor” to the injury alleged? The injury is shortness of breath, a condition each appellant undoubtedly has. The material facts are not at issue—appellant‘s best case is Dr. Gelfand‘s report. If it suffices, they prevail, and if it does not, they do not. The case is, therefore, appropriate for summary judgment.
According to Dr. Gelfand, Mr. Summers’ exposure to asbestos was a significant contributing factor to diffusion abnormality and dyspnea on exertion, and was the cause of his pleural thickening. See Report of Dr. Gelfand Concerning Summers, 6/25/03, at 3. However, Mr. Summers also suffers from moderately severe chronic obstructive pulmonary disease (COPD) as well as emphysema, asthma, and obesity. Id., at 2. The doctor opines that his 40 pack-year smoking caused the COPD and is a “substantial contributing factor” to the other conditions. Id., at 3. He does not rule out his asthma, COPD, or obesity as possible causes of Mr. Summers’ shortness of breath.
Mr. Nybeck has twice the smoking history of Mr. Summers and quit later. Report of Dr. Gelfand Concerning Nybeck, 8/19/03, at 1. He has severe emphysema, hyperinflation of the lungs, and a more intensive medical history. See id., at 2; Deposition of Richard Nybeck, 10/16/03, at 402-04. Dr. Gelfand‘s conclusions for this appellant are couched in exactly the same terms as with Mr. Summers. Report of Dr. Gelfand Concerning Nybeck, 8/19/03, at 2. He does not rule out the emphysema, bronchitis, and pneumonia as other causes of Mr. Nybeck‘s shortness of breath. See Deposition of Richard Nybeck, 10/16/03, at 402-04.4
Thus, with Mr. Summers, Dr. Gelfand believes asbestos was the cause of pleural thickening, and was a substantial contributing factor to diffusion abnormality and dyspnea. He opines that smoking was the cause of Mr. Summers’ chronic obstructive lung disease, and a substantial contributing factor to diffusion abnormality and dyspnea. He allows that either COPD, or asthma, or obesity could be the cause of his shortness of breath.
With Mr. Nybeck, the doctor again opines that asbestos exposure was the cause of pleural thickening and asbestosis, and was a substantial contributing factor to diffusion abnormality and dyspnea. Smoking was the cause of severe chronic lung disease, and a substantial contributing factor to pulmonary function abnormalities, hyperinflation, and dyspnea. He allows that the shortness of breath could also be caused by emphysema, bronchitis, or pneumonia.
In sum, asbestos caused pleural thickening, the non-compensable condition, while smoking caused the lung disease. He opines both contributed to other problems but cannot rule out other causes. If the “compensable injury” is shortness of breath, or dyspnea on exertion, what caused it? If there are two significant contributing factors, the majority would be correct in allowing the fact-finder to assign causation. Where there are three legitimate potential causes, the significance of each lessens. Where there are five potential causes, the significance of each is necessarily diluted—it is still easy to call each “significant” but in a strict liability products case, mere speculation about actual
Having an expert say the words “sufficient to establish legal causation” is not enough—the court has some obligation to examine the conclusions, not merely accept them as inviolate on their face. Where the expert‘s opinion cannot assign causation beyond stating the obvious—each party had a lot of problems for a lot of reasons, the opinion is of little help to a jury. Where the basis for the opinion itself is manifestly suspect, that “each and every” exposure is not just a factor but a substantial one, the opiner‘s credibility unravels.
The trial court did not reject the conclusion that appellants suffer from asbestos-related disease; in fact, that is not the conclusion Dr. Gelfand makes. What the court did do was find insufficient the proffered connection between the relevant symptoms and the amount of asbestos exposure that actually happened. With that conclusion, I cannot disagree and hence dissent.
Notes
Asbestos-related pleural thickening has been defined as the formation of calcified tissue on the pleura, the membranes surrounding the lungs. The condition may be objectively determined in the sense that it is revealed on an x-ray. Pleural thickening may occur independent of or in conjunction with asbestosis. When the pleural thickening is asymptomatic, individuals are able to lead active, normal lives, with no pain or suffering, no loss of an organ function, and no disfigurement due to scarring.
Id. at 236 (citations omitted).
Nevertheless, the Smith majority discussed several aspects of the expert‘s testimony in tandem, making it difficult to assess the breadth of the holding; the decision arose in the context of evaluating strategic, trial decisions of a criminal defense attorney; and the majority couched the relevant expert opinion as “questionable,” as opposed to contrary to the scientific literature. See Smith, 606 Pa. at 155, 995 A.2d at 1159. For these reasons, I do not read Smith as having broad-scale significance in terms of this Court‘s approach to scientific evidence.
Expert witnesses can have an extremely prejudicial impact on the jury, in part because of the way in which the jury perceives a witness labeled as an expert. To the jury an “expert” is just an unbridled authority figure, and as such he or she is more believable. A witness who has been admitted by the trial court as an expert often appears inherently more credible to the jury than does a lay witness.... Added to the potentially prejudicial influence of the term expert is the difficulty inherent in evaluating scientific evidence. Jurors are often expected to understand complex testimony regarding arcane scientific concepts and are even asked to resolve issues on which the experts cannot agree.
Robinson, 923 S.W.2d at 553 (citations and quotation marks omitted).
Id. at 226-27.we do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation ... The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.
As an aside, we are compelled to note further that the Dissent takes no issue with our disapproval of the Quate decision; indeed, had we reaffirmed the vitality of Quate, the Dissent‘s position would be well-taken. As noted supra, however, Quate simply cannot be aligned with the decisional law of this Court.
In Martin, the plaintiff sought asbestos-related damages and presented expert testimony, which detailed his disabilities due to both asbestosis and cigarette-smoking-related emphysema. The trial court, in charging the jury after summations, instructed the members to apportion the damages awarded (if any) by the percentage of Martin‘s condition that was due to cigarette smoking. On appeal, we remanded for a new trial, limited to the issue of damages, because the jury had not been provided any testimony or evidence concerning the relative contribution of cigarette smoking and asbestos exposure to the plaintiff‘s conditions. Despite Appellants’ contentions to the contrary, Martin did not address the issues of expert testimony or causation discussed herein; rather, Martin merely concerned the propriety of a trial court‘s instruction to apportion damages in a concurrent causation action.