[J-12-2016] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
RICHARD M. ROST, EXECUTOR OF : No. 56 EAP 2014
THE ESTATE OF RICHARD J. ROST & :
ERIN SIPLEY, EXECUTRIX OF THE : Appeal from the Judgment of Superior
ESTATE OF JOYCE ROST, : Court entered on May 19, 2014 at No.
: 404 EDA 2012 affirming the Judgment
Appellees : entered on December 28, 2011 in the
: Court of Common Pleas, Civil Division,
: Philadelphia County at No. 1978
v. : September Term, 2010.
:
: ARGUED: May 6, 2015
FORD MOTOR COMPANY, : REARGUED: April 6, 2016
:
Appellant :
DISSENTING OPINION
JUSTICE BAER DECIDED: November 22, 2016
Pursuant to this Court’s decisions in Gregg v. V-J Auto Parts, Co., 943 A.2d 216
(Pa. 2007), and Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012), I join the Chief
Justice’s analysis in his dissenting opinion, diverging only in regard to disposition.
Rather than granting Ford Motor Company judgment notwithstanding the verdict, I
would reverse and remand for new trial to allow the parties to apply this Court’s decision
in Betz, which issued after the trial in the case at bar. I additionally write to address my
prior dissenting opinion in Gregg. For the following reasons, I respectfully dissent from
my colleagues in the Majority, while joining the Chief Justice’s dissenting opinion in part.
In Gregg, the plaintiff claimed that the asbestos he inhaled while changing the
brakes on his personal automobile several times was a substantial factor in his
development of mesothelioma, despite over forty years of professional exposure. This
Court concluded that, in cases involving direct as well as circumstantial evidence of
asbestos exposure, it is appropriate for a court to consider at the summary judgment
stage “whether, in light of the evidence concerning frequency, regularity, and proximity
of a plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the
necessary inference of a sufficient causal connection between the defendant’s product
and the asserted injury.” Id. at 227. In so doing, the Court concluded that it was not “a
viable solution to indulge in a fiction that each and every exposure to asbestos, no
matter how minimal in relation to other exposures, implicates a fact issue concerning
substantial-factor causation in every ‘direct-evidence’ case.” Id. at 226–27. The Court
remanded to the Superior Court for application of the “frequency, regularity, and
proximity” standard.
I dissented to what I viewed as that majority’s unwarranted criticism of the
experts’ testimony at the summary judgment stage in a case involving direct evidence of
asbestos exposure, and recommended that the proper challenge to the expert’s “each
and every exposure” theory should arise through a Frye challenge or through cross-
examination of the expert at trial. Id. at 229-30 (citing Frye v. United States, 293 F.
1013 (D.C. Cir. 1923) (setting forth an exclusionary rule of evidence that applies only
when a party wishes to introduce novel scientific evidence obtained from the
conclusions of an expert scientific witness)). Notably, the majority of the Court
concluded otherwise.
Five years later, this Court considered Betz v. Pneumo Abex LLC, 44 A.3d 27
(Pa. 2012). Engaging in the procedure lacking in Gregg, the defendant challenged the
“each and every exposure” theory pursuant to Frye, and the trial court held an extensive
hearing and ultimately excluded the evidence. This Court unanimously concluded that
the trial court properly excluded the expert’s testimony and further opined that the “each
[J-12-2016] [MO: Donohue, J.] - 2
and every exposure” theory could not serve as the basis for an expert’s conclusion that
the asbestos exposure was a substantial factor in causing the asbestos-related disease,
in contrast to merely a cause-in-fact. Instead, the Court required a comparative
assessment of the plaintiff’s various exposures to asbestos. Id. at 56-58.
My colleagues in the Majority in the case at bar deem the discussion of
comparative assessment in Betz to be dicta. Maj. Op. at 22. To the contrary, the
comparative assessment analysis is the heart of the unanimous holding in Betz.
Subsection D of the opinion addresses the “Any-Exposure Opinion,” otherwise
referenced as the “each and every exposure” theory. In the first paragraph of
Subsection D, the Court agreed with the trial court that the “primary conceptual concern”
with the plaintiff’s theory was that if risk of mesothelioma attached to each asbestos
fiber then each of the millions of asbestos fibers, to which a plaintiff had been exposed,
would be a substantial factor in causing mesothelioma. Betz, 44 A.3d at 55. Each fiber
cannot be a “substantial” factor in causing the disease if there are millions of similar
factors. The unanimous court further relied upon the plaintiff’s expert’s testimony, in
which he opined that one must consider the potency, concentration, and duration of
asbestos exposure to “estimate the relative effects of different exposures.” Id. at 56.
The Court’s criticism of the each and every exposure theory of substantial
causation hinged on recognition of the significance of comparative assessments:
In this regard, the analogies offered by Dr. Maddox in
support of his position convey that it is fundamentally
inconsistent with both science and the governing standard
for legal causation. The force of his marbles-in-a-glass
illustration changes materially upon the recognition that, to
visualize this scenario in terms of even a rough analogy, one
must accept that the marbles must be non-uniform in size
(as asbestos fibers are in size and potency), microscopic,
and million-fold. From this frame of reference, it is very
difficult to say that a single one of the smallest of
[J-12-2016] [MO: Donohue, J.] - 3
microscopic marbles is a substantial factor in causing a
glass of water to overflow.
Betz, 44 A.3d at 57. The Court continued, “Dr. Maddox’s boxer analogy is as
inconsistent with human experience as it is with science, as the difference between a
glancing blow to the shoulder and a knockout punch to the jaw is commonly
understood.“ Id. We, therefore, rejected the Superior Court’s prior reliance on contrary
language in Tragarz v. Keene Corp., 980 F.2d 411, 421 (7th Cir. 1992), and concluded
that a comparative assessment of the plaintiff’s exposures “is required for causal
attribution” under Pennsylvania law. Betz, 44 A.3d at 58. Unlike this author’s dissent in
Gregg, the unanimous decision of the Court in Betz is precedent binding the current
members of this Court, absent an explanation of why the legal principle of stare decisis
should not be followed.
While the necessity of comparative assessment for purposes of substantial factor
causation had been percolating in our prior decisions, see Gregg, 943 A.2d at 226-27,
Betz clarified the requirement. The parties in the current case, however, did not have
the benefit of Betz’s dictates at trial. Accordingly, I would remand for new trial to allow
the plaintiff the opportunity to present testimony in line with the requirements set forth in
Betz.
Additionally, my colleagues dispute the role of the “frequency, regularity, and
proximity” test adopted and applied in Gregg. I view the “frequency, regularity, and
proximity” test as part of a comparative assessment of exposures, which is necessary to
determine substantial factor causation sufficient to trigger a defendant’s legal
responsibility. Unlike many tort actions, latent disease cases cannot be demonstrated
through a direct causal link but, instead, involve the imposition of liability based on an
assessment of the increased risk resulting from the alleged exposures. Pursuant to
Gregg, contact with asbestos cannot be deemed a substantial causal factor unless it
[J-12-2016] [MO: Donohue, J.] - 4
involved frequent, regular, and proximate exposure creating more than a de minimis risk
of developing the disease. Once an exposure to asbestos fibers is determined to be
sufficiently frequent, regular, and proximate, a fact-finder should consider factors such
as the potency, concentration, and duration of the exposure in light of the plaintiff’s
other asbestos exposures to determine if it is reasonable to deem the defendant’s
product legally responsible as a substantial causal factor in the development of the
disease, in contrast to merely being a cause-in-fact.
Notably, a jury may conclude that several products are substantial causes of a
plaintiff’s development of a disease. Indeed, a jury may find that Mr. Rost’s three
months of exposure to Ford brakes was a substantial cause of his mesothelioma, but
under Betz, the plaintiff’s expert must first provide the jury a comparative assessment of
Mr. Rost’s exposures to allow the jury to place the exposure to Ford products in context.
Although the jury heard testimony regarding Mr. Rost’s later exposures, Dr. Frank did
not testify during direct examination to the details of Mr. Rost’s asbestos exposure at
Metropolitan Edison (MetEd) and other employers. Indeed, when asked during cross-
examination about Mr. Rost’s experiences at MetEd, Dr. Frank repeatedly testified that
he did not “know specifically what Mr. Rost did” and could not “speak to what his level of
exposure was.” N.T., Sept. 19, 2011 P.M. Session, at 20-22, R.R. 1406a-08a. Given
that Dr. Frank was not aware of the specifics of Mr. Rost’s work history, he was unable
to provide the jury with the required comparative assessment of exposures.
Accordingly, as discussed above, I would remand for a new trial to allow the plaintiff the
opportunity to present the necessary testimony. 1
1
As I would remand for a new trial, I need not address the potential prejudice of the
consolidation of this case with other asbestos cases, a procedure which is no longer
practiced in the Court of Common Pleas of Philadelphia.
[J-12-2016] [MO: Donohue, J.] - 5