Estate of Hicks v. Dana Companies, LLC

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CONCURRING OPINION BY

KLEIN, J.:

¶ 11 agree with the majority that:

1.Plaintiff presented enough evidence of exposure to defendants’ products to sustain a verdict. Although the amount of exposure to defendants’ products is less than other types of asbestos-containing products, because of the prolonged exposure to the product and the smaller dosage necessary to cause mesothelioma, the evidence is still sufficient.

2. The evidence of EPA and OSHA regulations was properly excluded.

3. The case should not be reversed for the trial court’s factual causation charge because what might have been significant objections to the charge were not made and should be considered waived.

¶ 2 I write separately to note that first, following the Pennsylvania Supreme Court opinion in Gregg v. V-J Auto Parts, Company, 596 Pa. 274, 943 A.2d 216 (2007), the testimony of Plaintiffs expert, James C. Giudice, that “each and every exposure [to asbestos fibers] is significant in the causation of this malignancy, mesothelioma, by the asbestos”1 was improperly admitted. However, there was no objection to this testimony at trial, so this issue is waived.2

¶ 3 Second, particularly under the circumstances of this case, I believe the charge on “factual cause” was improper. All the judge said was that something is a “factual cause” if the harm would not have occurred without exposure to the defendants’ defective product. I note that while this part of the Pennsylvania Suggested Standard Civil Jury Instruction on factual cause was read, a major part was omitted, leaving the resulting charge incomplete and confusing. However, no objection was made to the reading of this part of the charge, so although it might have been reversible error, any error is waived.

1. The “each and every” breath testimony.

¶ 4 In his deposition for the “causation” phase of the reverse-bifurcated trial, Phase II, Plaintiffs medical expert, Dr. Giudice, testified:

*980It’s my opinion that each and every exposure is significant in the causation of this malignancy, mesothelioma, by the asbestos. And the reason that each and every exposure is significant is that each and every exposure adds to the asbestos burden. And as — has been — as I’ve described previously, the more asbestos that accumulates, the more significant or the risk for mesothelioma and the higher incidence of that malignancy. That’s one thing we do know. We do know that the more asbestos that collects, the more — more significant the incidence— the number of mesotheliomas will increase. What we don’t know is how that occurs. And so, each and every asbestos fiber that’s inhaled contributes to the asbestos burden — that contributes to the asbestos burden is a causative factor in the development of this malignancy.3

¶ 5 This is precisely the kind of testimony the Pennsylvania Supreme Court found inappropriate in Gregg, quoting this judge’s statement in Summers v. Certainteed Corp., 886 A.2d 240 (Pa.Super.2005). The Supreme Court said:

We recognize that it is common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor in asbestos cases. However, we share Judge Klein’s perspective, as expressed in the Summers decision, that such generalized opinions do not suffice to create a jury question in a case where exposure to the defendant’s product is de minimus, particularly in the absence of evidence excluding other possible sources of exposure (or in the fact of evidence of substantial exposure from other sources). See, Summers, 886 A.2d at 244; accord Lindstrom,4 424 F.3d at 493 (reasoning that if such an opinion were permitted to control, the substantial factor test would be rendered meaningless).

Gregg, 943 A.2d at 226.

¶ 6 The testimony of an expert physician as to legal causation is beyond the physician’s expertise and improperly invades the province of the jury as guided by the judge. Therefore, we now know that this testimony should not have been admitted.

¶ 7 However, although an objection was made at the videotape deposition, a review of the record shows that this objection was not renewed before the trial judge, nor was it raised in this appeal. See N.T. Trial, 6/15/04, at 3-7; R.R. 345.3-.7. Accordingly, while the argument has merit, it is not before us.

2. The “factual cause” charge.

¶ 8 The trial judge recharged the jury on “factual cause” after some issues with the initial charge as to whether the judge charged that the “conduct” had to cause the harm. The charge on factual cause finally read was:

If you find that the product was defective, the defendant is liable for all harm caused by such defective condition. A defective condition is the factual cause of the harm if the harm would not have occurred absent the defect. In order for the plaintiff to recover in this case, the defendant’s defect must have been a factual cause of the plaintiffs mesothelio-ma.5

The trial judge then asked, “Any additions or corrections to the reading of that?” and *981all counsel said “no.” Therefore, any complaints that the “actual, real” factor was omitted and any complaints that there was no charge on concurrent causation have been waived.

¶ 9 I note that the draft standard charge then in effect, and similar to some of the wording of the current version, adds the language that:

Therefore, in determining factual cause, you must decide whether the negligent conduct of the defendant was more than an insignificant factor in bringing about any harm to the plaintiff. Under Pennsylvania law, conduct can be found to be a contributing factor if the action or omission alleged to have caused the harm was an actual, real factor, not a negligible, imaginary or fanciful factor, or a factor having no connection or only an insignificant connection with the injury. However, factual cause does not mean it is the only, primary or even the most important factor in causing the injury. A cause may be found to be a factual cause as long as it contributes to the injury in a way that is not minimal or insignificant.
To be a contributing factor, the defendant’s conduct need not be the only factor. The fact that some other causes concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability as long as [his][her] own negligence is a factual cause of the injury.
The negligence of a defendant may be found to be a factual cause of plaintiffs harm even though it was relatively minor as compared to the negligence of [the other defendant or] the plaintiff. In effect, the test for factual causation has been met when the conduct in question has such an effect in producing the harm as to lead reasonable persons to regard it as one of the [contributing causes that is neither insignificant nor inconsequential considering all the circumstances.] 6

¶ 10 In a similar situation in Gorman v. Costello, 929 A.2d 1208, 1213 (Pa.Super.2007), this Court held that “when juries are given incomplete instructions, a new trial is required.” Because the trial court in Gorman only gave the “but for” portion of the charge, this Court held that the charge was inadequate and remanded for a new trial.7

¶ 11 However, a careful review of the record shows that no objection to the charge was made on this basis, so this argument is waived. Objections were made to the further portion of the charge stating that there is no particular amount of fibers or composition of fibers that is required. That part of the charge was correct. Likewise, there was discussion about applying the burden of proof to settled defendants. Since there was no objection to the “factual cause” portion of the charge, although the charge may have been incomplete and therefore erroneous, no objection on this ground was preserved.

*982¶ 12 Because of the waiver of these significant issues, I concur in the result.

. Deposition of James C. Giudice, D.O., "Phase II,” June 8, 2004, at 29-30, R.R. 1305.

. Perhaps for this reason, as the majority notes, this issue was not raised on appeal so is not before us.

. "Phase II" Deposition of James C. Giudice, D.O., 6/8/04, at 29-30; R.R. 1305.

. Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir.2005).

.N.T. Trial, 6/24/04, at 51; R.R. 1015.165.

. SSJI (Civ) § 3.25 (2003). Of course, the language would have to be modified for a product liability case.

. I note that the new Section 3.15 of the 2008 Supplement of Pennsylvania Suggested Standard Civil Jury Instructions eliminates some of the language in the earlier draft. However, I am not certain that the new charge comports with Supreme Court law. The new suggested charge does say that "A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the harm” and does say that the harm "would not have occurred absent the conduct.” SSJI (Civ) § 3.15 (2008). However, I believe the absence of a fuller discussion may result in an incomplete charge and caution trial judges to use the new charge at their peril.