Altiere v. Fibreboard Corp.

KELLY, Judge,

concurring:

Although I join the majority’s opinion in its entirety, I write separately to further analyze the issue of whether it is possible to apportion the harm arising from the combined effect of asbestos exposure and cigarette smoking.

After reviewing the relevant medical literature, I believe that the medical community is unable to provide a reasonable basis upon which a jury can determine how to apportion damages when a plaintiff has been exposed to both asbestos and cigarette smoke. My review of this literature reveals that the medical community agrees that the impact of both carcinogens on the human body is synergistic. Philip J. Landrigan, The Recognition and Control of Occupational Disease, 266 JAMA 676-80 (1991); A Physician’s Guide to Asbestos-Related Diseases, 252 JAMA 2593-97 (1984) [hereinafter Physician’s Guide ]; Arnold E. Reif, Synergism in Carcinogenesis, 73 J. Nat’l Cancer Inst. 25-39 (1984) [hereinafter Synergism ]. That is, the risk of harm from exposure to both carcinogens is greater than the sum of the risk from exposure to the individual carcinogens. Synergism. What is unclear from the literature is how this synergism occurs. See J. Hobson, Direct Enhancement by Cigarette Smoke of Asbestos Fiber Pen*303etration and Asbestos-Induced Epithelial Proliferation in Rat Tracheal Explants, 80 J.Nat’l Cancer Inst. 518-21 (1988) (cigarette smoke increases asbestos fiber penetration which in turn appears to enhance the penetration and retention of carcinogens in the covering of the trachea); Physician’s Guide (a carcinogen in its own right, asbestos appears to act as a cocarcinogen with cigarette smoke in the genesis of lung cancer). Thus, I believe that it is not yet possible to apportion damages in cases where there is a synergistic relationship between carcinogens.

Although this is the first time that this Court has been asked to determine whether the statistical evidence set forth in Part IV to the majority’s opinion, provides a reasonable basis to apportion harm between a plaintiffs cigarette smoking and his exposure to asbestos, the United States Court of Appeals for the Third Circuit recently addressed this same issue in Borman v. Raymark Industries, Inc., 960 F.2d 327 (3rd Cir.1992). In Borman, the Court of Appeals was asked to determine whether, under Pennsylvania law, the evidence was sufficient to require the trial court to charge the jury on apportionment of damages between asbestos exposure and tobacco consumption.

There, the plaintiffs expert testified that asbestos was a substantial contributing factors to both Mr. Borman’s asbestosis and lung cancer. Id. at 330. Plaintiffs expert also testified that Mr. Borman’s cigarette smoking was a substantial contributing factor to the development of his lung cancer. Id. In addition, the plaintiffs expert provided statistical data comparable to that provided here by Dr. Auerbach. Id. However, the expert was unable to assign a percentage of contribution to each cause. Id.

Despite the expert’s inability to determine what percentage of the plaintiffs injury was due to asbestos and what percentage was due to cigarette smoking, the defendant argued that the evidence presented at trial, in particular the statistical evidence, provided a reasonable basis for apportioning damages. The court of appeals found that under Pennsylvania law, such evidence does not provide a reasonable basis for *304apportionment because such “evidence speaks to the likelihood that either cigarette smoking, asbestos exposure or both will cause cancer, rather than to the apportionment of damages between two causes.” Borman, supra at 335. This, I believe, is the proper interpretation of the aforementioned statistical data.