Rost, Richard, M., Exec. v. Ford Motor Co., Aplt.

[J-12-2016] [M.O. - 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.
:
:
FORD MOTOR COMPANY, :
: ARGUED: May 6, 2015
Appellant : REARGUED: April 6, 2016
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: November 22, 2016
I respectfully dissent, as I would center the discussion of the causation question
on risk-based principles; I would reaffirm – and not cabin – the Court’s opinion in Betz v.
Pneumo Abex LLC, 615 Pa. 504, 44 A.3d 27 (2012); and I have a different view
concerning the appropriate role and limits of the frequency, regularity, and proximity test
in Pennsylvania. On the consolidation issue, I also differ with the finding of no
prejudice.
The Central Significance of a Risk-Based Focus
The science involved in attempting to examine actual, product-specific causation
relative to long-latency carcinogens such as asbestos is fraught with indeterminacy, as
is extensively manifested on the present record. See generally Majority Opinion, slip
op. at 17 (discussing the present record as it relates to the inability to distinguish
causative effects of different exposures). For example, the plaintiff’s experts
acknowledged the human body’s substantial efficiency in removing asbestos fibers, and
that the lower the exposure or dose, the more effective are these defense mechanisms.
See, e.g., N.T., Sept. 20, 2011, at 99, 103 (reflecting the testimony of plaintiff expert,
Arnold Brody, PhD, an expert in cell biology, that the body is ninety to ninety-nine
percent efficient in removing asbestos fibers). Moreover, from what is known by
scientists, rare, discrete, and idiosyncratic events occurring at the cellular level (or a
series of them) are required to cause mesothelioma. See, e.g., N.T., Sept. 19, 2011
(A.M.), at 141-42 (reflecting the explanation of the plaintiff’s specific causation expert,
Arthur Frank, M.D., that scientists do not know how asbestos alters the DNA to yield
cancer, but the process begins with a single cell).1
In light of the great uncertainties involved in assessing actual product-specific,
substantial-factor causation, the plaintiff’s sole expert witness testifying on the matter of
specific causation – Dr. Frank – acknowledged that his testimony was premised on an
assessment of the increased risk presented by discrete exposures. See, e.g., N.T.,
Sept. 19, 2011 (P.M.), at 51 (reflecting Dr. Frank’s acknowledgement that not every
exposure causes the DNA alteration predicate to mesothelioma, but what can be said is
1
One court summarized the science as follows:
If a precise series of changes takes place, one cell becomes
a malignant cell. A mesothelioma tumor consists of billions
of cells but started from one single cell. Attempting to find
that one cell to determine which fiber caused the initial
malignancy is like “looking for a needle in a haystack.”
Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 609-10 (N.D. Ohio 2004) (citation
omitted).
[J-12-2016][M.O. - Donohue, J.] - 2
that every exposure increases the risk); accord Amici Scientists’ Brief at 2 (“Scientists
are concerned because it is indeed an irrefutable scientific fact that each exposure does
actually contribute to a person’s total dose and to that person’s risk or probability of
developing mesothelioma and other cancers.” (emphasis added)). The plaintiff’s
general causation expert, Mr. Brody, also recognized this very clearly. See, e.g., N.T.,
Sept. 20, 2011 (A.M.), at 78 (“You can’t say what a given exposure does. You don’t get
to see that.”); accord Majority Opinion, slip op. at 6 (discussing Dr. Frank’s testimony
that “it is not scientifically possible to identify the particular exposure or exposures that
caused a patient’s mesothelioma”). The plaintiff’s expert in Betz echoed such
understanding also. See Betz, 615 Pa. at 548, 44 A.3d at 55 (“[A]s is clear from various
passages of testimony [from the plaintiff’s expert witness] . . ., his opinion was plainly
grounded on risk assessment.” (emphasis added)).
Thus, it should be plain enough, by now, that – because actual, product-specific
causation generally cannot be demonstrated by those suffering from asbestos-related
diseases – this Court, like many others, is accepting assessments of increased risk as
surrogates for traditional substantial-factor causation. See generally Steve C. Gold,
When Certainty Dissolves Into Probability: A Legal Vision of Toxic Causation for the
Post-Genomic Era, 70 W ASH. & LEE L. REV. 237, 298 (2013) (explaining that many
courts “recognize[] that in light of causal indeterminacy, it is appropriate to treat proof of
contribution to risk as proof of contribution to cause”). Personally, I have abided by this
particular accretion in the substantive law,2 but I do think that it is important that it be
2
I accept the approach, because I believe that, administered subject to appropriate
constraints, it advances the goal of corrective justice. Along these lines, as a member
of a previous Court majority, I have recognized “the difficulties facing plaintiffs in this
and similar settings, where they have unquestionably suffered harm on account of a
disease having a long latency period and must bear a burden of providing specific
causation under prevailing Pennsylvania law which may be insurmountable.” Gregg v.
(continued…)
[J-12-2016][M.O. - Donohue, J.] - 3
recognized for what it is, namely, a material adjustment to substantive-law proof
requirements. See generally David L. Faigman, Edward K. Cheng, Jennifer L. Mnookin,
Erin E. Murphy, Joseph Sanders & Christopher Slobogin, 3 MOD. SCI. EVIDENCE §26:5
(2015-2016) (discussing the causal question in asbestos litigation in terms of “the
willingness of the courts to establish special ‘asbestos rules’ that ease plaintiff’s causal
proofs”). Viewed as such, I believe that some balance and perspective is implicated,
particularly in terms of the degree of the relaxation of the traditional burden that is
involved.
Along the lines of perspective, I note that the courts were asked to take the
leniency that has been extended to an extreme with the advancement of the any-breath
or any-exposure theory as a means of establishing the legal requirement of substantial-
factor causation. As is amply developed in this Court’s decision in Betz and elsewhere,
such theory is fundamentally inconsistent with the legal requirement of substantial-factor
causation. See, e.g., Betz, 615 Pa. at 552, 44 A.3d at 57; Martin v. Cincinnati Gas &
Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (“[A]n expert’s opinion that ‘every exposure
to asbestos, however slight, was a substantial factor’ . . . would render the substantial
factor test ‘meaningless.’” (quoting Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488,
493 (6th Cir. 2005))). See generally Betz, 615 Pa. at 539 n.25, 44 A.3d at 49 n.25
(collecting cases from jurisdictions that have rejected the any-breath or any-exposure
theory).
(…continued)
V-J Auto Parts, Co., 596 Pa. 274, 291-92, 943 A.2d 216, 226 (2007). Nevertheless, and
as further developed below, I maintain that it is 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[.]” Id.
at 292, 943 A.2d at 226-27 (emphasis added).
[J-12-2016][M.O. - Donohue, J.] - 4
Presently, it is the contention of Appellant and several of its amici that Dr. Frank’s
opinion in this case represents a sort of a fallback in the aftermath of this Court’s
rejection of the any-breath or any-exposure theory as a means of establishing legal
causation. In their view, the approach of various experts in the medicolegal community
is now to liberally espouse the any-breath or any-fiber theory when discussing general
causation (e.g., any exposure can cause mesothelioma) and specific causation (e.g.,
every exposure contributed to Mr. Rost’s mesothelioma), then, in addressing the
substantial-factor aspect, to merely render conclusory pronouncements of substantiality
(e.g., Mr. Rost’s exposure to Ford products was a substantial factor in Mr. Rost’s
mesothelioma).3 For these reasons, they urge this Court to undertake a critical
examination of Dr. Frank’s testimony to determine whether any scientific basis was
offered to distinguish between these general and specific causation aspects and the
essential expert opinion as it concerned substantiality.
The majority’s response is to suggest that such arguments “confuse[] or
conflate[] the ‘irrefutable scientific fact’ that every exposure cumulatively contributes to
the total dose (which in turn increases the likelihood of disease), with the legal question
under Pennsylvania law as to whether particular exposures are ‘substantial factors’ in
causing the disease.” Majority Opinion, slip op. at 18. However, I agree with Appellant
3
See, e.g., Brief for Appellant at 2 (characterizing Dr. Frank’s opinion as “the same
[any-exposure] opinion in new garb”); Reply Brief for Appellant at 20 (stating that
“Plaintiff asks the Court to endorse a rule that condemns the any-exposure rule in name
only”); Brief of Amicus Prod. Liab. Advisory Council, Inc. (“PLAC”) at 2 (“Dr. Frank’s
‘any-exposure’ opinion was glaringly transparent to anyone who cared to look beyond
semantics.”); Brief for Amici Coal. for Litig. Justice, Inc., Nat’l Ass’n of Mfrs., Am. Tort
Reform Ass’n, & Am. Ins. Ass’n at 23 (asserting that Dr. Frank “simply recited the
alleged exposures and concluded they were sufficient – dose is irrelevant to his opinion
and appears nowhere in [them]”); Brief for Amicus Honeywell Int’l Inc. at 11 (indicating
that Dr. Frank’s opinion “discounts, indeed ignores, the substantiality of any particular
exposure”).
[J-12-2016][M.O. - Donohue, J.] - 5
and its amici that – to the degree that an expert witness fails to offer a scientific basis to
distinguish his oft-repeated opinions concerning general and specific causation from his
opinion about the discrete matter of specific causation – the source of the confusion lies
with the expert.
Notably, the present case involves relatively low-dose exposure to asbestos from
Ford products. In this regard, Mr. Rost’s attorney at trial candidly explained to the jurors
that the dose experienced from Ford brakes during the approximately three-month
period of exposure “was a relatively low dose compared to some other exposures.”
N.T., Oct. 5, 2011, at 49.4 The time differential (at least ten years of largely unprotected
industrial exposure versus three months of exposure as a garage worker) alone is
illustrative, even without addressing the differences between exposure to friction
products,5 versus exposure to friable insulation materials and loose powder and spray in
the industrial setting. See, e.g., Majority Opinion, slip op. at 4 (discussing the record as
it pertains to Mr. Rost’s industrial exposures).
Dr. Frank, however, did not provide the jury with any standards, or benchmarks,
or other scientifically-accepted premises for assessing the substantiality of the risk
4
In complex toxic tort cases, many layers of abstractions tend to obscure the material
issues. For example, the majority repeatedly refers to material including residue
accumulated in automobile wheel wells and around brake linings as “asbestos dust.”
Majority Opinion, slip op. at 3. At least in terms of the premises underlying Dr. Frank’s
opinion, however, the expert accepted that such accumulations are generally 99.6
percent asbestos free. See N.T., Sept. 19, 2011 (P.M.), at 16.
5
With regard to new friction products, since most of the asbestos is encapsulated in a
binder or resin material, Dr. Frank agreed that the material is not considered friable as
are thermal asbestos-containing insulation products such as were used in industrial
applications. See, e.g., Sept. 19, 2011 (P.M.), at 14. Moreover, Dr. Frank
acknowledged that, upon exposure to heat and friction, much of the asbestos material in
brake shoes is converted into a different substance, forsterite, which Dr. Frank did not
claim was causative of mesothelioma. See id. at 14-15.
[J-12-2016][M.O. - Donohue, J.] - 6
associated with Mr. Rost’s “relatively low dose” exposure to Appellee’s products in the
context of Mr. Rost’s overall exposure. Rather, in response to a hypothetical question
generally presenting the circumstances of Mr. Rost’s exposure to Ford products, Dr.
Frank merely affirmed, in a conclusory fashion, his belief that the exposure was
substantially causative. See N.T., Sept. 19, 2011 (A.M.), at 116-17.6 By way of
explanation or otherwise, the expert then reverted to various reaffirmations of his other
opinions on general and specific causation, i.e., that “all [exposures] contributed[.]” Id.
at 121-22; see also id. at 122 (“All of the exposures that can be documented should all
be considered as contributory to [Mr. Rost’s] developing his disease.”).
6
From my point of view, the majority’s assertion that Dr. Frank took into consideration
“exposure history, individual susceptibility, biological plausibility, and relevant scientific
evidence (including epidemiological studies),” Majority Opinion, slip op. at 20,
represents an abstract assessment of the record in this case as it relates to the matter
of substantial-factor causation. Dr. Frank made no attempt to even roughly quantify
either the dose experienced by Mr. Rost at Smith Motors or his cumulative exposure or
dose. See, e.g., N.T., Sept. 19, 2011 (P.M.), at 22 (reflecting Dr. Frank’s recognition
that aspects of Mr. Rost’s industrial exposure “could have been high, it could have been
low” and his statement that: “I can’t speak to what his level of exposure was.”). I have
found nothing on the record as far as Mr. Rost’s individual susceptibility goes, or
anything to relate such concept to Dr. Frank’s opinion concerning substantial-factor
causation. Biological plausibility in the abstract goes more to general causation than to
establishing substantial-factor causation, particularly where the issue is presented in
terms of risk. In terms of the epidemiological evidence pertaining to mesothelioma in
auto workers, Dr. Frank’s discussion was vague, with specific-study treatment focusing
mostly on his discounting of ones that were inconsistent with his position. See N.T.,
Sept. 19, 2011 (A.M.), at 103-05. Compare Yates v. Ford Motor Co., 113 F. Supp. 3d
841, 861 (E.D.N.C. 2015) (“Rather than engage in any specific, meaningful comparison
of the scientific data with [the plaintiff’s] exposures, [the expert’s] opinions essentially
attempt to overwhelm with statistics and studies, lacking guidance as to how a juror
ought to apply them in the instant case, aside from joining [the expert’s] ultimate
conclusion that [the plaintiff’s] mesothelioma was caused by defendants’ products. This
is not a reliable method, and it will not assist a jury.”); Comardelle v. Pa. Gen. Ins. Co.,
76 F. Supp. 3d 628, 635 (E.D. La. 2015) (offering similar criticisms of an expert
witness’s substantial-factor causation grounded on a broad array of cases, studies, and
regulatory materials to which the witness “refer[red] cursorily”).
[J-12-2016][M.O. - Donohue, J.] - 7
There is no dispute between the litigants concerning the essential proposition
that cumulative dose matters relative to dose-dependent diseases such as
mesothelioma.7 The dispute now concerns whether a plaintiff should be required to
address this critical factor, in any sort of a meaningful fashion, as a component of the
burden of proof to establish substantial-factor causation.8
Where the issue is simply risk – I fail to appreciate how the substantiality of
relatively low-dose exposures can be fairly demonstrated in the absence of some sort of
reasonably-developed comparative risk assessment accounting for higher-dose
7
See, e.g., Majority Opinion, slip op. at 6 (“All exposures to asbestos contribute to the
cumulative dose of asbestos, and the cumulative dose causes mesothelioma.”
(emphasis added)); Brief for Appellee at 28, 43 (“[T]he total cumulative exposure
collectively causes a disease.”); accord Brief for Amicus Asbestos Disease Awareness
Org. at 13 (“[C]umulative dose best explains the increased risk of mesothelioma in the
population and is the standard metric used in epidemiological studies that evaluate dose
and risk of disease.”). See generally Joseph V. Rodricks, Reference Guide on
Exposure Science, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 507 (Fed. Judicial
Center 3d ed. 2011) (“Ultimately the dose incurred by populations or individuals is the
measure needed by health experts to quantify the risk of toxicity.”).
8
In point of fact, Appellee accepts the burden to meaningfully address exposures to
Ford products in the context of his cumulative dose (including his industrial exposure) to
establish substantial-factor causation. See, e.g., Brief for Appellee at 42-43 (indicating
that this Court’s decisions in “Gregg, Betz, and Howard maintained [a] fair balance”
when “they required experts to consider both the frequency, proximity, and regularity of
the plaintiff’s exposure to asbestos from the defendant’s products, and to place this
exposure in context with other exposures to ensure, in the wider context of a plaintiff’s
exposure history, that defendant’s contribution was a ‘substantial factor’ and not merely
a factor.” (emphasis added)).
From my perspective, the only remaining question should be whether, at trial, Mr. Rost
meaningfully did so via Dr. Frank’s testimony, or whether, as Ford and its amici
contend, the expert’s opinion concerning substantial-factor causation merely collapsed
into his other general and specific causation opinions (i.e., that all exposures are
contributory). The majority, however, proceeds of its own accord to overturn the
requirement to address substantial-factor causation in the context of cumulative dose,
see Majority Opinion, slip op. at 22-32, thus yielding the differences concerning the
prevailing legal standards that are discussed below.
[J-12-2016][M.O. - Donohue, J.] - 8
industrial exposures. Surely the courts would not sanction liability on the part of an
individual for an automobile accident if the plaintiff did not proffer some form of evidence
that would establish a fair probability that the defendant was, in fact, one of the actual
drivers. Although this is not a perfect analogy, it highlights that, to the degree that we
accept amorphous possibilities or probabilities with no real effort to address the overall
risk exposure, the substantive law of substantial-factor causation is being applied in a
highly idiosyncratic fashion in toxic tort cases.9
From my point of view – again, where the plaintiff is plainly proceeding to
address causation by reference to risk – a jury that is not provided with meaningful
information concerning cumulative dose simply lacks sufficient information to make a
rational decision concerning substantiality. Instead, the fact finder is left to conjecture
and speculation, colored by the liberal reaffirmations of the opinion concerning general
and specific causation (sans the substantial-factor aspect), i.e., that all doses are
contributory.10 Put in terms of the frequently referenced bucket-in-the-ocean analogy
9
In this vein, I believe that an approach that relieves the plaintiff of addressing exposure
to a defendant’s product in the context of the plaintiff’s overall exposure is tantamount to
a form of burden shifting, which this Court has otherwise refused to extend into the toxic
tort arena. See, e.g., Skipworth v. Lead Indus. Ass’n, Inc., 547 Pa. 224, 231-32, 690
A.2d 169, 172 (1997). As further discussed below, I would submit that any changes to
the law along such lines should be attended by consideration of the full host of relevant
policy matters, which are well beyond the scope of the presentations here.
10
Cf. Stark v. Armstrong World Inds., Inc., 21 Fed. Appx. 371, 376 (6th Cir. 2001)
(expressing the concern that “defendants not be subjected to open-ended liability based
solely on a jury’s inexpert speculation on proximate cause” (citation omitted)); Burleson
v. Texas Dep’t of Criminal Justice, 393 F.3d 577, 587 (5th Cir. 2004) (explaining that a
causation opinion where the expert “fail[s] to conduct a dose assessment” produces “too
great an analytical gap between the data and the opinion proffered” (citation omitted)).
See generally Gold, When Certainty Dissolves Into Probability, 70 WASH. & LEE L. REV.
at 320-21 (“The mechanistic model fails when proof of causation rests on evidence
derived from population-based data on the association of disease and exposure . . .[;]
[i]n such cases the fact-finder must test its belief in a frequentist-probability value
supported by evidence of risk contribution.”).
[J-12-2016][M.O. - Donohue, J.] - 9
coined by former Judge Klein, see Summers v. Certainteed Corp., 886 A.2d 240, 244
(Pa. Super. 2005) (rejecting the notion that “if one took a bucket of water and dumped it
into the ocean, that was a ‘substantial contributing factor’ to the size of the ocean”), I
submit that a jury cannot meaningfully assess the substantiality of the impact of a
bucket of water introduced into a receptacle where the jurors have been provided with
no means to assess whether such receptacle is a bathtub, or a pond, or a lake, or an
ocean.
Again, I recognize the difficulties facing plaintiffs in cases involving long-latency
disease. See supra note 2.11 Given, however, that alteration of long-standing and
central tort-law concepts such as the requirement of substantial-factor causation has the
potential to have broad-scale social effects, I believe that such matters are most
appropriately considered by the policy-making branch of government. See generally
Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 652-54 & n.19, 57 A.3d 1232, 1245-
46 & n.19 (2012) (discussing the nature of common-law adjustments to the substantive
law, the necessity for a fully developed policy analysis, and the superior position of the
General Assembly to undertake such assessments).12 To the degree that the judiciary
11
In this regard, I acknowledge the expense and difficulty in attempting to address dose
in concrete terms. See, e.g., N.T., Sept. 20, 2011 (A.M.), at 84 (reflecting the
recognition, on the part of the plaintiff’s expert, Mr. Brody, that “you would need an
industrial hygienist to explain what [the] dose might be,” albeit that Mr. Rost did not
present such testimony). Again, however, to the degree that these sorts of practical
considerations are at work – as opposed to a conventional application of established
principles of tort law – I maintain that a wider-scale policy assessment is implicated.
12
For example, further relaxation of the governing standards of proof obviously can
exacerbate what the Supreme Court of the United States has characterized as an
“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 (1999). On a micro scale, the docket of the present
case reflects that Mr. Rost filed his claims against 66 defendants, most of which
attained summary dismissals. Moreover, the consequences of the adjustments
reverberate through the product chain, since strict liability for a defective product does
(continued…)
[J-12-2016][M.O. - Donohue, J.] - 10
should continue to reassess the core and fundamental requirements of tort law as
applied in the toxic tort arena, it is my position that the policy arguments should be
(…continued)
not merely attach to manufacturers but extends through the product chain to distributors
and retailers as well. See, e.g., Gregg, 596 Pa. 274, 943 A.3d 216 (reflecting a suit
against a local automobile parts supplier).
In a footnote, the majority opinion appears to suggest an inclination to consider
eliminating the requirement of substantial-factor causation in the asbestos-litigation
arena altogether in favor of a de minimis threshold for liability, based on the fact that the
Legislature has cabined joint and several liability through the enactment of the Fair
Share Act. See Majority Opinion, slip op. at 16 n.7. For supportive policy implications,
the majority references a law review comment for the proposition that the “‘frequency,
regularity and proximity’ test imposes an inappropriately high burden of proof upon
many asbestos victims,” as it “distort[s] the medically proven fact that significant injury
can result without ‘frequent’ or ‘regular’ exposure.” Brian M. DiMasi, Comment, The
Threshold Level of Proof of Asbestos Causation: The “Frequency, Regularity and
Proximity Test” and a Modified Summers v. Tice Theory of Burden-Shifting, 24 CAP. U.
L. REV. 735, 750 (1995) (for the proposition).
It should be noted, however, that the burden-shifting premises underlying the author’s
proposals rest, at least in part, upon his determination of culpable conduct on the part of
asbestos product manufacturers. See, e.g., id. at 759 (charging the suppliers,
manufacturers, and distributors of asbestos products at large with “a conspiracy to
cover up the harmful effects of asbestos exposure”). Notably, given the once-
widespread use of asbestos in products, there are thousands upon thousands of
defendants in asbestos cases. See Alan Calnan & Byron G. Stier, Perspectives on
Asbestos Litigation: Overview and Preview, 37 SW . U. L. REV. 459, 462-63 (2008)
(tallying at least 8,400 entities spanning 75 of the 83 industries classified by the United
States Department of Commerce), not all of whose culpability has been assessed. For
example, asbestos defendants in Pennsylvania are often sued in strict liability, which, at
least under the liability regime prevailing at the time the present action was litigated,
foreclosed the defendants from from presenting conduct-based defenses, such as
reliance on industry and government standards. See, e.g., Lewis v. Coffing Hoist Div.,
Duff-Norton Co., Inc., 515 Pa. 334, 343, 528 A.2d 590, 594 (1987).
I mention these points to provide one of the many layers of perspective which I believe
would need to be considered before making further adjustments to substantive law in
asbestos cases.
[J-12-2016][M.O. - Donohue, J.] - 11
made plain by the litigants, rather than proceeding as subtexts to the position that the
traditional legal requirements are being adhered to straightforwardly.
Returning to what I believe to be the issue in this case, see supra note 8, I find
that the record does not present an adequate basis for any meaningful assessment of
Mr. Rost’s long-term industrial exposure to asbestos. Accord Brief for Amicus Asbestos
Disease Awareness Org. at 34 nn.78 & 79 (reflecting the recognition by an amicus for
Appellee that any assessment of Mr. Rost’s industrial exposure “is wholly speculative,”
because “[t]he record contained very little testimony regarding the duration and intensity
of the exposures at Met-Ed”). In any event, it was quite apparent, in terms of Dr.
Frank’s opinion, that he was not concerned with even attempting to address Mr. Rost’s
cumulative dose on any sort of tangible or proportionate terms. See, e.g., N.T., Sept.
19, 2011 (P.M.), at 22 (reflecting Dr. Frank’s recognition that aspects of Mr. Rost’s
industrial exposure “could have been high, it could have been low” and his statement
that: “I can’t speak to what his level of exposure was”). Again, another expert for Mr.
Rost indicated that such an assessment would have been within a different realm of
expertise. See N.T., Sept. 20, 2011 (A.M.), at 84 (reflecting the recognition, on the part
of Mr. Brody, that “you would need an industrial hygienist to explain what [the] dose
might be”).
For these reasons, in the absence of any sort of a meaningful assessment of
proportionality, I agree with Ford’s central position that the basis for Dr. Frank’s opinion
concerning substantial-factor causation is not materially distinguishable from his other
opinions concerning general and specific causation, i.e., that every exposure counts.13
13
I am not in any way suggesting that substantial-factor causation can be proved only
by eliminating “every other potential cause of the development of disease through a
ranking of different exposures.” Majority Opinion, slip op. at 31. I do believe, however,
that a plaintiff must meaningfully address his long-term industrial exposure to friable
asbestos-containing products in a case premised on short-term exposure to non-friable
(continued…)
[J-12-2016][M.O. - Donohue, J.] - 12
Reaffirmation of Betz
Consistent with the above, I would take this opportunity to reaffirm, and not
cabin, the Court’s opinion in Betz. Initially, I do not agree with the majority’s position
that the requirement for a plaintiff to address, in some meaningful fashion, the plaintiff’s
cumulative dose was unnecessary to the decision in Betz. See Majority Opinion, slip
op. at 22. Rather, the Betz Court proceeded through essentially the above analysis,
recognizing that the liability theory was risk based, and concluded that the only rational
way to assess substantiality in a risk calculus (particularly in lower-dose scenarios) is to
compare the risk attributable to a particular defendant with the plaintiff’s overall risk
exposure. See Betz, 615 Pa. at 549-54, 44 A.3d at 55-58; accord Moeller, 660 F.3d at
954 (“The question [of] whether [defendant’s] acts probably caused [plaintiff’s]
mesothelioma must be viewed in the context of [plaintiff’s] other substantial exposures
to asbestos[.]” (quoting Cardinal Indus. Insulation Co., Inc. v. Norris, Nos. 2004-CA-
000525-MR, et al., slip op., 2009 WL 562614, at *8 (Ky. Ct. App. Mar. 6, 2009))); Bailey
(…continued)
materials and their low-asbestos-content byproducts. Cf. Moeller v. Garlock Sealing
Techs., LLC, 660 F.3d 950, 955 (6th Cir. 2011) (“Given that the [p]laintiff[-executrix]
failed to quantify [her decedent’s] exposure to asbestos from [a defendant’s] gaskets
and that the [p]laintiff concedes that [the decedent] sustained massive exposure to
asbestos from [other] sources, there is simply insufficient evidence to infer that [the
defendant’s] gaskets probably, as opposed to possibly, were a substantial actor of [the
decedent’s] mesothelioma.”).
I certainly would not hold plaintiffs to exactitude in this setting. Indeed, there is no
question that “[l]arge swaths of tort law are, to put it charitably, highly approximate.”
Gold, When Certainty Dissolves Into Probability, 70 WASH. & LEE L. REV. at 326. From
my point of view, however, courts must engage in some line drawing, and, in the
present context, Mr. Rost’s failure to offer even rough approximations of dose either as
to the approximately three-month period of exposure to friction products at the Smith
Ford garage or the long-term industrial exposure should be deemed dispositive relative
to Ford’s liability.
[J-12-2016][M.O. - Donohue, J.] - 13
v. N. Am. Refractories Co., 95 S.W.3d 868, 873 (Ky. Ct. App. 2001); Martin, 561 F.3d at
443 (“[O]ne measure of whether an action is a substantial factor is the number of other
factors which contribute in producing the harm and the extent of the effect which they
have in producing it.”).
In Betz, it was precisely because the any-exposure theory fails to account for
cumulative dose (which drives the overall risk of disease) that the Court rejected the
theory as a means to establish substantial-factor causation. See, e.g., Betz, 615 Pa. at
550, 44 A.3d at 56 (“[O]ne cannot simultaneously maintain that a single fiber among
millions is substantially causative, while also conceding that a disease is dose
responsive.”). In this regard and otherwise, I do not view Betz as merely circling back to
the frequency, regularity, and proximity test. See Majority Opinion, slip op. at 31.
Frequency, Regularity, Proximity
From my perspective, the frequency, regularity, and proximity test is best
conceptualized as a rough exposure-related screening test, most useful for product
identification purposes at the summary judgment stage. See generally Faigman, et al.,
3 MOD. SCI. EVIDENCE §25:5 (explaining that, given the volume of defendants being
hailed into court by plaintiffs in individual cases, “[c]ourts have been forced to develop a
set of sufficiency tests for judging which cases should be taken from the jury”). After all,
the test is undeveloped in terms of metrics or degree-based standards of any kind and,
in cases involving mesothelioma, tends to devolve into the any-exposure theory.
In complex toxic tort cases such as the present one, the requirement for
competent expert testimony – to connect exposure with actual disease – obviously
remains a central one. Accord Hamil v. Bashline, 481 Pa. 256, 267, 392 A.2d 1280,
1285 (1978) (“[I]t is generally acknowledged that the complexities of the human body
place questions as to the cause of pain or injury beyond the knowledge of the average
[J-12-2016][M.O. - Donohue, J.] - 14
layperson[;] therefore, the law requires that expert medical testimony be employed.”
(citation omitted)). The Betz Court recognized the influential nature of the testimony of
expert witnesses and the potential for distortions to mislead laypersons and, therefore,
decided that courts should maintain a gatekeeping role relative to expert testimony
about the critical issue of substantial-factor causation in toxic tort cases. See Betz, 615
Pa. at 545, 44 A.3d at 53.
To the degree that the decision in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.
1992), suggests that no comparative risk or probability assessment is required, this
Court plainly departed from that approach based on developed reasoning in Betz. See
Betz, 615 Pa. at 553-54, 44 A.3d at 58. Again, I respectfully differ with the majority’s
decision to overturn this and other material portions of such decision.
The Structural Error in Consolidation
On the issue of consolidation, the majority recognizes that the trial court
committed a blatant, structural error by consolidating unrelated complex, toxic tort cases
merely on the basis that all plaintiffs suffered from the same disease. See Majority
Opinion, slip op. at 34. In other contexts, courts have recognized the difficulty facing a
litigant charged with establishing prejudice resulting from structural errors. See, e.g.,
State v. Shearer, 334 P.3d 1078, 1083 (Wash. 2014). In my view, given the breadth of
the present record – subsuming the differences among the plaintiffs and defendants and
all of the attendant circumstances relative to the three materially unrelated cases
involved – the high potential for prejudice is evident, even if one were to discount the
emerging empirical evidence referenced by Ford. See Brief for Appellant at 42 (citing,
inter alia, Kenneth S. Bordens & Irwin A. Horowitz, The Limits of Sampling and
Consolidation in Mass Tort Trials: Justice Improved or Justice Altered?, 22 LAW &
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PSYCHOL. REV. 43, 66 (1998), for the proposition that consolidation “can alter the
patterns of verdicts and awards handed down by jurors”).
If a tipping point is needed, I would find that to have been reached, inter alia, in
the argument presented to the jury by an attorney representing Sears in another of the
consolidated cases:
And, oh, the automotive companies, the brake companies
have this grand conspiracy. Well, ladies and gentlemen, I
represent Sears. We are a department store, a retailer. You
didn’t hear anything about Sears funding studies about
brakes.
N.T., Oct. 5, 2011, at 157 (emphasis added).
For these reasons, I believe that Ford would be entitled to a new trial, but for the
failure of proof relative to substantial-factor causation. In light of such failure, I would
reverse and remand for entry of judgment notwithstanding the verdict.
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