Nelson, D. v. Airco Welders Supply

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2014 PA Super 286DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON PENNSYLVANIA
v.
AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
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INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
APPEAL OF: CRANE CO. No. 865 EDA 2011
Appeal from the Judgment Entered on February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 1335 Dec. Term 2008
DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON PENNSYLVANIA
v.
AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
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EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
APPEAL OF: HOBART BROTHERS CO. No. 866 EDA 2011
Appeal from the Judgment Entered on February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 1335 Dec. Term 2008
DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON PENNSYLVANIA
v.
AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
3
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CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
APPEAL OF: LINCOLN ELECTRIC CO. No. 867 EDA 2011
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Appeal from the Judgment Entered on February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 1335 Dec. Term 2008
DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON, AND IN HER PENNSYLVANIA
OWN RIGHT,
APPELLANT
v.
AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
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HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
No. 889 EDA 2011
Appeal from the Judgment Entered on February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 1335 Dec. Term 2008
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
ALLEN, J., OTT, J., WECHT, J., STABILE, J., AND JENKINS, J.
DISSENTING OPINION BY WECHT, J.: FILED DECEMBER 23, 2014
I write principally to note my respectful dissent from the learned
majority’s resolution of a dispositive question regarding the admission of
expert testimony, which I fear sets a precedent that will narrow further the
avenues for relief available to plaintiffs who suffered often-fatal injury from
extensive exposure to asbestos. I also disagree with the majority’s holding
that comments made in the closing argument of counsel for plaintiff Darlene
Nelson (“Appellee”) require us to intrude upon the trial court’s discretion in
denying Appellants relief.
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I begin, however, by noting one point upon which I agree with the
heart of the majority’s analysis but differ with its result. The majority’s
discussion and analysis of the intended-user constraint on strict products
liability litigation is among the finest I have seen. See Maj. Op. at 27-31.
The majority relates with clarity and probity the contours of a restriction
upon such claims that has bedeviled Pennsylvania courts. The majority
distills from existing law an excellent account of what constitutes an
intended use, and I join that analysis.
That being said, I cannot join the majority’s application of that
doctrine in the instant case. The majority finds insufficient evidence from
which the jury could have concluded that James Nelson’s use of Crane’s
sheeting constituted an intended use or that Nelson was an intended user of
that product. Furthermore, even if there was sufficient evidence to establish
intended use by an intended user, the majority finds that the court’s jury
charge was insufficient to put that question squarely before the jury. I do
not dispute the general accuracy of the majority’s characterization of the
record. And yet, for two reasons neither of these points of agreement
permits me to join the majority in reversing the trial court’s ruling on this
issue.
It is hornbook law that the decision of whether or not to admit
evidence lies in the trial court’s discretion. The contested exclusion of
evidence will not furnish grounds for relief unless the court abuses its
discretion. McManamon v. Washko, 906 A.2d 1259, 1274
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(Pa. Super. 2006). Moreover, “[t]o constitute reversible error, a ruling on
evidence must be shown not only to have been erroneous but harmful to the
party complaining. An evidentiary ruling which did not affect the verdict will
not provide a basis for disturbing the fact-finder’s judgment.” Peled v.
Meridian Bank, 710 A.2d 620, 626 (Pa. Super. 1998) (internal quotation
marks and modifications omitted); see Kremer v. Janet Fleisher Gallery,
Inc., 467 A.2d 377, 388 (Pa. Super. 1983) (“A new trial will not be granted
where the evidence would not have affected the verdict.”).
The same proposition holds for errors in jury instructions, which will
provide grounds for overturning a verdict only when they are not harmless in
context. Stevens v. SEPTA, 518 A.2d 810, 813-14 (Pa. Super. 1986).
Indeed, our review of any claims seeking a new trial must be “grounded
firmly in the harmless error doctrine[], which underlies every decision to
grant or deny a new trial. A new trial is not warranted merely because some
irregularity occurred during the trial . . .; the moving party must
demonstrate to the trial court that he or she has suffered prejudice from the
mistake.” Egan v. UISI Mid-Atlantic, Inc., 92 A.3d 1, 11 (Pa. Super.
2014).
The majority’s analysis makes clear that, to find Crane strictly liable,
Appellee had the burden of establishing that Nelson was an intended user
and that the sheeting manufactured by Crane and used by Nelson was
unsafe for want of an adequate warning. The majority’s analysis, however,
compels the conclusion that Nelson was an intended user, that his
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I begin, however, by noting one point upon which I agree with the
heart of the majority’s analysis but differ with its result. The majority’s
discussion and analysis of the intended-user constraint on strict products
liability litigation is among the finest I have seen. See Maj. Op. at 27-31.
The majority relates with clarity and probity the contours of a restriction
upon such claims that has bedeviled Pennsylvania courts. The majority
distills from existing law an excellent account of what constitutes an
intended use, and I join that analysis.
That being said, I cannot join the majority’s application of that
doctrine in the instant case. The majority finds insufficient evidence from
which the jury could have concluded that James Nelson’s use of Crane’s
sheeting constituted an intended use or that Nelson was an intended user of
that product. Furthermore, even if there was sufficient evidence to establish
intended use by an intended user, the majority finds that the court’s jury
charge was insufficient to put that question squarely before the jury. I do
not dispute the general accuracy of the majority’s characterization of the
record. And yet, for two reasons neither of these points of agreement
permits me to join the majority in reversing the trial court’s ruling on this
issue.
It is hornbook law that the decision of whether or not to admit
evidence lies in the trial court’s discretion. The contested exclusion of
evidence will not furnish grounds for relief unless the court abuses its
discretion. McManamon v. Washko, 906 A.2d 1259, 1274
7
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(Pa. Super. 2006). Moreover, “[t]o constitute reversible error, a ruling on
evidence must be shown not only to have been erroneous but harmful to the
party complaining. An evidentiary ruling which did not affect the verdict will
not provide a basis for disturbing the fact-finder’s judgment.” Peled v.
Meridian Bank, 710 A.2d 620, 626 (Pa. Super. 1998) (internal quotation
marks and modifications omitted); see Kremer v. Janet Fleisher Gallery,
Inc., 467 A.2d 377, 388 (Pa. Super. 1983) (“A new trial will not be granted
where the evidence would not have affected the verdict.”).
The same proposition holds for errors in jury instructions, which will
provide grounds for overturning a verdict only when they are not harmless in
context. Stevens v. SEPTA, 518 A.2d 810, 813-14 (Pa. Super. 1986).
Indeed, our review of any claims seeking a new trial must be “grounded
firmly in the harmless error doctrine[], which underlies every decision to
grant or deny a new trial. A new trial is not warranted merely because some
irregularity occurred during the trial . . .; the moving party must
demonstrate to the trial court that he or she has suffered prejudice from the
mistake.” Egan v. UISI Mid-Atlantic, Inc., 92 A.3d 1, 11 (Pa. Super.
2014).
The majority’s analysis makes clear that, to find Crane strictly liable,
Appellee had the burden of establishing that Nelson was an intended user
and that the sheeting manufactured by Crane and used by Nelson was
unsafe for want of an adequate warning. The majority’s analysis, however,
compels the conclusion that Nelson was an intended user, that his
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interaction with the asbestos sheeting was consistent with its intended use,
and that the product had no warning whatsoever. While Crane observes
that the trial court prevented it from presenting evidence regarding its
product’s intended use, it does not specify what evidence it had to present
on that point. This is problematic insofar as Crane conceded that, in its
intended use as a gasket material, the sheeting would have to be cut to fit
the application precisely as Nelson attested he did to make the sheeting suit
his purposes.
In order to establish prejudice arising from the evidentiary ruling and
the jury charge, Crane effectively must rely on its own more narrow
definition of “intended user,” which the majority correctly rejects: Fact-
finding, however trivial, might be warranted if establishing that the intended
end use was the governing consideration. However, the majority correctly
concludes that, where steps toward the intended end use are common to
different end uses, the manufacturer may still be liable. Under this rubric,
Crane effectively admitted that its product was used as intended, i.e., Nelson
cut the sheeting to size in the same manner an intended end user would
have done to facilitate the intended end use. Crane’s lack of foundation for
establishing prejudice on this point is underscored by its conclusory proffer:
Crane offers no comment as to how its intended evidence would have been
such that a jury might have ruled otherwise than it did had it been charged
with the intended use doctrine as explained by the majority.
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products over many years. See Maj. Op. at 8-9. Moreover, he testified to
frequent, regular, and proximal use2 of and exposure to products
manufactured by Appellants that contained asbestos that could be released
into the air under certain conditions. See, e.g., Notes of Testimony Nelson
Deposition (“Nelson Depo.”) at 63-76, 113, 115, 117 (regarding extensive
use of welding rods manufactured by Hobart and Lincoln); id. at 186-99
(regarding use of Cranite sheeting that was heavy for two months, frequent
for two years, and less frequent in the years that followed). 3 Unlike
Dr. Maddox in Betz, who was unfamiliar with the plaintiff’s medical history,
Dr. DuPont acquainted himself with Nelson’s medical records and his history
of exposure to products that allegedly released respirable asbestos fibers.
See Notes of Testimony DuPont deposition (“DuPont Depo.”), 8/11/2010, at
26-27, 34-37, 49, 121-27. Moreover, unlike Dr. Maddox in Betz, Dr.
DuPont had a lengthy history of treating individuals with a history of
occupational exposure to asbestos. Conversely, in Betz, Dr. Maddox was
____________________________________________
2
The well-established frequency, regularity, and proximity test governs
the sufficiency of proof to establish sufficient exposure to a given product to
establish substantial causation. See Weible v. Allied Signal, Inc.,
963 A.2d 521, 525 (Pa. Super. 2008) (citing Eckenrod v. GAF Corp.,
544 A.2d 50 (Pa. Super. 1988)). The majority does not find it necessary to
discuss this test, despite its predominance in asbestos litigation and
essential questions, highlighted infra, regarding its relationship with the
problematic expert testimony at issue in this case.
3
Nelson’s deposition spanned several days, but is paginated
continuously across the transcripts.
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called to testify only as to the any-exposure theory to establish substantial
causation in that case, and did not testify to the plaintiff’s exposure history.
In the instant case, Dr. DuPont testified that Nelson’s extensive exposure
over decades to respirable asbestos, albeit from myriad products, was the
substantial cause of his mesothelioma.
Notably, Dr. DuPont, while acknowledging a degree of dose-
responsiveness4 in mesothelioma, testified that the necessary exposure to
cause mesothelioma was diminished relative to other asbestos-related
diseases such as pleural thickening and asbestosis. Specifically, he indicated
that “[m]alignant mesothelioma occurs with significant asbestos exposure,
but it does not require the dose or duration or intensity of exposure that
other diseases do.” Id. at 31-32. Dr. DuPont’s reference to “significant
asbestos exposure” also illustrated that his testimony regarding causation
was not contingent upon the validity of an any-exposure theory of causation,
notwithstanding that, speaking generally and in concert with many others,
he endorsed such a view.
____________________________________________
4
“With dose-responsive ailments, generally, exposure to higher levels
carries with it a higher risk, and exposure to lower levels is accompanied by
a reduced risk.” Betz, 44 A.3d at 53 & n.33 (quoting Indus. Union Dep’t,
AFL-CIO v. Amer. Petroleum Inst., 448 U.S. 607, 632 n.33 (1980)).
That asbestos-related diseases are fundamentally dose-responsive is
uncontroversial. See id. at 33 (acknowledging any-exposure theory as a
matter of general causation, and finding it problematic only when
“extrapolated down” to establish substantial causation).
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The majority’s reading of Betz transforms expert testimony
acknowledging the essentially uncontroversial proposition that there are “no
innocent fibers” of asbestos into a totem that precludes the admission of
that expert’s testimony as a matter of law, no matter the quantum of case-
specific evidence of the plaintiff’s exposure to a given product. Maj. Op.
at 17-25. That interpretation and its application to this case are problematic
inasmuch as the exposure at issue in Betz, as in Gregg, was de minimis,
rendering the any-exposure testimony indispensable to a finding of
substantial causation. See Betz, 44 A.3d at 30 (noting the exposure at
issue arose from occasional work with asbestos-containing brake
components during decedent’s career as a mechanic); Gregg, 943 A.2d
at 217-18 (explaining that the exposure at issue was “focused on
Mr. Gregg’s personal automotive activities,” i.e., exposure arising from his
occasional work with asbestos-containing brake components); cf. Betz, 44
A.3d at 58 (concluding that “a complete discounting of the substantiality in
exposure would be fundamentally inconsistent with Pennsylvania law”). For
precisely this reason, the Betz litigation was chosen as a “test case” on the
question of whether any-exposure testimony could be sufficient, without
more, to establish substantial causation in cases of de minimis exposure.
Betz, 44 A.3d at 30; see id. at 55 (observing that “plaintiffs repeatedly
advised [the trial court] that there was no need for them to discuss
individual exposure histories, so long as they could establish exposure to at
least a single fiber from each defendant’s product,” and that Dr. Maddox
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“rendered his opinion without being prepared to discuss the circumstances of
any individual’s exposure”). Betz answered the question with a resounding
“No.” However, the Betz question simply is not posed by this case.
Substantial exposure to many products does not equate to substantial
exposure to one or more of Appellants’ products. But that Dr. DuPont was
unable to testify to the relative exposure to each product does not preclude
submission of the case to a jury regarding the degree of exposure to
Appellants’ products. No Pennsylvania court has held that product
identification and the nature of a plaintiff’s exposure must be established by
expert testimony on peril of dismissal. See Weible v. Allied Signal, Inc.,
963 A.2d 521, 527 (Pa. Super. 2008) (holding that “[t]he nexus between an
asbestos product and plaintiff may be established by direct and
circumstantial evidence,” and that testimony by someone “with knowledge
relating to the plaintiff’s workplace exposure to an asbestos-containing
product is admissible”); Andaloro v. Armstrong World Indust., Inc.,
799 A.2d 71, 86 (Pa. Super. 2002) (quoting Coward v. Owens-Corning
Fiberglas Corp., 729 A.2d 614, 622-23 (Pa. Super. 1999)) (“In asbestos
litigation, evidence is sufficient to establish product identity where the record
shows that plaintiff inhaled asbestos fibers shed by that manufacturer’s
specific product. The evidence . . . must demonstrate that the plaintiff
worked, on a regular basis, in physical proximity with the product, and that
his contact with it was of such a nature as to raise a reasonable inference
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that he inhaled asbestos fibers that emanated from it.”); accord Junge v.
Garlock Inc., 629 A.2d 1027 (Pa. Super. 1993).
In Junge, this Court made the following observation:
Our case law includes no requirement that a plaintiff in an
asbestos case prove through an industrial hygienist, or any other
kind of opinion witness, how many asbestos fibers are contained
in the dust emissions from a particular asbestos[-]containing
product. Instead, in order to make out a prima facie case
[sufficient to avoid summary judgment], it is well[-]established
that the plaintiff must present evidence that he inhaled asbestos
fibers shed by the specific manufacturer’s product. A plaintiff
must establish more than the presence of asbestos in the
workplace; he must prove that he worked in the vicinity of the
product’s use.
Id. at 1029 (emphasis in original; citation omitted). Thus, despite the
presence of problematic any-exposure testimony, the Gregg Court declined
to rule upon “whether, in light of [the a]ppellee’s evidence concerning the
frequency, regularity, and proximity of Mr. Gregg’s exposure to asbestos-
containing products sold by Appellant, the common pleas court correctly
determined that a jury issue was not present.” 943 A.2d at 227. The Betz
Court showed similar restraint in not conflating the aspects of the substantial
causation inquiry that must be addressed by an expert and those concerning
actual exposure that may be resolved by lay evidence. See 44 A.3d at 55
n.34.
In Junge, we held that the plaintiff had made out a prima facie case
requiring submission to a jury based upon his own positive identification of
the product in question, his own testimony that he worked in close proximity
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to the product on a regular basis and that his work produced dust, and the
manufacturer’s acknowledgment that the product in question contained and
emitted asbestos. 629 A.2d at 1029-20. Nelson’s testimony in this case is
quite similar, and neither Betz nor Gregg undermines Junge’s ruling in that
regard. Indeed, Gregg echoed that proposition. See Gregg, 943 A.2d
at 290 (noting that the frequency, regularity, and proximity factors “are to
be applied . . . as an aid in distinguishing cases in which the plaintiff can
adduce evidence that there is a sufficiently significant likelihood that the
defendant’s product caused his harm from those in which such likelihood is
absent on account of only casual or minimal exposure to the defendant’s
product”).
In contravention of this consistently-applied rule, the majority holds
that “the questions an expert must answer in order to establish that [a
defendant’s] products were a substantial factor in causing” the plaintiff’s
disease include whether exposure to a given product was above a non-
negligible level and that the given product “did it,” i.e., was itself the cause
of the disease, evidently to the exclusion of all other products. Maj. Op.
at 24 (emphasis added). In support of this ruling, the majority cites
Fisher v. Sexauer, 53 A.3d 771 (Pa. Super. 2012). However, Fisher did
not impose upon the plaintiff the burden of establishing by expert
testimony that the plaintiff had frequent, regular, and proximal exposure to
the product in question. Indeed, it echoed the general application of that
test, something no party to this litigation disputes. As Junge and other
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The majority’s reading of Betz transforms expert testimony
acknowledging the essentially uncontroversial proposition that there are “no
innocent fibers” of asbestos into a totem that precludes the admission of
that expert’s testimony as a matter of law, no matter the quantum of case-
specific evidence of the plaintiff’s exposure to a given product. Maj. Op.
at 17-25. That interpretation and its application to this case are problematic
inasmuch as the exposure at issue in Betz, as in Gregg, was de minimis,
rendering the any-exposure testimony indispensable to a finding of
substantial causation. See Betz, 44 A.3d at 30 (noting the exposure at
issue arose from occasional work with asbestos-containing brake
components during decedent’s career as a mechanic); Gregg, 943 A.2d
at 217-18 (explaining that the exposure at issue was “focused on
Mr. Gregg’s personal automotive activities,” i.e., exposure arising from his
occasional work with asbestos-containing brake components); cf. Betz, 44
A.3d at 58 (concluding that “a complete discounting of the substantiality in
exposure would be fundamentally inconsistent with Pennsylvania law”). For
precisely this reason, the Betz litigation was chosen as a “test case” on the
question of whether any-exposure testimony could be sufficient, without
more, to establish substantial causation in cases of de minimis exposure.
Betz, 44 A.3d at 30; see id. at 55 (observing that “plaintiffs repeatedly
advised [the trial court] that there was no need for them to discuss
individual exposure histories, so long as they could establish exposure to at
least a single fiber from each defendant’s product,” and that Dr. Maddox
14
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“rendered his opinion without being prepared to discuss the circumstances of
any individual’s exposure”). Betz answered the question with a resounding
“No.” However, the Betz question simply is not posed by this case.
Substantial exposure to many products does not equate to substantial
exposure to one or more of Appellants’ products. But that Dr. DuPont was
unable to testify to the relative exposure to each product does not preclude
submission of the case to a jury regarding the degree of exposure to
Appellants’ products. No Pennsylvania court has held that product
identification and the nature of a plaintiff’s exposure must be established by
expert testimony on peril of dismissal. See Weible v. Allied Signal, Inc.,
963 A.2d 521, 527 (Pa. Super. 2008) (holding that “[t]he nexus between an
asbestos product and plaintiff may be established by direct and
circumstantial evidence,” and that testimony by someone “with knowledge
relating to the plaintiff’s workplace exposure to an asbestos-containing
product is admissible”); Andaloro v. Armstrong World Indust., Inc.,
799 A.2d 71, 86 (Pa. Super. 2002) (quoting Coward v. Owens-Corning
Fiberglas Corp., 729 A.2d 614, 622-23 (Pa. Super. 1999)) (“In asbestos
litigation, evidence is sufficient to establish product identity where the record
shows that plaintiff inhaled asbestos fibers shed by that manufacturer’s
specific product. The evidence . . . must demonstrate that the plaintiff
worked, on a regular basis, in physical proximity with the product, and that
his contact with it was of such a nature as to raise a reasonable inference
15
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that he inhaled asbestos fibers that emanated from it.”); accord Junge v.
Garlock Inc., 629 A.2d 1027 (Pa. Super. 1993).
In Junge, this Court made the following observation:
Our case law includes no requirement that a plaintiff in an
asbestos case prove through an industrial hygienist, or any other
kind of opinion witness, how many asbestos fibers are contained
in the dust emissions from a particular asbestos[-]containing
product. Instead, in order to make out a prima facie case
[sufficient to avoid summary judgment], it is well[-]established
that the plaintiff must present evidence that he inhaled asbestos
fibers shed by the specific manufacturer’s product. A plaintiff
must establish more than the presence of asbestos in the
workplace; he must prove that he worked in the vicinity of the
product’s use.
Id. at 1029 (emphasis in original; citation omitted). Thus, despite the
presence of problematic any-exposure testimony, the Gregg Court declined
to rule upon “whether, in light of [the a]ppellee’s evidence concerning the
frequency, regularity, and proximity of Mr. Gregg’s exposure to asbestos-
containing products sold by Appellant, the common pleas court correctly
determined that a jury issue was not present.” 943 A.2d at 227. The Betz
Court showed similar restraint in not conflating the aspects of the substantial
causation inquiry that must be addressed by an expert and those concerning
actual exposure that may be resolved by lay evidence. See 44 A.3d at 55
n.34.
In Junge, we held that the plaintiff had made out a prima facie case
requiring submission to a jury based upon his own positive identification of
the product in question, his own testimony that he worked in close proximity
16
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to the product on a regular basis and that his work produced dust, and the
manufacturer’s acknowledgment that the product in question contained and
emitted asbestos. 629 A.2d at 1029-20. Nelson’s testimony in this case is
quite similar, and neither Betz nor Gregg undermines Junge’s ruling in that
regard. Indeed, Gregg echoed that proposition. See Gregg, 943 A.2d
at 290 (noting that the frequency, regularity, and proximity factors “are to
be applied . . . as an aid in distinguishing cases in which the plaintiff can
adduce evidence that there is a sufficiently significant likelihood that the
defendant’s product caused his harm from those in which such likelihood is
absent on account of only casual or minimal exposure to the defendant’s
product”).
In contravention of this consistently-applied rule, the majority holds
that “the questions an expert must answer in order to establish that [a
defendant’s] products were a substantial factor in causing” the plaintiff’s
disease include whether exposure to a given product was above a non-
negligible level and that the given product “did it,” i.e., was itself the cause
of the disease, evidently to the exclusion of all other products. Maj. Op.
at 24 (emphasis added). In support of this ruling, the majority cites
Fisher v. Sexauer, 53 A.3d 771 (Pa. Super. 2012). However, Fisher did
not impose upon the plaintiff the burden of establishing by expert
testimony that the plaintiff had frequent, regular, and proximal exposure to
the product in question. Indeed, it echoed the general application of that
test, something no party to this litigation disputes. As Junge and other
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cases demonstrate, and as common sense would dictate, product
identification and exposure history do not necessarily require the testimony
of an expert.
Stripping the question to its essentials, this much is clear: In order to
sustain his claim, Nelson had to adduce evidence based upon which a jury
could conclude (1) that Nelson used Appellants’ products frequently,
regularly, and proximally; (2) that those products released asbestos into the
air; and (3) that his disease was substantially caused by asbestos.
However, given the nature of multiple alleged exposures to numerous
asbestos-containing products over decades, neither could his expert
reasonably assert, nor could the court reasonably expect him to assert, that
product A, to which Nelson frequently was exposed, caused Nelson’s
mesothelioma to the exclusion of product B, to which Nelson also frequently
was exposed. The inference juries long have been allowed to make, the one
that animates the frequency, regularity, and proximity test, is that a
manufacturer of an asbestos-releasing product to which the plaintiff was
exposed to the requisite degree caused the plaintiff’s mesothelioma,
notwithstanding that he also was exposed to other asbestos-containing
products.
Nelson plainly satisfied each of these burdens, if not conclusively then
sufficiently to warrant submission to a jury. First, he testified extensively to
the frequency with which he used each of the asbestos-containing products
manufactured by Appellants. He identified them affirmatively, anchored
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their use in certain time periods, and associated them with certain tasks that
he performed. Second, evidence was adduced that these products contained
asbestos at the time Nelson attested to using them. Third, Dr. DuPont
testified that such asbestos, if inhaled in sufficient amounts, could cause
mesothelioma.
Betz, Gregg, and other such cases are defined by the unavailability
of the sort of evidence that we have in this case of frequent, regular, and
proximal exposure to products that undisputedly contained asbestos. Cf.
Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010) (Saylor, J.,
concurring) (“Notably, in [Gregg], this Court recently credited the opinion
announcing the judgment of the Superior Court in the present case . . . to
the degree that 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 [sic].” (emphasis added)).
Notably, in the cases relied upon by the trial court and Nelson, in which any-
exposure causation was deemed admissible and/or sufficient to create a
prima facie case requiring submission to a jury, the exposure at issue was
not de minimis. See Smalls v. Pittsburgh Corning Corp., 843 A.2d 410(Pa. Super. 2004); Cauthorn v. Owens Corning Fiberglas Corp., 840
A.2d 1028 (Pa. Super. 2004); Lonasco v. A-Best Prods. Co., 757 A.2d 367(Pa. Super. 2000). I discern no indication that Betz had the effect of
abrogating, or was intended to abrogate, these cases’ precedential value.
Indeed, the Betz Court cited but did not purport to diminish the effect of
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In this case, the issue is the propriety of Appellee’s counsel’s
comments to the general effect that the noneconomic damages in this case
should be assessed at a level greater than the $1 million award for economic
damages to which the parties stipulated. It certainly is true that attorneys
may not propose that a jury award an amount certain in non-economic
damages. See, e.g., Joyce v. Smith, 112 A. 549, 551 (Pa. 1921); Maj. Op.
at 32 (citing cases). However, despite this limitation, counsel retains a great
deal of latitude to argue his or her case zealously and dramatically, latitude
that courts do not intrude upon lightly. Millen v. Miller, 308 A.2d 115, 117
(Pa. Super. 1973).
Appellants and the majority analogize this case to Joyce, in which
counsel specifically urged a jury to award an amount certain in damages.
See Maj. Op. at 33. I cannot subscribe to that analogy. To the contrary, as
did the trial court, I find this case to be on all fours with our opinion in
Clark, which the majority labors to distinguish. See Maj. Op. at 33-36.
There, as here, the attorney in question referred to economic damages—
there, symbolically, in the form of a horizontally transected triangle; in this
case, by reference to the $1 million in economic damages stipulated by the
parties. Clark, 693 A.2d at 206. There, as here, the attorney in question
suggested that the jury should award noneconomic damages well in excess
of economic damages—there, symbolically, by suggesting that noneconomic
damages should be akin to the wider portion of the triangle, with economic
damages being only “the tip of the iceberg,” id.; in this case, by counsel’s
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mathematically hyperbolic comments that he believed non-economic
damages were worth “infinitely more” than the stipulated economic
damages. See Maj. Mem. at 35 (quoting Notes of Testimony (“N.T.”),
3/8/2010, at 78).6
At the sidebar prompted by Appellants’ objections, Appellee’s counsel
admitted that he was precluded from proposing a specific award of damages
as to any category of non-economic damages. See N.T., 3/8/2010, at 84-
87 (Appellee’s counsel: “The law provides that I am not allowed to suggest
a monetary amount.”). Moreover, counsel for Crane acknowledged that
Appellee’s counsel “absolutely” could “say to [the jury that] you can start at
____________________________________________
6
In a non-trivial mischaracterization, the majority treats infinity as
though it were a number, both implicitly—in its reliance on Joyce and
similar cases—as well as explicitly. See Maj. Op. at 36 (“[C]ounsel for
Nelson provided the jury with a formula to calculate damages and an
amount to plug into that formula. Here, counsel’s express reference to the
stipulated economic damages was not evocative, but declarative and
algebraic.”). However, an injunction to assess damages by “infinity’s”
measure is no more numerical or “formulaic” than the suggestive use of
geometry at issue in Clark; infinity is no more a number than a triangle is.
Cf. David Foster Wallace, Everything and More: A Compact History of Infinity
§ 1 (Atlas Books Reissue ed. 2010) (“Beware of thinking that ∞ is just an
incredibly, unbelievably enormous number. . . . Take some . . .
x
transcomputational number[, i.e., 10 ], imagine it’s a grain of sand,
conceive of a whole beach, or desert, or planet, or even galaxy filled with
such sand, and not only will the corresponding 10x number be <∞, but its
square will be <∞, . . . and so on; and actually it’s not even right to
compare 10x and ∞ arithmetically in this way because they’re not even in
the same mathematical area code—even, as it were, the same dimension.”);
id. (quoting Galileo, specific source omitted) (“The fundamental flaw of all
so-called proofs of the impossibility of infinite numbers is that they attribute
to these numbers all of the properties of finite numbers, whereas the infinite
numbers . . . constitute an entirely new type of number . . . .”).
25
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a million dollars[, the stipulated economic damages,] and this other stuff
is even more valuable than that.” Id. at 86 (emphasis added). As well,
counsel for Appellee made quite clear to the jury that calculating a just
award of non-economic damages was the jury’s task and no one else’s. See
id. at 78 (“It’s up to you folks. Use your common sense. You have a sense
of what these things are worth. . . . I’m not permitted by law to give you a
number. I can’t tell you a damage award, that I would be happy with and
say I think that’s great, I think that’s fair. . . . It’s up to you folks to do
that.”).
The majority conflates counsel’s references to the stipulated economic
damages with the complained-of comments:
Effectively, counsel (1) identified twelve individual elements of
non-economic damages; (2) suggested to the jury that it
consider a different award for each element but then add the
individual amounts onto a single line; and (3) in rather express
language, suggested that the jury award Nelson at least $1M for
each.
Maj. Op. at 36. However, counsel’s comments read in context do not so
enjoin the jury, and certainly not “in rather express language.” It is at least
equally reasonable to understand counsel’s comments as conforming to the
rule as interpreted in Clark. Counsel’s complained-of argument culminated
in his suggestion to the jury that it “start at $1 million, and I believe that
each of those elements of damages starting at physical pain are worth
infinitely more than that $1 million figure. Now you add a million plus
whatever other numbers you assign for these.” Maj. Mem. at 35 (quoting
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J-E02002-14
N.T., 3/8/2010, at 80-81). It is not at all clear that counsel directed the jury
to start at $1 million as to each of twelve factors; it is at least equally
reasonable to interpret the last sentence as counsel returning to that $1
million figure one last time to remind the jury that it had no discretion to
assess fewer than $1 million in stipulated economic damages, and encourage
them to award “whatever other numbers you assign” for the twelve
categories of non-economic damages. See N.T., 3/8/2010, at 80 (“I need
somebody to remember you must start at $1 million.”).
In urging noneconomic damages in excess of the economic damages,
counsel did nothing more objectionable than what counsel did in Clark,
albeit in words rather than a pictorial representation. In Clark, we held that
the trial court did not abuse its discretion in declining to award a mistrial.
Here, as in Clark, we are bound to defer to the trial court’s assessment—
based upon the context of a live and dynamic courtroom rather than our
distanced review of a cold record—that this at-most implied attempt to urge
the jury to award a specific value for non-economic damages did not fall
afoul of the Joyce rule. The majority acknowledges that “it discern[s] no
error in the[] substance” of the trial court’s “instructions on damages.” Maj.
Op. at 36. Moreover, “[i]t is well-established that juries are presumed to
follow the trial court’s instructions.” Commonwealth v. Jones, 811 A.2d
27J-E02002-14
these decisions. See 44 A.3d at 50 n.26; cf. Gregg 943 A.2d at 221
(discussing Judge Bowes’ citation of Lonasco in her dissent from the
underlying direct appeal). I find no case law that requires exclusion solely
because an expert who testifies to causation in connection with a plaintiff’s
extensive occupational exposure to asbestos also acknowledges a defining
attribute of dose-responsive toxicity: That, independently of substantial
causation, every fiber contributes to the accretion of harmful fibers that, in
sufficient quantities, may cause the affliction(s) in question.
The Gregg Court approvingly quoted the trial court’s opinion in that
case to the following effect:
[T]here is no requirement that plaintiff must prove how many
asbestos fibers one must inhale necessary to a determination of
causation; however, evidence of exposure must demonstrate
that the plaintiff worked, on a regular basis, in physical proximity
with the product and that his contact with same was of such
nature as to raise a reasonable inference that he inhaled
asbestos fibers that emanated from it.
Gregg, 943 A.2d at 220. This quotation makes very little sense if the mere
mention of the any-exposure proposition, which is associated with any dose-
responsive illness, compromises the probative value of all of the testimony
of the expert who mentioned it.
In my view, even a modest extension of the Betz holding beyond
cases involving only de minimis exposure threatens to eclipse a considerable
proportion of asbestos litigation, given the challenges confronting plaintiffs in
establishing substantial causation decades after the allegedly causative
20
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exposure. See Gregg, 943 A.2d at 226 (acknowledging “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 proving specific causation under prevailing Pennsylvania
law which may be insurmountable”). While it is difficult to balance
Pennsylvania’s well-settled law regarding the establishment of substantial
causation with the need to ensure the existence of a meaningful remedy for
grave injury, the majority’s application of Betz to this case tips that balance
heavily in favor of defendants.
Our legislature has had decades to impose a bright-line rule precluding
all testimony that contains any reference to an any-exposure theory of
causation, but it has declined to do so. Nor has our Supreme Court imposed
such a bright-line rule, despite its opportunity to do so in Gregg, Betz, and
other asbestos cases. Each body, in its own sphere, is more qualified than
this Court to embark upon change of such sweeping consequence.
Even if I allow that this is a case closer to Betz than I believe it to be,
I encounter a second problem with the majority’s ruling. It is beyond cavil
that a trial court’s decisions regarding the admissibility of evidence, including
expert testimony, lie in that court’s discretion. We will overturn such
decisions only when that discretion is abused. See Grady v. Frito-Lay,
Inc., 839 A.2d 1038, 1046 (Pa. 2003). “An abuse of discretion may not be
found merely because an appellate court might have reached a different
conclusion, but requires . . . manifest unreasonableness, or partiality,
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prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Id. Notably, in both Gregg and Betz, our Supreme Court
affirmed trial court decisions to exclude expert testimony; it did not
determine that either court abused its discretion, and the Court did not
reverse upon that basis.
This case arises in the opposite context. Here, the trial court,
following a detailed and careful inquiry into the qualifications and opinions of
Dr. DuPont, determined that he should be permitted to testify. Pennsylvania
courts long have characterized our standard for the admissibility of expert
testimony as “liberal.” See, e.g., Flanagan v. Labe, 666 A.2d 333, 335
(Pa. Super. 1995) (“Pursuant to Pennsylvania’s liberal standard, witnesses
may testify as experts if they possess knowledge outside the ordinary reach
and offer testimony that could assist the trier of fact.”). Unlike in Betz,
where our Supreme Court focused upon Dr. Maddox’s selective reliance upon
epidemiological evidence, his avoidance of further development of the topic,
and his lack of qualifications regarding same in his career as a pathologist, in
the instant case Dr. DuPont testified to his extensive experience as a clinical
pulmonologist in an industrial area treating patients with asbestos-related
ailments, his responsibility as such to remain familiar with the medical
literature, his reliance upon peer-reviewed epidemiological materials as well
as authoritative texts, and other relevant matters scrupulously avoided by
Dr. Maddox in Betz. See DuPont Depo. at 28-29, 31-33. For all of the
foregoing reasons, I dissent from the trial court’s substantial expansion of
22