By Susan Lasser, J.D.
Because a former automobile dealership worker and his wife, who claimed that the worker developed mesothelioma as a result of his exposure to asbestos-containing brake products while working at the dealership, presented sufficient evidence to satisfy the "frequency, regularity, and proximity" causation test, and their expert on asbestos-related diseases provided competent medical testimony establishing substantial factor causation, the Pennsylvania Supreme Court concluded that the trial court did not err in submitting the issue of substantial causation to the jury and in denying the auto products manufacturer’s motions for non-suit, judgment notwithstanding the verdict, and a new trial. The state high court, ruling on a second question by the manufacturer, held that while it agreed with the manufacturer’s objections to the trial court’s consolidating the worker’s case with two other mesothelioma cases, it did not find that the manufacturer was prejudiced by the consolidation. Thus, a new trial was not warranted (Rost v. Ford Motor Co., November 22, 2016, Donohue, C.).
In October 2009, the worker and his wife filed a complaint against Ford Motor Company (Ford) and other defendants alleging that the worker’s exposure to their various asbestos-containing products, including brakes manufactured by Ford, caused him to contract mesothelioma. Prior to trial, the worker and his wife (collectively, worker) settled with all of the defendants except Ford. Over Ford’s objections, the trial court consolidated the case for trial with two other mesothelioma cases. At the beginning of the trial, the trial court reminded the parties of a pre-trial ruling precluding any expert from offering testimony that "each and every breath" of asbestos can constitute an evidentiary basis for the jury to find that the defendant’s product was a substantial cause of mesothelioma.
Expert testimony. The worker called two experts on medical and causation issues. One, an experimental pathologist, did not testify regarding the specific cause of the worker’s medical condition, but rather offered more general testimony about how asbestos causes mesothelioma. The other expert testified that mesothelioma is a dose-response disease, i.e., "as the dose increases, the likelihood of developing the disease increases" and "larger amounts cause larger risks." He also said it was not scientifically possible to identify the particular exposure or exposures that caused a patient’s mesothelioma. Instead, he said that the causative agent is "the series of exposures" with all exposures to asbestos contributing to the cumulative dose of asbestos, and the cumulative dose causing mesothelioma.
Proceedings. Ford moved for nonsuit when the worker rested his case-in-chief, arguing that the second expert had offered "each and every breath" opinion testimony, which was prohibited as evidence of substantial causation by the state high court in Gregg v. V-J Auto Parts, Co., 943 A.2d 216 (Pa. 2007). The trial court denied the motion, finding the expert had not offered such testimony and that the worker had presented sufficient evidence to send the case to the jury. The jury reached a $994,800 verdict ($844,800 awarded to the worker and $150,000 awarded to his wife). Also, the jury found that the products of three companies with asbestos-containing equipment at another place the worker was employed were also substantial causes of his mesothelioma. Thus, the trial court molded the verdict by dividing it into four equal parts. Judgment was entered against Ford in the amount of $248,700. Ford filed post-trial motions for judgment notwithstanding the verdict and/or a new trial, arguing that the trial court had erred in (1) failing to rule that the second expert’s alleged "each and every breath" testimony was legally insufficient to establish substantial causation as a matter of law and (2) failing to grant Ford’s motion in opposition to consolidation of its case with two other mesothelioma cases. The trial court denied the motions. Ford raised the same issues on appeal to the Pennsylvania Superior Court, which affirmed the trial court in an unpublished decision. In particular, that court held that the worker’s experts "provided detailed testimony about the nature of mesothelioma and its causes, backed up by published research on the subject."
Pennsylvania Supreme Court ruling. The state supreme court granted [see Products Liability Law Daily’s November 7, 2014 analysis] Ford’s petition for allowance of appeal to consider two issues, one of which was whether—contrary to the Pennsylvania Supreme Court’s decision in Howard v. A.W. Chesterton Co., 78 A.3d 605 (Pa. 2013); Gregg; and Betz v. Pneumo Abex. LLC, 44 A.3d 27 (Pa. 2012)—a plaintiff in an asbestos action may satisfy the burden of establishing substantial-factor causation by an expert’s "cumulative exposure" theory that the expert concedes is simply an "any exposure" theory by a different name. The other issue concerned the question of consolidation and whether it was proper in this case.
Ford argued that the state supreme court had established in its prior decisions a bright line rule in mesothelioma products liability cases that a causation expert cannot rely on the theory that every exposure to asbestos is substantially causative of the disease when that expert opines on substantial causation. Ford asserted that the worker’s second expert’s testimony as to cumulative exposures was such "each and every breath" testimony, even if he did not use those precise words or place the word "substantial" before the word "causative." Ford said that contextually, the expert’s statements showed he intended to convey to the jury that every exposure to asbestos was a substantial cause of the worker’s disease. The worker responded that Pennsylvania law requires that a plaintiff in a mesothelioma products liability action demonstrate that his or her exposure to asbestos was frequent, proximate, and regular, and that a causation expert cannot rely merely on the proposition that every exposure to asbestos is a substantial cause of the disease. He said his expert testified in accordance with those basic principles and that Ford confused or conflated the scientific statement that "every exposure contributes" with or into the impermissible "every exposure is a substantial cause."
The court explained that its Gregg and Betz decisions established that (1) expert testimony based on the notion that "each and every breath" of asbestos is substantially causative of mesothelioma will not suffice to create a jury question on the issue of substantial factor causation and (2) to create a jury question, a plaintiff must provide evidence that exposure to a defendant’s asbestos-containing product was sufficiently "frequent, regular, and proximate" to support a jury’s finding that the defendant’s product was substantially causative of the disease at issue.
According to the court, the worker’s second expert never indicated that a single exposure was a substantial cause of the worker’s mesothelioma. Rather, he explained the dose- response relationship between exposure to asbestos and the possibility of contracting mesothelioma. The first expert offered the same opinion, and 58 physicians and scientists in an amicus brief asserted that each exposure to asbestos contributes to the total dose and increases a person’s probability of developing mesothelioma or other cancers as an "irrefutable scientific fact." As such, the state high court agreed with the worker that Ford had confused or conflated the "irrefutable scientific fact" that every exposure cumulatively contributes to the total dose with the legal question under Pennsylvania law as to whether particular exposures to asbestos are "substantial factors" in causing the disease. Thus, the second expert testified that the worker’s actual exposures to asbestos at the dealership over three months was substantially causative of his mesothelioma. He did not testify that a single breath of asbestos while at the dealership caused the worker’s mesothelioma, but rather that the entirety of his exposures during the three months he worked there caused his disease. Therefore, his testimony was strictly in accordance with the Pennsylvania Supreme Court’s dictates in its prior decision: i.e., that the worker’s exposures to asbestos at the dealership were sufficiently frequent, regular, and proximate to allow the inference that these exposures were substantially causative. This testimony concerning the worker’s exposures while at the dealership provided a sufficient basis to create a jury question regarding the existence of a causal connection between his exposure to asbestos-containing Ford products and his subsequent development of mesothelioma.
Because the worker presented sufficient evidence to satisfy the "frequency, regularity, and proximity" test and his second expert provided competent medical testimony establishing substantial factor causation, the court concluded that the trial court did not err in submitting the issue of substantial causation to the jury and in denying Ford’s motions for non-suit, judgment notwithstanding the verdict, and a new trial.
Consolidation. Because the state supreme court determined there was no demonstrable prejudice to Ford resulting from consolidation, it held there was no basis to conclude that the trial court erred in denying the manufacturer a new trial.
The case is No. 56 EAP 2014.
Attorneys: Clayton Layne Thompson (Maune Raichle Hartley French & Mudd, LLC) for Richard M. Rost. Robert L. Byer (Duane Morris LLP) for Ford Motor Co.
Companies: Ford Motor Co.
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