Legal Updates for Toxic Torts
Legal Updates for Toxic Torts Litigation - December 2016
Edited by Timothy D. Rau, Esq.
Cumulative Exposure Opinions Admissible Under Betz
by Carolyn Schweizer
On November 22, 2016, the Pennsylvania Supreme Court issued an opinion in Rost v.Ford Motor Company in which it declined to expand its ruling in Betz, limiting expert opinions in asbestos cases, and also affirmed the trial court's consolidation of cases for trial. Ford had asked the court preclude opinions of the plaintiff's experts under the Betz decision because they were based upon the "each and every exposure" theory. The court was also asked to rule on whether the trial court erred by allowing trial consolidation of multiple cases.
The court's main holdings can be summarized as follows:
- An expert may generally explain basic scientific facts to the jury about the dose response relationship between exposure to asbestos and the possibility of contracting mesothelioma.
- Betz does not establish another test in addition to the "frequency, regularity, and proximity" for substantial factor causation. The plaintiff’s experts only must provide testimony as to the frequency, regularity, and proximity of the exposure to the defendant's product, not other asbestos-containing products, and opine that it is sufficient to cause the disease.
- Consolidation arguments should be made for the trial record. However, it appears that there is a very high burden in demonstrating prejudice on appeal to allow for a new trial.
At trial, the plaintiff presented evidence demonstrating that Mr. Rost worked at a Ford dealership for three months in 1950. During that time, he serviced brakes and clutches. Ford stipulated that the brakes and clutches were 40 to 60% chrysotile asbestos by weight. The plaintiff's expert, Dr. Arthur Frank, testified about studies showing exposure for just one day leads to an increased risk of disease in animals. He testified that a single month of exposure doubles the risk for developing the terminal cancer. The jury found Ford liable and awarded the plaintiff close to $1 million. Ford appealed and, citing to the Betz case, argued that the plaintiff failed to offer competent expert witness testimony showing his exposure to Ford’s asbestos products was sufficient.
The court explained that the expert in Betz testified at a Frye hearing that "he did not need to know the exposure histories of mesothelioma plaintiffs to offer an opinion on causation so long as they could establish exposure to a single fiber from each defendant's product." Ford argued that the same testimony banned in Betz was offered by Dr. Frank. The court disagreed and found that Dr. Frank's testimony was distinguishable. The court explained that any expert needs the opportunity to explain to the jury basic scientific principles, which they found he did when he generally explained the dose response relationship between exposure to asbestos and the possibility of contracting mesothelioma. The court concentrated on the totality of Dr. Frank's testimony and found that he testified in accordance with Gregg and Betz—after he reviewed the type and length of asbestos exposure for Mr. Rost, he opined that the totality of Mr. Rost's actual exposure to the Ford products was sufficient to have caused his mesothelioma. With this, the issue can move to the jury to determine whether they find substantial causation.
In reaching the decision, the court explained the impact of Betz on expert testimony. Ford had argued that Betz requires an expert to compare all of the plaintiff’s exposures to asbestos to determine which among them substantially caused mesothelioma. The court explained that Betz does not establish another test in addition to the "frequency, regularity, and proximity test. Although experts may not provide an empty and baseless "each and every breath" theory, the plaintiff’s experts only need provide testimony as to the frequency, regularity, and proximity of the exposure to the specific defendant’s product and opine that it was sufficient to cause the disease. The court specifically noted that Dr. Frank in Rost opined that the exposure to the Ford products was sufficient to cause Mr. Rost's mesothelioma and a comparison to other exposures was unnecessary.
Next, the court addressed Ford's objection to the trial court's decision to consolidate the Rost case with two other matters. The court found error in the manner for which the trial court responded to Ford's consolidation objection—"We don't sever cases," and "[I]n Philadelphia, we have been doing so for years." The court noted that the "matter of consolidation rests in the sound discretion of the court" and found that the record in the case does not reflect that the trial court exercised any discretion. To allow a new trial for these errors, Ford was tasked with demonstrating prejudice from the consolidation.
Ford argued that they were prejudiced in that: (1) the one consolidated case involved an expert who explained asbestos release generally on brakes by referring to his study of Ford brakes; (2) defense in all three cases presented different defense theories; and (3) the cases had little to no factual overlap and led to jury confusion. In the end, the court found "little support" for the arguments of prejudice to allow for a new trial.
For more information on the opinion, please contact Carolyn Schweizer in our Philadelphia office.
PA Supreme Court Allows Superior Court Opinion in Amato to Stand
by Timothy Rau
In a one-page Order entered on November 22, 2016, the court dismissed the appeals in the consolidated cases of Amato and Vinciguerra as "having been improvidently granted." The effect of the dismissal is that the Superior Court's opinion in the case stands and the Superior Court's ruling that Tincher applies to product liability cases based on a failure to warn theory.
The Pennsylvania Superior Court opinion, Amato v. Crane/Vinciguerra v. Crane, 2015 PA Super. 83, involved appeals from jury verdicts of $2.5 million and $2.3 million that were tried in Philadelphia in February 2013 before the Honorable Mark Bernstein.
The Superior Court opinion is most notable because of the panel's finding that the Pennsylvania Supreme Court's ruling in Tincher v. Omega Flex, 104 A.2d 328 (2014) applied to product liability cases alleging that a product was defective because of a failure to warn. In November 2014, the Pennsylvania Supreme Court issued the Tincher opinion, which declined to adopt the Third Restatement of Torts but overruled the law of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978). Azzarello had previously prevented a jury from taking questions of risk and utility of a product into consideration in a product liability case. The Tincher court held that a jury can take risk and utility into account when determining if a product is defective and "unreasonably dangerous."
The court noted that Tincher established that questions of whether a product is unreasonably dangerous and defective is now generally a question of fact for a jury. In doing so, the court rejected the plaintiffs' arguments and held that Tincher applied to failure to warn cases.
For more information on the verdict, contact Timothy Rau in our Philadelphia office.
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