Asbestos Causation Theory Rejected by the Pennsylvania Supreme Court
By: chris.placitella @ Jun 13, 2012
On May 23, 2012, the Pennsylvania Supreme Court issued a decision rejecting expert opinion on the “any-exposure” theory of causation in asbestos litigation. This decision is important for members of the asbestos litigation bar because it arguably changes Pennsylvania law with respect to causation and raises what some practitioners believe is a significant obstacle to recovery for plaintiffs. Under this new precedent, simply identifying exposure to a specific asbestos containing product is not enough to get to a jury. In order to prove causation, it appears that plaintiffs will be required to show a specific (but undefined) amount of exposure.
As practitioners are aware, in personal injury cases involving asbestos, plaintiffs must prove that exposure to an identifiable asbestos product was a “substantial factor” in the causation of their disease. This “substantial factor” requirement is often a major hurdle for plaintiffs because asbestos injuries typically have a long latency period, making it difficult to prove causation. Some plaintiffs have overcome this causation problem by arguing that “any-exposure” is a substantial contributing factor. Pursuant to this theory, any exposure to asbestos, regardless of the amount, substantially contributes to the development of asbestos-related diseases. Therefore, because there is no fixed number of fibers that necessarily cause asbestos-related disease, if a plaintiff can show that they were exposed to some asbestos from a particular defendant they have provided sufficient evidence of causation to get to a jury.
Defendants (and some courts) have criticized the “any-exposure” approach, arguing that the theory cannot be reconciled with medical evidence that the likelihood of developing an asbestos-related disease is positively correlated to the dose of asbestos exposure. Stated more plainly, they argue “any-exposure” theory is inconsistent with accepted medical findings that higher asbestos exposure results in higher risk of asbestos disease. This really misses the point in most cases and is arguably misconstrued by the Supreme Court in Betz (see below). What almost every medical expert agrees to is that all the exposures taken together causes the disease.
In Betz v. Pneumo Abex, LLC, No. 38-2010, 2012 Pa. LEXIS 1208 (Pa. 2012), the Pennsylvania Supreme Court confronted the “any-exposure” theory in the context of a Frye hearing. The plaintiffs in Betz attempted to introduce an expert opinion advancing what the defendants framed as the “any-exposure” theory. The trial court precluded the opinion, noting that the expert’s position that exposure to a single asbestos fiber was a “substantial” cause of injury was inconsistent with his acknowledgment that asbestos-related diseases are dose responsive. After the appellate court overturned the trial court’s decision the defendant appealed to the Pennsylvania Supreme Court.
The Supreme Court sided with the defendant and largely adopted the trial court’s reasoning. It was skeptical of what it considered inherent inconsistencies in the “any-exposure” theory and questioned how the plaintiffs’ expert could say that risk attaches to a single asbestos fiber “when the . . . plaintiffs may have been (and likely were) exposed to millions of other fibers from other sources including background exposure.” Id. at * 80. Ultimately, the Supreme Court relied on perceived inconsistencies in precluding admission of the theory. It held that the expert’s “any-exposure opinion is in irreconcilable conflict with itself. Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.” Id. at 83. Moreover, according to the Court, “a complete discounting of the substantiality in exposure would be fundamentally inconsistent with Pennsylvania law.” Id. at 90. Based on this language, there is a legitimate argument that the Supreme Court misunderstood what the proof is in most asbestos cases. Typically, plaintiffs in asbestos litigation do not argue that a single fiber irrespective of all other fibers causes mesothelioma. On the contrary, the evidence almost always is that all of the exposure taken together caused the injury.
In light of the Betz decision, it appears that the “any-exposure” theory of causation as framed by the defense is not viable in Pennsylvania. However, after a close reading of the opinion, I believe the Court is really saying that where there is evidence of significant exposures to alternative sources of asbestos, there may be cases where the exposure to a particular defendant’s product might be considered de minimus and not enough to satisfy the substantial factor requirement. In those cases the plaintiff may need to present further evidence attempting to quantify the amount of exposure related to a particular defendant’s product. In any case, because the Supreme Court did not define how much exposure is enough, it can be fairly anticipated that defendants will use Betz as authority for setting a fixed numerical threshold. Therefore, until the lower courts flesh out how much asbestos exposure is sufficient under this new precedent, practitioners should be prepared for additional causation challenges, more frequent Frye motions, and attempts by the defense bar to establish high numerical exposure requirements.