Expert Testimony That “Any Exposure” To Asbestos Is A Substantial Factor Is Inadmissible
The Pennsylvania Supreme Court issued an opinion that, according to one asbestos plaintiffs’ blog, “could have far-reaching implications.”
Betz v. Pneumo Abex LLC was an automotive friction products asbestos case. The focus of the court’s decision was on the admissibility of plaintiff’s expert opinion that “that each and every exposure to asbestos—no matter how small—contributes substantially to the development of asbestos-related diseases.” This opinion is often referred to as the “‘any-exposure,’ ‘any-breath,’ or ‘any-fiber’ theory of legal (or substantial-factor) causation.” This particular case was selected from others below using a similar “any-exposure” theory of causation.
When determining the admissibility of expert testimony, Pennsylvania still uses the Frye test of “general acceptance in the relevant scientific community applicable to novel scientific evidence” and does not use the Daubert standard.
First, the Pennsylvania Supreme Court agreed with the court below that the any-exposure theory was novel and thus a Frye hearing was warranted. In turning to the any-exposure theory of substantial causation, the court noted that the expert’s opinion created an “irreconcilable conflict with itself” because “[s]imply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.”
In fact, the court quoted the plaintiff’s experts’ own testimony to demonstrate this contradiction:
Now, individual exposures differ in the potency of the fiber to which an individual is exposed, to the concentration or intensity of the fibers to which one is exposed, and to the duration of the exposure to that particular material. So those are the three factors that need to be considered in trying to estimate the relative effects of different exposures. But all exposures have some effect.
To elucidate his opinion that even a single asbestos fiber can be a substantial contributing factor in developing an asbestos-related disease, plaintiff’s expert offered an analogy of a glass of water with marbles being placed into the glass. In other words, each marble is a substantial factor in the water overflowing. However, the court found this analogy discomforting, particularly in light of the plaintiff’s expert’s previous testimony as to size and potency of asbestos fibers:
In this regard, the analogies offered by [plaintiff’s expert] in support of his position convey that it is fundamentally inconsistent with both science and the governing standard for legal causation. The force of his marbles-in-a-glass illustration changes materially upon the recognition that, to visualize this scenario in terms of even a rough analogy, one must accept that the marbles must be non-uniform in size (as asbestos fibers are in size and potency), microscopic, and million-fold. From this frame of reference, it is very difficult to say that a single one of the smallest of microscopic marbles is a substantial factor in causing a glass of water to overflow.
While this was one of many analogies used by the plaintiff’s expert (also employed: a “soldier in the field” analogy, an “Ellis Island” analogy, a “boxer’s glancing blow” analogy, and a “single cigarette among many” analogy), no analogy offered to the court was found convincing:
We appreciate 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. Other jurisdictions have considered alternate theories of liability to alleviate the burden. Such theories are not at issue in this case, however, and we do not believe that it is 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 in every “direct-evidence” case. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.
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