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Pennsylvania High Court Rejects 'Any Exposure' To Asbestos Causation Theory

HARRISBURG, Pa. - (Mealey's) An expert's testimony that "any exposure" to asbestos substantially contributes to mesothelioma irreparably conflicts with his testimony that mesothelioma is a dose-response disease, the Pennsylvania Supreme Court held May 23 in finding that a judge properly held a hearing on the testimony and then excluded it (Diana K. Betz, et al. v. Pneumo Abex LLC, successor-in-interest to Abex Corp., et al., No. 38 WAP 2010, Pa. Sup.). 

(Opinion. Document #01-120606-013Z.)

"Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive," the court said. 

In 2005, Charles Simikian filed suit in the Allegheny County Court of Common Pleas against numerous companies that allegedly manufactured or supplied asbestos-containing friction products.  Simikian died shortly after filing the complaint, and Diana Betz continued the action. 

Frye Hearing 

Betz alleged that the decedent was exposed during his 44-year career in the automotive repair industry.  The defendants filed a global motion challenging the admissibility of the "any exposure" theory.  At the urging of the court, the parties selected the Betz's action as a test case for the Frye v. United States (293 F. 1013 [D.C. Cir. 1923]) [enhanced version available to subscribers] hearing.  After the hearing, Judge Robert J. Colville excluded any and all expert testimony indicating that the decedent had contracted mesothelioma through exposure to friction products in the automotive repair field.

Judge Colville found that Dr. John C. Maddox's friction-causation testimony amounted to his "best estimate, gut instinct" and "educated guess" because he lacked "methodologies utilizing discrete and specific principles logically applied in a manner that can be affirmatively articulated, referenced, reviewed, and tested, and empirically verified."  Judge Colville conceded that he did not consider evidence from the defendants in reaching his ruling, finding that it did not support the Frye challenge. 

The Pennsylvania Superior Court reversed, holding that Judge Colville's decision was based neither on a scientific theory nor on the evidence before him.  Friction-product defendants Ford Motor Co. and Allied Signal Inc. appealed to the Pennsylvania Supreme Court. 


In its ruling, the court first concluded that Judge Colville acted properly in holding a hearing given the controversial nature of the any-exposure theory as well as its role in asbestos litigation.  The court said a reasonably broad meaning should be given to the term "novel" for the purposes of conducting a Frye hearing.  The "any exposure" theory falls within this definition, the court said.   

The court said any time a judge has grounds to believe an expert has not applied accepted scientific methodology a Frye hearing is warranted.  A more narrow approach would unduly constrain trial judges, the court said.  "In the present case, Judge Colville was right to be circumspect about the scientific methodology underlying the any-exposure opinion," the court said. 


Next, the court said that while Maddox testified that he was presenting the medical literature as he understood it, he never indicated that his opinion was based on a particular clinical diagnosis.  "Indeed, he expressed no familiarity whatsoever with Mr. Simikian's individual circumstances," the court said.  "Instead, Dr. Maddox offered a broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber above background exposure levels.  In doing so, he took it upon himself to address (and discount) the range of the scientific literature, including pertinent epidemiological studies," the court said. 

The court said Maddox's testimony did not use the language of a methodology or standard applied in the field of pathology.  Maddox's testimony makes it clear that his opinion was grounded in risk assessment, the court said.  This fact makes the doubts expressed by expert Dennis J. Paustenbach about whether risk assessment falls within the realm of pathologists especially powerful, the court said. 

The court concluded that Maddox's testimony conflicted with itself.  While Judge Colville spent "considerable time" listening to the arguments, he could not "discern a coherent methodology supporting the notion that every single fiber from among, potentially, millions is substantially causative of disease," the court said.  Specifically, Judge Colville struggled with how Maddox could claim both that mesothelioma is dose responsive and that every exposure is substantially causative, the court said. 

Justice Thomas G. Saylor wrote for the court and was joined by Justices Ronald Castille, J. Michael Eakin, Max Baer, Debra McCloskey Todd and Seamus McCaffery.  Justice Joan Orie Melvin did not participate. 

David Bennet Rodes and Jason T. Shipp of Goldberg, Perksy & White in Pittsburgh represent Betz.  Robert L. Byer, Sharon L. Caffrey and Susan Schwochau of Duane Morris in Pittsburgh represent Ford.  Carl D. Buchholz III, Peter J. Neeson and Angela M. Heim of Rawle & Henderson in Philadelphia represent Allied Signal. 

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