Betz v. Pneumo Abex LLC

• Decision Date: 23 May 2012
• Citation: 44 A.3d 27
• Parties: Diana K. BETZ, Executrix of the Estate of Charles Simikian, Deceased v. PNEUMO ABEX LLC, Successor–in–Interest to Abex Corporation, Allied Signal, Inc., in its own right and as Successor–in–Interest to Allied Corporation, Successor–in–Interest to Bendix Corporation, Borg–Warner Corporation, Carlisle Companies, Inc., Okonite Company, General Motors Corporation, Kelsey–Hayes Company, Metropolitan Life Insurance Company, a/k/a Metropolitan Insurance Company, Daimler Chrysler Corporation, f/k/a Chrysler Corporation, Ford Motor Company, Volkswagen of America, Inc., Napa Automotive Parts Group, Rohrich Cadillac, Inc., Dyke Motor Supply Company Incorporated, South Hills Auto Parts Co. Appeal of Allied Signal, Inc. and Ford Motor Company.
• Court: Pennsylvania Supreme Court

44 A.3d 27

Diana K. BETZ, Executrix of the Estate of Charles Simikian, Deceased

v. PNEUMO ABEX LLC, Successor–in–Interest to Abex Corporation, Allied Signal, Inc., in its own right and as Successor–in–Interest to Allied Corporation, Successor–in–Interest to Bendix Corporation, Borg–Warner Corporation, Carlisle Companies, Inc., Okonite Company, General Motors Corporation, Kelsey–Hayes Company, Metropolitan Life Insurance Company, a/k/a Metropolitan Insurance Company, Daimler Chrysler Corporation, f/k/a Chrysler Corporation, Ford Motor Company, Volkswagen of America, Inc., Napa Automotive Parts Group, Rohrich Cadillac, Inc., Dyke Motor Supply Company Incorporated, South Hills Auto Parts Co.Appeal of Allied Signal, Inc. and Ford Motor Company.

Supreme Court of Pennsylvania.

Argued Oct. 19, 2011.

Decided May 23, 2012.

Michael James Ross, K & L Gates, LLP, Nicholas P. Vari, Pittsburgh, for Amicus Curiae, Crane Co.

Carl D. Buchholz III, Peter J. Neeson, Rawle & Henderson, LLP, Philadelphia, for Allied Signal, Inc.

Robert L. Byer, Duane Morris, L.L.P., Pittsburgh, for Ford Motor Company.

James Michael Beck, Dechert LLP, Philadelphia, for Appellant Amicus Curiae, Product Liability Advisory Council, Inc.

Patrick Joseph Hughes, Blue Bell, for Appellant Amicus Curiae, Richard Wilson, et al.

Ira L. Podheiser, Burns, White & Hickton, L.L.C., Pittsburgh, for Appellant Amicus Curiae, Coalition for Pennsylvania Chamber of Business and Industry, et al.

David Bennet Rodes, Jason Timothy Shipp, Goldberg, Persky & White, P.C., Pittsburgh, for Diane K. Betz.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice SAYLOR.

The civil action underlying this appeal was selected as a test case for the admissibility of expert opinion evidence to the effect that each and every fiber of inhaled asbestos is a substantial contributing factor to any asbestos-related disease. The inquiry has proceeded under principles derived from Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

I. Background

In February 2005, Charles Simikian commenced a product liability action against Allied Signal, Inc., Ford Motor Company (“collectively Appellants”), and others, asserting causes of action grounded on multiple theories including strict liability. Mr. Simikian alleged that, throughout a forty-four year career as an automotive mechanic, his exposure to asbestos-containing friction products, such as brake linings, caused his mesothelioma. Upon Mr. Simikian's death, his wife, acting as executrix (“Appellee”), substituted as the plaintiff.

Appellee's action was among a number of similar ones pending in the court of common pleas. Two of the common defendants in these cases anticipated that the plaintiffs would rely on expert opinion that each and every exposure to asbestos—no matter how small—contributes substantially to the development of asbestos-related diseases. This opinion often is referred to as the “any-exposure,” “any-breath,” or “any-fiber” theory of legal (or substantial-factor) causation. See generally Summers v. Certainteed Corp., 606 Pa. 294, 316, 997 A.2d 1152, 1164–65 (2010) (discussing the requirement for a plaintiff to prove that a defendant's product was a substantial factor in causing injury).

Seeking to preclude such opinion testimony, these defendants filed global motions challenging its admissibility under the litmus of general acceptance in the relevant scientific community applicable to novel scientific evidence. ¹SeePa.R.C.P. No. 207.1; Commonwealth v. Topa, 471 Pa. 223, 231–33, 369 A.2d 1277, 1281–82 (1977) (confirming Pennsylvania's adherence to the Frye test; explaining that it bars novel scientific evidence from the courtroom until it has achieved general acceptance in the relevant scientific community; and indicating that strict application of the test is required to ensure fairness). The defendants referenced a litany of techniques used for various purposes in science ( e.g., chemical structure analysis; anecdotal case reporting; reliance on animalstudies; and extrapolation to a cause-and-effect relationship), arguing that none of these—alone or in combination—supports the any-exposure theory. See, e.g., Amended Global Frye Motion of June 3, 2005, In re Toxic Substance Cases, No. A.D. 03–319 (C.P.Allegheny). Highlighting the trial court's role in screening scientific evidence for reliability before permitting such evidence to be put before a jury, see, e.g., Grady v. Frito–Lay, Inc., 576 Pa. 546, 557, 839 A.2d 1038, 1044–45 (2003), the defendants contended that the methodology underlying the any-exposure theory is novel and scientifically invalid. Thus, they urged that the any-exposure theory should be deemed inadmissible at all trials of asbestos cases against them.

The common pleas court, per the Honorable Robert J. Colville, directed the parties to designate test cases through which to address the Frye challenge, among which the present one was selected. The court also required an exchange of expert reports, which were to identify, in particular, the opinions and methodology supporting the plaintiffs' theory that exposure to friction products was a proximate cause of asbestos-related disease. See Order of June 23, 2005, In re Toxic Substance Cases, No. A.D. 03–319 (C.P.Allegheny). The plaintiffs identified a pathologist as their primary causation expert—John C. Maddox, M.D.—and submitted his report. As relevant here, the core explanation Dr. Maddox provided for his opinion as to specific and proximate causation is as follows:

Asbestos-related mesothelioma, like other diseases induced by toxic exposures, is a dose response disease: each inhalation of asbestos-containing dust from the use of products has been shown to contribute to cause asbestos-related diseases, including mesothelioma. Each of the exposures to asbestos contributes to the total dose that causes mesothelioma and, in so doing, shortens the period necessary for the mesothelioma to develop.... [E]ach exposure to asbestos is therefore a substantial contributing factor in the development of the disease that actually occurs, when it occurs.

Affidavit of John C. Maddox, M.D., of Aug. 4, 2005, at 12 (emphasis added). In his report, Dr. Maddox did not provide an assessment of the individual exposure histories for the test plaintiffs, presumably as this was thought to be unnecessary, given the breadth of the any-exposure theory.

In response, the defendants proffered a report from M. Jane Teta, Dr. P.H., M.P.H., an occupational environmental epidemiologist, who couched Dr. Maddox's any-exposure opinion as nothing more than a mere assumption. See Expert Report of M. Jane Teta, Dr. P.H., M.P.H., of Aug. 16, 2005 (“Teta Report”), at 9. According to Dr. Teta, Dr. Maddox did not follow the scientific method in proceeding from hypothesis through scientific proof in support of his conclusions. Rather, she asserted, the pathologist ignored an established hierarchy of scientific evidence; employed a selective approach to the scientific literature; and, in particular, disregarded a wealth of epidemiological evidence to the effect that those who work with automotive friction products do not suffer from a higher incidence of mesothelioma than is found in the general population. See supra note 1. Additionally, Dr. Teta observed that the any-exposure opinion is inconsistent with the common understanding that the context and circumstances of exposure to toxic substances—including the critical component of dose—matter greatly in terms of determining the risk of disease. See generally Bernard D. Goldstein, Toxic Torts: The Devil Is In the Dose, 16 J.L. & Pol'y 551, 551 (2008) ( “Dose is a central concept in toxicology—‘the dose makes the poison’ is the oldest maxim in the field.”). Furthermore, she found that Dr. Maddox exceeded the range of his expertise in rendering a broad-scale opinion concerning the theoretical impact of a single asbestos fiber. See Teta Report at 10–11.

In ensuing arguments before Judge Colville, the plaintiffs contended that a Frye challenge was inapposite. In their view, Dr. Maddox's methodology in forming his any-exposure opinion was in no way novel, but rather, resided within the scientific mainstream.² The plaintiffs pointed to the wealth of scientific information developed over time concerning the hazards of asbestos, see N.T., Aug. 17, 2005, at 84–85 (reflecting the plaintiffs' observation that “[t]he medical literature has been talking about the effects of asbestos chrysotile since the 1920s”), and to government regulatory responses to protect human health. See, e.g., id. at 88–89 (“Now, the Environmental Protection Agency, their stance on this issue is that asbestos causes asbestos diseases, specifically chrysotile causes asbestos diseases and, more specifically, brake linings cause asbestos disease.”). Downplaying the necessity for epidemiological evidence, see, e.g., id. at 99 (“[E]pidemiology studies are not the sine qua non as to whether there is cause and effect.”), the plaintiffs asserted that conclusions favorable to their position could be drawn from such evidence in any event. Furthermore, they emphasized that their position was consistent with the admission of opinion evidence reflecting the any-exposure theory in other cases, most notably, Smalls v. Pittsburgh–Corning Corp., 843 A.2d 410 (Pa.Super.2004). See id. at 414 (indicating that “this type of opinion evidence is not only admissible, it is sufficient to demonstrate a prima facie case of liability against an asbestos manufacturer if believed by the fact finder”).

Based on the any-exposure theory, a plaintiff's attorney couched the plaintiffs' position with regard to specific causation as follows:

[Y]ou don't have to look at each individual, you don't have to look at Mopar brakes and then look at Bendix brakes. You don't look at that. You don't even look at whether it is brakes or gaskets. You don't even look whether it is brakes or pipe...