October 2, 2013

“Any exposure” causation theory firmly rebuffed by Pennsylvania Supreme Court

By Deborah J. La Fetra Senior Attorney

Today, we received notice that the Pennsylvania Supreme Court issued a favorable per curiam opinion in Howard v. A.W. Chesterton Co. on September 26.  The issue was whether a mesothelioma patient must prove that he was exposed to the defendant companies’ asbestos products with sufficient frequency, proximity, and regularity to justify imposing liability on those companies.  The plaintiff in this case relied on the “any exposure” theory – arguing that if the companies produced one iota of asbestos to which he was exposed, that exposure, combined with exposures from products made from other companies, sufficed to prove causation.

During the course of the litigation, this theory was rejected by the Pennsylvania Supreme Court in Betz v. Pneumo Abex LLC, 44 A.3d 27, 55-58 (Pa. 2012), such that the plaintiff here was forced to concede that the defendant companies would prevail if the case continued.  The Court refused to dismiss the case so the plaintiff’s counsel filed a remarkable document conceding the case and asking for a summary decision granting relief to the defendants.  Last week, the high court granted this request.  It also granted the defendants’ requests that the governing principles be reiterated in the decision, as a guide for future litigants.  The court thus reaffirmed that:

*The theory that each and every exposure, no matter how small, is substantially causative of disease may not be relied upon as a basis to establish substantial-factor causation for diseases that are dose-responsive.

*Relatedly, in cases involving dose-responsive diseases, expert witnesses may not ignore or refuse to consider dose as a factor in their opinions.

*Bare proof of some de minimus exposure to a defendant’s product is insufficient to establish substantial-factor causation for dose-responsive diseases.

*Relative to the testimony of an expert witness addressing substantial-factor causation in a dose-responsive disease case, some reasoned, individualized assessment of a plaintiff’s or decedent’s exposure history is necessary.

*Summary judgment is an available vehicle to address cases in which only bare de minimus exposure can be demonstrated and where the basis for the experts’ testimony concerning substantial-factor causation is the any-exposure theory.

PLF filed an amicus brief in the case, in support of neither party, arguing that the frequency, regularity, and proximity test offers the best balance between allowing asbestos plaintiffs to use circumstantial evidence to prove their exposure while exonerating those defendant

Thanks to Alfred W. Putnam, Jr., Kenneth A. Murphy, and D. Alicia Hickok, our local counsel from Drinker Biddle & Reath in Philadelphia, who assisted with the filing of this brief.

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