February 11, 2013

Never mind.

By Deborah J. La Fetra Senior Attorney

The Pennsylvania Supreme Court is scheduled to hear oral argument in Howard v. AW Chesterton, an asbestos case, on March 6. But instead of contemplating whether a mesothelioma plaintiff (John Ravert) 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, it appears the Justices will have some free time that afternoon. Today, we received the plaintiff’s brief in the case which contains this astounding first paragraph:

“On November 8, 2012, Plaintiffs Margaret Howard and Robert Howard moved this Court to discontinue their lawsuit against the defendants-Appellants in this case. On January 31, 2013, this Court denied Plaintiffs’ motion. Plaintiffs have authorized counsel to concede that Defendants-Appellants are entitled to relief in this case, and in order to achieve that relief with the least expenditure of time and effort, counsel respectfully requests that this Court summarily reverse the Superior Court and reinstate the entries of summary judgment in defendants’ favor.”

The brief explains that upon reviewing the case file, the plaintiffs’ attorneys “concluded that the record in this case does not provide a basis upon which a jury could find that Mr. Ravert was exposed to enough respirable fibers shed from any of the instant defendants-appellants’ asbestos-containing products that such products could be a factual cause of his malignant mesothelioma.”

The Pennsylvania Supreme Court last year rejected the argument that every single fiber of asbestos could be deemed a legal cause of asbestos-related cancer. This was an important ruling because plaintiffs typically sue dozens of manufacturers whose products once contained asbestos, and argue that simple exposure should be enough to warrant liability. The “any exposure” theory has met with little success and now even plaintiffs must acknowledge that Pennsylvania law requires more. PLF filed an amicus brief in this case.

What to read next