Pennsylvania Supreme Court Rejects “Any Exposure” Expert Opinion
On May 23, 2012, the Supreme Court of Pennsylvania released a unanimous decision holding that plaintiffs’ expert witnesses’ opinion that every individual asbestos fiber contributes substantially to mesothelioma violates Pennsylvania’s Frye-based generally accepted standard for admissibility.
In Betz v. Pneumo Abex LLC, No. 38 WAP 2010 (Pa. 2012), Charles Simikian commenced a product liability action against multiple defendants including Allied Signal, Inc. and Ford Motor Company asserting causes of action grounded in multiple products liability theories. Mr. Simikian alleged that, throughout a forty-four-year career as an automotive mechanic, his exposure to brake pad dust caused his mesothelioma.
The plaintiff’s action was among a number of similar ones pending which anticipated that the plaintiffs would rely on an 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.
The defendants moved to preclude the “any exposure” expert opinion of plaintiff’s pathologist, Dr. John C. Maddox by challenging its admissibility under the litmus of general acceptance in the relevant scientific community applicable to novel scientific evidence.
The court noted that Dr. Maddox offered a broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber and that his “any exposure” opinion simply was not couched in terms of a methodology or standard peculiar to the field of pathology. Rather, Dr. Maddox testified that his opinion was based on the interpretation of “dose response curves in terms of pharmacology and toxicology.” Dr. Maddox further testified that:
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. (emphasis added)
Critically, the court pointed out, the “any exposure” opinion, as applied to substantial-factor causation, does not consider the three factors which Dr. Maddox himself explains “need to be considered in trying to estimate the relative effects of different exposures.”
The court held that the above circumstances support their holding in Gregg v. V-J Auto Parts Co., 596 Pa. 274, 943 A.2d 216 (2007), that the court appreciates:
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. … [H]owever, 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. (emphasis added)
In rejecting Dr. Maddox’s “any exposure” opinion, the Supreme Court of Pennsylvania summed up its holding by stating that one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.
The Betz case also included an important holding pertaining to the Frye test, and its Pennsylvania equivalent (Grady v. Frito-Lay, Inc., 576 Pa. 546, 557, 839 A.2d 1038, 1044-45 ). The court held that a Frye hearing is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions.
A Frye hearing has been traditionally used to assess whether the expert testimony will assist the trier of fact to understand the evidence or determine a fact in issue and in screening evidence to avoid unfair prejudice, confusion of the issues, or misleading of the jury where the expert opinion is novel. However, the court notes, the trend in Pennsylvania is to take a narrow approach on what types of expert opinions are considered novel and therefore vetted by the Frye test. The Betz court held that the scope of the Frye hearing should be more broad and that the “any exposure” opinion is precisely the sort of evidence that merits the thoughtful inquiry of a Frye test.
In doing so, the Betz court rejected numerous rationales given for the narrow interpretation of what constitutes novel science, including an increase in the number of Frye hearings and the judicial resources necessary to accommodate the same, the competency of trial judges to accept or reject scientific theories, the reluctance to deprive litigants of their day in court, and the potential that distortions of science have to mislead laypeople.
However, the Betz court held that it would be naïve to assume that the possibility for distortion is limited to the very newest realms of science. The court concluded that:
We therefore agree with [defendants] that a reasonably broad meaning should be ascribed to the term “novel.” Furthermore, we conclude that a Frye hearing is warranted when a trial judge has articulable grounds to believe that an expert witness has not applied accepted scientific methodology in a conventional fashion in reaching his or her conclusions. We believe a narrower approach would unduly constrain trial courts in the appropriate exercise of their discretion in determining the admissibility of evidence.
Essentially, the Betz court agreed with the Grady court that Frye applies not only to novel science, but also where established scientific methods are utilized in a novel way.
As pertaining to the instant matter, the Betz court held that the trial court did not err in assessing the “any exposure” expert opinion testimony of Dr. Maddox through the use of a Frye hearing. The Betz court noted that the trial court spent considerable time hearing arguments but was unable to discern a coherent methodology supporting the notion that every single fiber from among, potentially, millions is substantially causative of disease. The court also relied on the considerable tension between the “any exposure” opinion and the “axiom (manifested in myriad ways both in science and daily human experience) that the dose makes the poison.”
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