MARGARET HOWARD AND ROBERT HOWARD, CO-EXECUTORS OF THE ESTATE OF JOHN C. RAVERT, DECEASED
A.W. CHESTERTON CO., ACE HARDWARE CORP., MONSEY PRODUCTS CORP., PECORA CORP. AND UNION CARBIDE CORP. APPEAL OF: MONSEY PRODUCTS CORPORATION MARGARET HOWARD AND ROBERT HOWARD, CO-EXECUTORS OF THE ESTATE OF JOHN C. RAVERT, DECEASED
A.W. CHESTERTON CO., ACE HARDWARE CORP., MONSEY PRODUCTS CORP., PECORA CORP. AND UNION CARBIDE CORP. APPEAL OF: ACE HARDWARE CORPORATION MARGARET HOWARD AND ROBERT HOWARD, CO-EXECUTORS OF THE ESTATE OF JOHN C. RAVERT, DECEASED
A.W. CHESTERTON CO., ACE HARDWARE CORP., MONSEY PRODUCTS CORP., PECORA CORP. AND UNION CARBIDE CORP. APPEAL OF: PECORA CORPORATION
ARGUED: March 6, 2013
Appeal from the Judgment of Superior Court entered on 10/28/11 at No. 2978 EDA 2010 (reargument denied 11/10/11) reversing, vacating, and remanding the judgment entered on 10/5/10 in the Court of Common Pleas, Civil Division, Philadelphia County at No. 202 June term 2007
This asbestos-litigation appeal is being resolved upon mutual consent among the parties, who agree that the order of the Superior Court should be reversed.
Appellants were manufacturers or distributors of asbestos-containing products and are defendants in litigation initiated by John C. Ravert and later pursued by Appellees as co-executors of Mr. Ravert's estate. Mr. Ravert and Appellees contended that his exposure to Appellants' asbestos-containing products caused mesothelioma.
The common pleas court awarded summary judgment in favor of Appellants, reasoning that Mr. Ravert's deposition testimony failed to establish that he breathed asbestos-containing dust from the products manufactured or distributed by Appellants.The court also found expert affidavits submitted by Appellees represented "an artificial record which attempts to dehor [Mr. Ravert's] observation denying the existence of asbestos dust."
On appeal, the Superior Court reversed on the basis that dust may have been invisible to the naked eye, and the expert affidavits were sufficient to establish a material issue of fact as to whether dust emanating from products associated with Appellants was a substantial factor in causing Mr. Ravert's mesothelioma. See Howard v. A.W. Chesterton Co., 31 A.3d 974, 981, 983 (Pa.Super. 2011). The court also reasoned that a plaintiff bears a diminished burden of meeting a frequency, regularity, and proximity threshold of exposure in cases of mesothelioma, since the disease may be caused by limited exposure to asbestos. See id. at 979.
Presently, Appellees "concede that the factual record fails to demonstrate regular and frequent enough exposures during which respirable asbestos fibers were shed by [Appellants'] asbestos-containing products to defeat summary judgment." Brief for Appellees at 10. Furthermore, Appellees:
recognize that this Court will not allow Plaintiffs to prove that a plaintiff's exposure to a particular asbestos-containing product is substantially causative of disease by the use of affidavits in which the expert's methodology is founded upon a belief that every single fiber of asbestos is causative. In Gregg[ v. V-J Auto Parts, Inc., 943 A.2d 216 (Pa. 2007)], this Court articulated that the usage of a particular product had to be substantial enough when measured against the totality of the exposures, that the particular product usage was substantial enough to be a factual cause of the disease. . . . The test for adequacy is the comparison of the particular product exposure(s) to the totality of the person's asbestos exposures.
Brief for Appellees at 16.
Upon Appellees' concession, the opinion of the Superior Court will be vacated and its order reversed. Appellant Monsey Products Company -- in view of its status as a defendant in other cases and the time and expense of this litigation -- asks this Court to reaffirm several governing principles deriving from prior cases. In most respects, these precepts are now well established, and they are relevant to the appropriate disposition of the present case. Accordingly, we are able substantially to accommodate this request. Hence, we reaffirm the following:
-- 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. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 55-58 (Pa. 2012).
-- Relatedly, in cases involving dose-responsive diseases, expert witnesses may not ignore or refuse to consider dose as a factor in their opinions. See id.
-- Bare proof of some de minimis exposure to a defendant's product is insufficient to establish substantial-factor causation for dose-responsive diseases. See Gregg v. V-J ...