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Nelson v. Airco Welders Supply

Superior Court of Pennsylvania

December 23, 2014

DARLENE NELSON, EXECUTRIX OF THE ESTATE OF JAMES NELSON
v.
AIRCO WELDERS SUPPLY, ALLIED SIGNAL (A/K/A ALLIED CORP.), AMERICAN STANDARD, A.W. CHESTERTON, INC., BASIC, INC., BAYER CROPSCIENCE, INC., (F/K/A AVENTIS CROPSCIENCE, USA, INC.), ACHEM PRODUCTS, INC., RHONE POULENC, AG CO. AND BENJAMIN FOSTER COMPANY, BEAZER EAST (A/K/A KOOPERS CO., INC. AND KOOPER), BIRD, INC., BOC GROUP, BORG-WARNER CORP., BRAND INSULATIONS, INC., CBS CORPORATION (F/K/A VIACOM, INC. AND WESTINGHOUSE ELECTRIC CORPORATION), CERTAINTEED CORPORATION, CHRYSLER CORP. (A/K/A AMC, NORTHWEST AUTO RENTAL CO. AND CHRYSLER SERVICE CONTRACT CO.), CRANE CO., DEMMING DIVISION, CRANE PACKING, ESAB WELDING AND CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC CORP., FERRO ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER WHEELER CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY, INC., HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO., HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP, INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL REFRACTORIES DIVISION OF THIEM CORPORATION; APPEAL OF: CRANE CO. DARLENE NELSON, EXECUTRIX OF THE ESTATE OF JAMES NELSON
v.
AIRCO WELDERS SUPPLY, ALLIED SIGNAL (A/K/A ALLIED CORP.), AMERICAN STANDARD, A.W. CHESTERTON, INC., BASIC, INC., BAYER CROPSCIENCE, INC., (F/K/A AVENTIS CROPSCIENCE, USA, INC.), ACHEM PRODUCTS, INC., RHONE POULENC, AG CO. AND BENJAMIN FOSTER COMPANY, BEAZER EAST (A/K/A KOOPERS CO., INC. AND KOOPER), BIRD, INC., BOC GROUP, BORG-WARNER CORP., BRAND INSULATIONS, INC., CBS CORPORATION (F/K/A VIACOM, INC. AND WESTINGHOUSE ELECTRIC CORPORATION), CERTAINTEED CORPORATION, CHRYSLER CORP. (A/K/A AMC, NORTHWEST AUTO RENTAL CO. AND CHRYSLER SERVICE CONTRACT CO.), CRANE CO., DEMMING DIVISION, CRANE PACKING, ESAB WELDING AND CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC CORP., FERRO ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER WHEELER CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY, INC., HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO., HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP, INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL REFRACTORIES DIVISION OF THIEM CORPORATION; APPEAL OF: HOBART BROTHERS CO. DARLENE NELSON, EXECUTRIX OF THE ESTATE OF JAMES NELSON
v.
AIRCO WELDERS SUPPLY, ALLIED SIGNAL (A/K/A ALLIED CORP.), AMERICAN STANDARD, A.W. CHESTERTON, INC., BASIC, INC., BAYER CROPSCIENCE, INC., (F/K/A AVENTIS CROPSCIENCE, USA, INC.), ACHEM PRODUCTS, INC., RHONE POULENC, AG CO. AND BENJAMIN FOSTER COMPANY, BEAZER EAST (A/K/A KOOPERS CO., INC. AND KOOPER), BIRD, INC., BOC GROUP, BORG-WARNER CORP., BRAND INSULATIONS, INC., CBS CORPORATION (F/K/A VIACOM, INC. AND WESTINGHOUSE ELECTRIC CORPORATION), CERTAINTEED CORPORATION, CHRYSLER CORP. (A/K/A AMC, NORTHWEST AUTO RENTAL CO. AND CHRYSLER SERVICE CONTRACT CO.), CRANE CO., DEMMING DIVISION, CRANE PACKING, ESAB WELDING AND CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC CORP., FERRO ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER WHEELER CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY, INC., HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO., HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP, INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL REFRACTORIES DIVISION OF THIEM CORPORATION; APPEAL OF: LINCOLN ELECTRIC CO. DARLENE NELSON, EXECUTRIX OF THE ESTATE OF JAMES NELSON, AND IN HER OWN RIGHT, APPELLANT
v.
AIRCO WELDERS SUPPLY, ALLIED SIGNAL (A/K/A ALLIED CORP.), AMERICAN STANDARD, A.W. CHESTERTON, INC., BASIC, INC., BAYER CROPSCIENCE, INC., (F/K/A AVENTIS CROPSCIENCE, USA, INC.), ACHEM PRODUCTS, INC., RHONE POULENC, AG CO. AND BENJAMIN FOSTER COMPANY, BEAZER EAST (A/K/A KOOPERS CO., INC. AND KOOPER), BIRD, INC., BOC GROUP, BORG-WARNER CORP., BRAND INSULATIONS, INC., CBS CORPORATION (F/K/A VIACOM, INC. AND WESTINGHOUSE ELECTRIC CORPORATION), CERTAINTEED CORPORATION, CHRYSLER CORP. (A/K/A AMC, NORTHWEST AUTO RENTAL CO. AND CHRYSLER SERVICE CONTRACT CO.), CRANE CO., DEMMING DIVISION, CRANE PACKING, ESAB WELDING AND CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC CORP., FERRO ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER WHEELER CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMPANY, INC., HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO., HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP, INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP BOYS (A/K/A MANNY, MOE AND JACK), UNION CARBIDE CORP., UNIVERSAL REFRACTORIES DIVISION OF THIEM CORPORATION

Argued August 5, 2014

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Appeal from the Judgment Entered February 23, 2011. In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): 1335 Dec. Term 2008. Before SYLVESTER, J.

Michael J. Ross, Pittsburgh, for Crane.

John J. Hare, Philadelphia, and Joseph A. Del Sole, Pittsburgh, for Lincoln Electric Co. & Hobart Brothers Co.

Steven J. Cooperstein, Philadelphia, for Darlene Nelson.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J., ALLEN, J., OTT, J., WECHT, J., STABILE, J., AND JENKINS, J. OPINION BY BENDER, P.J.E. Judge Bowes, Judge Shogan, Judge Allen, Judge Stabile, and Judge Jenkins join this opinion. Judge Wecht files a dissenting opinion in which President Judge Emeritus Ford Elliott joins and Judge Ott concurs in the result.

OPINION

Page 150

BENDER, P.J.E.

In this asbestos action, the parties appeal from the judgment entered in Philadelphia County Court of Common Pleas in favor of Darlene Nelson, both individually and as Executrix of the Estate of James Nelson, in the amount of $14.5 million. Appellants/Cross Appellees consist of Crane Co., Hobart Brothers Company, and Lincoln Electric Company (hereinafter, the latter two will be referred to as " the Welding Companies" ). Darlene Nelson cross-appeals solely in her capacity as executrix. We vacate and remand for a new trial consistent with the following opinion.

James Nelson developed mesothelioma, allegedly the result of occupational exposures to various asbestos products during his career at Lukens Steel Plant in Coatesville, Pennsylvania.[1] He worked in several capacities while employed at Lukens Steel. From 1973 until approximately the end of 1978, James Nelson worked as a pitman, machinist's helper, and laborer. Thereafter, he worked as a welder from early 1979 until he left Lukens Steel in 2006. After leaving Lukens Steel, he worked at Claymont Steel as a maintenance mechanic until he was diagnosed with mesothelioma in November 2008. James Nelson died in October 2009.

James Nelson and Darlene Nelson commenced this product liability action in December 2008. Following James Nelson's death, Darlene Nelson was substituted as executrix. The Nelson case was consolidated with four other actions in which plaintiffs had contracted mesothelioma,

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and trial commenced in March 2010.[2] As was common practice in Philadelphia County at the time, the Court of Common Pleas determined to proceed with a reverse bifurcated trial, over the objections of the Appellants.[3]

It was undisputed that Nelson was exposed to respirable asbestos fibers during his career at Lukens Steel. During the first several years of his employment, Nelson worked with and around significant quantities of asbestos insulation. See, e.g., Nelson Video Deposition, 03/06/2009, at 21-25 (describing the general work environment in the open hearth and electric furnace areas of the steel plant and testifying that asbestos insulation dust fell constantly from thousands of feet of steam piping with such intensity that " [y]ou could hardly see in them buildings" ).

Nelson also described his exposure to Appellants' products. According to Nelson, the " flux," or outer coating, of welding rods used by him on a daily basis would release dust when he removed them from a box or otherwise manipulated them. Nelson used many different types of rods, depending on availability and the type of job performed. It was acknowledged by the Welding Companies that certain rods manufactured by Hobart and Lincoln contained encapsulated asbestos fibers until approximately 1981. Nelson testified that airborne dust was visible, that it would get on his work gloves, and that he inhaled the dust. Id. at 76-80.

While welding, Nelson also used a Crane Co. product known as " Cranite," a sheet gasket made of chrysotile asbestos. See, e.g., Notes of Testimony, 03/17/2010, at 65-66. Nelson used Cranite for two " shielding" purposes, either to protect plant equipment from overspray during spray welding or to protect other workers from the flash of the welding arc. See Nelson Video Deposition, 03/13/2009, at 187-89, 197-98. As needed, Nelson used a utility knife to cut the Cranite sheet into a size useful for his purposes, releasing visible dust into his work environment. Id. at 198-99.

In order to establish that Appellants' products were a substantial factor in causing Nelson's mesothelioma, Nelson introduced the expert testimony of pulmonologist, Dr. Daniel DuPont. Dr. DuPont was Nelson's sole causation witness during the liability phase of the trial. According to Dr. DuPont, " [m]alignant mesothelioma occurs with significant asbestos exposure," which he defined as " [t]he inhalation of fibers above the negligible amount already contained in the environment." DuPont Video Deposition, 03/11/2010, at 32, 50.[4]

Dr. DuPont acknowledged that he was not an expert in Appellants' products and could not opine whether the products actually released respirable asbestos fibers.

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See, e.g., id. at 23, 25, 81-82, 88-89, 121-122, and 164. No evidence was introduced by Nelson to establish such release. Nevertheless, in response to hypothetical questions crafted by counsel, in which Dr. DuPont was asked to assume that any visible dust released by Appellants' products contained respirable asbestos fibers, Dr. DuPont concluded that Nelson's exposure to these products constituted a substantial, contributing factor in causing his disease. See id. at 58-62.

In response, Appellants challenged Nelson's contention that use of their products resulted in significant exposure to asbestos. For example, among the several expert witnesses to testify on behalf of the Welding Companies, Dr. John DuPont,[5] a professor of materials science, explained how asbestos-containing welding rods were manufactured and consumed by the welding process. See N.T., 03/15/2010, at 66-75 (describing how asbestos was encapsulated in " wet" sodium silicate and baked to produce a ceramic-like material incapable of releasing asbestos fibers), 80-83 (explaining that the temperature of the welding arc is above 10,000 degrees Fahrenheit, whereas steel melts at 2,700 degrees, sodium silicate melts at about 1,650 degrees, and chrysotile asbestos fibers are destroyed at 1,500 degrees). Prof. DuPont concluded that it was scientifically impossible for asbestos fibers to be released from an encapsulated flux and that the temperatures involved in the welding process destroyed the encapsulated fibers. Id. at 93.

The Welding Companies also presented expert testimony from Dr. Mary Finn and Dr. Louis Burgher, who each testified, in part, to the absence of an epidemiological association between the use of welding sticks and mesothelioma. See N.T., 03/15/2010, at 59; N.T., 03/16/2010, at 27-31. Nelson presented no testimony disputing this evidence. See, e.g., DuPont Video Deposition, at 82, 88-89.

For its part, Crane Co. focused on the form of asbestos fibers contained in its product and the extent of Nelson's exposure to it, particularly in light of his cumulative exposure to numerous products over his career at Lukens Steel. For example, forensic pathologist Dr. Michael Graham distinguished several different types of asbestos fibers, including crocidolite, amosite, and chrysotile fibers, suggesting that the latter represented the least toxic form of asbestos. See N.T., 03/11/2010, at 92-98.[6] Dr. Graham concluded that Nelson's disease was caused by his substantial exposure to highly toxic, asbestos insulation products and not exposure to Cranite sheet gasket. Id. at 142.

In addition, Mr. Charles Blake, an industrial hygienist, testified on behalf of Crane Co. Mr. Blake testified that Cranite sheets contained compressed chrysotile fibers that could not be released merely by handling the product or using it as a free-standing shield and that Nelson's infrequent cutting of the sheets would not release asbestos fibers in quantities sufficient to create any significant risk. N.T., 03/17/2010, at 70-72. Mr. Blake similarly concluded that Nelson's mesothelioma was the result of significant exposure to amosite asbestos insulation and that his exposure to Cranite was " not at all" a significant source of exposure. N.T., 03/17/2010, at 74.

Crane Co. also sought to challenge the manner in which Nelson used its product,

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soliciting testimony that the intended use of Cranite sheet gaskets was to " produce gaskets for sealing [] fluid systems," and not as a welding shield. N.T., 03/17/2010, at 66. Nevertheless, Crane Co.'s proffer of additional testimony to establish that Nelson's use of Cranite was improper was denied by the trial court. See N.T., 03/18/2010, 8-10; see also N.T., 03/09/2010, at 95 (denying Crane Co.'s motion in limine regarding unintended use of Cranite).[7]

At the close of the liability phase of the trial, the jury found Appellants' products defective and that the products lacked any warning sufficient to make them safe for use, thus imposing strict liability. During closing arguments in the damages phase of the trial, Appellants objected to certain remarks made by Nelson's counsel on the ground that counsel had improperly suggested to the jury a specific dollar amount for non-economic damages. See N.T., 03/08/2010, 80-83. Appellants sought a mistrial, which was denied by the trial court. See id. at 97. Thereafter, the jury returned a verdict in favor of Nelson, awarding $1 million in stipulated, economic damages to the estate, $1.5 million to Darlene Nelson for loss of consortium, $7 million in non-economic damages pursuant to the Survival Act and $5 million in non-economic damages pursuant to the Wrongful Death Act. See 42 Pa.C.S. § § 8301 (defining wrongful death action), 8302 (defining survival action).

All parties filed post-trial motions, which were denied by the trial court. The Welding Companies and Crane Co. appealed; Nelson cross-appealed. The parties submitted court-ordered Pa.R.A.P. 1925(b) statements, and the trial court issued a responsive opinion.

The Welding Companies present the following issues for our review, concisely restated as follows:

1. Whether the trial court erred in permitting Nelson's expert, Dr. Daniel DuPont, to testify premised upon the " any-exposure" theory of causation;
2. Whether the court erred in holding that Nelson proffered sufficient evidence to prove exposure to respirable asbestos fibers released from their products;
3. Whether the court erred in denying a mistrial or not granting a new trial where counsel for Nelson (1) improperly suggested a specific amount of non-economic damages; (2) injected alleged settlement discussions in his closing argument; (3) attributed bad motives to the Welding Companies; and (4) further injected conduct and punitive elements into a strict liability case; and
4. Whether the court erred in permitting reverse bifurcation and consolidation of four unrelated mesothelioma cases.

See Welding Companies' Substitute En Banc Brief, at 7-8.

Crane Co. presents the following issues:

1. Whether the court erred in holding that Crane Co. could be held strictly liable where Nelson was neither an intended user of its product nor did Nelson use its product in an intended manner;
2. Whether Nelson's expert witness offered legally sufficient causation testimony, in that it was premised upon an " any-exposure" theory of causation;
3. Whether Nelson's evidence was sufficient to meet the requirements of the

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" frequency, regularity, and proximity" test;
4. Whether the court erred in conducting a consolidated and reverse bifurcated trial;
5. Whether the court erred in permitting counsel for Nelson to suggest a specific amount of non-economic damages or to discuss the conduct of a defendant in a claim for strict liability;
6. Whether a plaintiff may recover all of the jury-awarded damages from solvent defendants, and then recover additional amounts, based upon the same injury, from " asbestos bankruptcy trusts."

See Crane Co. Refiled Original Brief, at 4-5.

Finally, Nelson presents the following issue:

1. Whether the court erred " in assigning a share of the judgment to a defendant who, although adjudged a joint tortfeasor by the jury, filed a bankruptcy petition before paying plaintiff any of the agreed-upon settlement amount and before the court entered a judgment."

Nelson's Substituted Brief (filed in response to Welding Companies' appeal), at 4; see also Nelson's Substituted Brief (filed in response to Crane Co.'s appeal), at 5.[8]

Appellants raise several challenges to the sufficiency of Nelson's liability evidence. We will first address Appellants' assertions regarding Nelson's expert testimony.[9] As noted previously, Nelson introduced testimony from Dr. Daniel DuPont in order to establish that Appellants' products were a substantial cause of Nelson's mesothelioma. According to Appellants, Dr. DuPont proffered an " any-exposure" theory of causation. Appellants assert that the Pennsylvania Supreme Court has found such causation testimony inadmissible in an asbestos action, citing in support Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27 (Pa. 2012),[10] and Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (Pa. 2007).[11]

In relief, Appellants seek judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The following standards apply.

In reviewing a motion for [JNOV], the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a [JNOV] should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge's appraisement of evidence is not to be based on

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how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury's deliberations.
There are two bases upon which a [JNOV] can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Estate of Hicks v. Dana Cos., LLC, 2009 PA Super 220, 984 A.2d 943, 950-51 (Pa. Super. 2009) ( en banc ) (quoting Fletcher-Harlee v. Szymanski, 2007 PA Super 310, 936 A.2d 87, 93 (Pa. Super. 2007), appeal denied, 598 Pa. 768, 956 A.2d 435 (Pa. 2008), cert. denied, 556 U.S. 1104, 129 S.Ct. 1581, 173 L.Ed.2d 675 (2009)).

Similarly, when reviewing the denial of a motion for a new trial, we must determine if the trial court committed an abuse of discretion or error of law that controlled the outcome of the case.

Id. " When improperly admitted testimony may have affected a verdict, the only correct remedy is the grant of a new trial." Collins v. Cooper, 2000 PA Super 22, 746 A.2d 615, 620 (Pa. Super. 2000) (quoting Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 491 A.2d 835, 838-39 (1985)).

The guidance recently provided by the Pennsylvania Supreme Court in Betz is clear and proves to be dispositive. In that case, the Supreme Court considered 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." Betz, 44 A.3d at 30.[12] The expert opinion challenged was summarized in the following manner:

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.

Id. at 31 (quoting Affidavit of John C. Maddox, M.D., 8/4/2005, at 12) (emphasis supplied by the Betz Court).

The Supreme Court reviewed both the scientific support for the any-exposure theory and the legal requirements of specific causation. Following a comprehensive analysis, the Supreme Court reiterated its observations set forth in Gregg:

We appreciate 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. Other jurisdictions have considered alternate theories

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of liability to alleviate the burden. Such theories are not at issue in this case, however, and 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. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.

Id. at 56-57 (quoting Gregg, 943 A.2d at 226-27) (citations omitted). The Court concluded that the any-exposure theory was " fundamentally inconsistent with both science and the governing standard for ...


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