Pennsylvania Supreme Court Reaffirms Betz Decision Rejecting Each and Every Exposure
In December of 2010, a Philadelphia jury awarded a verdict in the amount of $14.5 million to the widow, and executrix of the estate, of James Nelson. Nelson had previously developed mesothelioma and passed away at age 54 in 2009.
The defendants appealed the verdict, arguing that the plaintiff failed to meet the sufficient standard of causation under Pennsylvania law. The defendants specifically argued that the trial court improperly allowed plaintiff’s expert to testify that each and every exposure must be considered a substantially contributing factor to the cause of Nelson’s mesothelioma.
Before the Appellate Court issued its decision to the defendants’ appeal, the Pennsylvania Supreme Court issued a relevant and applicable ruling in Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27 (2012). Here, the Honorable Thomas G. Saylor of the Pennsylvania Supreme Court, held that: (1) the any-exposure theory was novel scientific evidence and, thus, subject to a Frye hearing to determine its admissibility; (2) at Frye hearing, manufacturers could address pathologist’s methodology through the testimony of risk assessors, toxicologists, and epidemiologists on subjects which were not within the particular expertise of a pathologist; and (3) trial court did not abuse its discretion in ruling that the any-exposure opinion was not admissible. Id. In other words, the court found “an expert’s testimony that any exposure to asbestos substantially contributes to mesothelioma irreparably conflicts with his testimony that mesothelioma is a dose-response disease”. Id.
The Appellate Court in the instant case, upon taking into consideration the Betz ruling, found the plaintiff’s expert testimony that every exposure to asbestos must be considered as to the causation of Nelson’s mesothelioma as improper, and thus, should have been excluded. Accordingly, the defendants’ appeal was granted and the court ordered a new trial as to liability. The plaintiff appealed this decision.
On June 22, 2017, the Pennsylvania Supreme Court declined to hear the plaintiff’s appeal. Therefore, Pennsylvania continues to reject the each and every exposure theory as to causation.