Asbestos: “Each and Every Breath” Expert Testimony Prohibited

Science and the law are often in an awkward dance when expert witnesses testify, as is particularly evident in mesothelioma cases where science cannot quantify how much exposure to asbestos will cause the disease.

The majority of state and federal courts have rejected expert testimony that “each and every breath” of asbestos can be a substantial cause of mesothelioma, while the scientific community generally agrees that any exposure could potentially cause the disease. That leaves experts a fairly narrow path to tread in their testimony.

In the case of Rost v. Ford Motor Co., Pa. Supreme Ct. Nov. 22, 2016, Ford appealed to the Pennsylvania Supreme Court the decisions of the state's Superior Court and the trial court, arguing that the plaintiff's occupational medicine expert witness, Dr. Arthur Frank, M.D., a specialist in occupational lung diseases such as asbestosis, argued a “cumulative exposure” theory that was simply an “any exposure” theory.

Frank testified that both case reports and animal studies show evidence that both animals and humans may contract mesothelioma after a single day of exposure, that “very low levels will still produce the disease”, and that there is evidence "a single month's exposure to asbestos may double an individual's risk of contracting mesothelioma."

Frank also testified that the plaintiff, Richard J. Rost, was exposed to asbestos for more than three months, at potentially high levels on a daily basis, when he worked in 1950 at a auto repair shop that mainly serviced Ford vehicles, including brakes and clutches that contained asbestos. Rost was exposed to asbestos fibers during the removal of asbestos linings from brake shoes, the dust from cleaning brake drumbs, sanding brakes, replacing clutches, etc. Frank testified that “any exposure … would … be causative in the development of Mr. Rost's disease.”

Ford moved for a nonsuit, contending that Frank had offered an “each and every breath” opinion testimony prohibited as evidence of substantial causation by the state Supreme Court in Gregg v. V-J Auto Parts, Co., 943 A.2d 216 (Pa. 2007), and Betz v. Pneumo Abex. LLC.

In Gregg, the plaintiff, a mesothelioma victim, sued a manufacturer and a supplier of brake products, arguing that he had installed and removed brake linings during his lifetime. The trial court concluded that, at the most, Gregg used the defendant's asbestos-containing products on two or three occasions, and granted summary judgment for the defendant, based on past precedent that the "circumstantial evidence depends upon the frequency of the use of the product..." (see Eckenrod v. GAF Corp., 544 A.2d 50 [Pa. Super. 1988]). The Superior Court reversed, holding that Eckenrod did not apply when a plaintiff could offer direct testimony concerning exposure to a defendant's products.

The state Supreme Court, in reversing the Superior Court, held that an “every exposure” generalized opinion does “not suffice to create a jury question in a case where exposure to the defendant's product is de minimis.” The state Supreme Court then adopted the “frequency, regularity, and proximity” test as applied by the U.S. Court of Appeals for the Seventh Circuit in Tragarz v. Keene Corp.

In Betz, the pathology expert witness, Dr. John C. Maddox, M.D., testified at the Frye hearing that he did not need to know the exposure histories of mesothelioma plaintiffs to offer an opinion on causation “so long as they could establish exposure to a single fiber from each defendant's product.” On appeal, the state Supreme Court held that the trial court did not abuse its discretion in excluding Maddox' expert testimony, finding that “one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.”

Rost countered Ford's argument that Frank had offered an “each and every breath” opinion, arguing that Ford was conflating “the scientific axiom that 'every exposure contributes' into the impermissible 'every exposure is a substantial cause.'”

In its 3-2 decision, the state Supreme Court agreed with Rost, finding that Frank clearly testified that every exposure to asbestos cumulatively contributed to Rost's development of mesothelioma, and that he never testified that every exposure was a “substantial factor.”

The evidence Rost presented satisfied the “frequency, regularity,
and proximity” test, the state Supreme Court found,  denying Ford's motions for non-suit, judgment notwithstanding the verdict, and for a new trial.