                           [J-12-2016] [MO: Donohue, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


RICHARD M. ROST, EXECUTOR OF                   :   No. 56 EAP 2014
THE ESTATE OF RICHARD J. ROST &                :
ERIN SIPLEY, EXECUTRIX OF THE                  :   Appeal from the Judgment of Superior
ESTATE OF JOYCE ROST,                          :   Court entered on May 19, 2014 at No.
                                               :   404 EDA 2012 affirming the Judgment
                     Appellees                 :   entered on December 28, 2011 in the
                                               :   Court of Common Pleas, Civil Division,
                                               :   Philadelphia County at No. 1978
              v.                               :   September Term, 2010.
                                               :
                                               :   ARGUED: May 6, 2015
FORD MOTOR COMPANY,                            :   REARGUED: April 6, 2016
                                               :
                     Appellant                 :


                                 DISSENTING OPINION


JUSTICE BAER                                             DECIDED: November 22, 2016
       Pursuant to this Court’s decisions in Gregg v. V-J Auto Parts, Co., 943 A.2d 216

(Pa. 2007), and Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012), I join the Chief

Justice’s analysis in his dissenting opinion, diverging only in regard to disposition.

Rather than granting Ford Motor Company judgment notwithstanding the verdict, I

would reverse and remand for new trial to allow the parties to apply this Court’s decision

in Betz, which issued after the trial in the case at bar. I additionally write to address my

prior dissenting opinion in Gregg. For the following reasons, I respectfully dissent from

my colleagues in the Majority, while joining the Chief Justice’s dissenting opinion in part.

       In Gregg, the plaintiff claimed that the asbestos he inhaled while changing the

brakes on his personal automobile several times was a substantial factor in his

development of mesothelioma, despite over forty years of professional exposure. This
Court concluded that, in cases involving direct as well as circumstantial evidence of

asbestos exposure, it is appropriate for a court to consider at the summary judgment

stage “whether, in light of the evidence concerning frequency, regularity, and proximity

of a plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the

necessary inference of a sufficient causal connection between the defendant’s product

and the asserted injury.” Id. at 227. In so doing, the Court concluded that it was not “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.” Id. at 226–27. The Court

remanded to the Superior Court for application of the “frequency, regularity, and

proximity” standard.

      I dissented to what I viewed as that majority’s unwarranted criticism of the

experts’ testimony at the summary judgment stage in a case involving direct evidence of

asbestos exposure, and recommended that the proper challenge to the expert’s “each

and every exposure” theory should arise through a Frye challenge or through cross-

examination of the expert at trial. Id. at 229-30 (citing Frye v. United States, 293 F.

1013 (D.C. Cir. 1923) (setting forth an exclusionary rule of evidence that applies only

when a party wishes to introduce novel scientific evidence obtained from the

conclusions of an expert scientific witness)).      Notably, the majority of the Court

concluded otherwise.

      Five years later, this Court considered Betz v. Pneumo Abex LLC, 44 A.3d 27

(Pa. 2012). Engaging in the procedure lacking in Gregg, the defendant challenged the

“each and every exposure” theory pursuant to Frye, and the trial court held an extensive

hearing and ultimately excluded the evidence. This Court unanimously concluded that

the trial court properly excluded the expert’s testimony and further opined that the “each




                           [J-12-2016] [MO: Donohue, J.] - 2
and every exposure” theory could not serve as the basis for an expert’s conclusion that

the asbestos exposure was a substantial factor in causing the asbestos-related disease,

in contrast to merely a cause-in-fact.      Instead, the Court required a comparative

assessment of the plaintiff’s various exposures to asbestos. Id. at 56-58.

       My colleagues in the Majority in the case at bar deem the discussion of

comparative assessment in Betz to be dicta. Maj. Op. at 22. To the contrary, the

comparative assessment analysis is the heart of the unanimous holding in Betz.

Subsection D of the opinion addresses the “Any-Exposure Opinion,” otherwise

referenced as the “each and every exposure” theory.             In the first paragraph of

Subsection D, the Court agreed with the trial court that the “primary conceptual concern”

with the plaintiff’s theory was that if risk of mesothelioma attached to each asbestos

fiber then each of the millions of asbestos fibers, to which a plaintiff had been exposed,

would be a substantial factor in causing mesothelioma. Betz, 44 A.3d at 55. Each fiber

cannot be a “substantial” factor in causing the disease if there are millions of similar

factors. The unanimous court further relied upon the plaintiff’s expert’s testimony, in

which he opined that one must consider the potency, concentration, and duration of

asbestos exposure to “estimate the relative effects of different exposures.” Id. at 56.

       The Court’s criticism of the each and every exposure theory of substantial

causation hinged on recognition of the significance of comparative assessments:

              In this regard, the analogies offered by Dr. Maddox in
              support of his position convey that it is fundamentally
              inconsistent with both science and the governing standard
              for legal causation. The force of his marbles-in-a-glass
              illustration changes materially upon the recognition that, to
              visualize this scenario in terms of even a rough analogy, one
              must accept that the marbles must be non-uniform in size
              (as asbestos fibers are in size and potency), microscopic,
              and million-fold. From this frame of reference, it is very
              difficult to say that a single one of the smallest of


                            [J-12-2016] [MO: Donohue, J.] - 3
              microscopic marbles is a substantial factor in causing a
              glass of water to overflow.
Betz, 44 A.3d at 57.       The Court continued, “Dr. Maddox’s boxer analogy is as

inconsistent with human experience as it is with science, as the difference between a

glancing blow to the shoulder and a knockout punch to the jaw is commonly

understood.“ Id. We, therefore, rejected the Superior Court’s prior reliance on contrary

language in Tragarz v. Keene Corp., 980 F.2d 411, 421 (7th Cir. 1992), and concluded

that a comparative assessment of the plaintiff’s exposures “is required for causal

attribution” under Pennsylvania law. Betz, 44 A.3d at 58. Unlike this author’s dissent in

Gregg, the unanimous decision of the Court in Betz is precedent binding the current

members of this Court, absent an explanation of why the legal principle of stare decisis

should not be followed.

        While the necessity of comparative assessment for purposes of substantial factor

causation had been percolating in our prior decisions, see Gregg, 943 A.2d at 226-27,

Betz clarified the requirement. The parties in the current case, however, did not have

the benefit of Betz’s dictates at trial. Accordingly, I would remand for new trial to allow

the plaintiff the opportunity to present testimony in line with the requirements set forth in

Betz.

        Additionally, my colleagues dispute the role of the “frequency, regularity, and

proximity” test adopted and applied in Gregg. I view the “frequency, regularity, and

proximity” test as part of a comparative assessment of exposures, which is necessary to

determine substantial factor causation sufficient to trigger a defendant’s legal

responsibility. Unlike many tort actions, latent disease cases cannot be demonstrated

through a direct causal link but, instead, involve the imposition of liability based on an

assessment of the increased risk resulting from the alleged exposures. Pursuant to

Gregg, contact with asbestos cannot be deemed a substantial causal factor unless it



                            [J-12-2016] [MO: Donohue, J.] - 4
involved frequent, regular, and proximate exposure creating more than a de minimis risk

of developing the disease. Once an exposure to asbestos fibers is determined to be

sufficiently frequent, regular, and proximate, a fact-finder should consider factors such

as the potency, concentration, and duration of the exposure in light of the plaintiff’s

other asbestos exposures to determine if it is reasonable to deem the defendant’s

product legally responsible as a substantial causal factor in the development of the

disease, in contrast to merely being a cause-in-fact.

      Notably, a jury may conclude that several products are substantial causes of a

plaintiff’s development of a disease.    Indeed, a jury may find that Mr. Rost’s three

months of exposure to Ford brakes was a substantial cause of his mesothelioma, but

under Betz, the plaintiff’s expert must first provide the jury a comparative assessment of

Mr. Rost’s exposures to allow the jury to place the exposure to Ford products in context.

Although the jury heard testimony regarding Mr. Rost’s later exposures, Dr. Frank did

not testify during direct examination to the details of Mr. Rost’s asbestos exposure at

Metropolitan Edison (MetEd) and other employers. Indeed, when asked during cross-

examination about Mr. Rost’s experiences at MetEd, Dr. Frank repeatedly testified that

he did not “know specifically what Mr. Rost did” and could not “speak to what his level of

exposure was.” N.T., Sept. 19, 2011 P.M. Session, at 20-22, R.R. 1406a-08a. Given

that Dr. Frank was not aware of the specifics of Mr. Rost’s work history, he was unable

to provide the jury with the required comparative assessment of exposures.

Accordingly, as discussed above, I would remand for a new trial to allow the plaintiff the

opportunity to present the necessary testimony. 1



1
  As I would remand for a new trial, I need not address the potential prejudice of the
consolidation of this case with other asbestos cases, a procedure which is no longer
practiced in the Court of Common Pleas of Philadelphia.



                           [J-12-2016] [MO: Donohue, J.] - 5
