Follow POL on Twitter Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy
Last month the Pennsylvania Supreme Court raised the bar for proving causation in asbestos cases. Previously, plaintiff attorneys could argue that any exposure to a product that contained asbestos was sufficient to establish substantial causation for asbestos-related diseases.
The defendants in Betz v. Pneumo Abex LLC et al., 2012 Pa. LEXIS 1208, filed a motion challenging this so-called "any exposure" theory. "Any exposure" causation is problematic because it seems to fly in the face of the general scientific consensus that asbestos-related diseases are "dose responsive" - meaning there is a relationship between the amount of a person's exposure to asbestos and the amount of the disease that person is likely to have.
If asbestos-related diseases are dose-responsive, then this would suggest that small levels of asbestos exposure may not cause asbestos-related diseases. The plaintiff's expert in Betz tried to claim both that asbestos-related diseases were dose responsive and that "any exposure" to asbestos was enough to establish substantial causation. The court rejected this argument:
In this regard, Dr. Maddox's any-exposure opinion is in irreconcilable conflict with itself. Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.
Given this recent ruling, it will be interesting to see how asbestos cases that rely on dubious causation arguments fare in the state of Pennsylvania.
Maybe the PA supreme court should read evidence provided in Michael Bowker's book....Fatal Deception....the evidence in that book shows that since before WWII....the asbestos industry knew what the dose response was and that even workers exposed for a very short period of time can end up with asbestos related diseases.....ask the people of
Libby, Montana and Manville, New Jersey.
As I wrote when the opinion came out, I think the Betz v. Pneumo Abex et al. opinion is really quite limited in its application. I was at first inclined to view the case as, in many ways, a tactical error by the plaintiff’s lawyers in having Dr. Maddox testify only as to the “any breath” theory, and not to a more specific analysis of each plaintiff’s exposure. But from thinking it through further, I think it was likely a calculated risk, and the strategy limits the decision’s impact on future cases.