Pennsylvania Supreme Court Rules Plaintiff's Expert Opinion That "Any Exposure" To Asbestos Fiber Is A Substantial Factor In Causing Asbestos-Related Disease Is Inadmissible

Posted by Jeff Klein on June 19, 2012

The Pennsylvania Supreme Court issued an opinion that, according to one asbestos plaintiffs' blog, "could have far-reaching implications." Betz v. Pneumo Abex LLC was an automotive friction products asbestos case.  The focus of the court’s decision was on the admissibility of plaintiff’s expert opinion that “that each and every exposure to asbestos—no matter how small—contributes substantially to the development of asbestos-related diseases.”  This opinion is often referred to as the "‘any-exposure,’ ‘any-breath,’ or ‘any-fiber’ theory of legal (or substantial-factor) causation.”  This particular case was selected from others below using a similar “any-exposure” theory of causation.  

When determining the admissibility of expert testimony, Pennsylvania still uses the Frye test of “general acceptance in the relevant scientific community applicable to novel scientific evidence” and does not use the Daubert standard.  

First, the Pennsylvania Supreme Court agreed with the court below that the any-exposure theory was novel and thus a Frye hearing was warranted.  In turning to the any-exposure theory of substantial causation, the court noted that the expert’s opinion created an “irreconcilable conflict with itself” because "[s]imply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive."

In fact, the court quoted the plaintiff’s experts’ own testimony to demonstrate this contradiction:

Now, individual exposures differ in the potency of the fiber to which an individual is exposed, to the concentration or intensity of the fibers to which one is exposed, and to the duration of the exposure to that particular material. So those are the three factors that need to be considered in trying to estimate the relative effects of different exposures. But all exposures have some effect.

To elucidate his opinion that even a single asbestos fiber can be a substantial contributing factor in developing an asbestos-related disease, plaintiff’s expert offered an analogy of a glass of water with marbles being placed into the glass.  In other words, each marble is a substantial factor in the water overflowing.  However, the court found this analogy discomforting, particularly in light of the plaintiff’s expert's previous testimony as to size and potency of asbestos fibers:

In this regard, the analogies offered by [plaintiff’s expert] 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 microscopic marbles is a substantial factor in causing a glass of water to overflow.

While this was one of many analogies used by the plaintiff’s expert (also employed: a “soldier in the field” analogy, an “Ellis Island” analogy, a “boxer’s glancing blow” analogy, and a “single cigarette among many” analogy), no analogy offered to the court was found convincing:

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 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. 

The Boulder business lawyers at Laszlo & Associates, LLC provide legal counsel to businesses on a variety of business needs including products liability, risk management, corporate protection and legal compliance.

District Court of Colorado: Expert Opinions Based On "Differential Diagnosis" Can Show General Causation

Posted by Jeff Klein on June 06, 2012

Pritchett v. I-Flow Corporation, Inc. is a recent pain pump case in front of the United States District Court of Colorado.  The plaintiff had shoulder surgery in 2005.  The surgeon used a pain pump manufactured by I-Flow to inject an anesthetic into the shoulder joint over a 48 hour period which allegedly led to the development of “chondrolysis”—a partial or complete loss of cartilage in the shoulder joint.  Plaintiff alleged that the pain pump was marketed by the defendant I-Flow “without doing a single study to determine whether pain pump anesthetics could harm cartilage.”  Additionally, the plaintiff claimed that I-Flow waited years to inform physicians after receiving notice that its pain pump could damage cartilage.

The issue in the April 17, 2012 decision surrounded the defendant’s attempts at excluding the plaintiff’s expert witness, Dr. Jon Hyman.  Among other reasons for excluding the plaintiff’s witness, the defendant argued that Dr. Hyman’s “differential diagnosis of specific causation is invalid in light of the lack of evidence of general causation and because Dr. Hyman failed to rule out other potential causes of Plaintiff's shoulder injury.”  A differential diagnosis is generally the determination of which one of several diseases may be producing the symptoms experienced by a patient.

After reviewing Fed. R. Evid. 702's analysis and application generally, the court, in a rather conclusory fashion, determined that the Dr. Hyman's opinions were admissible.  According to the court, quoting a prior pain pump case McClellan v. I-Flow Corp., “taking [I-Flow's] argument to its logical conclusion, [I-Flow] would have [Plaintiff] prove causation to a medical certainty before expert testimony could be admitted.“  The court found this “wholly inconsistent with Daubert and the fundamental premise of Rule 702.”  Moreover, again quoting from McClellan:

Daubert did not impose an exacting standard of causality beyond the preponderance of the evidence simply because scientific issues are involved…The issue is not whether the proponent of expert testimony can prove that the expert is correct; it is whether the testimony is reliably derived from scientific methodology and is relevant to the facts of the case.

According to the court, Dr. Hyman’s use of a differential diagnosis did not “doom” his opinions under Daubert since “numerous courts have approved opinions based on differential diagnosis to show general causation, despite the absence of conclusive causal evidence.” (emphasis added).

As stated above, the court’s support for its conclusion is not rigorously grappled with: “[g]enerally ‘the basis for establishing the scientific validity of a differential diagnosis will vary depending on the type of injury and whether it involves a complicated biological explanation, a long latency period or the lack of a single sharp exposure event.’” For this reason, despite the fact that Dr. Hyman used a differential diagnosis in his opinion of the plaintiff’s condition:

Case-specific factors, such as the temporal relationship between the continuous infusion and Plaintiff's development of chondrolysis, Plaintiff's lack of other toxic exposures, and Plaintiff's lack of other systemic disease or injury unrelated to the area or purpose of exposure, increase the reliability of the differential diagnosis methodology used here.  In these circumstances, Dr. Hyman's testimony on general causation should be admitted because it is based on a reliable differential diagnosis and reliably flows from the underlying facts of the case.

The court was not overly concerned that Dr. Hyman’s opinion may attribute a different cause for the plaintiff’s condition to say the least.  Moreover, the court, in what justification it did offer, seemed to be convinced that the lack of “complexity” as to the nature of the plaintiff’s injury provided an acceptable basis for summarily allowing a differential diagnosis to support general causation.

The Boulder business lawyers at Laszlo & Associates, LLC provide legal counsel to businesses on a variety of business needs including products liability, risk management, corporate protection and legal compliance.

Sixth Circuit Overturns Asbestos Verdict Because Plaintiffs Failed to Prove Exposure Was a "Substantial Factor" in Causing Mesothelioma

Posted by Mike Laszlo on October 05, 2011

In Moeller v. Garlock Sealing Technologies, LLC, (6th Cir. Sept. 28, 2011), the Circuit court decided whether evidence presented by a Plaintiff regarding exposure to asbestos was sufficient to support a determination that the manufacturer's asbestos-containing gaskets were a substantial factor in bringing about the pipefitter's injuries and death.  The court held the evidence was insufficient.   In Moeller, Mr. Moeller, a pipefitter, worked with asbestos insulation from 1962 through 1975.  During the same period, Plaintiff worked with Garlock gaskets which contained asbestos.  Mr. Moeller died from mesothelioma in 2008, his widow sued numerous defendants including Garlock.  Under Kentucky state law, to prevail on a negligence claim, a plaintiff must prove that a defendant’s conduct was a substantial factor in bringing about the harm.  At trial, with respect to causation, Plaintiff presented the testimony of a doctor of internal medicine who opined that Plaintiff’s exposure to asbestos from Garlock gaskets, along with other exposures, contributed to Robert’s mesothelioma. 

The jury returned a verdict for Plaintiff in the amount of $516,094.  Defendant Garlock moved for judgment as a matter of law and for a new trial – both motions were denied.    Here, because Plaintiff’s experts admittedly never testified that Plaintiff’s exposure to Garlock gaskets was a substantial factor in causing his mesothelioma, the Sixth Circuit held that Plaintiff was unable to establish that exposure to Garlock gaskets in and of itself was a substantial factor in causing the mesothelioma.  Therefore, under Kentucky law, Plaintiff failed to prove her case and Garlock’s motion for judgment as a matter of law should not have been denied. 

This case reaffirms the recent theme the importance of good and thorough expert testimony.  Here, Plaintiff’s experts did not, as they were likely unable, to opine that Garlock’s gaskets were a substantial factor in causing Mr. Moeller’s mesothelioma.  With such evidence being so critical to the claim however, plaintiff’s counsel should have developed additional or alternative evidence regarding causation.    

When Experts are Required and What is Required of Experts: Three Recent Opinions

Posted by Mike Laszlo on September 24, 2011

Three recent opinions involved interesting and important issues regarding experts – Show v. Ford Motor Co., (7th Cir. Sept. 19, 2011), Anderson v. Akzo Nobel Coatings, Inc. Supreme Court of Washington (Sept. 8, 2011), and Bertrand v. Gen. Elec. Co., (US Dist. Mass. Sept. 21, 2011).

In Show v. Ford Motor Co., (7th Cir. Sept. 19, 2011), the Circuit Court affirmed the USDC Illinois court’s grant of summary judgment in favor of Ford Motor Company based on the fact that in their product liability action against Ford Motor Company, plaintiffs had not designated an expert on the subject of defective design.  Plaintiffs’ position was that jurors, as consumers, can find in their own experience all of the evidence required for liability under the consumer expectation test and therefore, an expert on the subject was unnecessary.  Ford disagreed.  Both Parties and the magistrate judge agreed that state substantive law controlled the issue of whether expert testimony was necessary a position the 7th Circuit ultimately affirmed.  Interestingly however, was the Circuit Court’s persistence in mentioning the question of whether Federal or State law actually controlled the issue had the parties not agreed to state law.

Whether or not this implies that federal law determines what kind of evidence is required-a subject that we bypass, given the parties’ shared assumption…”  “…once again we bypass the question of whether state or federal law governs the methods of proof in federal court.

In Anderson, the plaintiff offered expert testimony to support her position that that exposure to organic solvent while pregnant resulted in brain damage to her child.  The defendant challenged the expert’s theories and methods as novel and not generally accepted in the scientific community.  In Anderson, as in Show, because both the parties and the lower courts agreed on what law controlled, i.e., that the Frye test was appropriate, the Washington Supreme Court declined to decide whether Frye was actually the appropriate test for civil cases. 

The Washington Supreme court held “the Frye test is only implicated where the opinion offered is based upon novel science … Frye does not require every deduction drawn from generally accepted theories to be generally accepted …because Dr. Khattak’s testimony was not based upon novel science, Frye was not implicated in this case.”  The Court stated specifically:

In civil cases, we have neither expressly adopted Frye nor expressly rejected Daubert.  In the case before us, the parties and lower courts assume that Frye is applicable, and for purposes of this opinion, we will assume without deciding that Frye is the appropriate test for civil cases.

Finally, in Bertrand v. Gen. Elec. Co., (US Dist. Mass. Sept. 21, 2011), Defendant GE moved to preclude plaintiffs’ expert on a purported lack of qualifications and on Daubert grounds.  Plaintiffs’ expert opined that a defectively-designed stove ignition switch caused the “push-to-turn” safety feature of the burner control valve to fail, permitting a family pet to activate a burner of the stove.  GE argued that plaintiffs failed to demonstrate that their expert, an “all-purpose engineer” was qualified to offer opinions on stove design, and had failed to opine with the requisite degree of reasonable scientific certainty and therefore failed the Daubert test.

Daubert neither requires nor empowers trial courts to determine which of several competing theories has the best provenance. It demands only that the proponent of the evidence show that the expert's conclusion has been arrived at in a scientifically sound and methodologically reliable fashion.”

The Massachusetts district court was satisfied with Plaintiffs’ expert’s qualifications: "A licensed mechanical engineer with an advanced degree and years of hands-on experience with jet engine design and structural analysis ... is well within his competence in examining the workings of a burner switch on a simple kitchen stove."

The court noted that GE's objection to plaintiffs' expert appears based less on any real question about his qualifications than a distaste for the fact that he makes his living as a hired expert in plaintiff's cases. "If the fact of Chen's employment has allowed a bias to creep into his opining, that is a fair subject for cross-examination, but it is not grounds for excluding his testimony altogether."

Show, Anderson and Bertrand, while different, are important to consider for a few reasons.  It appears that the Court of Appeals for the Seventh Circuit is ready and waiting to examine the issue of when state or federal law controls the necessity of expert testimony.  Further, the Washington Supreme Court made clear that it has yet, but appears willing and ready, to decide whether Frye or Daubertis the appropriate test in civil cases. Finally, both Anderson and Bertrand illustrate that it is critical, under Frye and Daubert, to establish that the methodiology employed by your expert is sound and reliable.

If A Wine Bottle Breaks While Opening, Is There A Product Liability Claim?

Posted by Mike Laszlo on April 19, 2011

While opening a bottle of wine recently, I struggled with a cork that was just plain stuck.  After some serious effort with the Pulltap, Ah-So and just short of using my 9 iron, I got the thing open.  But not without the thought of what might have been had the bottle burst and glass went flying.  Who would be to blame? Not me of course...but who? The winery? The bottle maker?  The cork supplier?  Turns out, in all likelihood, it would have been my fault.  

In Rabon-Willimack v. Robert Mondavi Corp. a bartender injured her hand after breaking a bottle of Robert Mondavi Woodbridge while opening the wine.  The bartender alleged causes of action sounding in strict products liability, breach of warranty and negligence.  In the end, the bartender could not prove her case as the Defendants successfully argued that there was no manufacturing defect and no flaw in the design as the “bottle fractured due to excessive force applied to the top of the bottle with a two-pronged fulcrum of a waiter’s metal corkscrew.”  Nor was the court persuaded that Robert Mondavi had a duty to warn of the risks created by the use or misuse of another manufacturer’s products or of the danger of applying pressure to a glass bottle with a mental object while holding the bottle in one’s hands.  The court concluded that the expert's opinions were nothing more than specultaion:

As the expert's opinion was not supported by foundational facts, such as the results of actual testing of the bottle, a deviation from industry standards, or statistics showing the frequency of consumer complaints or injuries resulting from the alleged product defect, it lacked sufficient probative value to raise a triable issue of fact as to whether the subject bottle was not reasonably safe in its design.  Rabon-Willimack v. Robert Mondavi Corp., 73 A.D.3d 1007, 1009, 905 N.Y.S.2d 190, 193 (N.Y. App. Div. 2010).

So, be careful when opening your wine, but more important, be extra careful when choosing your expert.