Betz v. Pneumo Abex: Not Every Asbestos Exposure Is “Substantial”
Last week the Pennsylvania Supreme Court decided Betz v. Pneumo Abex et al. (opinion here), a ‘friction products’ — i.e., brake pads — asbestos exposure case, ruling against the plaintiff. I had previously discussed the case briefly here. Drug and Device Law has already covered the opinion, as has Nathan A. Schachtman, and I (naturally) disagree with much of what they conclude.
A month ago I wrote about the difference between scientific evidence and the scientific method, and the Betz case is a great example of many of the issues — some legal, some political — that arise when science is brought into a civil case. Here are the facts:
In February 2005, Charles Simikian commenced a product liability action against Allied Signal, Inc., Ford Motor Company (“collectively Appellants”), and others, asserting causes of action grounded on multiple theories including strict liability. Mr. Simikian alleged that, throughout a forty-four year career as an automotive mechanic, his exposure to asbestos-containing friction products, such as brake linings, caused his mesothelioma.
Stepping out of the legal world and into the medical world: after a doctor tells someone they have mesothelioma, the next thing the doctor does is ask when the patient worked around asbestos. In the medical community, although the specific mechanism still isn’t understood, there’s no disagreement that mesothelioma only really has one cause in practice: asbestos exposure. Thus, mesothelioma after 44 years working around brakes, which we know incorporate chrysotile asbestos, and no other significant exposure to any other source of asbestos, provides more than enough for many doctors (I would say “most,” but I don’t know of any surveys to back that up) to infer that the mesothelioma was caused by the exposure to the brake pads. Such doctors would include the plaintiff’s expert, a pathologist. There’s similarly no doubt at the EPA or at OSHA that brake pads expose workers to asbestos, which is why there are specific guidelines for their handling.
But there’s a question that’s half-practical, half-political: how much proof does an injured person need to show that a particular company hurt them before that person will be legally entitled to compensation?
Here, there are two main issues to consider. First, there’s the medical or scientific — I write “or,” because the medical and scientific communities will give you different answers — question of whether low-dose exposure to asbestos (particularly chrysotile asbestos, which isn’t as carcinogenic as most other types of hydrous magnesium silicate asbestos, like crocidolite asbestos) causes mesothelioma or asbestosis. Second, there’s the difficulty of proving the relationship between each defendant and the plaintiff’s mesothelioma: think of how many different manufacturers of brake products a person encounters when working for 44 years as an automotive mechanic. The plaintiff’s complaint unsurprisingly had to name nearly two dozen defendants, from General Motors, to Daimler Chrysler, to Ford, to Napa Auto Parts, to Pneumo Abex, successor of American Brake Shoe and Foundry, founded 1902.
A plaintiff doesn’t have to prove how much exposure was due to which brake manufacturer, but they do have to prove that each defendant they intend to hold liable was a substantial factor in causing their injuries. See, e.g., Summers v. Certainteed Corp., 997 A.2d 1152, 1164-1165 (Pa. 2010)(“While asbestos litigation implicates concepts of strict liability rather than negligence, the requirements of proving substantial-factor causation remain the same.”) Whether or not a particular defendant’s conduct was a “substantial factor” in injuring a plaintiff is ordinarily a jury question, though courts can dismiss cases if they find that no reasonable jury would find the defendant’s conduct was a “substantial factor.”
So how do you prove that each defendant’s asbestos use was a “substantial factor” in causing the disease? Prove that the plaintiff was around the friction products manufactured by the defendant — Mr. Simikian died, but others at the places where he worked could testify about the composition of the vehicles that came in, service invoices could be reviewed, et cetera — then have expert testimony establishing that the asbestos exposure from each defendant was a substantial contributing factor in causing the plaintiff’s mesothelioma.
In this case, one of many similar cases brought around the same time by automotive workers against the same companies, the plaintiff called John C. Maddox, M.D., a pathologist, to testify about the effect of the asbestos exposure in causing the plaintiff’s disease. As the Pennsylvania Supreme Court summarized:
In his testimony, Dr. Maddox frequently couched his role in general terms, namely, to render an opinion that chrysotile asbestos contributes to disease. Indeed, with regard to the test cases, the pathologist’s testimony reflected his unfamiliarity with the test-case plaintiffs’ or decedents’ history of exposure to asbestos. The witness maintained, however, that exposure to a single asbestos fiber of any type was sufficient to establish causation.
And that’s where the case hit a snag. Dr. Maddox could have — in theory, at least, but as a practical matter it would have been quite tricky — testified very specifically about Mr. Simikian’s exposure to asbestos via the brake work he did, and start talking about how X% came from this type of brake pad, Y% came from this type of brake pad, and so on. Dr. Maddox didn’t go into Mr. Simikian’s individual exposure, though, in part (I suspect) because of how his testimony would have to rely on a lot of assumptions about how much asbestos is released by various activities in a mechanic’s shop, and in part because of the overall framework of his case as a “test case” for other highly similar cases involving automobile mechanics:
[T]his case was selected among test cases for the any-exposure opinion as a means, in and of itself, to establish substantial-factor causation. In this regard, the plaintiffs repeatedly advised Judge Colville that there was no need for them to discuss individual exposure histories, so long as they could establish exposure to at least a single fiber from each defendant’s product. See N.T., Aug. 17, 2005, at 76 (“As a matter of law, you just say, hey, you breathed asbestos from a product, oh, you are going to the jury.”); id. at 120 (“We don’t have to show the amount of fibers. We just have to say he breathed some fibers.”).
In many courts — I don’t think anyone can definitely say “most” or “not most” — there wouldn’t have been a problem, and the pathologist’s testimony alone would have been enough to take the case to the jury, so that the jury could decide which defendants (if any) were responsible. See, e.g., Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984)(“Judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease. On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”) Ferebee has been cited a couple dozen times every year since it was authored by courts recognizing the limits of their ability to parse through science and medicine without invading the fact-finding province of the jury, like in this case from earlier this month, and it was cited by the Pennsylvania Superior Court in its opinion in Betz. See also In re Asbestos Prods. Liab. Litig., No. 10-cv-61118, 2011 WL 605801, at *7 (E.D. Pa. Feb. 16, 2011)) (citing the Superior Court’s Betz decision with approval and finding the any-exposure opinion “sufficiently reliable to meet the admissibility standard” of Federal Rule of Evidence 702)(I explained more about the asbestos MDL here).
The defendants, though, jumped on Dr. Maddox’s theory that each exposure to asbestos increases the risk of mesothelioma, and so requested Dr. Maddox’s be stricken as “novel” scientific evidence in violation of the Frye line of cases:
[T]he defendants sought to exclude general causation testimony that the chrysotile asbestos in friction products causes mesothelioma, since chrysotile is the least potent form of asbestos; the asbestos contained in friction products is embedded in resin; and published, peer-reviewed epidemiological studies concerning the experience of brake workers with asbestos disease have found no increased risk as compared to the general population. See generally Francine Laden et al., Lung Cancer and Mesothelioma Among Male Automobile Mechanics: A Review, 19 REVS. ON ENVTL. HEALTH 39 (2004); Michael Goodman et al., Mesothelioma and Lung Cancer Among Motor Vehicle Mechanics: a Meta-Analysis, 48 ANN. OCCUP. HYG. 309 (2003).
In support of their challenge to the pathologist’s methodology, defendants called M. Jane Teta, Dr.P.H., M.P.H., an occupational environmental epidemiologist, and Dennis J. Paustenbach, PhD, DABT, a certified industrial hygienist and environmental toxicologist.
And that’s when we bump back into that political problem in having courts decide for themselves, without even letting the jury hear the facts, if a certain degree of exposure to a toxic substance causes a particular injury. In the Betz case, the plaintiff had a medical doctor (a pathologist) while the defendant had two scientists (an epidemiologist and a non-medical toxicologist). There’s more than one way to skin a cat, and more than one way to prove a fact in a case, but those experts simply don’t look at issues the same way as one another. The plaintiff’s expert is uniquely qualified to opine on a patient’s cause of death, while the defendants’ experts are uniquely qualified to opine on the statistical dangers of a workplace.
In a perfect world, the plaintiff and the defendants would have matched up their experts, but it frequently doesn’t work out that way, particularly not in product liability cases. In the end, the Pennsylvania Supreme Court went with the epidemiologists, for a very specific reason:
[Plaintiff] takes the position that the defendants could not address the methodology of a pathologist, Dr. Maddox, through the testimony of risk assessors, toxicologists, and epidemiologists. We disagree. … Dr. Maddox offered a broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber above background exposure levels. In doing so, he took it upon himself to address (and discount) the range of the scientific literature, including pertinent epidemiological studies. Dr. Maddox’s any-exposure opinion simply was not couched in terms of a methodology or standard peculiar to the field of pathology.
In other words, Dr. Maddox himself predicated his opinion on epidemiological studies — which is common in the actual practice of medicine — and so invited scrutiny from the epidemiologists.
It’s a fair point. As noted above in one of the quotes, the epidemiological studies so far haven’t found a statistical link between working as a car mechanic and developing mesothelioma. That of course doesn’t prove that brake linings don’t cause mesothelioma in workers, but, when the absence of epidemiological studies showing mesothelioma is considered along with the fact that somewhere around 0.01%–0.05% of people will die from mesothelioma that wasn’t clearly tied to a particular asbestos exposure in the workplace or the like (these deaths are typically attributed to the “background levels” of asbestos in the air; every one of us breathes in asbestos all day long, just not in levels that typically cause asbestosis or mesothelioma), it’s not unreasonable to demand the plaintiff show something more than just the claim that every breath of asbestos increases the risk of developing a disease.
Which is also why 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. Consider this passage:
[T]he plaintiffs repeatedly advised Judge Colville that there was no need for them to discuss individual exposure histories, so long as they could establish exposure to at least a single fiber from each defendant’s product. See N.T., Aug. 17, 2005, at 76 (“As a matter of law, you just say, hey, you breathed asbestos from a product, oh, you are going to the jury.”); id. at 120 (“We don’t have to show the amount of fibers. We just have to say he breathed some fibers.”). Moreover, Dr. Maddox rendered his opinion without being prepared to discuss the circumstances of any individual’s exposure. At this late juncture in the litigation, Appellee cannot redirect the focus of the Frye hearing, which is the subject of our present review.[Fn 34]
Footnote 34: This is not to say that there may not have been other evidence upon which Appellee might have relied to avoid the summary judgment ruling which ensued in her case after the more generic Frye determination covering all of the test cases. In light of the limited grant of our review, see Betz v. Pneumo Abex LLC, 607 Pa. 620, 9 A.3d 1134 (2010) (per curiam), we refrain from comment on this separate question.
Thus, under Betz, you can’t simply have a pathologist testify that “exposure to at least a single fiber from each defendant’s product” creates an increased risk of harm and thus warrants compensation, but there’s still a big world of “other evidence” — including the same expert, and the same facts, but pointing out exposure to far more than just “a single fiber” — out there that could be used to prove the plaintiff’s case.
Which frankly isn’t too much to ask. I’ve talked before about how astonishingly expensive civil justice is in this country, and how run-of-the-mill medical malpractice cases cost between $25,000 and $250,000. Asbestos litigation was never inexpensive, but the court just forbid one method that could have been used for making it less expensive, i.e. proving some degree of exposure and then calling a doctor to explain the effects of the exposure. Now, asbestos lawyers will have to keep doing what many have been doing anyway, by calling not just a pathologist to explain generally how asbestos causes cancer, but by also proving the extend of exposure, by asking the pathologist to comment on that level of exposure, and then calling an epidemiologist to confirm that “clinical and epidemiologic studies have established beyond all reasonable doubt that chrysotile asbestos causes cancer of the lung, malignant mesothelioma of the pleura and peritoneum, cancer of the larynx, and certain gastrointestinal cancers” — which is what the plaintiff’s lawyers rightly argued, but which they didn’t have a specific expert to confirm.
The end result will be longer, more expensive litigation, and larger settlements demanded, which has been the trend in mesothelioma litigation lately.