Superior Court of Pennsylvania Strikes Down "Any Exposure" Theory in Asbestos Litigation
By Melissa Kenney
The Superior Court of Pennsylvania recently issued another decision holding that the purported "any exposure" or "each and every fiber" theory is not sufficient to establish causation in cases alleging exposure to asbestos. In Nelson v. Airco Welders Supply, et al., 107 A.3d 146 (Pa. 2014), the Court vacated and remanded the case for a new trial. Nelson alleged exposure to asbestos released from working with welding rods and sheet gaskets for more than thirty years. The jury awarded the Nelsons $14.5 million, and several defendants appealed.
One of the issues on appeal was the Nelsons' expert's testimony regarding the inhalation of fibers in causing mesothelioma. Although the expert acknowledged that he could not offer an opinion on the actual release of fibers from the appellant's products, he opined through responses to hypothetical questions that the dust released from the products would constitute a substantial contributing factor in causing Nelson's disease.
The Court rejected the Nelsons' argument that the expert found only significant exposures causative, as when visible dust is inhaled. Rather, the expert's testimony included opinions that: there are "no innocent respirable asbestos fibers;" any fiber level about ambient air is non-negligible; and any inhalation of dust above the non-negligible level constituted a substantial contributing factor to the disease. The Court also pointed out the paradox in the expert's opinions that there are varying levels of asbestos fibers in the ambient air which are non-causative, yet each incremental exposure to an individual product is causative, no matter how small.
Accordingly, the Court ruled the testimony inadmissible, consistent with its prior rulings in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012) and Gregg v. V-J Auto Parts, Co., 943 A.2d 216 (Pa. 2007). In Betz, which reiterated the opinions in Gregg, the Court held that the "any-exposure theory was fundamentally inconsistent with both science and the governing standard for legal causation" and failed to satisfy Pennsylvania's frequency, regularity, and proximity standard.