Rost, Richard, M., Exec. v. Ford Motor Co., Aplt.

[J-12-2016] [M.O. - 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.

: :

FORD MOTOR COMPANY, :

: ARGUED: May 6, 2015 Appellant : REARGUED: April 6, 2016

DISSENTING OPINION

CHIEF JUSTICE SAYLOR DECIDED: November 22, 2016

I respectfully dissent, as I would center the discussion of the causation question on risk-based principles; I would reaffirm – and not cabin – the Court’s opinion in Betz v. Pneumo Abex LLC, 615 Pa. 504, 44 A.3d 27 (2012); and I have a different view concerning the appropriate role and limits of the frequency, regularity, and proximity test in Pennsylvania. On the consolidation issue, I also differ with the finding of no prejudice.

The Central Significance of a Risk-Based Focus The science involved in attempting to examine actual, product-specific causation relative to long-latency carcinogens such as asbestos is fraught with indeterminacy, as is extensively manifested on the present record. See generally Majority Opinion, slip op. at 17 (discussing the present record as it relates to the inability to distinguish causative effects of different exposures). For example, the plaintiff’s experts acknowledged the human body’s substantial efficiency in removing asbestos fibers, and that the lower the exposure or dose, the more effective are these defense mechanisms. See, e.g., N.T., Sept. 20, 2011, at 99, 103 (reflecting the testimony of plaintiff expert, Arnold Brody, PhD, an expert in cell biology, that the body is ninety to ninety-nine percent efficient in removing asbestos fibers). Moreover, from what is known by scientists, rare, discrete, and idiosyncratic events occurring at the cellular level (or a series of them) are required to cause mesothelioma. See, e.g., N.T., Sept. 19, 2011 (A.M.), at 141-42 (reflecting the explanation of the plaintiff’s specific causation expert, Arthur Frank, M.D., that scientists do not know how asbestos alters the DNA to yield cancer, but the process begins with a single cell).1

In light of the great uncertainties involved in assessing actual product-specific, substantial-factor causation, the plaintiff’s sole expert witness testifying on the matter of specific causation – Dr. Frank – acknowledged that his testimony was premised on an assessment of the increased risk presented by discrete exposures. See, e.g., N.T., Sept. 19, 2011 (P.M.), at 51 (reflecting Dr. Frank’s acknowledgement that not every exposure causes the DNA alteration predicate to mesothelioma, but what can be said is that every exposure increases the risk); accord Amici Scientists’ Brief at 2 (“Scientists are concerned because it is indeed an irrefutable scientific fact that each exposure does actually contribute to a person’s total dose and to that person’s risk or probability of developing mesothelioma and other cancers.” (emphasis added)). The plaintiff’s general causation expert, Mr. Brody, also recognized this very clearly. See, e.g., N.T., Sept. 20, 2011 (A.M.), at 78 (“You can’t say what a given exposure does. You don’t get to see that.”); accord Majority Opinion, slip op. at 6 (discussing Dr. Frank’s testimony that “it is not scientifically possible to identify the particular exposure or exposures that caused a patient’s mesothelioma”). The plaintiff’s expert in Betz echoed such understanding also. See Betz, 615 Pa. at 548, 44 A.3d at 55 (“[A]s is clear from various passages of testimony [from the plaintiff’s expert witness] . . ., his opinion was plainly grounded on risk assessment.” (emphasis added)).

Thus, it should be plain enough, by now, that – because actual, product-specific causation generally cannot be demonstrated by those suffering from asbestos-related diseases – this Court, like many others, is accepting assessments of increased risk as surrogates for traditional substantial-factor causation. See generally Steve C. Gold, When Certainty Dissolves Into Probability: A Legal Vision of Toxic Causation for the Post-Genomic Era, 70 W ASH. & LEE L. REV. 237, 298 (2013) (explaining that many courts “recognize[] that in light of causal indeterminacy, it is appropriate to treat proof of contribution to risk as proof of contribution to cause”). Personally, I have abided by this particular accretion in the substantive law,2 but I do think that it is important that it be recognized for what it is, namely, a material adjustment to substantive-law proof requirements. See generally David L. Faigman, Edward K. Cheng, Jennifer L. Mnookin, Erin E. Murphy, Joseph Sanders & Christopher Slobogin, 3 MOD. SCI. EVIDENCE §26:5 (2015-2016) (discussing the causal question in asbestos litigation in terms of “the willingness of the courts to establish special ‘asbestos rules’ that ease plaintiff’s causal proofs”). Viewed as such, I believe that some balance and perspective is implicated, particularly in terms of the degree of the relaxation of the traditional burden that is involved.

Along the lines of perspective, I note that the courts were asked to take the leniency that has been extended to an extreme with the advancement of the any-breath or any-exposure theory as a means of establishing the legal requirement of substantial- factor causation. As is amply developed in this Court’s decision in Betz and elsewhere, such theory is fundamentally inconsistent with the legal requirement of substantial-factor causation. See, e.g., Betz, 615 Pa. at 552, 44 A.3d at 57; Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (“[A]n expert’s opinion that ‘every exposure to asbestos, however slight, was a substantial factor’ . . . would render the substantial factor test ‘meaningless.’” (quoting Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 493 (6th Cir. 2005))). See generally Betz, 615 Pa. at 539 n.25, 44 A.3d at 49 n.25 (collecting cases from jurisdictions that have rejected the any-breath or any-exposure theory). (…continued) V-J Auto Parts, Co., 596 Pa. 274, 291-92, 943 A.2d 216, 226 (2007). Nevertheless, and as further developed below, I maintain that it is 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[.]” Id. at 292, 943 A.2d at 226-27 (emphasis added).

Presently, it is the contention of Appellant and several of its amici that Dr. Frank’s opinion in this case represents a sort of a fallback in the aftermath of this Court’s rejection of the any-breath or any-exposure theory as a means of establishing legal causation. In their view, the approach of various experts in the medicolegal community is now to liberally espouse the any-breath or any-fiber theory when discussing general causation (e.g., any exposure can cause mesothelioma) and specific causation (e.g., every exposure contributed to Mr. Rost’s mesothelioma), then, in addressing the substantial-factor aspect, to merely render conclusory pronouncements of substantiality (e.g., Mr. Rost’s exposure to Ford products was a substantial factor in Mr. Rost’s mesothelioma).3 For these reasons, they urge this Court to undertake a critical examination of Dr. Frank’s testimony to determine whether any scientific basis was offered to distinguish between these general and specific causation aspects and the essential expert opinion as it concerned substantiality.

The majority’s response is to suggest that such arguments “confuse[] or conflate[] the ‘irrefutable scientific fact’ that every exposure cumulatively contributes to the total dose (which in turn increases the likelihood of disease), with the legal question under Pennsylvania law as to whether particular exposures are ‘substantial factors’ in causing the disease.” Majority Opinion, slip op. at 18. However, I agree with Appellant and its amici that – to the degree that an expert witness fails to offer a scientific basis to distinguish his oft-repeated opinions concerning general and specific causation from his opinion about the discrete matter of specific causation – the source of the confusion lies with the expert.

Notably, the present case involves relatively low-dose exposure to asbestos from Ford products. In this regard, Mr. Rost’s attorney at trial candidly explained to the jurors that the dose experienced from Ford brakes during the approximately three-month period of exposure “was a relatively low dose compared to some other exposures.” N.T., Oct. 5, 2011, at 49.4 The time differential (at least ten years of largely unprotected industrial exposure versus three months of exposure as a garage worker) alone is illustrative, even without addressing the differences between exposure to friction products,5 versus exposure to friable insulation materials and loose powder and spray in the industrial setting. See, e.g., Majority Opinion, slip op. at 4 (discussing the record as it pertains to Mr. Rost’s industrial exposures).

Dr. Frank, however, did not provide the jury with any standards, or benchmarks, or other scientifically-accepted premises for assessing the substantiality of the risk associated with Mr. Rost’s “relatively low dose” exposure to Appellee’s products in the context of Mr. Rost’s overall exposure. Rather, in response to a hypothetical question generally presenting the circumstances of Mr. Rost’s exposure to Ford products, Dr. Frank merely affirmed, in a conclusory fashion, his belief that the exposure was substantially causative. See N.T., Sept. 19, 2011 (A.M.), at 116-17.6 By way of explanation or otherwise, the expert then reverted to various reaffirmations of his other opinions on general and specific causation, i.e., that “all [exposures] contributed[.]” Id. at 121-22; see also id. at 122 (“All of the exposures that can be documented should all be considered as contributory to [Mr. Rost’s] developing his disease.”).

There is no dispute between the litigants concerning the essential proposition that cumulative dose matters relative to dose-dependent diseases such as mesothelioma.7 The dispute now concerns whether a plaintiff should be required to address this critical factor, in any sort of a meaningful fashion, as a component of the burden of proof to establish substantial-factor causation.8

Where the issue is simply risk – I fail to appreciate how the substantiality of relatively low-dose exposures can be fairly demonstrated in the absence of some sort of reasonably-developed comparative risk assessment accounting for higher-dose See, e.g., Majority Opinion, slip op. at 6 (“All exposures to asbestos contribute to the cumulative dose of asbestos, and the cumulative dose causes mesothelioma.” (emphasis added)); Brief for Appellee at 28, 43 (“[T]he total cumulative exposure collectively causes a disease.”); accord Brief for Amicus Asbestos Disease Awareness Org. at 13 (“[C]umulative dose best explains the increased risk of mesothelioma in the population and is the standard metric used in epidemiological studies that evaluate dose and risk of disease.”). See generally Joseph V. Rodricks, Reference Guide on Exposure Science, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 507 (Fed. Judicial Center 3d ed. 2011) (“Ultimately the dose incurred by populations or individuals is the measure needed by health experts to quantify the risk of toxicity.”).

In point of fact, Appellee accepts the burden to meaningfully address exposures to Ford products in the context of his cumulative dose (including his industrial exposure) to establish substantial-factor causation. See, e.g., Brief for Appellee at 42-43 (indicating that this Court’s decisions in “Gregg, Betz, and Howard maintained [a] fair balance” when “they required experts to consider both the frequency, proximity, and regularity of the plaintiff’s exposure to asbestos from the defendant’s products, and to place this exposure in context with other exposures to ensure, in the wider context of a plaintiff’s exposure history, that defendant’s contribution was a ‘substantial factor’ and not merely a factor.” (emphasis added)).

From my perspective, the only remaining question should be whether, at trial, Mr. Rost meaningfully did so via Dr. Frank’s testimony, or whether, as Ford and its amici contend, the expert’s opinion concerning substantial-factor causation merely collapsed into his other general and specific causation opinions (i.e., that all exposures are contributory). The majority, however, proceeds of its own accord to overturn the requirement to address substantial-factor causation in the context of cumulative dose, see Majority Opinion, slip op. at 22-32, thus yielding the differences concerning the prevailing legal standards that are discussed below. industrial exposures. Surely the courts would not sanction liability on the part of an individual for an automobile accident if the plaintiff did not proffer some form of evidence that would establish a fair probability that the defendant was, in fact, one of the actual drivers. Although this is not a perfect analogy, it highlights that, to the degree that we accept amorphous possibilities or probabilities with no real effort to address the overall risk exposure, the substantive law of substantial-factor causation is being applied in a highly idiosyncratic fashion in toxic tort cases.9

From my point of view – again, where the plaintiff is plainly proceeding to address causation by reference to risk – a jury that is not provided with meaningful information concerning cumulative dose simply lacks sufficient information to make a rational decision concerning substantiality. Instead, the fact finder is left to conjecture and speculation, colored by the liberal reaffirmations of the opinion concerning general and specific causation (sans the substantial-factor aspect), i.e., that all doses are contributory.10 Put in terms of the frequently referenced bucket-in-the-ocean analogy coined by former Judge Klein, see Summers v. Certainteed Corp., 886 A.2d 240, 244 (Pa. Super. 2005) (rejecting the notion that “if one took a bucket of water and dumped it into the ocean, that was a ‘substantial contributing factor’ to the size of the ocean”), I submit that a jury cannot meaningfully assess the substantiality of the impact of a bucket of water introduced into a receptacle where the jurors have been provided with no means to assess whether such receptacle is a bathtub, or a pond, or a lake, or an ocean.

Again, I recognize the difficulties facing plaintiffs in cases involving long-latency disease. See supra note 2.11 Given, however, that alteration of long-standing and central tort-law concepts such as the requirement of substantial-factor causation has the potential to have broad-scale social effects, I believe that such matters are most appropriately considered by the policy-making branch of government. See generally Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 652-54 & n.19, 57 A.3d 1232, 1245- 46 & n.19 (2012) (discussing the nature of common-law adjustments to the substantive law, the necessity for a fully developed policy analysis, and the superior position of the General Assembly to undertake such assessments).12 To the degree that the judiciary should continue to reassess the core and fundamental requirements of tort law as applied in the toxic tort arena, it is my position that the policy arguments should be (…continued) not merely attach to manufacturers but extends through the product chain to distributors and retailers as well. See, e.g., Gregg, 596 Pa. 274, 943 A.3d 216 (reflecting a suit against a local automobile parts supplier).

In a footnote, the majority opinion appears to suggest an inclination to consider eliminating the requirement of substantial-factor causation in the asbestos-litigation arena altogether in favor of a de minimis threshold for liability, based on the fact that the Legislature has cabined joint and several liability through the enactment of the Fair Share Act. See Majority Opinion, slip op. at 16 n.7. For supportive policy implications, the majority references a law review comment for the proposition that the “‘frequency, regularity and proximity’ test imposes an inappropriately high burden of proof upon many asbestos victims,” as it “distort[s] the medically proven fact that significant injury can result without ‘frequent’ or ‘regular’ exposure.” Brian M. DiMasi, Comment, The Threshold Level of Proof of Asbestos Causation: The “Frequency, Regularity and Proximity Test” and a Modified Summers v. Tice Theory of Burden-Shifting, 24 CAP. U. L. REV. 735, 750 (1995) (for the proposition).

It should be noted, however, that the burden-shifting premises underlying the author’s proposals rest, at least in part, upon his determination of culpable conduct on the part of asbestos product manufacturers. See, e.g., id. at 759 (charging the suppliers, manufacturers, and distributors of asbestos products at large with “a conspiracy to cover up the harmful effects of asbestos exposure”). Notably, given the once- widespread use of asbestos in products, there are thousands upon thousands of defendants in asbestos cases. See Alan Calnan & Byron G. Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 SW . U. L. REV. 459, 462-63 (2008) (tallying at least 8,400 entities spanning 75 of the 83 industries classified by the United States Department of Commerce), not all of whose culpability has been assessed. For example, asbestos defendants in Pennsylvania are often sued in strict liability, which, at least under the liability regime prevailing at the time the present action was litigated, foreclosed the defendants from from presenting conduct-based defenses, such as reliance on industry and government standards. See, e.g., Lewis v. Coffing Hoist Div., Duff-Norton Co., Inc., 515 Pa. 334, 343, 528 A.2d 590, 594 (1987).

I mention these points to provide one of the many layers of perspective which I believe would need to be considered before making further adjustments to substantive law in asbestos cases. made plain by the litigants, rather than proceeding as subtexts to the position that the traditional legal requirements are being adhered to straightforwardly.

Returning to what I believe to be the issue in this case, see supra note 8, I find that the record does not present an adequate basis for any meaningful assessment of Mr. Rost’s long-term industrial exposure to asbestos. Accord Brief for Amicus Asbestos Disease Awareness Org. at 34 nn.78 & 79 (reflecting the recognition by an amicus for Appellee that any assessment of Mr. Rost’s industrial exposure “is wholly speculative,” because “[t]he record contained very little testimony regarding the duration and intensity of the exposures at Met-Ed”). In any event, it was quite apparent, in terms of Dr. Frank’s opinion, that he was not concerned with even attempting to address Mr. Rost’s cumulative dose on any sort of tangible or proportionate terms. See, e.g., N.T., Sept. 19, 2011 (P.M.), at 22 (reflecting Dr. Frank’s recognition that aspects of Mr. Rost’s industrial exposure “could have been high, it could have been low” and his statement that: “I can’t speak to what his level of exposure was”). Again, another expert for Mr. Rost indicated that such an assessment would have been within a different realm of expertise. See N.T., Sept. 20, 2011 (A.M.), at 84 (reflecting the recognition, on the part of Mr. Brody, that “you would need an industrial hygienist to explain what [the] dose might be”).

For these reasons, in the absence of any sort of a meaningful assessment of proportionality, I agree with Ford’s central position that the basis for Dr. Frank’s opinion concerning substantial-factor causation is not materially distinguishable from his other opinions concerning general and specific causation, i.e., that every exposure counts.13

Reaffirmation of Betz

Consistent with the above, I would take this opportunity to reaffirm, and not cabin, the Court’s opinion in Betz. Initially, I do not agree with the majority’s position that the requirement for a plaintiff to address, in some meaningful fashion, the plaintiff’s cumulative dose was unnecessary to the decision in Betz. See Majority Opinion, slip op. at 22. Rather, the Betz Court proceeded through essentially the above analysis, recognizing that the liability theory was risk based, and concluded that the only rational way to assess substantiality in a risk calculus (particularly in lower-dose scenarios) is to compare the risk attributable to a particular defendant with the plaintiff’s overall risk exposure. See Betz, 615 Pa. at 549-54, 44 A.3d at 55-58; accord Moeller, 660 F.3d at 954 (“The question [of] whether [defendant’s] acts probably caused [plaintiff’s] mesothelioma must be viewed in the context of [plaintiff’s] other substantial exposures to asbestos[.]” (quoting Cardinal Indus. Insulation Co., Inc. v. Norris, Nos. 2004-CA- 000525-MR, et al., slip op., 2009 WL 562614, at *8 (Ky. Ct. App. Mar. 6, 2009))); Bailey (…continued) materials and their low-asbestos-content byproducts. Cf. Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950, 955 (6th Cir. 2011) (“Given that the [p]laintiff[-executrix] failed to quantify [her decedent’s] exposure to asbestos from [a defendant’s] gaskets and that the [p]laintiff concedes that [the decedent] sustained massive exposure to asbestos from [other] sources, there is simply insufficient evidence to infer that [the defendant’s] gaskets probably, as opposed to possibly, were a substantial actor of [the decedent’s] mesothelioma.”).

I certainly would not hold plaintiffs to exactitude in this setting. Indeed, there is no question that “[l]arge swaths of tort law are, to put it charitably, highly approximate.” Gold, When Certainty Dissolves Into Probability, 70 WASH. & LEE L. REV. at 326. From my point of view, however, courts must engage in some line drawing, and, in the present context, Mr. Rost’s failure to offer even rough approximations of dose either as to the approximately three-month period of exposure to friction products at the Smith Ford garage or the long-term industrial exposure should be deemed dispositive relative to Ford’s liability. v. N. Am. Refractories Co., 95 S.W.3d 868, 873 (Ky. Ct. App. 2001); Martin, 561 F.3d at 443 (“[O]ne measure of whether an action is a substantial factor is the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.”).

In Betz, it was precisely because the any-exposure theory fails to account for cumulative dose (which drives the overall risk of disease) that the Court rejected the theory as a means to establish substantial-factor causation. See, e.g., Betz, 615 Pa. at 550, 44 A.3d at 56 (“[O]ne cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.”). In this regard and otherwise, I do not view Betz as merely circling back to the frequency, regularity, and proximity test. See Majority Opinion, slip op. at 31.

Frequency, Regularity, Proximity

From my perspective, the frequency, regularity, and proximity test is best conceptualized as a rough exposure-related screening test, most useful for product identification purposes at the summary judgment stage. See generally Faigman, et al., 3 MOD. SCI. EVIDENCE §25:5 (explaining that, given the volume of defendants being hailed into court by plaintiffs in individual cases, “[c]ourts have been forced to develop a set of sufficiency tests for judging which cases should be taken from the jury”). After all, the test is undeveloped in terms of metrics or degree-based standards of any kind and, in cases involving mesothelioma, tends to devolve into the any-exposure theory.

In complex toxic tort cases such as the present one, the requirement for competent expert testimony – to connect exposure with actual disease – obviously remains a central one. Accord Hamil v. Bashline, 481 Pa. 256, 267, 392 A.2d 1280, 1285 (1978) (“[I]t is generally acknowledged that the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson[;] therefore, the law requires that expert medical testimony be employed.” (citation omitted)). The Betz Court recognized the influential nature of the testimony of expert witnesses and the potential for distortions to mislead laypersons and, therefore, decided that courts should maintain a gatekeeping role relative to expert testimony about the critical issue of substantial-factor causation in toxic tort cases. See Betz, 615 Pa. at 545, 44 A.3d at 53.

To the degree that the decision in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), suggests that no comparative risk or probability assessment is required, this Court plainly departed from that approach based on developed reasoning in Betz. See Betz, 615 Pa. at 553-54, 44 A.3d at 58. Again, I respectfully differ with the majority’s decision to overturn this and other material portions of such decision.

The Structural Error in Consolidation

On the issue of consolidation, the majority recognizes that the trial court committed a blatant, structural error by consolidating unrelated complex, toxic tort cases merely on the basis that all plaintiffs suffered from the same disease. See Majority Opinion, slip op. at 34. In other contexts, courts have recognized the difficulty facing a litigant charged with establishing prejudice resulting from structural errors. See, e.g., State v. Shearer, 334 P.3d 1078, 1083 (Wash. 2014). In my view, given the breadth of the present record – subsuming the differences among the plaintiffs and defendants and all of the attendant circumstances relative to the three materially unrelated cases involved – the high potential for prejudice is evident, even if one were to discount the emerging empirical evidence referenced by Ford. See Brief for Appellant at 42 (citing, inter alia, Kenneth S. Bordens & Irwin A. Horowitz, The Limits of Sampling and Consolidation in Mass Tort Trials: Justice Improved or Justice Altered?, 22 LAW & PSYCHOL. REV. 43, 66 (1998), for the proposition that consolidation “can alter the patterns of verdicts and awards handed down by jurors”).

If a tipping point is needed, I would find that to have been reached, inter alia, in the argument presented to the jury by an attorney representing Sears in another of the consolidated cases:

And, oh, the automotive companies, the brake companies have this grand conspiracy. Well, ladies and gentlemen, I represent Sears. We are a department store, a retailer. You didn’t hear anything about Sears funding studies about brakes.

N.T., Oct. 5, 2011, at 157 (emphasis added).

For these reasons, I believe that Ford would be entitled to a new trial, but for the failure of proof relative to substantial-factor causation. In light of such failure, I would reverse and remand for entry of judgment notwithstanding the verdict.