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Experts testifying in asbestos trials need not compare the exposure of one defendant’s products to a plaintiff’s overall exposure, the Pennsylvania Supreme Court ruled Nov. 22.

The majority reasoned that noncomparative testimony did not violate the ban against using “any exposure” causation theories.

The ruling affirmed the Superior Court’s decision, which upheld a $994,800 jury award out of the Philadelphia Court of Common Pleas.

Justice Christine L. Donohue, who wrote the majority opinion in Rost v. Ford Motor, said plaintiff Richard Rost’s expert properly testified that Rost’s exposure to the defendant’s asbestos-containing products was substantial and alone could have caused Rost to develop mesothelioma. Having the expert quantify and distinguish exposure to the defendant’s products and compare that to every other exposure Rost had would create a nearly impossible hurdle for plaintiffs that doesn’t exist in other tort cases, Donohue said.

“Multiple asbestos-containing products may be substantial factors causative of a plaintiff’s mesothelioma. It is for the finder of fact, and not the courts, to make these determinations regarding substantial causation,” Donohue said. “The dissenting justices’ concern about whether the jury could understand whether the bucket of water was placed in a bathtub or an ocean misses the mark entirely, since Dr. [Arthur] Frank testified that Rost’s exposures at Smith Motors [where Ford's asbestos-containing products were used], without more, were sufficient to cause his cancer.”

Chief Justice Thomas G. Saylor and Justice Max Baer both issued dissents saying that the majority’s ruling diverged from precedent outlined in the Supreme Court’s 2012 decision in Betz v. Pneumo Abex, in which the court declined to endorse the theory that exposure to one fiber of asbestos is tantamount to a significant exposure.

Steven Cooperstein of Brookman, Rosenberg, Brown & Sandler, who represented Rost, said the ruling makes it clear that if an expert believes exposure to a particular product is substantial enough, then that expert does not need to compare that exposure to all other potential exposures.

“It clarified an area that had been in flux in recent years,” Cooperstein said, noting that one asbestos case he is handling has been on hold in the Superior Court pending the outcome in Rost. “It will really help the bar and trial judges understand what the state of the law is right now.”

Duane Morris attorney Sharon Caffrey, who tried the case for Ford Motor Co., declined to comment.

The ruling Tuesday also dealt a blow to the Philadelphia court’s practice of mandatory consolidation of asbestos trials.

When Rost was tried in 2011 it was consolidated with two other cases pursuant to a court policy that was formally adopted as a local rule in 2012.

According to Donohue, after Ford repeatedly requested that the case be severed for trial, the court did not review the request and said, “We don’t sever cases.” Donohue said that decision was a mistake since the law only “permits (rather than requires)” consolidation and puts the issue squarely within the court’s direction.

“The record in this case does not reflect that the trial court exercised any discretion with respect to either the consolidation of the three cases at issue, or in connection with Ford’s request to sever the Rost case from” the other two, Donohue said.

However, Donohue ultimately determined that the mistake was harmless, and did not warrant a new trial.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

Experts testifying in asbestos trials need not compare the exposure of one defendant’s products to a plaintiff’s overall exposure, the Pennsylvania Supreme Court ruled Nov. 22.

The majority reasoned that noncomparative testimony did not violate the ban against using “any exposure” causation theories.

The ruling affirmed the Superior Court’s decision, which upheld a $994,800 jury award out of the Philadelphia Court of Common Pleas.

Justice Christine L. Donohue, who wrote the majority opinion in Rost v. Ford Motor , said plaintiff Richard Rost’s expert properly testified that Rost’s exposure to the defendant’s asbestos-containing products was substantial and alone could have caused Rost to develop mesothelioma. Having the expert quantify and distinguish exposure to the defendant’s products and compare that to every other exposure Rost had would create a nearly impossible hurdle for plaintiffs that doesn’t exist in other tort cases, Donohue said.

“Multiple asbestos-containing products may be substantial factors causative of a plaintiff’s mesothelioma. It is for the finder of fact, and not the courts, to make these determinations regarding substantial causation,” Donohue said. “The dissenting justices’ concern about whether the jury could understand whether the bucket of water was placed in a bathtub or an ocean misses the mark entirely, since Dr. [Arthur] Frank testified that Rost’s exposures at Smith Motors [where Ford's asbestos-containing products were used], without more, were sufficient to cause his cancer.”

Chief Justice Thomas G. Saylor and Justice Max Baer both issued dissents saying that the majority’s ruling diverged from precedent outlined in the Supreme Court’s 2012 decision in Betz v. Pneumo Abex, in which the court declined to endorse the theory that exposure to one fiber of asbestos is tantamount to a significant exposure.

Steven Cooperstein of Brookman, Rosenberg, Brown & Sandler, who represented Rost, said the ruling makes it clear that if an expert believes exposure to a particular product is substantial enough, then that expert does not need to compare that exposure to all other potential exposures.

“It clarified an area that had been in flux in recent years,” Cooperstein said, noting that one asbestos case he is handling has been on hold in the Superior Court pending the outcome in Rost. “It will really help the bar and trial judges understand what the state of the law is right now.”

Duane Morris attorney Sharon Caffrey, who tried the case for Ford Motor Co. , declined to comment.

The ruling Tuesday also dealt a blow to the Philadelphia court’s practice of mandatory consolidation of asbestos trials.

When Rost was tried in 2011 it was consolidated with two other cases pursuant to a court policy that was formally adopted as a local rule in 2012.

According to Donohue, after Ford repeatedly requested that the case be severed for trial, the court did not review the request and said, “We don’t sever cases.” Donohue said that decision was a mistake since the law only “permits (rather than requires)” consolidation and puts the issue squarely within the court’s direction.

“The record in this case does not reflect that the trial court exercised any discretion with respect to either the consolidation of the three cases at issue, or in connection with Ford’s request to sever the Rost case from” the other two, Donohue said.

However, Donohue ultimately determined that the mistake was harmless, and did not warrant a new trial.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.