medical malpractice

Despite a plaintiffs expert’s testimony that minimal exposure to asbestos can cause mesothelioma, the state Superior Court has ruled that prohibition of “any exposure” causation theories did not apply in an asbestos case against Ford Motor Co.

In Rost v. Ford Motor on Monday, a three-judge panel denied Ford’s request for a new trial, reasoning that the state Supreme Court’s decision in Betz v. Pneumo Abex was not applicable in Rost. In denying a new trial, the court upheld a $994,800 jury award out of the Philadelphia Court of Common Pleas to plaintiff Richard Rost and his wife.

Judge Jack A. Panella wrote in the court’s opinion that Rost’s experts gave sufficient evidence showing that Rost’s exposure to Ford’s asbestos-containing brakes was a substantial factor in the development of his mesothelioma, contrary to Ford’s assertions.

“While it is true that the ‘every exposure’ theory does not, by itself, meet the standard for establishing substantial causation in a legal sense, this record is more than sufficient to establish its general scientific legitimacy,” Panella said. “As we have already determined that the rest of the certified record is sufficient to establish a triable issue on whether Richard Rost’s exposure at the garage was a substantial cause of his mesothelioma, this defect in the ‘every exposure’ theory is not sufficient to warrant reversal in this case.”

Rost filed suit in 2009 alleging that his exposure to various products from Ingersoll-Rand, General Electric, Westinghouse (all of which settled with the plaintiff) and Ford contributed to his development of mesothelioma, according to Panella.

Rost testified that he worked at a Ford dealership in 1950 for several months. According to Panella, Rost said the Ford brakes the dealership serviced in its garage contained 40 to 60 percent asbestos by weight.

Rost’s duties included cleaning the garage and removing brake linings—activities that generated dust that Rost inhaled. Panella added that the exhaust system in the garage was also very limited.

One of Rost’s experts, Dr. Arthur Frank, testified that there were case studies that showed individuals who were exposed to asbestos for only a day developed mesothelioma, Panella said. Frank also said certain animal studies showed that any exposure from one day to one month doubles the risk of developing mesothelioma.

Ford argued on appeal that Rost did not offer “competent expert opinion in demonstrating that the exposure to asbestos attributable to Ford was sufficient to qualify as a substantial factor” in causing Rost’s mesothelioma, Panella said. Ford pointed to Betz and the Supreme Court’s opinion in Gregg v. V-J Auto Parts as similar cases.

However, Panella said, “Clearly, neither of these opinions required the dismissal of the plaintiff’s cause of action merely due to the problems with the plaintiff’s expert’s opinion on causation.”

Additionally, Panella said Ford misinterpreted the Supreme Court’s ruling in Betz, explaining that the Betz decision does not require judges to reject the opinion of any expert who testifies as to the amount of asbestos to which a person can be safely exposed.

“Rather, the Betz court held that, based upon the record before it, the trial court did not abuse its discretion in determining that the expert in that case had not established the legitimacy of his legal conclusion that any exposure was a substantial cause of the plaintiff’s disease,” Panella said.

Panella said despite Frank’s every-exposure theory, when taken in context with the other evidence and testimony on regularity of exposure given by Rost’s other expert witnesses, “the record is more than sufficient to support the verdict reached by the jury.”

Ford also argued that Rost should have been made to prove that the asbestos brakes he came into contact with were defective under products liability law, Panella said.

Citing the Superior Court’s 2010 decision in the asbestos case of Moore v. Ericsson, Panella noted, “With respect to asbestos cases, what renders the product unsafe for its intended use is the presence of asbestos in the product, or the dangers from inhalation of asbestos fibers.”

As in Ericsson, Panella said, the issue in Rost was not whether a product was defective because it contained asbestos, but whether the defendant’s product contained asbestos, whether the plaintiff was exposed to it and whether that exposure caused the plaintiff’s mesothelioma.

Duane Morris attorney Robert Byer represented Ford and declined to comment. Rost’s lawyer, Robert Paul of Paul, Reich & Myers, did not return a call seeking comment.

P.J. D’Annunzio can be contacted at 215-557-2315 or Follow him on Twitter @PJDannunzioTLI.

(Copies of the 31-page opinion in Rost v. Ford Motor, PICS No. 14-0808 are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •