PA Supreme Court to Revisit Asbestos “Any-Exposure” Theory
The Pennsylvania Supreme Court has recently agreed to hear an appeal in the Rost case in which the Superior Court upheld a jury award in an alleged asbestos exposure case in favor of the plaintiff Richard Rost and his wife. In upholding the verdict, the lower court procedurally distinguished Rost from Betz, noting that while Betz dealt with an exclusion of an expert’s testimony based on the “any-exposure” theory, Rost involves a post-trial motion for judgment as a matter of law. However, the Supreme Court reframed the issue, opting to review the “any exposure” theory head on. On November 6, 2014, the Supreme Court of Pennsylvania issued an Order granting the Appeal, which limited it, in part, to answering:
Whether—contrary to Howard, Betz, and Gregg—a plaintiff in an asbestos action may satisfy the burden of establishing substantial-factor causation by an expert’s “cumulative-exposure” theory that the expert concedes is simply an “any-exposure” theory by a different name.
Thus far, the Supreme Court has roundly rejected the “any-exposure” theory and its similar derivations in these three cases:
In Betz, the Court upheld the trial court’s rejection of “any exposure” evidence of causation, noting that “one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose-responsive.”
In Gregg, the Court noted that it did “not believe that it is 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 . . . .”
And in Howard, its most recent opinion on the matter, the Court reaffirmed “that each and every exposure, no matter how small, is substantially causative of disease may not be relied upon as a basis to establish substantial-factor causation for diseases that are dose-responsive.”
Given this precedent, it will be interesting to see how the Court frames the issue in the forthcoming Rost decision.