May 26, 2020

May 26, 2020

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Pennsylvania Court Strengthens Rejection of “Every Breath” Theory re: Asbestos Exposure

An en banc panel of the Pennsylvania Superior Court recently rejected a $14.5 million jury verdict because the trial court improperly admitted testimony in support of the so-called “every breath” theory of asbestos exposure.

A jury had awarded the $14.5 million verdict to Darlene Nelson, executrix of the estate of James Nelson, in 2010.  The defendants appealed the case on the grounds that the plaintiff failed to meet a standard of causation. While the case was on appeal, the Pennsylvania Supreme Court decided the landmark 2012 decision in Betz v. Pneumo Abex LLC, which rejected the theory that “every breath” of exposure to asbestos was a cause of mesothelioma.

Based on Betz, the en banc majority determined that expert testimony in the Nelson case asserting that every exposure to asbestos must be considered a cause of mesothelioma was improperly admitted.  The en banc majority ordered a new trial on the question of liability.

A dissenting opinion argued that Betz and the Nelson case differed in that the plaintiffs in Nelson could establish exposure even without the “any exposure” theory.  The dissent observed that the court’s holding in Nelson could spell the end for a considerable portion of asbestos cases involving more than a de minimis exposure.

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About this Author

Jim Mulhall, Litigation Attorney, Steptoe Johnson Law FIrm

Jim Mulhall is the leader of the firm's Products Liability Practice Group and Toxic Torts Team.  Mr. Mulhall concentrates his practice in the areas of asbestos, product liability, toxic torts, and mass tort litigation.  He is the co-chair of the International Dispute Resolution Practice Group in TerraLex.

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