PENNSYLVANIA RECORD

HARRISBURG, Pa. (Legal Newsline) - The Pennsylvania Supreme Court will soon decide if a trial court should admit the testimony of an expert testifying for the plaintiff in an asbestos case.

A year ago, the Pennsylvania Superior Court ruled that a former Allegheny County judge was wrong to disallow the testimony of pathologist John Maddox, known in asbestos litigation for his theory that any exposure to asbestos causes injury.

The case involves Charles Simikian, who worked in the automotive repair industry for 44 years before dying of mesothelioma. Allied Signal, Ford, General Motors and DaimlerChrysler were granted summary judgment by the Allegheny County judge in 2006.

Simikian alleged that inhalation of asbestos from automotive friction products like brakes and clutches contributed to his illness. Then-Allegheny County Judge Robert Colville, now on the Superior Court, arranged an evidentiary hearing during which he decided Maddox could not testify.

Maddox would have testified that it doesn't matter what amount of asbestos a person is exposed to or how long the person is exposed to it, the exposure is a contributing factor to lung disease. Colville said that was not "commonsensical."

Scientists who say they study the role scientific issues play in public affairs filed an amicus brief commending Colville's decision while calling the Superior Court's decision "considerably confused."

It "misapprehends the current state of scientific knowledge, proper scientific methodology and the application of the law to these science issues," the doctors and the Atlantic Legal Foundation say.

Among the doctors are Richard Wilson, a physics professor at Harvard University; Patricia Buffler, an epidemiology professor at the University of California; and John Henderson Duffus, the director of the Edinburgh Centre for Toxicology.

They note that Maddox testified that he was not familiar with Simikian's history of exposure asbestos but that he would "offer a favorable opinion regarding causation for any plaintiff with any level of occupational exposure to asbestos." They also say the Superior Court ignored the state Supreme Court's previous decision in Gregg v. V-J Auto Parts, which they say rejected the "each and every exposure" theory.

"Dr. Maddox's methodology is unacceptable and unaccepted in the relevant scientific community of experts in the toxicology and epidemiology of asbestos and the diseases caused by asbestos for numerous reasons," the brief says.

It lists five reasons:

-That Maddox does not consider the dose or level of exposure of an individual patient;

-Maddox does not consider the physical, chemical and toxicological differences among types of asbestos and ignored evidence that chrysotile asbestos used in automobile brakes has far less potential to cause lung disease;

-Maddox rejects a distinction between general causation and specific causation;

-Maddox's theory that every type of exposure helps cause lung disease is not generally accepted; and

-Maddox ignores results from government toxicological studies regarding chrysotile.

"In sum, neither Dr. Maddox's methods nor his conclusion satisfy either scientific or legal criteria for 'general acceptance,'" the brief says. "The trial court's understanding of the relevant scientific principles was generally correct, and the Superior Court's approach was faulty."

A similar ruling to the one made by Colville kept Maddox from testifying in a Georgia case in 2010, according to a Law.com article. The judge wrote that the "courtroom is not the place for scientific guesswork, even the inspired sort," quoting a ruling from the U.S. Court of Appeals for the Seventh Circuit.

Also, the Texas Court of Appeals ruled last year that Maddox's views on chrysotile are incorrect - "(T)he literature upon which Dr. Maddox relied is inconclusive regarding the effect of exposure to only chrysotile fibers; while studies have shown increased risks of mesothelioma in chrysotile miners and millers and in people living in chrysotile mining areas, researchers have hypothesized that this may be because the chrysotile was mixed with other types of fibers.

However, the Pennsylvania Superior Court said it was never contended that Maddox's theory was "novel" and not subject to the Frye hearing ordered by Colville.

"First, the Friction Product Defendants offered no support in their motion or accompanying reports and affidavits attacking the mechanics of Dr. Maddox's extrapolation technique that would have allowed the trial court to decide that the methodology was novel," it ruled.

"Second, the trial court demonstrated a preconceived opinion on the ultimate finding he would need to make in the Frye hearings, i.e., whether Betz (the executrix of Simikian's estate) carried the burden of proving that the methodology utilized by Dr. Maddox to support his causation conclusion was generally accepted in the relevant scientific community.

"Finally, because the trial court failed to address the adequacy of the epidemiological evidence to establish that Maddox's opinion on the causation of Simikian's mesothelioma was novel, this Court is without the benefit of factual findings by the trial court."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.