PENNSYLVANIA RECORD

The Pennsylvania Supreme Court recently overturned a lower appellate

court’s ruling that allowed three asbestos mass tort claims to proceed, with the Supreme Court noting that even the plaintiffs in the consolidated cases admitted that the litigation should be tossed.

In a Sept. 26 order, the justices vacated an Oct. 28, 2011, Superior Court ruling that vacated and remanded to the Philadelphia Court of Common Pleas a trial judge’s ruling from a year prior that granted summary judgment to the defendants.

The companies being sued by John C. Ravert, and taken over by representatives of Ravert’s estate after he died, were manufacturers or distributors of asbestos-containing products.

The plaintiffs alleged that Ravert’s exposure to the defendants’ products caused the man to develop mesothelioma, which later proved fatal.

A Philadelphia Common Pleas Court judge initially awarded summary judgment to the defendants, the record shows, ruling that Ravert’s deposition testimony failed to establish that he breathed asbestos-containing dust from the specific products made or supplied by the defendants.

The trial court also found that expert affidavits submitted by plaintiffs’ counsel represented “an artificial record which attempts to dehor [Mr. Ravert’s] observation denying the existence of asbestos dust,” the Supreme Court’s per curiam order states.

On appeal, the Superior Court, which is an intermediate appellate body, reversed the trial judge’s decision granting summary judgment to the defense on the basis that asbestos dust may have been invisible to the naked eye, and that expert testimony was enough to establish a material issue of fact as to whether dust emanating from products associated with the defendants was a substantial factor in causing Ravert’s mesothelioma, according to the high court’s ruling.

Superior Court judges had also stated that a plaintiff bears a diminished burden of meeting a frequency, regularity, and proximity threshold of exposure in mesothelioma cases, since the disease may be caused by limited asbestos exposure.

The justices noted in their order that the plaintiffs now concede that the factual record failed to show “regular and frequent enough exposures during which respirable asbestos fibers were shed by [defendants’] asbestos-containing products to defeat summary judgment.”

This admission led the high court to vacate the Superior Court’s earlier order.

In its order, the Supreme Court addressed a request by defendant Monsey Products Co. to have the justices reaffirm several governing principles deriving from prior cases, such as the “each and every exposure” theory that came out of a case titled Betz v. Pneumo Abex LLC.

The 2012 case said that the theory that each and every exposure to asbestos, no matter how small, is substantially causative of disease and may not be relied upon as a basis to establish substantial-factor causation for diseases that are dose-responsive.

The high court also reaffirmed that expert witnesses in cases involving dose-responsive diseases cannot ignore or refuse to consider dose as a factor in their opinions.

The justices additionally reaffirmed that summary judgment is available to defendants in cases in which only bare de minimus exposure can be demonstrated and where the basis for the experts’ testimony regarding substantial-factor causation is the “any-exposure” theory.

Justice Debra Todd filed a separate concurring statement in which she agreed with the rest of the bench that the plaintiffs’ evidentiary concessions should lead the high court to reverse the Superior Court’s decision.

However, Todd said her colleagues “should have stopped there.”

“Instead, the Court proceeds to ‘reaffirm’ a series of unadorned holdings, simultaneously asserting they are ‘well established,’ but nonetheless re-expressing them,” Todd wrote. “I cannot join this seriatim dicta, and so concur only in the result.”

Todd wrote that the plaintiffs’ concession is the “end of the matter, as it fully supports our summary reversal, and, indeed, the Court does not explain how the expressed principles are relevant to our disposition.”

The justice also stated that the high court’s “well-meaning” attempt to “accommodate” the defendants’ request to reaffirm the various precepts “is to little avail in the end: as these statements are dicta, courts, including this one, are under no obligation to follow such dictates.”

Todd said she understands her colleagues’ concern for the defendants, given the time and expense spent on the litigation, only to have the plaintiffs issue a last-minute concession, “and one which presumably could have been issued long ago.

“Nevertheless,” Todd continued, “with all due respect to the litigants that come before this Court, such effort is not justification, in and of itself, for this Court to issue proclamations. That is particularly true when those proclamations are unnecessary to our disposition, and are unmoored from any factual context.”

In the majority per curiam order, the high court pointed out that the case was accepted and reviewed on the court’s discretionary docket, briefed and argued, “and we have never understood a party’s merits concession to foreclose the Court’s ability to explicate the ultimate disposition.

“Furthermore,” the order states, “the relevance of our discussion to the present case is plain and straightforward.”

The order says that the plaintiffs’ attorneys read and understood Betz and other cases to mean what they say, “namely, that ‘this Court will not allow Plaintiffs to prove that a plaintiff’s exposure to a particular asbestos-containing product is substantially causative of [an individual plaintiff’s particular] disease by the use of affidavits in which the expert’s methodology is founded upon a belief that every single fiber of asbestos is causative.

“The main points we have delineated above represent nothing more than a modest elaboration upon this very reasoning supplied by the [plaintiffs] themselves in support of their controlling concession,” the order states. “As such, it is difficult to appreciate what additional ‘adornment’ or ‘mooring’ is contemplated by the concurrence.”

The court wrote that in light of the “intensely protracted” nature of this case and other asbestos litigation, it has “acceded to [defendants’] reasonable request to provide whatever limited guidance we were able to supply under the circumstances.

“Indeed, as explained in detail in the unanimous decision in Betz, the any-exposure opinion is simply unsupportable both as a matter of law and science,” the high court wrote. “Our present effort to highlight this proposition while applying it in a case in which it is conceded to be dispositive, we believe, may be of some benefit to Pennsylvania litigants, in terms of crystalizing the essential burdens of proof.”

Chief Justice Ronald Castille and Justices Thomas Saylor, J. Michael Eakin, Max Baer and Seamus McCaffery joined in the per curiam order, and Todd filed her concurring statement.

In addition to Monsey Products Corp., the other defendants who had been party to the litigation were A.W. Chesterton Co., Ace Hardware Corp., Pecora Corp. and Union Carbide Corp.