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Pennsylvania Supreme Court to review every-exposure theory
Richard Pruett
December 07, 2011 9:19 AM
The Pennsylvania Supreme Court will hear the concerning ruling the appellate court issued in Betz v. Pneumo Abex, LLC, 998 A. 2d 962 (2010) and the case has been fully briefed to the Court. The trial court had excluded scientific testimony which declared that asbestos causes mesothelioma for any plaintiff with any level of occupational exposure to asbestos. The trial court found the expert’s logical leap from “total cumulative exposure to asbestos causes mesothelioma” to “any exposure to asbestos causes mesothelioma” to be inadmissible under the Frye evidentiary framework. See Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The appellate court forcefully disagreed and reversed.
In Betz, the estate of a man who worked as an auto mechanic for 44 years, sued various parties that manufactured car brake pads. The estate alleged that the asbestos emitted from the brake pads caused the decedent’s mesothelioma. The manufacturers filed a Frye motion to exclude the estate’s scientific evidence discussing the cause of the decedent’s mesothelioma. They argued that epidemiology studies demonstrate no causal link between asbestos and mesothelioma, and that epidemiology is a more reliable methodology than the estate’s “case study” methodology. According to the manufacturers, the superior reliability of epidemiology ought to preclude presentation of other methodologies. The trial court reviewed this motion under the Frye standard, which instructs that a novel scientific theory can only be introduced at trial if the methodology is generally accepted in the relevant scientific community.
During a hearing on the Frye motion, the estate’s expert admitted that he was not familiar with the decedent’s exposure to asbestos, but that nonetheless he “would offer a favorable opinion regarding causation for any plaintiff with any level of occupational exposure to asbestos.” The expert based this expansive claim on what he called a “bridge” methodology, which is essentially inductive reasoning. He opined that: (1) chrysotile fibers are carcinogenic; (2) chrysotile fibers are found in brake-pad products; (3) the product releases chrysotile; (4) people develop tumors; therefore, any exposure to asbestos results in mesothelioma. The trial court found that this conclusion does not follow from the premises. Specifically, the trial court declared it contrary to common sense and a “fallacy” to argue that because a large amount of exposure to a substance can be harmful, a small amount also can be harmful. Consequently, the trial court found the expert’s opinion to be novel and his methodology to be not generally accepted in the relevant scientific community.
The appellate court held it improper for the trial court to rely on “common sense” rather than the manufacturers’ arguments or testimony from expert witnesses. The appellate court further held that Pennsylvania precedent allows scientific experts to extrapolate, and therefore that the expert’s methodology passed the Frye test. The appellate court looked to Trach v. Fellin, 817 A.2d 1102, 1104 (Pa. Super. 2003) (en banc), in which an expert relied on evidence that a small dosage of a particular drug could be harmful and “extrapolated up” to conclude that an overdose could cause serious problems. The appellate court in Betz chose not to make a distinction between “extrapolating up” and “extrapolating down.” To extrapolate up, the expert knows a certain minimum level of the substance is harmful and presumes that more of the substance will cause more harm. To extrapolate down, the expert presumes that if a large quantity of a substance is harmful, then a small amount also will be harmful. “Extrapolating down” requires one to disregard the notion of a “threshold amount” below which exposure is not harmful and instead assume that even de minimis exposure to the substance is harmful. Using the “extrapolating down” method, the expert concluded that any exposure to asbestos causes mesothelioma, without providing any data supporting this extreme position. The appellate court ultimately found that the expert’s approach was generally accepted in the scientific community and therefore his testimony should be admitted at trial.
Defendant Ford has argued in its brief, similar to the trial court’s ruling, that Betz’s expert’s opinion wasn’t based on peer-reviewed studies, but on extrapolation from studies involving those with high-dose exposure. “In short, the expert has assumed that because higher doses of more potent forms of asbestos can be bad for you, low doses—down to just one dose—of less potent forms of asbestos are in fact bad for you…” Ford argued this is no different than claiming because 100 aspirin in a day can kill a human, taking a low dose of aspirin also can be lethal, a logic that flies in the face of reality and ignores any concept of a dose/response relationship.
In Betz, the estate of a man who worked as an auto mechanic for 44 years, sued various parties that manufactured car brake pads. The estate alleged that the asbestos emitted from the brake pads caused the decedent’s mesothelioma. The manufacturers filed a Frye motion to exclude the estate’s scientific evidence discussing the cause of the decedent’s mesothelioma. They argued that epidemiology studies demonstrate no causal link between asbestos and mesothelioma, and that epidemiology is a more reliable methodology than the estate’s “case study” methodology. According to the manufacturers, the superior reliability of epidemiology ought to preclude presentation of other methodologies. The trial court reviewed this motion under the Frye standard, which instructs that a novel scientific theory can only be introduced at trial if the methodology is generally accepted in the relevant scientific community.
During a hearing on the Frye motion, the estate’s expert admitted that he was not familiar with the decedent’s exposure to asbestos, but that nonetheless he “would offer a favorable opinion regarding causation for any plaintiff with any level of occupational exposure to asbestos.” The expert based this expansive claim on what he called a “bridge” methodology, which is essentially inductive reasoning. He opined that: (1) chrysotile fibers are carcinogenic; (2) chrysotile fibers are found in brake-pad products; (3) the product releases chrysotile; (4) people develop tumors; therefore, any exposure to asbestos results in mesothelioma. The trial court found that this conclusion does not follow from the premises. Specifically, the trial court declared it contrary to common sense and a “fallacy” to argue that because a large amount of exposure to a substance can be harmful, a small amount also can be harmful. Consequently, the trial court found the expert’s opinion to be novel and his methodology to be not generally accepted in the relevant scientific community.
The appellate court held it improper for the trial court to rely on “common sense” rather than the manufacturers’ arguments or testimony from expert witnesses. The appellate court further held that Pennsylvania precedent allows scientific experts to extrapolate, and therefore that the expert’s methodology passed the Frye test. The appellate court looked to Trach v. Fellin, 817 A.2d 1102, 1104 (Pa. Super. 2003) (en banc), in which an expert relied on evidence that a small dosage of a particular drug could be harmful and “extrapolated up” to conclude that an overdose could cause serious problems. The appellate court in Betz chose not to make a distinction between “extrapolating up” and “extrapolating down.” To extrapolate up, the expert knows a certain minimum level of the substance is harmful and presumes that more of the substance will cause more harm. To extrapolate down, the expert presumes that if a large quantity of a substance is harmful, then a small amount also will be harmful. “Extrapolating down” requires one to disregard the notion of a “threshold amount” below which exposure is not harmful and instead assume that even de minimis exposure to the substance is harmful. Using the “extrapolating down” method, the expert concluded that any exposure to asbestos causes mesothelioma, without providing any data supporting this extreme position. The appellate court ultimately found that the expert’s approach was generally accepted in the scientific community and therefore his testimony should be admitted at trial.
Defendant Ford has argued in its brief, similar to the trial court’s ruling, that Betz’s expert’s opinion wasn’t based on peer-reviewed studies, but on extrapolation from studies involving those with high-dose exposure. “In short, the expert has assumed that because higher doses of more potent forms of asbestos can be bad for you, low doses—down to just one dose—of less potent forms of asbestos are in fact bad for you…” Ford argued this is no different than claiming because 100 aspirin in a day can kill a human, taking a low dose of aspirin also can be lethal, a logic that flies in the face of reality and ignores any concept of a dose/response relationship.
An amicus brief from the National Association of Manufacturers and National Association of Mutual Insurance Companies argues that the expert’s every exposure theory “stands in sharp contrast to normal causation methodology, which would require an expert to assess the dose first and then demonstrate that the dose received was sufficient to cause disease.”
We will monitor the Court’s ruling on the matter as this could have repercussions beyond Pennsylvania. As it stands, the decision threatens to vitiate the distinction between general and specific causation in asbestos disease case. It substantially lightens the burden of proof for plaintiffs, a burden that needs no lightening. This could exacerbate the nationwide problem with defendants having to defend unsubstantiated claims.
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