Pa. SC shoots down 'any-exposure' asbestos theory

By Jessica M. Karmasek | May 24, 2012


PITTSBURGH (Legal Newsline) - The Pennsylvania Supreme Court on Wednesday rejected the "any-fiber" theory of asbestos causation.

The Court, in its 53-page ruling, sided with Allegheny County Common Pleas Court Judge Robert J. Colville.

"In the present case, Judge Colville was right to be circumspect about the scientific methodology underlying the any-exposure opinion," the state's high court said.

"Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive."

The lawsuit underlying the appeal was selected as a test case for the admissibility of expert opinion evidence to the effect that "each and every fiber" of inhaled asbestos is a substantial contributing factor to any asbestos-related disease, including mesothelioma, a type of cancer.

In February 2005, plaintiff Charles Simikian filed a product liability action against defendants Allied Signal Inc. and Ford Motor Company, and others, alleging that his exposure to asbestos-containing friction products, such as brake linings, caused his mesothelioma.

Simikian had worked for 44 years as an automotive mechanic.

After Simikian's death, his wife, Diana Betz, was substituted as the plaintiff.

The lawsuit was among a number of similar ones pending in the common pleas court.

Allied and Ford anticipated that the plaintiffs would rely on expert opinion that each and every exposure to asbestos -- no matter how small -- contributes substantially to the development of asbestos-related diseases.

This opinion often is referred to as the "any-exposure," "any-breath" or "any-fiber" theory of legal causation.

Seeking to preclude such opinion testimony, the defendants filed global motions challenging its admissibility under the litmus of general acceptance in the relevant scientific community applicable to novel scientific evidence.

They referenced a litany of techniques used for various purposes in science, arguing that none of these -- alone or in combination -- supports the any-exposure theory.

More specifically, the defendants contended that the methodology underlying the any-exposure theory is "novel" and "scientifically invalid."

Thus, they urged that the theory be deemed inadmissible at all trials of asbestos cases against them.

In its May 2006 ruling, the common pleas court -- while it did not discount that a single fiber may possibly increase the risk of developing a disease -- did not accept that an unquantified increase in risk could serve as proof that a defendant's product was a substantial cause of a plaintiff's or decedent's disease.

In an April 2010 ruling, the state's Superior Court ruled otherwise.

The majority regarded Colville's review of the mechanics of Dr. John C. Maddox's methodology, and the judge's decision not to address the epidemiological studies, as "inapt."

Maddox, a pathologist, was brought in by the plaintiffs as their primary causation expert.

The intermediate court also concluded that Colville had abused his discretion in ruling for the defendants.

According to the majority, the judge's approach violated the tenet that judges are to be guided by the scientists in assessing the reliability of a scientific method, not the reverse.

As a result, the superior court sided with the plaintiffs.

Allied and Ford appealed to the state's high court. A number of business groups and organizations, including the U.S. Chamber of Commerce, filed amicus briefs on their behalf.

Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.

Allied and Ford argued that the superior court "simply ignored" the extensive evidence, as well as the "strong logic" supporting Colville's ruling, and "improperly substituted" its judgment for his.

On appeal, they maintained that the any-exposure opinion remains a hypothesis, or assumption.

In a 6-0 ruling, the state's high court agreed.

"Colville spent considerable time listening to the attorneys' arguments but was unable to discern a coherent methodology supporting the notion that every single fiber from among, potentially, millions is substantially causative of disease. Moreover, he appreciated the considerable tension between the any-exposure opinion and the axiom (manifested in myriad ways both in science and daily human experience) that the dose makes the poison," Justice Thomas G. Saylor wrote.

"Contrary to the perspective of the superior court majority, Judge Colville was not misguided in his desire to probe how Dr. Maddox could simultaneously maintain that mesothelioma is dose-responsive and that each and every fiber among millions is substantially causative."

Saylor continued, "Given both the controversial nature of the any-exposure opinion and its potency in asbestos litigation, Judge Colville pursued the sensible course of permitting evidentiary development so that he could make an informed assessment."

The Court disagreed that the defendants could not address Maddox's methodology through the testimony of risk assessors, toxicologists and epidemiologists.

"Dr. Maddox identified himself as a community hospital pathologist 'try[ing] to present the medical literature as I understand it.' He did not indicate, however, that his opinion was based on a particular clinical diagnosis; indeed, he expressed no familiarity whatsoever with Mr. Simikian's individual circumstances," Saylor wrote.

"Instead, Dr. Maddox offered a broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber above background exposure levels. In doing so, he took it upon himself to address (and discount) the range of the scientific literature, including pertinent epidemiological studies."

The Court said Maddox's any-exposure opinion was not "couched" in terms of a methodology or standard peculiar to the field of pathology.

"Indeed, the pathologist acknowledged that the rendition of a broad and generally applicable opinion concerning specific causation was outside the range of his usual professional activities," Saylor wrote.

While the superior court was correct that Colville did not "embellish" his opinion with specific citations to the record, the judge's findings and conclusions are "amply supported," the Court said.

The Court reversed the superior court order and remanded the case "for consideration of whether there were remaining, preserved issues on appeal which were obviated by the intermediate court's approach to the common pleas court's ruling."

Justice Joan Orie Melvin -- who has since been suspended from the Court in the wake of charges that she allegedly used her staff to perform campaign work -- did not participate in the decision.

From Legal Newsline: Reach Jessica Karmasek by email at

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