An en banc session of the Pennsylvania Superior Court vacated a $14.5 million asbestos verdict in a mesothelioma case and remanded the case to the Court of Common Pleas of Philadelphia for a new trial, affirming the decision of a three-judge Superior Court panel in Nelson v. Airco Welders Supply, 2014 PA Super 286. The Superior Court determined that an expert was improperly allowed to testify on an “any-exposure” theory of causation and that Nelson’s counsel improperly suggested amounts of damages to the jury.

Nelson introduced the expert testimony of pulmonologist Dr. Daniel DuPont on causation during the liability portion of the trial. According to Dr. DuPont, malignant mesothelioma “occurs with significant asbestos exposure,” which Dr. DuPont defined as the “inhalation of fibers above the negligible amount already in the environment.” Dr. DuPont was not an expert presented on the defendants’ products and could not opine whether any such products “actually released respirable asbestos fibers.” In fact, no such evidence was introduced by Nelson to establish such release. Yet, the trial court allowed Dr. DuPont to testify based on an assumption that “any visible dust released by Appellants’ products contained respirable asbestos fibers,” and allowed Dr. DuPont to testify that he concluded that “Nelson’s exposure to these products constituted a substantial, contributing factor in causing his disease.”

For the majority, Judge John Bender wrote that it was improper for the trial court to have allowed such expert testimony due to the Pennsylvania Supreme Court’s ruling in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (PA. 2012), where the any-exposure theory of causation in asbestos cases had been rejected by the Pennsylvania Supreme Court. The Superior Court pointed to the following language of the Supreme Court in Betz that the “any-exposure theory was ‘fundamentally inconsistent with both science and the governing standard for legal causation.’”

The Superior Court also found that it was improper for the trial court to have allowed Dr. DuPont’s testimony and to have denied defendants’ request (1) to preclude Dr. DuPont’s testimony and (2) for a Frye hearing. Dr. DuPont was permitted to testify that “each individual exposure” above an unquantified “non-negligible” level “contributed to the causation of the disease.”

The Superior Court observed that there was a paradox in Dr. DuPont’s causation theory because different levels of ambient exposure are deemed non-causative, yet Dr. Dupont opined that each incremental exposure to an individual product is causative, no matter how small. Judge Bender properly noted that the Supreme Court dealt with this issue in Betz, stating “plaintiff’s experts in this case, as well as in other asbestos cases, have never been able to explain the scientific and logical implausibility of agreeing to the premise that a lifetime of breathing asbestos in the ambient air will not harm a person, while on the other hand arguing that every breath of asbestos from a defendant’s product, no matter how inconsequential, will.”

The Superior Court also held that a new trial was warranted because Nelson’s counsel suggested that the jury should award a specific dollar amount “for non-economic damages” by improperly referring to a stipulation of the economic damages agreed to by the parties. Following the well-settled law in Pennsylvania that counsel may not suggest an amount for damages claimed or expected but not supported by the evidence, the Superior Court found it improper for Nelson’s counsel to write “seven” under the Survival Act and another “five” under the Wrongful Death Act and then refer to the stipulated economic damages. Since no curative instruction had been offered by the trial court, a new trial was warranted.

This decision is noteworthy as it confirmed the ruling of the Pennsylvania Supreme Court that the any-exposure theory is not allowed in Pennsylvania and clarified the requirements for expert opinions to include a quantification of the precise exposure and/or actual products involved in the case. The Court also clearly defined the scope of an “improper closing argument” with regard to noneconomic damages.