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concluding that, where plaintiff's counsel "provided the jury with a formula to calculate damages and an amount to plug into that formula" and requested at least $1 million for each category of non-economic damages, the trial court abused its discretion by failing to issue a curative instruction or grant a mistrial
Summary of this case from Mohnkern v. GouldOpinion
No. 865 EDA 2011.
12-23-2014
Darlene NELSON, Executrix of the Estate of James Nelson v. AIRCO WELDERS SUPPLY, Allied Signal (a/k/a Allied Corp.), American Standard, A.W. Chesterton, Inc., Basic, Inc., Bayer CropScience, Inc., (f/k/a Aventis CropScience, USA, Inc.), Achem Products, Inc., Rhone Poulenc, AG Co. and Benjamin Foster Company, Beazer East (a/k/a Koopers Co., Inc. and Kooper), Bird, Inc., BOC Group, Borg–Warner Corp., Brand Insulations, Inc., CBS Corporation (f/k/a Viacom, Inc. and Westinghouse Electric Corporation ), Certainteed Corporation, Chrysler Corp. (a/k/a AMC, Northwest Auto Rental Co. and Chrysler Service Contract Co. ), Crane Co., Demming Division, Crane Packing, ESAB Welding and Cutting Equipment, EJ Lavino & Co., Eutectic Corp., Ferro Engineering, Ford Motor Co., Foseco, Inc., Foster Wheeler Corporation, Garlock, Inc., General Electric Company, General Motors Corp., George V. Hamilton, Inc., Georgia–Pacific Corporation, Gould Pumps, Inc., Green, Tweed & Company, Inc., Hajoca Plumbing Supply Company, Harnischfeger Corp., Hedman Resources Limited (f/k/a Hedman Mines Ltd.), Hobart Brothers Co., Honeywell International, Inc., Ingersoll Rand Co., Joy Global Inc., Lincoln Electric Co., Lukens Steel Co., Mallinckrodt Group, Inc. (f/k/a International Minerals & Chemicals Corp.), Melrath Gasket, Inc., Mine Safety Appliance (MSA), Metropolitan Life Insurance Company, Nosrock Corporation, Owens–Illinois, Inc., Pep Boys (a/k/a Manny, Moe and Jack), Union Carbide Corp., Universal Refractories Division of Thiem Corporation. Appeal of Crane Co. Darlene Nelson, Executrix of the Estate of James Nelson v. Airco Welders Supply, Allied Signal (a/k/a Allied Corp.), American Standard, A.W. Chesterton, Inc., Basic, Inc., Bayer CropScience, Inc., (f/k/a Aventis CropScience, USA, Inc.), Achem Products, Inc., Rhone Poulenc, AG Co. and Benjamin Foster Company, Beazer East (a/k/a Koopers Co., Inc. and Kooper), Bird, Inc., BOC Group, Borg–Warner Corp., Brand Insulations, Inc., CBS Corporation (f/k/a Viacom, Inc. and Westinghouse Electric Corporation ), Certainteed Corporation, Chrysler Corp. (a/k/a AMC, Northwest Auto Rental Co. and Chrysler Service Contract Co. ), Crane Co., Demming Division, Crane Packing, ESAB Welding and Cutting Equipment, EJ Lavino & Co., Eutectic Corp., Ferro Engineering, Ford Motor Co., Foseco, Inc., Foster Wheeler Corporation, Garlock, Inc., General Electric Company, General Motors Corp., George V. Hamilton, Inc., Georgia–Pacific Corporation, Gould Pumps, Inc., Green, Tweed & Company, Inc., Hajoca Plumbing Supply Company, Harnischfeger Corp., Hedman Resources Limited (f/k/a Hedman Mines Ltd.), Hobart Brothers Co., Honeywell International, Inc., Ingersoll Rand Co., Joy Global Inc., Lincoln Electric Co., Lukens Steel Co., Mallinckrodt Group, Inc. (f/k/a International Minerals & Chemicals Corp.), Melrath Gasket, Inc., Mine Safety Appliance (MSA), Metropolitan Life Insurance Company, Nosrock Corporation, Owens–Illinois, Inc., Pep Boys (a/k/a Manny, Moe and Jack), Union Carbide Corp., Universal Refractories Division of Thiem Corporation. Appeal of Hobart Brothers Co. Darlene Nelson, Executrix of the Estate of James Nelson v. Airco Welders Supply, Allied Signal (a/k/a Allied Corp.), American Standard, A.W. Chesterton, Inc., Basic, Inc., Bayer CropScience, Inc., (f/k/a Aventis CropScience, USA, Inc.), Achem Products, Inc., Rhone Poulenc, AG Co. and Benjamin Foster Company, Beazer East (a/k/a Koopers Co., Inc. and Kooper), Bird, Inc., BOC Group, Borg–Warner Corp., Brand Insulations, Inc., CBS Corporation (f/k/a Viacom, Inc. and Westinghouse Electric Corporation ), Certainteed Corporation, Chrysler Corp. (a/k/a AMC, Northwest Auto Rental Co. and Chrysler Service Contract Co. ), Crane Co., Demming Division, Crane Packing, ESAB Welding and Cutting Equipment, EJ Lavino & Co., Eutectic Corp., Ferro Engineering, Ford Motor Co., Foseco, Inc., Foster Wheeler Corporation, Garlock, Inc., General Electric Company, General Motors Corp., George V. Hamilton, Inc., Georgia–Pacific Corporation, Gould Pumps, Inc., Green, Tweed & Company, Inc., Hajoca Plumbing Supply Company, Harnischfeger Corp., Hedman Resources Limited (f/k/a Hedman Mines Ltd.), Hobart Brothers Co., Honeywell International, Inc., Ingersoll Rand Co., Joy Global Inc., Lincoln Electric Co., Lukens Steel Co., Mallinckrodt Group, Inc. (f/k/a International Minerals & Chemicals Corp.), Melrath Gasket, Inc., Mine Safety Appliance (MSA), Metropolitan Life Insurance Company, Nosrock Corporation, Owens–Illinois, Inc., Pep Boys (a/k/a Manny, Moe and Jack), Union Carbide Corp., Universal Refractories Division of Thiem Corporation. Appeal of Lincoln Electric Co. Darlene Nelson, Executrix of the Estate of James Nelson, and in her own Right, Appellant v. Airco Welders Supply, Allied Signal (a/k/a Allied Corp.), American Standard, A.W. Chesterton, Inc., Basic, Inc., Bayer CropScience, Inc., (f/k/a Aventis CropScience, USA, Inc.), Achem Products, Inc., Rhone Poulenc, AG Co. and Benjamin Foster Company, Beazer East (a/k/a Koopers Co., Inc. and Kooper), Bird, Inc., BOC Group, Borg–Warner Corp., Brand Insulations, Inc., CBS Corporation (f/k/a Viacom, Inc. and Westinghouse Electric Corporation ), Certainteed Corporation, Chrysler Corp. (a/k/a AMC, Northwest Auto Rental Co. and Chrysler Service Contract Co. ), Crane Co., Demming Division, Crane Packing, ESAB Welding and Cutting Equipment, EJ Lavino & Co., Eutectic Corp., Ferro Engineering, Ford Motor Co., Foseco, Inc., Foster Wheeler Corporation, Garlock, Inc., General Electric Company, General Motors Corp., George V. Hamilton, Inc., Georgia–Pacific Corporation, Gould Pumps, Inc., Green, Tweed & Company, Inc., Hajoca Plumbing Supply Company, Harnischfeger Corp., Hedman Resources Limited (f/k/a Hedman Mines Ltd.), Hobart Brothers Co., Honeywell International, Inc., Ingersoll Rand Co., Joy Global Inc., Lincoln Electric Co., Lukens Steel Co., Mallinckrodt Group, Inc. (f/k/a International Minerals & Chemicals Corp.), Melrath Gasket, Inc., Mine Safety Appliance (MSA), Metropolitan Life Insurance Company, Nosrock Corporation, Owens–Illinois, Inc., Pep Boys (a/k/a Manny, Moe and Jack), Union Carbide Corp., Universal Refractories Division of Thiem Corporation.
Michael J. Ross, Pittsburgh, for Crane. John J. Hare, Philadelphia, and Joseph A. Del Sole, Pittsburgh, for Lincoln Electric Co. & Hobart Brothers Co. Steven J. Cooperstein, Philadelphia, for Darlene Nelson.
Michael J. Ross, Pittsburgh, for Crane.
John J. Hare, Philadelphia, and Joseph A. Del Sole, Pittsburgh, for Lincoln Electric Co. & Hobart Brothers Co.
Steven J. Cooperstein, Philadelphia, for Darlene Nelson.
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J., ALLEN, J., OTT, J., WECHT, J., STABILE, J., and JENKINS, J.
Opinion
OPINION BY BENDER, P.J.E.:
In this asbestos action, the parties appeal from the judgment entered in Philadelphia County Court of Common Pleas in favor of Darlene Nelson, both individually and as Executrix of the Estate of James Nelson, in the amount of $14.5 million. Appellants/Cross Appellees consist of Crane Co., Hobart Brothers Company, and Lincoln Electric Company (hereinafter, the latter two will be referred to as “the Welding Companies”). Darlene Nelson cross-appeals solely in her capacity as executrix. We vacate and remand for a new trial consistent with the following opinion.
James Nelson developed mesothelioma, allegedly the result of occupational exposures to various asbestos products during his career at Lukens Steel Plant in Coatesville, Pennsylvania. He worked in several capacities while employed at Lukens Steel. From 1973 until approximately the end of 1978, James Nelson worked as a pitman, machinist's helper, and laborer. Thereafter, he worked as a welder from early 1979 until he left Lukens Steel in 2006. After leaving Lukens Steel, he worked at Claymont Steel as a maintenance mechanic until he was diagnosed with mesothelioma in November 2008. James Nelson died in October 2009.
The record in this case is voluminous, consisting of thousands of pages of testimony and argument, and hundreds of pages of briefs submitted to this Court. We have reviewed it thoroughly. In light of our disposition, however, we will limit our discussion of the facts and procedure in a manner sufficient to address the issues before us. As is readily apparent from the caption of this case, Nelson initiated this suit against dozens of named defendants. However, for various reasons not relevant to this appeal, only Appellants remained at the close of trial.
James Nelson and Darlene Nelson commenced this product liability action in December 2008. Following James Nelson's death, Darlene Nelson was substituted as executrix. The Nelson case was consolidated with four other actions in which plaintiffs had contracted mesothelioma, and trial commenced in March 2010. As was common practice in Philadelphia County at the time, the Court of Common Pleas determined to proceed with a reverse bifurcated trial, over the objections of the Appellants.
Hereinafter, for convenience, we will refer to James Nelson and Darlene Nelson, individually and as executrix of her husband's estate, as “Nelson,” unless it is necessary to distinguish between them.
Our review will proceed in a more traditional manner, discussing first liability and then damages.
It was undisputed that Nelson was exposed to respirable asbestos fibers during his career at Lukens Steel. During the first several years of his employment, Nelson worked with and around significant quantities of asbestos insulation. See, e.g., Nelson Video Deposition, 03/06/2009, at 2125 (describing the general work environment in the open hearth and electric furnace areas of the steel plant and testifying that asbestos insulation dust fell constantly from thousands of feet of steam piping with such intensity that “[y]ou could hardly see in them buildings”).
Nelson also described his exposure to Appellants' products. According to Nelson, the “flux,” or outer coating, of welding rods used by him on a daily basis would release dust when he removed them from a box or otherwise manipulated them. Nelson used many different types of rods, depending on availability and the type of job performed. It was acknowledged by the Welding Companies that certain rods manufactured by Hobart and Lincoln contained encapsulated asbestos fibers until approximately 1981. Nelson testified that airborne dust was visible, that it would get on his work gloves, and that he inhaled the dust. Id. at 76–80.
While welding, Nelson also used a Crane Co. product known as “Cranite,” a sheet gasket made of chrysotile asbestos. See, e.g., Notes of Testimony, 03/17/2010, at 65–66. Nelson used Cranite for two “shielding” purposes, either to protect plant equipment from overspray during spray welding or to protect other workers from the flash of the welding arc. See Nelson Video Deposition, 03/13/2009, at 187–89, 197–98. As needed, Nelson used a utility knife to cut the Cranite sheet into a size useful for his purposes, releasing visible dust into his work environment. Id. at 198–99.
In order to establish that Appellants' products were a substantial factor in causing Nelson's mesothelioma, Nelson introduced the expert testimony of pulmonologist, Dr. Daniel DuPont. Dr. DuPont was Nelson's sole causation witness during the liability phase of the trial. According to Dr. DuPont, “[m]alignant mesothelioma occurs with significant asbestos exposure,” which he defined as “[t]he inhalation of fibers above the negligible amount already contained in the environment.” DuPont Video Deposition, 03/11/2010, at 32, 50.
Appellants filed motions seeking to preclude Dr. DuPont from testifying. According to Appellants, Dr. DuPont premised his opinions on the so-called “any-exposure” theory of causation. Appellants asserted that such testimony was devoid of scientific support and impermissible under Pennsylvania law, citing in support Gregg v. V–J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (2007). In the alternative, Appellants requested a Frye hearing, asserting Dr. DuPont's methodology was novel. See Frye v. U.S., 293 F. 1013 (D.C.Cir.1923). After substantial argument, the trial court denied Appellants' motions. See N.T., 3/1/2010, at 28–57; N.T., 3/9/2010 a.m., at 109–17; N.T., 3/9/2010 p.m., at 36–79.
Dr. DuPont acknowledged that he was not an expert in Appellants' products and could not opine whether the products actually released respirable asbestos fibers. See, e.g., id. at 23, 25, 81–82, 88–89, 121–122, and 164. No evidence was introduced by Nelson to establish such release. Nevertheless, in response to hypothetical questions crafted by counsel, in which Dr. DuPont was asked to assume that any visible dust released by Appellants' products contained respirable asbestos fibers, Dr. DuPont concluded that Nelson's exposure to these products constituted a substantial, contributing factor in causing his disease. See id. at 58–62.
In response, Appellants challenged Nelson's contention that use of their products resulted in significant exposure to asbestos. For example, among the several expert witnesses to testify on behalf of the Welding Companies, Dr. John DuPont, a professor of materials science, explained how asbestos-containing welding rods were manufactured and consumed by the welding process. See N.T., 03/15/2010, at 66–75 (describing how asbestos was encapsulated in “wet” sodium silicate and baked to produce a ceramic-like material incapable of releasing asbestos fibers), 80–83 (explaining that the temperature of the welding arc is above 10,000 degrees Fahrenheit, whereas steel melts at 2,700 degrees, sodium silicate melts at about 1,650 degrees, and chrysotile asbestos fibers are destroyed at 1,500 degrees). Prof. DuPont concluded that it was scientifically impossible for asbestos fibers to be released from an encapsulated flux and that the temperatures involved in the welding process destroyed the encapsulated fibers. Id. at 93.
John DuPont is the brother of plaintiff's expert, Daniel DuPont. We will refer to John DuPont as “Prof. DuPont.”
The Welding Companies also presented expert testimony from Dr. Mary Finn and Dr. Louis Burgher, who each testified, in part, to the absence of an epidemiological association between the use of welding sticks and mesothelioma. See N.T., 03/15/2010, at 59; N.T., 03/16/2010, at 27–31. Nelson presented no testimony disputing this evidence. See, e.g., DuPont Video Deposition, at 82, 88–89.
For its part, Crane Co. focused on the form of asbestos fibers contained in its product and the extent of Nelson's exposure to it, particularly in light of his cumulative exposure to numerous products over his career at Lukens Steel. For example, forensic pathologist Dr. Michael Graham distinguished several different types of asbestos fibers, including crocidolite, amosite, and chrysotile fibers, suggesting that the latter represented the least toxic form of asbestos. See N.T., 03/11/2010, at 92–98. Dr. Graham concluded that Nelson's disease was caused by his substantial exposure to highly toxic, asbestos insulation products and not exposure to Cranite sheet gasket. Id. at 142.
Cranite sheet gasket contained chrysotile asbestos. See supra.
In addition, Mr. Charles Blake, an industrial hygienist, testified on behalf of Crane Co. Mr. Blake testified that Cranite sheets contained compressed chrysotile fibers that could not be released merely by handling the product or using it as a free-standing shield and that Nelson's infrequent cutting of the sheets would not release asbestos fibers in quantities sufficient to create any significant risk. N.T., 03/17/2010, at 70–72. Mr. Blake similarly concluded that Nelson's mesothelioma was the result of significant exposure to amosite asbestos insulation and that his exposure to Cranite was “not at all” a significant source of exposure. N.T., 03/17/2010, at 74.
Crane Co. also sought to challenge the manner in which Nelson used its product, soliciting testimony that the intended use of Cranite sheet gaskets was to “produce gaskets for sealing [ ] fluid systems,” and not as a welding shield. N.T., 03/17/2010, at 66. Nevertheless, Crane Co.'s proffer of additional testimony to establish that Nelson's use of Cranite was improper was denied by the trial court. See N.T., 03/18/2010, 8–10; see also N.T., 03/09/2010, at 95 (denying Crane Co.'s motion in limine regarding unintended use of Cranite).
The trial court also declined Crane Co.'s motions for nonsuit and directed verdict, denied Crane Co.'s request for jury instruction, and declined their motions for JNOV or a new trial based on the intended use doctrine.
At the close of the liability phase of the trial, the jury found Appellants' products defective and that the products lacked any warning sufficient to make them safe for use, thus imposing strict liability. During closing arguments in the damages phase of the trial, Appellants objected to certain remarks made by Nelson's counsel on the ground that counsel had improperly suggested to the jury a specific dollar amount for non-economic damages. See N.T., 03/08/2010, 80–83. Appellants sought a mistrial, which was denied by the trial court. See id. at 97. Thereafter, the jury returned a verdict in favor of Nelson, awarding $1 million in stipulated, economic damages to the estate, $1.5 million to Darlene Nelson for loss of consortium, $7 million in non-economic damages pursuant to the Survival Act and $5 million in non-economic damages pursuant to the Wrongful Death Act. See 42 Pa.C.S. §§ 8301 (defining wrongful death action), 8302 (defining survival action).
All parties filed post-trial motions, which were denied by the trial court. The Welding Companies and Crane Co. appealed; Nelson cross-appealed. The parties submitted court-ordered Pa.R.A.P. 1925(b) statements, and the trial court issued a responsive opinion.
The Welding Companies present the following issues for our review, concisely restated as follows:
1. Whether the trial court erred in permitting Nelson's expert, Dr. Daniel DuPont, to testify premised upon the “any-exposure” theory of causation;
2. Whether the court erred in holding that Nelson proffered sufficient evidence to prove exposure to respirable asbestos fibers released from their products;
3. Whether the court erred in denying a mistrial or not granting a new trial where counsel for Nelson (1) improperly suggested a specific amount of non-economic damages; (2) injected alleged settlement discussions in his closing argument; (3) attributed bad motives to the Welding Companies; and (4) further injected conduct and punitive elements into a strict liability case; and
4. Whether the court erred in permitting reverse bifurcation and consolidation of four unrelated mesothelioma cases.
See Welding Companies' Substitute En Banc Brief, at 7–8.
Crane Co. presents the following issues:
1. Whether the court erred in holding that Crane Co. could be held strictly liable where Nelson was neither an intended user of its product nor did Nelson use its product in an intended manner;
2. Whether Nelson's expert witness offered legally sufficient causation testimony, in that it was premised upon an “any-exposure” theory of causation;
3. Whether Nelson's evidence was sufficient to meet the requirements of the
“frequency, regularity, and proximity” test;
4. Whether the court erred in conducting a consolidated and reverse bifurcated trial;
5. Whether the court erred in permitting counsel for Nelson to suggest a specific amount of non-economic damages or to discuss the conduct of a defendant in a claim for strict liability;
6. Whether a plaintiff may recover all of the jury-awarded damages from solvent defendants, and then recover additional amounts, based upon the same injury, from “asbestos bankruptcy trusts.”
See Crane Co. Refiled Original Brief, at 4–5.
Finally, Nelson presents the following issue:
1. Whether the court erred “in assigning a share of the judgment to a defendant who, although adjudged a joint tortfeasor by the jury, filed a bankruptcy petition before paying plaintiff any of the agreed-upon settlement amount and before the court entered a judgment.”
Nelson's Substituted Brief (filed in response to Welding Companies' appeal), at 4; see also Nelson's Substituted Brief (filed in response to Crane Co.'s appeal), at 5.
In light of our disposition, the parties' claims regarding recovery of damages are moot. We will not address them.
Appellants raise several challenges to the sufficiency of Nelson's liability evidence. We will first address Appellants' assertions regarding Nelson's expert testimony. As noted previously, Nelson introduced testimony from Dr. Daniel DuPont in order to establish that Appellants' products were a substantial cause of Nelson's mesothelioma. According to Appellants, Dr. DuPont proffered an “any-exposure” theory of causation. Appellants assert that the Pennsylvania Supreme Court has found such causation testimony inadmissible in an asbestos action, citing in support Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27 (2012), and Gregg v. V–J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (2007).
Collectively, Appellants present similar arguments. Thus, we will not distinguish between the Welding Companies and Crane Co. unless warranted.
Betz was decided during the pendency of this appeal. “[A] party whose case is pending on direct appeal is entitled to the benefit of changes in law[,] which occur[ ] before the judgment becomes final.” Passarello v. Grumbine, 29 A.3d 1158, 1164 (Pa.Super.2011) (citations omitted), affirmed, ––– Pa. ––––, 87 A.3d 285 (2014).
Appellants also cite Howard v. A.W. Chesterton Co., 621 Pa. 343, 78 A.3d 605 (2013) (per curiam ). Although Howard succinctly summarizes the law, its precedential value is questionable. See Howard, 78 A.3d at 610 (Todd, J., concurring) (suggesting that the clarification of legal principles espoused by the per curiam order was merely dictum ). Accordingly, we will not rely upon it.
In relief, Appellants seek judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The following standards apply.
In reviewing a motion for [JNOV], the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a [JNOV] should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge's appraisement of evidence is not to be based on
how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury's deliberations.
There are two bases upon which a [JNOV] can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
Estate of Hicks v. Dana Cos., LLC, 984 A.2d 943, 950–51 (Pa.Super.2009) (en banc) (quoting Fletcher–Harlee v. Szymanski, 936 A.2d 87, 93 (Pa.Super.2007), appeal denied, 598 Pa. 768, 956 A.2d 435 (2008), cert. denied, 556 U.S. 1104, 129 S.Ct. 1581, 173 L.Ed.2d 675 (2009) ).
Similarly, when reviewing the denial of a motion for a new trial, we must determine if the trial court committed an abuse of discretion or error of law that controlled the outcome of the case.
Id. “When improperly admitted testimony may have affected a verdict, the only correct remedy is the grant of a new trial.” Collins v. Cooper, 746 A.2d 615, 620 (Pa.Super.2000) (quoting Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 491 A.2d 835, 838–39 (1985) ).
The guidance recently provided by the Pennsylvania Supreme Court in Betz is clear and proves to be dispositive. In that case, the Supreme Court considered 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.”Betz, 44 A.3d at 30. The expert opinion challenged was summarized in the following manner:
Such opinion evidence is commonly referred to as the “any-exposure,” “any-breath,” or “any-fiber” theory of legal causation. Id. at 30. As the Supreme Court appears to have settled upon the “any-exposure” terminology, we adopt it for our purposes. See id. at 52–58.
Asbestos-related mesothelioma, like other diseases induced by toxic exposures, is a dose response disease: each inhalation of asbestos-containing dust from the use of products has been shown to contribute to cause asbestos-related diseases, including mesothelioma. Each of the exposures to asbestos contributes to the total dose that causes mesothelioma and, in so doing, shortens the period necessary for the mesothelioma to develop ... [E]ach exposure to asbestos is therefore a substantial contributing factor in the development of the disease that actually occurs, when it occurs.
Id. at 31 (quoting Affidavit of John C. Maddox, M.D., 8/4/2005, at 12) (emphasis supplied by the Betz Court).
The Supreme Court reviewed both the scientific support for the any-exposure theory and the legal requirements of specific causation. Following a comprehensive analysis, the Supreme Court reiterated its observations set forth in Gregg:
We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable. Other jurisdictions have considered alternate theories
of liability to alleviate the burden. Such theories are not at issue in this case, however, and we do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every “direct-evidence” case. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.
Id. at 56–57 (quoting Gregg, 943 A.2d at 226–27 ) (citations omitted). The Court concluded that the any-exposure theory was “fundamentally inconsistent with both science and the governing standard for legal causation. ” Id. at 57 (emphasis added).
In his attempt to dissuade this Court from rejecting Dr. DuPont's testimony, Nelson submits that his expert did not rely upon the any-exposure theory. Rather, according to Nelson, “Dr. DuPont found as causative only significant exposures, such as when a person inhales visible dust from an asbestos-containing product. Thus, as Dr. DuPont's testimony was not dependent on an ‘each and every breath’ analysis, [Appellants'] argument ... must be rejected out of hand.” Nelson's Substituted Brief (filed in response to Welding Companies' appeal), at 18.
The candor with which Nelson argues that his causation evidence does not rely on the any-exposure theory is questionable, as it is at odds with the position taken before the trial court. See, e.g., N.T., 3/9/2010 p.m., at 66 (joining in argument suggesting to the trial court that “the opinions having to do with each and every exposure have been allowed in courts far more exponentially more than the few cases ... where it's been excluded”); see also Nelson's Answer to the Welding Companies' Miscellaneous Motion (seeking to preclude Dr. DuPont from testifying), at 2 (“Where there is competent evidence that one or a de minimus number of asbestos fibers can cause injury, a jury may conclude the fibers were a substantial factor in causing a plaintiff's injury.”) (citation omitted in original).
Accordingly, we review Dr. DuPont's testimony. As set forth above, Dr. DuPont opined that mesothelioma occurs with “significant asbestos exposure.” DuPont Video Deposition, at 32. In this context, he acknowledged that asbestos is present in the ambient air but suggested that the impact of such exposure is negligible. Id. at 33. In response to counsel's question, asking him to define “non-negligible exposure,” Dr. DuPont replied, “Anything above ambient air in the opinion of many publications.” Id. at 34. Thereafter, Nelson solicited the following testimony from Dr. DuPont:
Q. All right. So now how do you make a determination? What these folks have to do is they have to decide, did one asbestos product cause these men to get the disease? Did two? Did three? Did five? Did ten? Did all of them? What kind of help can you provide in that area?
...
[A.] The help that I can provide is to say the following, it is accepted or believed that there are no innocent respirable asbestos fibers.
Id. at 43 (emphasis added). Dr. DuPont concluded, then, in the following manner:
Q. ... If I ask you now specifically, to a reasonable degree of medical certainty what caused ... Mr. Nelson to develop ... mesothelioma, please tell me your answer[.]
...
[A.] The inhalation of fibers above the negligible amount already contained in the environment is the type of exposure that causes this disease, and that all of the fibers involved in that above the negligible amount, should be considered substantial in their causation. And furthermore, no fibers can be considered innocent or not involved with the understanding that we've already talked about.
Id. at 49–50. And, finally;
Q. Did each individual exposure that [Nelson] had above a non-negligible level, were [sic ] [he] inhaled airborne asbestos dust constitute a substantial and contributing factor to the disease that they developed?
...
[A.] Yes.
Id. at 53.
Thus, according to Dr. DuPont, (1) mesothelioma occurs as a result of significant exposure to asbestos, defined as (2) any exposure above the negligible amount present in ambient air, and (3) such exposure constitutes a substantial factor in developing mesothelioma. In this context, we cannot ignore Dr. DuPont's admonition that no fibers are innocent and his conclusion that each individual exposure is substantially causative. In our view, this testimony is congruous with the expert opinion proffered in Betz.
Dr. DuPont's reference to the presence of asbestos in ambient air also reveals a paradox in his theory of causation. According to Dr. DuPont,
[A]sbestos is present in the ambient air, and that is the air that we breathe.
And in an urban area or like where I've practiced in an industrial area, there is a certain amount of asbestos in the air.
...
Right. And the point of what I was saying was that that is considered the ambient area. And the impact of that is felt to be negligible.
Id. at 33. Moreover, Dr. DuPont acknowledged that ambient levels of asbestos differ, depending on location:
Q. Ambient exposures can range in exposure levels, correct?
A. Correct.
Q. Okay. So if we're in [ ] rural Kansas without a factory nearby, it might be very low, but if you're in an industrial urban setting, it might be much higher, correct?
A. Correct.
Q. And we would lump all of those into the category of ambient?
A. We would[.]
Id. at 104. According to Dr. DuPont, different levels of ambient exposure are non-causative, yet Dr. DuPont finds causative each incremental exposure of an individual product, however small. Id. at 53. Dr. DuPont seemingly has no answer to this paradox, as he declined to offer testimony sufficient to establish the impact of incremental exposure posed by the products to which Nelson was exposed over his career at Lukens Steel. To the contrary, Dr. DuPont effectively conceded that he could not establish specific causation for any of the products. Consider the following testimony:
Notably, Dr. DuPont does not quantify the amount of asbestos found in different areas—a troubling omission in light of his reticence to testify to the impact of incremental exposure to asbestos contained in products in any but hypothetical terms. See id. at 58–62. We are not the first appellate court to voice this concern:
Simply stated, 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.
Betz, 44 A.3d at 56 n. 36 (quoting favorably from an appellant's brief); see also Bostic v. Georgia–Pacific Corp., 439 S.W.3d 332, 341 (Tex.2014) (“Under the any exposure theory a background dose of 20 does not cause cancer, but a defendant's dose of 2 plus a background dose of 5 does.”).
Q. All right. [ ] The jury has heard exposures to a number of different asbestos-containing products over whatever frequency the jury heard it, and they'll rely on their memory. Do you separate those exposures out for each individual product, assuming every exposure was above a non-negligible level?
A. You don't.
Q. Why?
A. You can't.
Id. at 39 (emphasis added). And the following:
Q. ... A lot of mention have [sic ] been made that these men worked at job sites where there was a lot of pipe covering around, with a lot of amphiboles in it, as well as other products that contained only chrysotile. Even in that situation, do you as a scientist, as a medical expert, get to say, “Oh, it must have been the pipe covering that did it?”
A. I cannot.
Q. Again, why?
A. There is no literature that I could go back to and quote to say that this product did it and this product didn't. And you can say that one type of asbestos has a higher risk, but we're not talking about risk here. Risk is the potential of getting a condition. There is no risk here about potentially getting a condition. The condition was there.
Id. at 51 (emphasis added).
However, these are precisely the questions an expert must answer in order to establish that Appellants' products were a substantial factor in causing Nelson's disease. See Fisher v. Sexauer, 53 A.3d 771, 775 (Pa.Super.2012) ( “[C]ausation of asbestos-related injuries is shown upon proof that the plaintiff inhaled some fibers from the products of the defendant manufacturer.”) (quoting Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 86 (Pa.Super.2002) ); see generally Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1164–65 (2010) (discussing requirement that plaintiff prove a defendant's product was a substantial factor in causing disease).
For the above reasons, we conclude that Dr. DuPont's testimony was inadmissible. Moreover, as this expert testimony was necessary to establish legal, or substantial-factor, causation, its improper admission controlled the outcome of the case. Accordingly, we vacate the judgment entered and remand for a new trial on liability.
Considering the impact Betz has on asbestos product liability law in Pennsylvania, and the fact that the Supreme Court delivered its holding during the pendency of this appeal, we decline to grant Appellants JNOV.
Appellants also assert that Nelson introduced insufficient evidence of exposure to respirable asbestos, citing in support Gregg, 943 A.2d at 226 (requiring asbestos plaintiffs to prove specific causation), and Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52–53 (1988) (requiring proof that a plaintiff “inhaled asbestos fibers shed by the specific manufacturer's product”); et al. On remand, the parties will adduce a record substantially different from the one currently before us. Accordingly, we decline to examine Appellants' assertion in detail.
Crane Co. asserts that Nelson failed to establish exposure with sufficient frequency, regularity and proximity. See Eckenrod, 544 A.2d at 53.
The Welding Companies challenge Nelson's failure to proffer expert testimony to establish exposure to respirable asbestos fibers emitted from their products. To date, the courts of this Commonwealth have not imposed a requirement to establish exposure with expert testimony. See Fisher, 53 A.3d at 775–76 (citing Junge v. Garlock, 427 Pa.Super. 592, 629 A.2d 1027, 1029 (1993) ; Lilley v. Johns–Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991) ); Donoughe v. Lincoln Elec. Co., 936 A.2d 52 (Pa.Super.2007) (rejecting arguments similar to those raised by the Welding Companies here); but see also, e.g., Grossman v. Barke, 868 A.2d 561, 567 (Pa.Super.2005) (indicating that the requirement for expert testimony “stems from judicial concern that, absent the guidance of an expert, jurors are unable to determine relationships among scientific factual circumstances”) (quoting Brannan v. Lankenau Hosp., 490 Pa. 588, 417 A.2d 196, 199–200 (1980) ); Ovitsky v. Capital City Econ. Dev. Corp., 846 A.2d 124, 126 (Pa.Super.2004) (“It is well-established that ‘expert opinion testimony is proper only where formation of an opinion on a subject requires knowledge, information, or skill beyond what is possessed by the ordinary juror.’ ”) (quoting Commonwealth v. Carter, 403 Pa.Super. 615, 589 A.2d 1133, 1134 (1991) ).
The Welding Companies specifically contend Donoughe was wrongly decided and encourage this Court en banc to overrule that panel decision. We decline to do so, except to the extent it treats favorably a plaintiff's expert causation testimony based upon the any-exposure theory. Donoughe, 936 A.2d at 57, 64. Moving forward, Donoughe shall not be cited with approval to the extent that it provides or implies that the any-exposure theory of specific causation is admissible in an asbestos action.
Separately, Crane Co. asserts that it is entitled to relief on the ground that Nelson failed to use Cranite in an intended manner. In Pennsylvania, strict liability does not extend beyond the use of a product in its intended manner.
[A] manufacturer can be deemed liable only for harm that occurs in connection with a product's intended use by an intended user; the general rule is that there is no strict liability in Pennsylvania relative to non-intended uses even where foreseeable by a manufacturer. The Court has also construed the intended use criterion strictly, holding that foreseeable misuse of a product will not support a strict liability claim.
Pa. Dep't of Gen. Servs. v. U.S. Mineral Prods. Co., 587 Pa. 236, 898 A.2d 590, 600–01 (2006) (DGS ) (citing Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1007 (2003) (plurality opinion authored by Cappy, C.J., with Castille, J., Newman, J., Saylor, J., and Eakin, J. concurring on this point)).
The doctrine is not without exception. See, e.g., DGS, 898 A.2d at 601 n. 10 (recognizing that a manufacturer may be held strictly liable for “subsequent changes to an otherwise safe product, where such alterations are reasonably foreseeable”) (citing Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186, 190 (1997) ). Moreover, there is little doubt that our product liability law engenders controversy. See, e.g., Schmidt v. Boardman Co., 608 Pa. 327, 11 A.3d 924, 940 (2011) (acknowledging “material ambiguities and inconsistencies” in Pennsylvania's strict liability law); Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 56–57 (3d Cir.2009) (reviewing cases).
Here, Crane Co. solicited testimony to establish that Cranite was intended for use as a gasket to seal fluid systems, and not as a welding shield. Crane Co. proffered further testimony in this regard, but was precluded from doing so. Moreover, at various stages of the litigation, Crane Co. argued that Nelson failed to meet its evidentiary burden to establish that Cranite was unsafe for its intended use.
The trial court rejected Crane Co.'s arguments, suggesting in its Rule 1925(a) opinion that the intended use doctrine was inapplicable to a failure to warn case. See Trial Court Opinion (TCO), 06/13/2011, at 13. We disagree.
It is well settled a dangerous product can be considered “defective” for strict liability purposes if it is distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product. Such warnings must be directed to the understanding of the intended user. The duty to adequately warn does not require the manufacturer to educate a neophyte in the principles of the product. A warning of inherent dangers is sufficient if it adequately notifies the intended user of the unobvious dangers inherent in the product.
Mackowick v. Westinghouse Elec. Corp., 525 Pa. 52, 575 A.2d 100, 102 (1990) (citations omitted); see also Phillips, 841 A.2d at 1005 (citing Mackowick favorably). Thus, the doctrine is applicable here.
The trial court further suggested that Nelson established that Crane Co. “failed to provide a warning of the health risk inherent in exposure to its product[ ] for its intended user.” TCO at 13. However, this conclusion finds no evidentiary support. Indeed, Nelson failed to introduce any evidence that he, or anyone else, was an intended user of Cranite, and the court expressly and repeatedly declined Crane Co.'s attempts to introduce evidence relevant to the intended use doctrine.
The trial court's position is untenable, but that does not end our inquiry. As noted by Nelson, this Court has stated previously that the feature that renders an asbestos product unsafe for its intended use derives from the presence of asbestos in the product, and specifically, “the dangers from inhalation of asbestos fibers that can be emitted from the product.” Estate of Hicks, 984 A.2d at 968. Responding directly to Crane Co.'s arguments, Nelson asserts that Cranite was unsafe for anyone who cut the material, as would an intended user, because this would release asbestos fibers. Nelson posits that there was sufficient evidence for the jury to find that he used Cranite in a manner consistent with its intended use and that his use of Cranite resulted in exposure to asbestos. Thus, according to Nelson, the intended use doctrine does not insulate Crane Co. from liability.
Nelson's concise argument is persuasive but asks too much from this Court. We infer from Nelson's argument that “intended use” of a product is more than simply its “purpose,” a proposition with which we agree. Intended use necessarily includes those intermediate steps required to fulfill a product's purpose. For example, Crane Co. asserts that Cranite was a fluid systems sealant. This describes the purpose of Cranite. However, Cranite was produced and distributed in a sheet form requiring user modification. It is readily apparent that its purpose could be fulfilled only after certain intermediate steps were taken by the user, including, e.g., cutting sheets of Cranite into a useful form or size, or otherwise manipulating the product by hand—precisely the manner in which Nelson suggested he used Cranite.
Thus, it may well be that Nelson presented sufficient evidence for a jury to find that he used Cranite in a manner consistent with its intended use, a finding that would negate Crane Co.'s argument. It will be for the trial court to define what precisely constitutes an intended use of Cranite. However, the jury must be afforded an opportunity to make a finding, and we will not presume which facts will be accepted by the jury. See DGS, 898 A.2d at 604 (remanding for a new trial because it was unclear whether the jury accepted facts relevant to the intended use doctrine); see also Collins v. Cooper, 746 A.2d 615, 620 (Pa.Super.2000) (noting the court's discretion in evidentiary matters but observing that where evidentiary errors “may have affected a verdict, the only correct remedy is the grant of a new trial”) (quoting Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 491 A.2d 835, 838–39 (1985) ). Therefore, on remand, Nelson may endeavor to establish that he used Cranite in a manner consistent with its intended use, as defined by the trial court, and, further, Crane Co. shall be permitted to challenge Nelson's evidence, adducing evidence of its own that Nelson's use was inappropriate.
Crane Co. also suggests that Nelson's employment as a welder is relevant to the doctrine. According to Crane Co., because Nelson was not an intended user, such as, e.g. , a plumber, strict liability must not attach. We disagree.
The “intended user” formulation is merely a derivative of the intended use doctrine. As we have previously observed, “a plaintiff must establish that the product was unsafe for its intended user.” Estate of Hicks, 984 A.2d at 977 n. 21 (quoting Phillips, 841 A.2d at 1007 ). Implicitly, though, the intended user will be sufficiently familiar with the appropriate manner in which to use a product, as well as any overt safety considerations. Thus, it is only necessary for the manufacturer to address adequately dangers inherent in a product that are “unobvious” to an intended user. Mackowick, 575 A.2d at 102.
Absent evidence suggesting that Nelson's employment as a welder was material to an unintended use of Cranite, his job title is of little consequence. On remand, the relevant questions will remain whether Nelson used Cranite in a manner consistent with its intended use; and, ultimately, whether Crane Co. provided warnings sufficient to insure the safety of those who used it accordingly.
We now turn to Appellants' claims regarding the damages phase. Collectively, Appellants also contend that improper remarks by Nelson's counsel during closing arguments in the damages phase warrant a new trial. The law in this regard is well settled.
In light of our disposition of the other issues presented, we decline to address Appellants' arguments directed toward counsel's closing argument in the liability phase of the trial.
[W]hether to declare a mistrial is yet another decision within the discretion of the trial court, whose vantage point enables it to evaluate the climate of the courtroom and the effect on the jury of closing arguments.
Clark v. Phila. Coll. Of Osteopathic Med., 693 A.2d 202, 206 (Pa.Super.1997). Though not every prejudicial comment by counsel warrants a new trial, “there are certain instances where the comments of counsel are so offensive or egregious that no curative instruction can adequately obliterate the taint.” Poust v. Hylton, 940 A.2d 380, 386 (Pa.Super.2007) (emphasis omitted) (quoting Siegal v. Stefanyszyn, 718 A.2d 1274, 1277 (Pa.Super.1998) ); see also Young v. Washington Hosp., 761 A.2d 559, 562–63 (Pa.Super.2000).
According to Appellants, Nelson's counsel urged the jury to award a specific dollar amount for non-economic damages. It is well established in Pennsylvania that a plaintiff's counsel may not suggest an amount of damages claimed or expected but not supported by the evidence.See Wilson v. Nelson, 437 Pa. 254, 258 A.2d 657, 660 (1969) (“In an action where damages are sought, any statement to the jury by counsel that calls the juror's attention to claims or amounts not supported by the evidence is error.”); Stassun v. Chapin, 324 Pa. 125, 126–27, 188 A. 111 (1936) (stating that counsel may not suggest an amount for damages “incapable of measurement by a mathematical standard”); Bullock v. Chester & Darby Telford Rd. Co., 270 Pa. 295, 113 A. 379, 380 (1921) (“The verdict in an action of tort should be a deduction drawn by the jury from the evidence, and not a mere formal adoption of calculations submitted by counsel.”); Joyce v. Smith, 269 Pa. 439, 112 A. 549, 551 (1921).
The Welding Companies contend that counsel suggested the jury award $12 million in pain and suffering. Crane Co. submits that counsel requested at least $1 million for each of twelve elements of damages. Appellants further contend that the trial court's subsequent instruction on damages provided no curative effect.
In Joyce, the plaintiff was struck and injured by the defendant's automobile. Joyce, 112 A. at 550. Defendant objected to remarks made by plaintiff's counsel during closing arguments to the jury. Id. The precise content of the remarks was unclear from the record, but the parties submitted affidavits to the court, setting forth their recollections of counsel's argument. Id. While defendant asserted that counsel had asked for “thousands of dollars for pain and suffering,” plaintiff attested that counsel said, “I shall not ask you for thousands of dollars for his injuries.” Id. The Court found both versions improper. Id. Accepting plaintiff's version as true, the court reasoned:
While it is true in the present case, no definite amount was mentioned, yet, if plaintiff's version be accepted, the language contained a suggestion to the jury that ‘thousands of dollars' were claimed for pain and suffering. This expression suggested the amount to the minds of the jury almost as clearly as if counsel had stated a definite number of thousands.
Id.
Nelson counters that there is no prohibition against arguing that a plaintiff's non-economic damages are worth substantially more than an amount of proven economic loss, echoing the analysis of the trial court below and citing in support Clark, supra. In Clark, the appellants similarly claimed that the plaintiff's counsel had improperly suggested a formula for pain and suffering during closing argument. Clark, 693 A.2d at 206. The plaintiff's counsel displayed the drawing of a triangle, crossed near the peak by a line. Id. Referencing the drawing, counsel suggested that the plaintiff's economic damages of approximately $2 million represented only the “tip of the iceberg,” and that damages for pain and suffering were what remained below the “water” line. Id. The trial court denied the appellants' motion for a mistrial, concluding that “[w]hether the tip of the iceberg argument is called rhetoric, analogy or metaphor, it was not a direct statement suggesting any specific sum or arbitrary amount,” and a panel of this Court agreed. Id. (quoting the trial court opinion).
However, based upon the record before us, Clark is distinguishable. Here, during closing argument, counsel displayed the verdict sheet to the jury. On the verdict sheet, twelve elements of non-economic damages were listed, seven under the Survival Act and another five under the Wrongful Death Act. Highlighting these elements, counsel queried:
The verdict sheet listed seven elements under the Survival Act: physical pain, mental anguish, embarrassment, humiliation, disfigurement, discomfort and inconvenience; and five under the Wrongful Death Act: loss of society, comfort, support, assistance, and companionship. See Jury Verdict Slip, 3/9/2010, at 1–2.
How [do you decide on a number?] Think of these, if you would, as different awards. Even though it's all going to go on one line, I think it will be easier for you if you think of these as different elements of damages.
N.T., 3/8/2010, at 78. In this context, counsel referred to the economic damages agreed to by the parties and, thereafter, addressed the elements of non-economic damages under the Survival Act in the following manner:
Economic loss ... We have agreed. We have stipulated ... we have agreed that the economic losses that you can accept as true equal $1 million. I repeat, $1 million, and that's where you start at. You start there.
You haven't even gotten to the physical pain yet. You haven't gotten to that anguish yet. You haven't gotten to the embarrassment and humiliation, the disfigurement, discomfort and inconvenience. Again, I need somebody to remember you must start at $1 million.
...
It's so important it bears repeating. You start at $1 million, and I believe each of those elements of damages starting at physical pain are worth infinitely more than that $1 million figure.[ ] Now, you add a million plus whatever other numbers you assign for these and you write that number there.
Referencing the stipulated economic damages.
Id. at 79–81. After discussing Darlene Nelson's claim for loss of consortium, counsel addressed the elements of non-economic damages under the Wrongful Death Act:
You now move. You may think this is somewhat similar but the measuring periods are different now. This is the loss of society, comfort, support, assistance and companionship to Darlene Nelson because her husband died.
Again, what you might say is those things are the same. I told you, this number should be significant and substantial. This should be more so. Much more than this.
Id. at 82.
Effectively, counsel (1) identified twelve individual elements of noneconomic damages; (2) suggested to the jury that it consider a different award for each element but then add the individual amounts onto a single line, and (3) in rather express language, suggested that the jury award Nelson at least $1 million for each. Thus, unlike the closing remarks in Clark, where the plaintiff's counsel metaphorically referred to economic damages as the “tip of the iceberg,” here counsel for Nelson provided the jury with a formula to calculate damages and an amount to plug into that formula. Here, counsel's express reference to the stipulated economic damages was not evocative, but declarative and algebraic. It is no coincidence, therefore, that the jury's award to Nelson comprised $7 million in non-economic damages pursuant to the Survival Act and $5 million in non-economic damages under the Wrongful Death Act. Clearly, counsel's remarks were inappropriate.
Moreover, the trial court did not address the jury concerning counsel's inappropriate remarks. It administered no curative instruction and denied Appellants' immediate request for a mistrial. We have also reviewed the court's instructions on damages, and while we discern no error in their substance, they provided no curative effect to counsel's inappropriate remarks. We deem the court's failure to cure an abuse of its discretion.We reach this decision mindful of Appellants' other complaints regarding counsel's closing arguments in the damages phase. For example, Appellants contend that counsel inserted an inappropriate reference to settlement discussions, citing in support Pennsylvania Rule of Evidence 408 (precluding evidence of conduct or statements made during settlement negotiations). Counsel stated:
Has it dawned on any of you yet that the reason we're here, and the only reason we're here, is because I can't agree with these people [on] the value of my client's life?
I can't agree with any of these people on how much money should be awarded to these families for what has been done in this case, for taking Jim Nelson's life, ... for having the tumor eat through [his] chest, sucking the life [out of him.]
We can't agree. That's why we need you.
N.T., 3/8/2010, at 48. Appellants also complain that counsel inserted a punitive element into his discussion of damages:
[A]t the end of the day, ladies and gentlemen, you represent the conscience of the community, and I'm asking you to award an amount of money that is so significant and substantial that it will do justice that everyone will know that justice is done, not just the Nelson family, ... but everybody that's in this community. Do not let [this man] die in [vain].
Id. at 83–84.
Such language is inflammatory, particularly to the extent that it attributes improper motives to Appellants. Thus, we admonish counsel to refrain from needlessly inflaming the passions of the jury. See Young, 761 A.2d at 563 (noting that “an appeal to passion or prejudice is improper and will not be countenanced” and equating a verdict obtained by such arguments to “one obtained by false testimony”); see also Schmidt, 11 A.3d at 939 (recognizing a “central premise that negligence concepts have no place in Pennsylvania's strict liability law”); Phillips, 841 A.2d at 1007 (“Strict liability focuses solely on the product ... and is divorced from the conduct of the manufacturer.”). Nevertheless, we express no further opinion regarding these latter complaints and limit our decision to grant a new trial on damages based upon counsel's improperly suggesting to the jury a formula for calculating non-economic damages.
Finally, Appellants contend that the trial court erred in consolidating this case with four other, unrelated cases, and in ordering the case to proceed in a reverse-bifurcated manner. Following an examination of its Mass Tort Program, the Philadelphia Court of Common Pleas directed the implementation of certain revisions affecting the conduct of asbestos trials in the county. See Order of Court, 02/15/2012 (implementing General Court Regulation No. 2012–01). In particular, we observe that (1) reverse bifurcation will not occur, absent agreement by all counsel involved, and (2) consolidation is now subject to several express criteria. Id. Accordingly, we deem Appellants' contention moot.
In conclusion, we vacate the judgment entered February 23, 2011, and remand for a new trial, both on liability and damages. Regarding liability, Appellants are entitled to a new trial, as Nelson introduced causation evidence premised upon the any-exposure theory. See Betz, 44 A.3d at 57. On remand, Crane Co. shall be permitted to introduce evidence relevant to the intended use doctrine. See, e.g., DGS, 898 A.2d at 600–01. Regarding damages, trial counsel shall refrain from inappropriately suggesting to the jury an amount suitable for non-economic damages. See Joyce, 112 A. at 551.Judgment vacated. Case remanded. Jurisdiction relinquished.
Judge BOWES, Judge SHOGAN, Judge ALLEN, Judge STABILE, and Judge JENKINS join this opinion.
Judge WECHT files a dissenting opinion in which President Judge EMERITUS FORD ELLIOTT joins and Judge OTT concurs in the result.
DISSENTING OPINION BY WECHT, J.:
I write principally to note my respectful dissent from the learned majority's resolution of a dispositive question regarding the admission of expert testimony, which I fear sets a precedent that will narrow further the avenues for relief available to plaintiffs who suffered often-fatal injury from extensive exposure to asbestos. I also disagree with the majority's holding that comments made in the closing argument of counsel for plaintiff Darlene Nelson (“Appellee”) require us to intrude upon the trial court's discretion in denying Appellants relief.
I begin, however, by noting one point upon which I agree with the heart of the majority's analysis but differ with its result. The majority's discussion and analysis of the intended-user constraint on strict products liability litigation is among the finest I have seen. See Maj. Op. at 159–61. The majority relates with clarity and probity the contours of a restriction upon such claims that has bedeviled Pennsylvania courts. The majority distills from existing law an excellent account of what constitutes an intended use, and I join that analysis.
That being said, I cannot join the majority's application of that doctrine in the instant case. The majority finds insufficient evidence from which the jury could have concluded that James Nelson's use of Crane's sheeting constituted an intended use or that Nelson was an intended user of that product. Furthermore, even if there was sufficient evidence to establish intended use by an intended user, the majority finds that the court's jury charge was insufficient to put that question squarely before the jury. I do not dispute the general accuracy of the majority's characterization of the record. And yet, for two reasons neither of these points of agreement permits me to join the majority in reversing the trial court's ruling on this issue.
It is hornbook law that the decision of whether or not to admit evidence lies in the trial court's discretion. The contested exclusion of evidence will not furnish grounds for relief unless the court abuses its discretion. McManamon v. Washko, 906 A.2d 1259, 1274 (Pa.Super.2006). Moreover, “[t]o constitute reversible error, a ruling on evidence must be shown not only to have been erroneous but harmful to the party complaining. An evidentiary ruling which did not affect the verdict will not provide a basis for disturbing the fact-finder's judgment.” Peled v. Meridian Bank, 710 A.2d 620, 626 (Pa.Super.1998) (internal quotation marks and modifications omitted); see Kremer v. Janet Fleisher Gallery, Inc., 320 Pa.Super. 384, 388, 467 A.2d 377 (1983) (“A new trial will not be granted where the evidence would not have affected the verdict.”).
The same proposition holds for errors in jury instructions, which will provide grounds for overturning a verdict only when they are not harmless in context. Stevens v. SEPTA, 359 Pa.Super. 123, 518 A.2d 810, 813–14 (1986). Indeed, our review of any claims seeking a new trial must be “grounded firmly in the harmless error doctrine[ ], which underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial ...; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.” Egan v. UISI Mid–Atlantic, Inc., 92 A.3d 1, 11 (Pa.Super.2014).
The majority's analysis makes clear that, to find Crane strictly liable, Appellee had the burden of establishing that Nelson was an intended user and that the sheeting manufactured by Crane and used by Nelson was unsafe for want of an adequate warning. The majority's analysis, however, compels the conclusion that Nelson was an intended user, that his interaction with the asbestos sheeting was consistent with its intended use, and that the product had no warning whatsoever. While Crane observes that the trial court prevented it from presenting evidence regarding its product's intended use, it does not specify what evidence it had to present on that point. This is problematic insofar as Crane conceded that, in its intended use as a gasket material, the sheeting would have to be cut to fit the application precisely as Nelson attested he did to make the sheeting suit his purposes.
In order to establish prejudice arising from the evidentiary ruling and the jury charge, Crane effectively must rely on its own more narrow definition of “intended user,” which the majority correctly rejects: Fact-finding, however trivial, might be warranted if establishing that the intended end use was the governing consideration. However, the majority correctly concludes that, where steps toward the intended end use are common to different end uses, the manufacturer may still be liable. Under this rubric, Crane effectively admitted that its product was used as intended, i.e., Nelson cut the sheeting to size in the same manner an intended end user would have done to facilitate the intended end use. Crane's lack of foundation for establishing prejudice on this point is underscored by its conclusory proffer: Crane offers no comment as to how its intended evidence would have been such that a jury might have ruled otherwise than it did had it been charged with the intended use doctrine as explained by the majority.
In finding Crane liable, the jury credited Nelson's testimony that he used Crane's product in the way that he attested. The jury also concluded that the sheeting contained and emitted asbestos in sufficient amounts to have caused Nelson's mesothelioma. Finally, the jury concluded that Crane had a duty to warn of hazards associated with its product and that Crane breached that duty. These findings, paired with Crane's lack of a non-conclusory assertion or proffer to the effect that Nelson's cutting of the product differed in any material way from another user's performance of the same act, lead me to conclude that there was, essentially, no dispute of material fact relative to intended use for the jury to resolve. While the presence of any doubt on these points would militate in favor of a clearer jury charge on the question, and while the trial court apparently misconstrued the interplay between failure to warn liability and the intended user principle, I believe that Crane has failed to establish that the errors complained of could have changed the outcome of the jury's determination of liability. Consequently, I dissent from the result reached by the majority, notwithstanding its excellent analysis of the applicable law.
Turning to the next issue, I respectfully dissent from the learned majority's determination that the testimony of Daniel DuPont, D.O., was subject to exclusion as a matter of law pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), based upon our Supreme Court's decision in Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27 (2012). While Betz is the most recent in a series of opinions circumscribing the range of expert testimony that may be admitted to establish substantial causation in asbestos litigation, I do not believe that it is dispositive of the case at bar. Both Betz and Gregg v. V–J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (2007), which Betz was at pains to harmonize, concerned cases in which substantial causation rose or fell solely upon the “any-exposure” theory of causation that now undisputedly is disfavored under Pennsylvania law. In those cases, plaintiffs could not produce any evidence of greater than de minimis exposure to asbestos emitted from the defendants' products. Thus, liability could be established only if expert testimony based upon the any-exposure theory was admitted and credited by the jury.
Our Supreme Court recently granted allowance of appeal in yet another related case. See Rost v. Ford Motor Co., ––– Pa. ––––, 102 A.3d 1251 (2014) (granting review of the question “[w]hether ... a plaintiff in an asbestos action may satisfy the burden of establishing substantial-factor causation by an expert's ‘cumulative-exposure’ theory that the expert concedes is simply an ‘any-exposure’ theory by a different name”). In Rost, a decision that does not bind this panel, see Commonwealth v. Morris, 958 A.2d 569, 580 n. 2 (Pa.Super.2008) (en banc ) (“[T]his Court, sitting en banc, may overrule the decision of a three-judge panel of this Court.”), this Court ruled that Betz did not control a trial court's decision not to grant a new trial, because, unlike in Betz, plaintiff's experts testified in great detail to the mechanisms by which the asbestos fibers in question could cause mesothelioma. See Rost v. Ford Motor Co., 404 EDA 2012, 2014 WL 2178528 (Pa.Super. May 19, 2014). While Rost differs from this case in certain regards, I believe that its analysis, which in many ways echoes my own, was sound.
The case before us, however, is distinguishable. James Nelson undisputedly was exposed regularly to numerous asbestos-containing products over many years.See Maj. Op. at 150–51. Moreover, he testified to frequent, regular, and proximal use of and exposure to products manufactured by Appellants that contained asbestos that could be released into the air under certain conditions. See, e.g., Notes of Testimony Nelson Deposition (“Nelson Depo.”) at 63–76, 113, 115, 117 (regarding extensive use of welding rods manufactured by Hobart and Lincoln); id. at 186–99 (regarding use of Cranite sheeting that was heavy for two months, frequent for two years, and less frequent in the years that followed). Unlike Dr. Maddox in Betz, who was unfamiliar with the plaintiff's medical history, Dr. DuPont acquainted himself with Nelson's medical records and his history of exposure to products that allegedly released respirable asbestos fibers. See Notes of Testimony DuPont deposition (“DuPont Depo.”), 8/11/2010, at 26–27, 34–37, 49, 121–27. Moreover, unlike Dr. Maddox in Betz, Dr. DuPont had a lengthy history of treating individuals with a history of occupational exposure to asbestos. Conversely, in Betz, Dr. Maddox was called to testify only as to the any-exposure theory to establish substantial causation in that case, and did not testify to the plaintiff's exposure history. In the instant case, Dr. DuPont testified that Nelson's extensive exposure over decades to respirable asbestos, albeit from myriad products, was the substantial cause of his mesothelioma.
The well-established frequency, regularity, and proximity test governs the sufficiency of proof to establish sufficient exposure to a given product to establish substantial causation.See Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa.Super.2008) (citing Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988) ). The majority does not find it necessary to discuss this test, despite its predominance in asbestos litigation and essential questions, highlighted infra, regarding its relationship with the problematic expert testimony at issue in this case.
Nelson's deposition spanned several days, but is paginated continuously across the transcripts.
Notably, Dr. DuPont, while acknowledging a degree of dose-responsiveness in mesothelioma, testified that the necessary exposure to cause mesothelioma was diminished relative to other asbestos-related diseases such as pleural thickening and asbestosis. Specifically, he indicated that “[m]alignant mesothelioma occurs with significant asbestos exposure, but it does not require the dose or duration or intensity of exposure that other diseases do.” Id. at 31–32. Dr. DuPont's reference to “significant asbestos exposure” also illustrated that his testimony regarding causation was not contingent upon the validity of an any-exposure theory of causation, notwithstanding that, speaking generally and in concert with many others, he endorsed such a view.
“With dose-responsive ailments, generally, exposure to higher levels carries with it a higher risk, and exposure to lower levels is accompanied by a reduced risk.” Betz, 44 A.3d at 53 & n. 33 (quoting Indus. Union Dep't, AFL–CIO v. Amer. Petroleum Inst., 448 U.S. 607, 632 n. 33, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) ). That asbestos-related diseases are fundamentally dose-responsive is uncontroversial. See id. at 33 (acknowledging any-exposure theory as a matter of general causation, and finding it problematic only when “extrapolated down” to establish substantial causation).
The majority's reading of Betz transforms expert testimony acknowledging the essentially uncontroversial proposition that there are “no innocent fibers” of asbestos into a totem that precludes the admission of that expert's testimony as a matter of law, no matter the quantum of case-specific evidence of the plaintiff's exposure to a given product. Maj. Op. at 154–58. That interpretation and its application to this case are problematic inasmuch as the exposure at issue in Betz, as in Gregg, was de minimis, rendering the any-exposure testimony indispensable to a finding of substantial causation. See Betz, 44 A.3d at 30 (noting the exposure at issue arose from occasional work with asbestos-containing brake components during decedent's career as a mechanic); Gregg, 943 A.2d at 217–18 (explaining that the exposure at issue was “focused on Mr. Gregg's personal automotive activities,” i.e., exposure arising from his occasional work with asbestos-containing brake components); cf. Betz, 44 A.3d at 58 (concluding that “a complete discounting of the substantiality in exposure would be fundamentally inconsistent with Pennsylvania law”). For precisely this reason, the Betz litigation was chosen as a “test case” on the question of whether any-exposure testimony could be sufficient, without more, to establish substantial causation in cases of de minimis exposure. Betz, 44 A.3d at 30 ; see id. at 55 (observing that “plaintiffs repeatedly advised [the trial court] that there was no need for them to discuss individual exposure histories, so long as they could establish exposure to at least a single fiber from each defendant's product,” and that Dr. Maddox “rendered his opinion without being prepared to discuss the circumstances of any individual's exposure”). Betz answered the question with a resounding “No.” However, the Betz question simply is not posed by this case.
Substantial exposure to many products does not equate to substantial exposure to one or more of Appellants' products. But that Dr. DuPont was unable to testify to the relative exposure to each product does not preclude submission of the case to a jury regarding the degree of exposure to Appellants' products. No Pennsylvania court has held that product identification and the nature of a plaintiff's exposure must be established by expert testimony on peril of dismissal. See Weible v. Allied Signal, Inc., 963 A.2d 521, 527 (Pa.Super.2008) (holding that “[t]he nexus between an asbestos product and plaintiff may be established by direct and circumstantial evidence,” and that testimony by someone “with knowledge relating to the plaintiff's workplace exposure to an asbestos-containing product is admissible”); Andaloro v. Armstrong World Indust., Inc., 799 A.2d 71, 86 (Pa.Super.2002) (quoting Coward v. Owens–Corning Fiberglas Corp., 729 A.2d 614, 622–23 (Pa.Super.1999) ) (“In asbestos litigation, evidence is sufficient to establish product identity where the record shows that plaintiff inhaled asbestos fibers shed by that manufacturer's specific product. The evidence ... must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product, and that his contact with it was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it.”); accord Junge v. Garlock Inc., 427 Pa.Super. 592, 629 A.2d 1027 (1993).
In Junge, this Court made the following observation:
Our case law includes no requirement that a plaintiff in an asbestos case prove through an industrial hygienist, or any other kind of opinion witness, how many asbestos fibers are contained in the dust emissions from a particular asbestos[-]containing product. Instead, in order to make out a prima facie case [sufficient to avoid summary judgment], it is well[-]established that the plaintiff must present evidence that he inhaled asbestos fibers shed by the specific manufacturer's product. A plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use.
Id. at 1029 (emphasis in original; citation omitted). Thus, despite the presence of problematic any-exposure testimony, the Gregg Court declined to rule upon “whether, in light of [the a]ppellee's evidence concerning the frequency, regularity, and proximity of Mr. Gregg's exposure to asbestos-containing products sold by Appellant, the common pleas court correctly determined that a jury issue was not present.” 943 A.2d at 227. The Betz Court showed similar restraint in not conflating the aspects of the substantial causation inquiry that must be addressed by an expert and those concerning actual exposure that may be resolved by lay evidence. See 44 A.3d at 55 n. 34.
In Junge, we held that the plaintiff had made out a prima facie case requiring submission to a jury based upon his own positive identification of the product in question, his own testimony that he worked in close proximity to the product on a regular basis and that his work produced dust, and the manufacturer's acknowledgment that the product in question contained and emitted asbestos. 629 A.2d at 1029–30. Nelson's testimony in this case is quite similar, and neither Betz nor Gregg undermines Junge's ruling in that regard. Indeed, Gregg echoed that proposition. See Gregg, 943 A.2d at 225 (noting that the frequency, regularity, and proximity factors “are to be applied ... as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficiently significant likelihood that the defendant's product caused his harm from those in which such likelihood is absent on account of only casual or minimal exposure to the defendant's product”).
In contravention of this consistently-applied rule, the majority holds that “the questions an expert must answer in order to establish that [a defendant's] products were a substantial factor in causing” the plaintiff's disease include whether exposure to a given product was above a non-negligible level and that the given product “did it,” i.e., was itself the cause of the disease, evidently to the exclusion of all other products. Maj. Op. at 158 (emphasis added). In support of this ruling, the majority cites Fisher v. Sexauer, 53 A.3d 771 (Pa.Super.2012). However, Fisher did not impose upon the plaintiff the burden of establishing by expert testimony that the plaintiff had frequent, regular, and proximal exposure to the product in question. Indeed, it echoed the general application of that test, something no party to this litigation disputes. As Junge and other cases demonstrate, and as common sense would dictate, product identification and exposure history do not necessarily require the testimony of an expert.
Stripping the question to its essentials, this much is clear: In order to sustain his claim, Nelson had to adduce evidence based upon which a jury could conclude (1) that Nelson used Appellants' products frequently, regularly, and proximally; (2) that those products released asbestos into the air; and (3) that his disease was substantially caused by asbestos. However, given the nature of multiple alleged exposures to numerous asbestos-containing products over decades, neither could his expert reasonably assert, nor could the court reasonably expect him to assert, that product A, to which Nelson frequently was exposed, caused Nelson's mesothelioma to the exclusion of product B, to which Nelson also frequently was exposed. The inference juries long have been allowed to make, the one that animates the frequency, regularity, and proximity test, is that a manufacturer of an asbestos-releasing product to which the plaintiff was exposed to the requisite degree caused the plaintiff's mesothelioma, notwithstanding that he also was exposed to other asbestos-containing products.
Nelson plainly satisfied each of these burdens, if not conclusively then sufficiently to warrant submission to a jury. First, he testified extensively to the frequency with which he used each of the asbestos-containing products manufactured by Appellants. He identified them affirmatively, anchored their use in certain time periods, and associated them with certain tasks that he performed. Second, evidence was adduced that these products contained asbestos at the time Nelson attested to using them. Third, Dr. DuPont testified that such asbestos, if inhaled in sufficient amounts, could cause mesothelioma.
Betz, Gregg, and other such cases are defined by the unavailability of the sort of evidence that we have in this case of frequent, regular, and proximal exposure to products that undisputedly contained asbestos.Cf. Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152 (2010) (Saylor, J., concurring) (“Notably, in [Gregg ], this Court recently credited the opinion announcing the judgment of the Superior Court in the present case ... to the degree that it rejected the ‘any breath’ theory as establishing a jury issue in cases in which the plaintiffs' exposure to a defendant's asbestos-containing product is de minimus [sic ].” (emphasis added)). Notably, in the cases relied upon by the trial court and Nelson, in which any-exposure causation was deemed admissible and/or sufficient to create a prima facie case requiring submission to a jury, the exposure at issue was not de minimis. See Smalls v. Pittsburgh–Corning Corp., 843 A.2d 410 (Pa.Super.2004) ; Cauthorn v. Owens Corning Fiberglas Corp., 840 A.2d 1028 (Pa.Super.2004) ; Lonasco v. A–Best Prods. Co., 757 A.2d 367(Pa.Super.2000). I discern no indication that Betz had the effect of abrogating, or was intended to abrogate, these cases' precedential value. Indeed, the Betz Court cited but did not purport to diminish the effect of these decisions. See 44 A.3d at 50 n. 26 ; cf. Gregg, 943 A.2d at 221 (discussing Judge Bowes' citation of Lonasco in her dissent from the underlying direct appeal). I find no case law that requires exclusion solely because an expert who testifies to causation in connection with a plaintiff's extensive occupational exposure to asbestos also acknowledges a defining attribute of dose-responsive toxicity: That, independently of substantial causation, every fiber contributes to the accretion of harmful fibers that, in sufficient quantities, may cause the affliction(s) in question.
The Gregg Court approvingly quoted the trial court's opinion in that case to the following effect:
[T]here is no requirement that plaintiff must prove how many asbestos fibers one must inhale necessary to a determination of causation; however, evidence of exposure must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product and that his contact with same was of such nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it.
Gregg, 943 A.2d at 220. This quotation makes very little sense if the mere mention of the any-exposure proposition, which is associated with any dose-responsive illness, compromises the probative value of all of the testimony of the expert who mentioned it.
In my view, even a modest extension of the Betz holding beyond cases involving only de minimis exposure threatens to eclipse a considerable proportion of asbestos litigation, given the challenges confronting plaintiffs in establishing substantial causation decades after the allegedly causative exposure. See Gregg, 943 A.2d at 226 (acknowledging “the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable”). While it is difficult to balance Pennsylvania's well-settled law regarding the establishment of substantial causation with the need to ensure the existence of a meaningful remedy for grave injury, the majority's application of Betz to this case tips that balance heavily in favor of defendants.
Our legislature has had decades to impose a bright-line rule precluding all testimony that contains any reference to an any-exposure theory of causation, but it has declined to do so. Nor has our Supreme Court imposed such a bright-line rule, despite its opportunity to do so in Gregg, Betz, and other asbestos cases. Each body, in its own sphere, is more qualified than this Court to embark upon change of such sweeping consequence.
Even if I allow that this is a case closer to Betz than I believe it to be, I encounter a second problem with the majority's ruling. It is beyond cavil that a trial court's decisions regarding the admissibility of evidence, including expert testimony, lie in that court's discretion. We will overturn such decisions only when that discretion is abused. See Grady v. Frito–Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (2003). “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires ... manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Id. Notably, in both Gregg and Betz, our Supreme Court affirmed trial court decisions to exclude expert testimony; it did not determine that either court abused its discretion, and the Court did not reverse upon that basis.This case arises in the opposite context. Here, the trial court, following a detailed and careful inquiry into the qualifications and opinions of Dr. DuPont, determined that he should be permitted to testify. Pennsylvania courts long have characterized our standard for the admissibility of expert testimony as “liberal.” See, e.g., Flanagan v. Labe, 446 Pa.Super. 107, 666 A.2d 333, 335 (1995) (“Pursuant to Pennsylvania's liberal standard, witnesses may testify as experts if they possess knowledge outside the ordinary reach and offer testimony that could assist the trier of fact.”). Unlike in Betz, where our Supreme Court focused upon Dr. Maddox's selective reliance upon epidemiological evidence, his avoidance of further development of the topic, and his lack of qualifications regarding same in his career as a pathologist, in the instant case Dr. DuPont testified to his extensive experience as a clinical pulmonologist in an industrial area treating patients with asbestos-related ailments, his responsibility as such to remain familiar with the medical literature, his reliance upon peer-reviewed epidemiological materials as well as authoritative texts, and other relevant matters scrupulously avoided by Dr. Maddox in Betz. See DuPont Depo. at 28–29, 31–33. For all of the foregoing reasons, I dissent from the trial court's substantial expansion of Betz and its finding that, under its interpretation of that case, the trial court abused its discretion.
The majority stops once it determines that the trial court erred in admitting Dr. DuPont's testimony. Because I disagree with that ruling, I also would take up Appellants' related challenge to the sufficiency of Dr. DuPont's testimony to establish substantial causation. Nelson's testimony standing alone established a basis upon which a jury, crediting Nelson's testimony, could conclude that he was frequently, regularly, and proximately exposed to asbestos released from products manufactured by one or more of the Appellants during many years of Nelson's employment. Pennsylvania case law establishes that questions of proximate causation should be submitted to a jury. Summers, 997 A.2d at 1163–64. Finding, as I would, that Dr. DuPont's testimony was admissible, I would hold that the trial court did not abuse its discretion in submitting the case to the jury.
Finally, I also disagree with the majority's determination that certain comments made by Appellee's counsel's during closing argument so prejudiced the jury that a new trial was required. “[I]t is well-settled that whether to declare a mistrial is [a] decision within the discretion of the trial court, whose vantage point enables it to evaluate the climate of the courtroom and the effect on the jury of closing arguments.” Clark v. Phila. Coll. of Osteopathic Med., 693 A.2d 202, 206 (Pa.Super.1997) ; see Narciso v. Mauch Chunk Twp., 369 Pa. 549, 87 A.2d 233, 234–35 (1952) (noting that the determination of whether the trial court abused its discretion in denying a mistrial for an allegedly improper comment in a closing argument “is determined by an examination of the remark made, the circumstances under which it was made and the precautions taken by court and counsel to remove its prejudicial effects”).
In this case, the issue is the propriety of Appellee's counsel's comments to the general effect that the noneconomic damages in this case should be assessed at a level greater than the $1 million award for economic damages to which the parties stipulated. It certainly is true that attorneys may not propose that a jury award an amount certain in non-economic damages. See, e.g., Joyce v. Smith, 269 Pa. 439, 112 A. 549, 551 (1921) ; Maj. Op. at 161–62 (citing cases). However, despite this limitation, counsel retains a great deal of latitude to argue his or her case zealously and dramatically, latitude that courts do not intrude upon lightly. Millen v. Miller, 224 Pa.Super. 569, 308 A.2d 115, 117 (1973).Appellants and the majority analogize this case to Joyce, in which counsel specifically urged a jury to award an amount certain in damages. See Maj. Op. at 162. I cannot subscribe to that analogy. To the contrary, as did the trial court, I find this case to be on all fours with our opinion in Clark, which the majority labors to distinguish. See Maj. Op. at 162–63. There, as here, the attorney in question referred to economic damages—there, symbolically, in the form of a horizontally transected triangle; in this case, by reference to the $1 million in economic damages stipulated by the parties. Clark, 693 A.2d at 206. There, as here, the attorney in question suggested that the jury should award noneconomic damages well in excess of economic damages—there, symbolically, by suggesting that noneconomic damages should be akin to the wider portion of the triangle, with economic damages being only “the tip of the iceberg,” id.; in this case, by counsel's mathematically hyperbolic comments that he believed non-economic damages were worth “infinitely more” than the stipulated economic damages. See Maj. Mem. at 35 (quoting Notes of Testimony (“N.T.”), 3/8/2010, at 78).
In a non-trivial mischaracterization, the majority treats infinity as though it were a number, both implicitly—in its reliance on Joyce and similar cases—as well as explicitly. See Maj. Op. at 163 (“[C]ounsel for Nelson provided the jury with a formula to calculate damages and an amount to plug into that formula. Here, counsel's express reference to the stipulated economic damages was not evocative, but declarative and algebraic.”). However, an injunction to assess damages by “infinity's” measure is no more numerical or “formulaic” than the suggestive use of geometry at issue in Clark; infinity is no more a number than a triangle is. Cf. David Foster Wallace, Everything and More: A Compact History of Infinity § 1 (Atlas Books Reissue ed. 2010) (“Beware of thinking that 8 is just an incredibly, unbelievably enormous number.... Take some ... transcomputational number[, i.e., 10 x], imagine it's a grain of sand, conceive of a whole beach, or desert, or planet, or even galaxy filled with such sand, and not only will the corresponding 10 xnumber be < 8, but its square will be < 8, ... and so on; and actually it's not even right to compare 10 xand 8 arithmetically in this way because they're not even in the same mathematical area code—even, as it were, the same dimension.”); id. (quoting Galileo, specific source omitted) (“The fundamental flaw of all so-called proofs of the impossibility of infinite numbers is that they attribute to these numbers all of the properties of finite numbers, whereas the infinite numbers ... constitute an entirely new type of number....”).
At the sidebar prompted by Appellants' objections, Appellee's counsel admitted that he was precluded from proposing a specific award of damages as to any category of non-economic damages. See N.T., 3/8/2010, at 84–87 (Appellee's counsel: “The law provides that I am not allowed to suggest a monetary amount.”). Moreover, counsel for Crane acknowledged that Appellee's counsel “absolutely” could “say to [the jury that] you can start at a million dollars [, the stipulated economic damages,] and this other stuff is even more valuable than that. ” Id. at 86 (emphasis added). As well, counsel for Appellee made quite clear to the jury that calculating a just award of non-economic damages was the jury's task and no one else's. See id. at 78 (“It's up to you folks. Use your common sense. You have a sense of what these things are worth.... I'm not permitted by law to give you a number. I can't tell you a damage award, that I would be happy with and say I think that's great, I think that's fair.... It's up to you folks to do that.”).
The majority conflates counsel's references to the stipulated economic damages with the complained-of comments:
Effectively, counsel (1) identified twelve individual elements of non-economic damages; (2) suggested to the jury that it consider a different award for each element but then add the individual
amounts onto a single line; and (3) in rather express language, suggested that the jury award Nelson at least $1M for each.
Maj. Op. at 163. However, counsel's comments read in context do not so enjoin the jury, and certainly not “in rather express language.” It is at least equally reasonable to understand counsel's comments as conforming to the rule as interpreted in Clark. Counsel's complained-of argument culminated in his suggestion to the jury that it “start at $1 million, and I believe that each of those elements of damages starting at physical pain are worth infinitely more than that $1 million figure. Now you add a million plus whatever other numbers you assign for these.” Maj. Mem. at 35 (quoting N.T., 3/8/2010, at 80–81). It is not at all clear that counsel directed the jury to start at $1 million as to each of twelve factors; it is at least equally reasonable to interpret the last sentence as counsel returning to that $1 million figure one last time to remind the jury that it had no discretion to assess fewer than $1 million in stipulated economic damages, and encourage them to award “whatever other numbers you assign” for the twelve categories of non-economic damages. See N.T., 3/8/2010, at 80 (“I need somebody to remember you must start at $1 million.”).
In urging noneconomic damages in excess of the economic damages, counsel did nothing more objectionable than what counsel did in Clark, albeit in words rather than a pictorial representation. In Clark, we held that the trial court did not abuse its discretion in declining to award a mistrial. Here, as in Clark, we are bound to defer to the trial court's assessment—based upon the context of a live and dynamic courtroom rather than our distanced review of a cold record—that this at-most implied attempt to urge the jury to award a specific value for non-economic damages did not fall afoul of the Joyce rule. The majority acknowledges that “it discern[s] no error in the[ ] substance” of the trial court's “instructions on damages.” Maj. Op. at 163. Moreover, “[i]t is well-established that juries are presumed to follow the trial court's instructions.” Commonwealth v. Jones, 811 A.2d 1057, 1063 (Pa.Super.2002). Even if a majority of this panel might have ruled otherwise in a trial setting, it is not this Court's province to yield to that inclination on appellate review.
The majority observes that the trial court issued no curative instruction. Naturally, my analysis would not require such an instruction. However, the majority concedes that the trial court's instructions on damages betray “no error in their substance,” Maj. Op. at 163, and provides no analysis as to why the failure to issue a curative instruction furnishes a separate basis for relief under the circumstances of this case.
After a professional career that involved pervasive and persistent exposure to respirable asbestos from a wide variety of products, Nelson began to suffer from diminished lung function at the age of fifty-three. He was diagnosed a month later with mesothelioma and died approximately one year later. Nelson's final year of life was fraught with suffering: He endured the insertion of a tube to drain fluid from his chest; the extreme pain of a thoracotomy ; the severe side effects of three different courses of chemotherapy; gastrointestinal bleeding that could not be treated due to his weakness and ultimately required blood transfusions ; and, near the end of his life, a fall that broke his ribs, which were weakened by tumors, the consequences of which prevented Nelson from seeking the radiation treatment that he hoped would prolong his life. In light of Nelson's relative youth at the time of his death, and the degree of his suffering in the last year of his life, it is not at all surprising that Appellee's counsel implored the jury to award substantial non-economic damages, and the particulars of his manner of doing so in this case did not so patently exceed the bounds of permissible argument as to warrant this Court's interference with the trial court's discretion. Consequently, on this issue, too, I dissent.
This discussion of Nelson's clinical history is derived from the trial court's opinion. Trial Court Opinion, 6/13/2011, at 8–11.
The majority also acknowledges “Appellants' other complaints regarding counsel's closing arguments in the damages phase,” including oblique references to settlement discussions and suggestions of punitive considerations in the assessment of damages. Maj. Op. at 163. While I agree with the majority that such language may be “inflammatory, particularly to the extent that it attributes improper motives to Appellants,” id., these brief comments, which only indirectly touched upon problematic matters, would not sway my analysis.
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Our law speaks clearly of the considerable deference we must afford to trial courts in their evidentiary decisions and their decisions regarding whether and when to grant a mistrial or JNOV. Our law also reflects our faith that a jury, properly charged, can reconcile and measure complex factual circumstances against the applicable law governing causation and damages. Given our absence from the courtroom, where much information that cannot be recorded by a reporter is available to the judge, I believe that it is error to reverse the trial court's exercises of discretion in connection with Dr. DuPont's testimony and Appellee's closing argument. It is precisely to acknowledge close cases that our standard of review calls for deference.
President Judge EMERITUS FORD ELLIOTT joins the dissenting opinion.
Judge OTT concurs in the result.