Ford’s Denial of Nonsuit Affirmed; Improper Consolidation of Meso Cases Did Not Warrant New Trial

Ford’s Denial of Nonsuit Affirmed; Improper Consolidation of Meso Cases Did Not Warrant New TrialSupreme Court of Pennsylvania, Eastern District, November 22, 2016

Richard and Joyce Rost filed this action against multiple defendants, including Ford Motor Company, alleging that Mr. Rost developed mesothelioma as a result of his work around asbestos products. The plaintiff worked at Smith Motors as “gofer” assisting mechanics with the removal of brake shoe linings 3-5 times per week after graduating from high school. Further, the plaintiff contended that 85-95 percent of the vehicles were manufactured by Ford. The parties stipulated that Ford vehicles utilized asbestos brakes and clutches for its vehicles made from 1945-1950. Mr. Rost recalled being exposed to brakes, clutches, and gaskets during engines repairs and stated that he had to clean up the waste with a push broom. According to the plaintiff, the mechanics used a compressor to blow out dust from the brake drums, which the plaintiff breathed. He also recalled being exposed to asbestos while working at Metropolitan Edison from 1960-1964 as a janitor, coal handler, boiler attendant, pump operator, instrument operator, and chief of instrumentation and controls.

Prior to trial, the court had ruled in accordance with the Gregg case, that the plaintiff’s experts were barred from testifying that “each and every” breath meant that defendant’s product was the substantial cause of the plaintiff’s mesothelioma. The court also consolidated other cases with the Rost case. The plaintiff called Dr. Brody at trial. He testified generally about mesothelioma and exposure to asbestos. He also stated that amphibole fibers are more potent than chrysotile fibers. Dr. Brody gave extensive testimony about how asbestos disrupts mesothelial cells and cell division and destruction. The plaintiff also called Dr. Frank as an expert in “asbestos related diseases and their causes, the ability of asbestos, including chrysotile asbestos, to cause mesothelioma in humans, the risk imposed from inhalation of chrysotile asbestos in brakes, the epidemiology of asbestos disease, asbestos industrial hygiene, asbestos toxicology and public health.” At trial, Dr. Frank told the jury that mesothelioma is a dose response disease and that “small amounts carry small risks; larger amounts cause larger risks.” “All exposures to asbestos contribute to the cumulative dose of asbestos, and the cumulative dose causes mesothelioma.” When asked if all the exposures that he experienced to asbestos that can be demonstrated the causes of his mesothelioma, Dr. Frank stated “all of the exposures that can be documented should be considered as contributing to his developing the disease.”

Ford then moved for nonsuit arguing that that Dr. Frank had essentially offered “each and every” exposure to the jury despite the trial court’s prohibition of that evidence. The motion was denied and the jury returned a plaintiff verdict against Ford and three other defendants. Ford filed for post-trial motions and raised two separate issues on appeal. First, Ford took the position that the plaintiff violated the court’s order prohibiting “each and every” exposure evidence and that substantial factor is a question in light of other exposures for purposes of causation. Second, Ford argued that the consolidation of other cases with the Rost case was improper. As for Ford’s first argument, the court disagreed and stated that Ford misconstrued the court’s decision in the Betz case. That case dealt with a Frye Reed hearing with respect to the “each and every” exposure theory. Additionally, multiple exposures were not an issue to be decided by the court in Betz. Ford also took the position that a “comparative assessment” is applied for purposes of causal attrition. However, the court noted that frequency, proximity and regularity are to be used in “an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficiently likelihood that the defendant’s products caused his harm.” Moreover, the court noted that it has never required a plaintiff to exclude others possible causes of his injury and that multiple substantial causes may “combine and cooperate” to arrive at the injury. According to the court, the jury found that four products were substantial causes of the disease.

As for the second issue on appeal, the court agreed with Ford’s objection to the trial court to consolidate the Rost cases with two other mesothelioma cases. Specifically, the local tradition of mandatory consolidation was not in step with the statewide approach, which requires a discretionary analysis from the court according to Ford. Also, it took the position that its due process rights were violated by the court not severing the case. The court found that the trial court had stated that “we don’t sever cases” after Ford’s fifth request. Rule 213 (a) permits consolidation only they involve “a common question of law or fact or which arise from the same transaction.” The court’s analysis then turned on whether Ford is entitled to relief in the form of a new trial. Ford argued that it was “stripped” of the ability to cross examine Dr. James Millette in a different case. Second, Ford contended that all three cases required different defense theories. For example, it was trying to argue that Rost’s exposure to boilers are Metropolitan Edison were substantial while Foster Wheeler, in another case, argued differently. Third, Ford stated that counsel for Sears attempted to distinguish itself as a retailer and not as a manufacturer which prejudiced Ford. The court was not persuaded by Ford’s arguments. Specifically, Ford could have cross examined Dr. Millette but chose not to do so. As for the boilers, the court found that Foster Wheeler had not argued that exposure to the boilers could not cause mesothelioma. Therefore, the defense was not inconsistent. As for the third argument, the court was not persuaded that there was jury confusion. Accordingly, judgment was confirmed.

A lengthy dissent took exception to the opinion. Specifically, the dissent focused on the difficulty of proving actual product specific causation in long latency carcinogen cases like asbestos. Further, the dissent took exception with Dr. Frank’s testimony and referred to it as conclusory with respect to the leap it made from exposure to causation. Additionally, the judge noted that “where the issue is risk – I fail to appreciate how the substantiality of relatively low-dose exposures can be fairly demonstrated in the absence of some sort of reasonably developed comparative risk assessment accounting for a higher dose industrial exposure.” Although the judge acknowledged the difficulties Plaintiffs have in long latency disease, the judge referred to the context of Plaintiff’s exposure as burden shifting and suggested that changes to the law should be considered but were “beyond the scope of presentation today.”

Read the full decision here.