The Betz case, which relied upon an overruled federal court case, has other surprises for Pennsylvania lawyers.

On appeal, Betz argued that her expert witnesses’ opinions that “each and every fiber contributes to the disease process,” were not novel as evidenced by Pennsylvania’s courts routine acceptance of such testimony.   Betz v. Pneumo Abex LLC, 2010 Pa. Super. 74, slip op. at 24 & n.17.    The appellant’s contention is certainly correct as an historical matter; Pennsylvania courts have indulged the fiction of “each and every fiber” for decades.  I can recall hearing this opinion from a plaintiff’s expert witness, in a Philadelphia courtroom, in my first asbestos trial, almost 25 years ago.  After shaking off my amazement, I inquired:  “How do you know this?”  The response that I got from the witness was that he did not know how to distinguish between and among fibers so he had to blame them all.  My earnest motion to strike the testimony as having no basis was refused.

In later trials, I pressed harder.  “Is it true that many inhaled fibers are quickly exhaled?”  These fibers do not contribute to any disease process. “Is it true that many fibers inhaled are brought up by the muco-ciliary escalator, and then spit out or swallowed?”  Again, these fibers do not contribute to any disease process in the lungs.  “Is it true that many fibers are inhaled and retained, and are then engulfed by macrophages and taken to lymph nodes?”  Again, these fibers became non-combatants.  “Of the fibers that migrated to the pleura or close to the pleura, some went through the right lung, and some through the left lung, but the fibers on the side opposite the mesothelioma did not contribute?”  “Although you gave your ‘each and every fiber’ opinion, some fibers – chrysotile – break down in the body within months because they are not as resistant as amphibole fibers; true?”  These questions would elicit concessions or professions of ignorance, but I still lost my motions to strike the “each and every fiber” opinion, each and every time.

In Betz, the defendants called plaintiffs’ expert witnesses on their ipse dixit.  The “each and every fiber” opinion may be generally accepted opinion testimony in courtrooms, but it has no acceptance in the scientific community.  The Superior Court appeared to sidestep the argument that long-standing judicial toleration of unsupported opinion equals “general acceptance,” but what is noteworthy is that the Court did not dismiss it out of hand.  Pennsylvania’s version of Frye applies to allow opinions when “the relevant scientific community has generally accepted the principles and methodology the scientist employs”    Betz, slip op. at 21 (quoting from Trach v. Fellin, 817 A.2d 1102, 1110 (Pa. Super. 2003)(en banc)).  How judicial acquiescence in an opinion, without any meaningful scientific scrutiny, can substitute for a determination of general acceptance in the relevant scientific community is a mystery that calls for resolution from a higher court.

In Betz, the Superior Court’s resolution of the issue seems to lie in modifying the proponent’s burden of proving the lack of novelty into a burden on the opinion’s opponent to prove novelty.  But even with this shifting of the burden, the Superior Court seems to have lost sight of the complete absence of the “each and every fiber contributes” opinion from any textbook, article, or other scientific source.

The Superior Court went further than shifting the burden; it also suggested that studies conducted or sponsored by industry were unworthy of consideration when addressing the Frye issues.  The Court cited Justice Castille’s dissent in Blum v. Merrell Dow Pharmaceuticals, Inc., 563 Pa. 3, 13-15, 764 A.2d 1, 5-7 (2000), where he argued that courts should be wary of an orthodoxy created by “purchased research and the manipulation of scientific literature.”  Betz, slip op. at 26 n. 19.  What the Superior Court failed to recognize, however, is that the industry-sponsored study relied upon by the defense expert witnesses was a meta-analysis, which was as open and transparent as imaginable.  A meta-analysis simply takes the data from other published studies and calculates a summary estimate of risk for the entire dataset.  The meta-analysis in question included studies funded or sponsored by a various groups, including those that had no relationship to the litigation.  If the plaintiff believed that any important studies were omitted, it would have been relatively easy to challenge the scholarship or statistical analysis in the meta-analysis, and to have presented a revised analysis.  There was, simply put, no evidence of manipulation by industry to create an “orthodoxy.”  The Superior Court’s citation of Justice Castille’s dissent appears to have been completely gratuitous.

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