Betz v. Pneumo Abex: the Recrudescence of Ferebee in Pennsylvania

On April 30, 2010, the Pennsylvania Superior Court, sitting en banc, reversed the grant of summary judgment to brake manufacturers in an asbestos product liability case.  Betz v. Pneumo Abex LLC, 2010 Pa. Super. 74.  http://www.superior.court.state.pa.us/opinions/E02001_09.pdf  The plaintiff claimed that his work in the automotive repair industry had exposed him to asbestos from brakes and clutches, and that this exposure caused him to develop mesothelioma.  The brake manufacturers moved to exclude what they claimed were  the novel scientific opinions of plaintiff’s expert witnesses on medical causation.  The trial court held that the plaintiff’s expert witnesses opinions failed to satisfy Pennsylvania’s requirement of “general acceptance,” and excluded their opinions.  Finding the plaintiff without any admissible expert witness opinion to support for his causal claim, the trial court them granted summary judgment.  

In reversing the trial court’s summary judgment, the en banc panel managed to add to the confusion that is Pennsylvania’s law on expert witnesses.  Perhaps the best that can be said for the Betz decision is that one member of the panel, Judge Shogan concurred in the result, and wrote separately to suggest that the Pennsylvania Supreme Court “clarify the appropriate approach to be taken in cases involving experts employing extrapolation as a methodology to support their scientific opinions.”  Id. Concurring Statement, p.3.  Lawyers who practice in Pennsylvania, and who depend upon appellate court guidance on such matters, would welcome such clarification.

There are several remarkable aspects of the en banc court’s decision.  For now, let me point out the incoherence of the Superior Court’s reliance upon a non-Pennsylvania case that is a derelict upon the waters of federal expert witness law:  Ferebee v. Chevron Chemical Co., 736 F.2d 1529 (D.C. Cir. 1984).  The court cited to Ferebee with obvious enthusiasm and approval, but without any acknowledgement that Ferebee‘s holding with respect to expert witness testimony was dubious when delivered in 1984, and has been overruled by the United States Supreme Court in 1993, in that Court’s Daubert decision. Perhaps more troubling yet is the Pennsylvania court’s quotation of the most controversial, and the most thoroughly discredited dictum from Ferebee:

“Judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease.  On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”

Betz, slip op. at 43 (quoting Ferebee, 736 F.2d at 1534).  This passage from Ferebee signifies that courts have no screening function once experts with appropriate qualifications appear, willing to offer opinions.  Of course, this aspect of Ferebee is utterly at odds with the last 17 years of federal court evidence law, just as it was at odds with most federal circuits at the time it was written.  Lawyers in Pennsylvania might well interpret this pronouncement from the Superior Court – an embrace of an  outmoded, discredited, and clearly overruled case – to be a signal that Pennsylvania has abandoned completely any judicial screening and review of expert witness testimony.  This part of the Betz decision is particularly disturbing given that the law of expert witness qualifications sets a very low standard; the witness needs only “a reasonable pretense of expertise” in Pennsylvania to offer an “expert” opinion.  Judge Shogan is clearly right that the Pennsylvania Supreme Court will now be needed to put the law of expert witnesses in Pennsylvania back on track.

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