The Pennsylvania Supreme Court Rejects “Every Exposure is Substantial” Mantra

Over two years ago, I wrote about a curious decision by the Pennsylvania Superior Court, in Betz v. Pneumo Abex LLC, 998 A.2d 962 (Pa. Super. 2010) (en banc). In Betz, the Superior Court reversed an Alleghany County Court of Common Pleas judge’s Frye ruling, in an asbestos mesothelioma case, that an expert witness’s opinion that each exposure had been a “substantial contributing factor” was both novel and not generally accepted. In re Toxic Substance Cases, No. A.D. 03-319, slip op., 2006 WL 2404008 (C.P. Allegheny, Aug. 17, 2006). What was remarkable was that the majority of the en banc Superior Court treated the science and the record so cavalierly, and treated the law even more so. SeeBetz v. Pneumo Abex: the Recrudescence of Ferebee in Pennsylvania” (May 5th, 2010); and “The Betz Evidence Rule” (May 6th, 2010).

Today, mirabile dictu, the Pennsylvania Supreme Court unanimously reversed the Superior Court’s errant opinion.  (Justice Melvin did not, of course, participate.) The Supreme Court held that the trial judge, Judge Colville, did not abuse his discretion in conducting a Frye hearing or in ruling that the plaintiffs’ expert witness’s opinion, that every fiber contributes substantially to plaintiff’s mesothelioma, was both novel and not “generally accepted.”

The Supreme Court remanded to the Superior Court for a decision on unspecified, remaining issues. The Court’s 53 page opinion carefully dissects the ipse dixit nature of plaintiffs’ expert witness’s specific causation opinion, and essentially concludes that there was no science in it all.

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