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  • Writer's pictureKirk Hartley

Asbestos Defendants Take Another Strong Hit; the Rost Ruling from the Pennsylvania Supreme Court

2016 has not been a good year for defendants in asbestos cases. The point has been illustrated several times. A prime example is the Dummit opinion from the New York Court of Appeals; it delivered  “very bad news”  for defendants in asbestos cancer cases, as explained by some smart product liability lawyers.  More bad news for insurers and asbestos defendants arrived just before Thanksgiving, this time through an opinion by the Pennsylvania Supreme Court.  The Rost opinion explicitly rejected most or all of the “science arguments” offered by “low dose” defendants as to the amount and type of evidence needed to prove causation in asbestos cancer cases, and approved a jury verdict for plaintiff based on 3-4 months of work in the early 1950s as a “gofer” in a car repair facility.  See Rost v. Ford Motor Co.,  2016 Pa. LEXIS 2638 (Nov. 22, 2016). Two judges dissented, here (Saylor), and here (Baer). Justice Saylor’s dissent highlights the extent of the loss. Amicus briefs on “asbestos cancer science” had been filed by multiple interest groups.

There are other factors to consider as to Pennsylvania, but some do not bode well for defendants. As a reminder, the recent election outcomes in Pennsylvania indicate it likely will be several years before defendants can hope to change the members of the court, and perhaps thereby change outcomes.  It’s also worth noting the opinion was issued after the court ordered reargument of Rost and over 25 other cases due to turmoil in the court, and new judges arriving after elections. The reargument order is described in a January 22, 2016 article at LAW360.

On the other hand, in June 2011, the legislature in Pennsylvania changed the rules for the playing field in asbestos litigation through the  Fair Share Act, and may have reduced the risks for some defendants. That act eliminated some joint and several liability rules, and created additional rules for comparison of fault and allocation of losses. That said, footnote 7 of the Rost opinion explicitly mentioned the act and included language that appears adverse for defendants. Thus, in footnote 7, the court referred to notable past asbestos rulings (Gregg and Betz), and commented as follows:

“It is important to recognize that this Court settled on these principles based on a policy concern: that it is fundamentally unfair to hold a defendant jointly and severally liable for a mesothelioma  plaintiff’s injuries for a de minimis contribution to the plaintiff’s overall exposure. Gregg, 943 A.2d at 227 (“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.”); Betz, 44 A.3d at 57 (same). Pennsylvania has now eliminated joint and several liability in most cases through amendment of the Fair Share Act, 42 Pa.C.S.A. § 7102. The Rosts’ claims accrued prior to the effective date of the amendment to the Fair Share Act (June 28, 2011).

When the Rosts’ claims accrued, joint tortfeasors in Pennsylvania, including those in products liability actions, remained jointly and severally liable for the plaintiff’s damages. Baker v. AC&S, Inc., 562 Pa. 290, 755 A.2d 664, 669 (Pa. 2000). Accordingly, this Court did not consider any potential countervailing policy implications to adoption of the “frequency, regularity, and proximity” test. See Gregg, 943 A.2d at 226 (citing Comment, The Threshold Level of Proof of Asbestos Causation: The “Frequency, Regularity and Proximity Test” and a Modified Summers v. Tice Theory of Burden-Shifting, 24 Capital U. L. Rev. 735, 750 (1995) (explaining that the “‘frequency, regularity and proximity’ [*25]  test imposes an inappropriately high burden of proof upon many asbestos victims,” as it “distort[s] the medically proven fact that significant injury can result without ‘frequent’ or ‘regular’ exposure”)).

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