Justices Consider Any-Exposure Theory

As the Pennsylvania Supreme Court heard arguments Wednesday in Rost v. Ford Motor over use of the “any exposure” theory by an expert witness in an asbestos trial, the discussion dipped into the territory of “magic words” and hypothetical questions, but one question remained at the core of the conversation: Did Dr. Arthur Frank lay out a sufficient basis for his testimony that Richard Rost’s exposure to Ford Motor Co. products was a causative factor in his developing mesothelioma?

According to Robert L. Byer of Duane Morris, arguing on behalf of Ford, Frank responded to a hypothetical proposed to him by indicating that any exposure to asbestos can cause mesothelioma. In attempting to further explain his opinion, Byer said, Frank reverted to a theory of cumulative exposure that Byer said is indistinguishable from the any-exposure theory the Supreme Court has said cannot be introduced.

Steven Cooperstein of Brookman, Rosenberg, Brown & Sandler, arguing for Rost, contended that Frank at no time said “each and every breath” is substantially causative. Frank testified that “‘any exposure that can be documented would … play a role and be causative,'” according to Rost’s brief, but Cooperstein said that isn’t the same as opining that any exposure is causative.

“The subtlety of your distinction is lost on me,” Justice Max Baer said.

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Source: Justices Consider Any-Exposure Theory, Asbestos Consolidation


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