Cumulative Exposure Opinion in Asbestos Cases and Consolidation

/ 22.Nov, 2016
The Pennsylvania Supreme Court issued its 4-2 Opinion in Rost v. Ford, holding that the opinion of plaintiffs’ expert, Dr. Arthur Frank, did not violate the “each and every breath” opinion and that consolidation of asbestos cases was not improper. In reaching its decision, the Court found:  
  1. The “cumulative exposure” opinion is not equivalent to the “each and every exposure” opinion. The cumulative exposure opinion is “merely an extension of the ancient concept of dose response, which is the oldest maxim in the field.”
  2. An expert (in this case Dr. Arthur Frank) may testify that an individual’s exposures to asbestos were sufficiently frequent, regular, and proximate to permit the inference that these exposure were substantially causative.
  3. Betz could not and did not add a significant new requirement for plaintiffs to establish substantial factor causation in cases involving multiple asbestos exposures – Plaintiffs’ experts need to conduct a qualitative or quantitative assessment of exposures when they conclude that a particular exposure was sufficiently regular, frequent and proximate to cause mesothelioma.
  4. Pursuant to Gregg and Betz, for all exposures to asbestos that satisfy the “frequency, regularity, and proximity” test, when coupled with competent medical testimony establishing substantial factor causation, it is for the jury to decide the question of substantial causation.
  5. Rule 213(a) provides that cases may be consolidated only if they “involve a common question of law or fact or which arise from the same transaction or occurrence.” Pa.R.C.P. 213(a). This determination is based on the facts of the case. Consolidation was not improper in this case as there was no prejudice suffered by Ford.
The resulting opinion limits the defense-friendly Betz decision and will allow plaintiffs’ experts to opine to the causative factor of individual exposure without taking concepts of individual and cumulative dose into consideration or performing a quantitative/qualitative dose assessments of exposures. One of the few positives of the opinion is that the Court stated in a footnote that the Pennsylvania Fair Share Act will presumably apply in asbestos cases moving forward.   Please Greg Stokes ( for additional information on this opinion and the implications in defending asbestos-related claims in Pennsylvania moving forward.