Pennsylvania Plaintiffs With Symptoms From Both Asbestos Exposure And Smoking Can Now Get To A Jury On Causation

On July 21, 2010, the Supreme Court of Pennsylvania made getting to a jury easier for plaintiffs with dual diagnoses of asbestos-related disease and smoking-related disease, overruling Quate v. American Standard, Inc., 818 A.2d 510 (Pa. Super. 2003), and holding that plaintiffs "should survive a motion for summary judgment whenever reasonably certain expert opinions are proffered attributing a plaintiff's maladies to both an asbestos and non-asbestos related disease. Summers v. Certainteed Corp. and Nybeck v. Union Carbide Corp.

Frederick Summers worked at an asbestos manufacturing plant, among other places, but also had a 40 pack-year history of smoking cigarettes. He was diagnosed by Dr. Jonathan L. Gelfand with asbestos pleural disease and obstructive lung disease attributed to smoking. Dr. Gelfand opined to a reasonable degree of medical certainty that Summers' asbestos disease was a substantial factor in his diffused lung condition and shortness of breath but also opined that the obstructive lung disease, caused by smoking, also played a role in his breathlessness.

Richard Nybeck was in the navy in the 1950s, 60s and 70s and was exposed to asbestos from boilers, automobile brakes and steam pipes. Dr. Gelfand was also his treating physician and diagnosed him with asbestos-related pleural thickening, asbestosis and obstructive lung disease due to his 80 pack-years of smoking. Again, Dr. Gelfand was able to conclude that asbestos exposure was a significant contributing factor.

The trial court (Hon. Norman C. Ackerman) granted defendants' motions for summary judgment and dismissed the cases based upon Quate, which states:

[W]here a plaintiff suffers from a non-asbestos-related medical condition, the symptoms of which are consistent with medical conditions arising from exposure to asbestos, the existence of those non-asbestos related medical conditions negate his ability to establish the necessary causal link between his symptoms and asbestos exposure. Under these circumstances, summary judgment is proper.

On appeal, the Superior Court, with one judge recusing himself sua sponte, split 4:4, resulting in an affirmance of the trial court's order. The Opinion in Support of Affirmance concluded that plaintiffs' numerous medical ailments made it impossible to relate their shortness of breath causally to any particular medical condition, despite their diagnoses. The Opinion in Support of Reversal would have permitted the jury to decide the causation issue.

The Supreme Court then granted allowance of appeal, and three justices joined the majority opinion, written by Mr. Justice Baer, to reverse the Superior Court (one justice concurred, one dissented and one did not participate). The majority considered three questions, which they answered as follows:

1.  Whether the record supported the trial court's decision that plaintiffs failed to establish causation as a matter of law.
   
   Answer: A trial judge must defer to the conclusions of experts if sufficiently supported, and disputes must be left to the trier of fact, where, as here, occupational exposure was undisputed and the medical evidence showed asbestos-related diseases. Proximate cause should have gone to the jury.
2. Whether Messrs. Summers and Nybeck suffered from compensable injuries.
   
   Answer: Yes, under the inconsistent tests of Taylor v. Owens Corning Fiberglas Corp., 666 A.2d 681 (Pa. Super. 1995); White v. Owens Corning Fiberglas Corp., 668 A.2d 136 (Pa. Super. 1995): both men clearly suffered from "physical symptoms" and "functional impairments;" and McCauley v. Owens Corning Fiberglas Corp., 715 A.2d 1125 (Pa. Super. 1998): each man suffered from shortness of breath, was diagnosed with an asbestos-related condition, and their shortness of breath, at least in part, was causally linked to asbestos exposure.
3. Whether their smoking precluded their cases from surviving motions for summary judgment on the issue of causation.
   
   Answer: "[W]here it is clear that reasonable minds could differ on the issue of causation, precluding asbestos litigants from pursuing causes of action, supported by competent medical evidence, merely because of the existence of competing health conditions, is unsustainable" and Quate is "explicitly disapproved."

With this new holding as the law of Pennsylvania, the many cases in this Commonwealth involving both smoking and asbestos exposure are destined to continue to plague defendants. It will be critical for defendants in these cases to be over-inclusive in marshalling the evidence of the effects of smoking on these types of plaintiffs and show that, even without asbestos exposure, they would have had breathing and other health problems limiting their enjoyment of life and lifespan so that any consideration of whether a particular injury is compensable or not is an analysis that thoroughly considers all potential causes of the subject injury or condition.