Betz v. Pneumo Abex LLC

CONCURRING STATEMENT BY

SHOGAN, J.:

¶ 1 I concur in the result reached by the majority because I, likewise, conclude that our decision in Trach v. Fellin, 817 A.2d 1102 (Pa.Super.2003) (en banc) (holding that the logical process of extrapolation is a generally accepted methodology for supporting expert testimony) guides us to such a determination.

¶ 2 It is uncontested that Decedent worked as an automotive mechanic for over forty years. It has been alleged that Decedent’s mesothelioma was caused by inhalation of asbestos-containing friction products from automotive manufacturers and suppliers. Appellant’s expert opined that each and every exposure to asbestos during Decedent’s employment contributed to his development of mesothelioma. In order to reach this conclusion, Appellant’s expert utilized the method of logic known as extrapolation.

¶3 In Track, this Court observed that extrapolation is not science but is a logical method “used to estimate the value of a *984 variable outside its tabulated or observed range” or “to infer (that which is not known) from that which is known.” Track, 814 A.2d at 1114. As the Court in Track further observed, extrapolation has gained general acceptance in the scientific community under certain circumstances. Id. at 1118. As long as the basic methodology employed to reach a conclusion is sound, the scientist may extrapolate from this sound scientific basis when it is impossible or unethical to perform the type of clinical trials that would yield definitive results. Id. at 1118. The Court in Track further remarked that in a courtroom, the test for allowing a plaintiff to recover in a tort suit is not scientific certainty, but legal sufficiency. Id. Thus, it will be for a jury, aware of the fallibility of extrapolation, to decide the credibility of expert opinions. Id. at 1118-1119. It is for the defendants, through vigorous cross-examination, to prove that the opinions of experts lack credibility. Id. at 1119.

¶4 Here, the trial court attempted to distinguish Track from the instant case by categorizing various types of extrapolation procedures and concluded that the extrapolation technique used in Track was dissimilar from the technique used by the expert in the instant case. However, from my reading, Track does not distinguish between various types of extrapolation techniques and is not limited in its holding.

¶ 5 Although well-intentioned, the trial court’s struggle with this issue illustrates the complexity of the cases in which the bench and the bar are forced to untangle the opinions and analysis of experts in matters involving scientific study. However, I do not believe that the trial court was setting itself up as a “super expert[ ] in the field of medicine.” See Majority Opinion at 38, fn. 25. Rather, it was trying to conscientiously deal with this confusing area of the law within the context of the case before it.

¶ 6 No doubt similar cases with “friction product defendants” are pending within this Commonwealth’s judicial system and, given the confusion that has surfaced on this subject, all would benefit from further guidance on this issue. This is especially true since a depleted en banc court of six members has participated in the consideration and decision of this case. 1 Accordingly, I respectfully suggest that it is desirable for our Supreme Court to address this matter and clarify the appropriate approach to be taken in cases involving experts employing extrapolation as a methodology to support their scientific opinions.

. Indeed, consideration of a case by a six member panel of a fifteen member court represents well less than a majority of the commissioned court members. In my opinion, a majority opinion rendered by such a panel should not be given en banc precedential weight.