explaining that in cases involving asbestos and mesothelioma, the application of the “frequency, regularity, proximity factors” is “‘somewhat less critical’ where the plaintiff puts forth specific evidence of exposure to a defendant’s product”
How later courts described this case
- explaining that in cases involving asbestos and mesothelioma, the application of the “frequency, regularity, proximity factors” is “‘somewhat less critical’ where the plaintiff puts forth specific evidence of exposure to a defendant’s product”
- explaining that the exposure at issue was “focused on Mr. Gregg’s personal automotive activities,” i. e., exposure arising from his occasional work with asbestos-containing brake components
- noting that the frequency, regularity, and proximity factors “are to be applied ... as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficiently significant likelihood that the defendant’s product caused his harm from those in which such likelihood is absent on account of only casual or minimal exposure to the defendant’s product”
- acknowledging “the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable”
Written by the judges who cited it.
The opinion
Justice BAER,
dissenting.
Because I agree with Mr. Chief Justice Cappy’s conclusion that the Majority is erroneously invading the province of the fact finder, I wholly join him and respectfully dissent. Further, I take issue with the Majority’s discussion of expert testimony related to the quantum of exposure necessary for asbestos to become a substantial contributing factor in causing mesothelioma. I am particularly troubled by the majority’s reference to Judge Klein’s leading opinion in Summers v. Certainteed Corp., 886 A.2d 240 (Pa.Super.2005) (equally divided court) (discussing the difficulties in assessing the credibility of expert testimony in an asbestos case) and the majority’s observation that, “one of the difficulties courts face in the mass tort cases arises on account of a willingness on the part of some experts to offer opinions that are not fairly grounded in a reasonable belief concerning the underlying facts and/or *296 opinions that are not couched within accepted scientific methodology.” Maj. Op. at 291, 943 A.2d at 226.
It appears that the Majority, in expounding on what it labels as “Judge Klein’s perspective,” paints the entire spectrum of experts with a broad brush of quackery regarding the issuance of their respective opinions. Moreover, this approach suggests that the trial court is obligated to ferret out opinions of arguable scientific merit from those of a dubious nature, and everything in between, even where Appellant never challenged the methodology of Appellee’s expert as being outside the accepted scientific methodology of asbestos cases and never requested a Frye hearing (to determine whether the general scientific community has reached a general acceptance of the principles and methodology employed by the expert witness before the trial court will allow the expert to testify regarding his conclusions). 1
This case is before us on Appellant/Defendant’s motion for summary judgment. Of course, we must consequently view the facts in the light 'most favorable to the Appellee/Plaintiff, who is the non-moving party. See Pa.R.Civ.P. 1035.2; see also Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580 , 812 A.2d 1218, 1221 (2002). Viewed in that light, we find that Appellee/Plaintiff has posited that, Dr. Harvey Specter, M.D., a board certified pathologist, confirmed Decedent’s diagnosis of mesothelioma. In his supplemental report, Dr. Specter stated that Decedent’s exposure to brake linings which contained asbestos substantially contributed to his malignant disease. Additionally, expert affidavits of Dr. James Girard, a chemist; Dr. Arthur Frank, an occupational disease physician; and, Dr. Richard Lemen, an epidemiologist and former deputy director of OSHA, concluded that it is generally accepted that *297 relatively small amounts of asbestos exposure can cause mesothelioma and that regular and frequent exposure need not occur to cause this form of cancer.
Relying on the Tragarz test, 2 the Majority has completely disregarded all of this proffered medical evidence. Tragarz held that when direct evidence of exposure to asbestos cannot be proven, a putative plaintiff must show frequent, regular, and proximate contact with asbestos to state a cause of action. Here, however, Appellee/Plaintiff does not need such circumstantial evidence as he has asserted a sufficient factual basis of direct exposure to overcome summary judgment. Hence, summary judgment should be denied and any challenge to the sufficiency of Appellee/Plaintiff s evidence should occur either at a Frye hearing, as discussed supra, or at trial, through the cross-examination of Appellee/Plaintiffs experts or presentation to a jury of opposing expert views.
Justice BALDWIN joins this dissenting opinion.
. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (setting forth an exclusionary rule of evidence that applies only when a party wishes to introduce novel scientific evidence obtained from the conclusions of an expert scientific witness). We first adopted the Fiye test in Commonwealth v. Topa, 471 Pa. 223 , 369 A.2d 1277 (1977) and more recently reaffirmed it in Grady v. Frito-Lay, 576 Pa. 546 , 839 A.2d 1038 (2003), notwithstanding the United States Supreme Court's departure from Frye in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993).
. Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992).