IN THE SUPREME COURT OF PENNSYLVANIA BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF NEITHER PARTY

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1 IN THE SUPREME COURT OF PENNSYLVANIA Docket Nos EAP 2012 MARGARET HOWARD and ROBERT HOWARD, Co-Executors of the Estate of John C. Ravert, Deceased, Appellant/Respondent, v. A.W. CHESTERTON, JNC., ACE HARDWARE, JNC., MONSEY PRODUCTS COMPANY, PECORA CORPORATION and UNION CARBIDE CORPORATION, Appellees/Petitioners. Appeal from the Judgment of the Superior Court entered on October 28, 2011 at No EDA 2010 (reargument denied November 10, 2011) reversing, vacating, and remanding the Judgment entered on October 5, 2010 in the Court of Common Pleas, of Philadelphia County at No. 202 June Term 2007, Honorable Allan L. Tereshko, Judge BRIEF AMICUS CURIAE OF PACIFIC LEGAL FOUNDATION IN SUPPORT OF NEITHER PARTY DEBORAH J. LA PETRA Cal. Bar No CHANCE D. WELDON, Tex. Bar No Pacific Legal Foundation 930 G Street Sacramento, California Telephone: (916) Facsimile: (916) Of Counsel ALFRED W. PUTNAM, JR. Pa. ID No KENNETH A. MURPHY Pa. ID No D. ALICIA HICKOK Pa. ID No Drinker Biddle & Reath LLP One Logan Square, Suite 2000 Philadelphia, Pennsylvania Telephone: (215) Facsimile: (215) dbr.com Counsel of Record Attorneys for Amicus Curiae Pacific Legal Foundation

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTEREST OF AMICUS STATEMENT OF QUESTIONS INVOLVED SUMMARY OF THE ARGUMENT ARGUMENT Page I. THIS COURT SHOULD NOT ALLOW PLAINTIFFS IN MESOTHELIOMA CASES TO CIRCUMVENT THE REQUIREMENTS OF GREGG A. The Frequency, Regularity, and Proximity Test Strikes an Appropriate Balance Between Plaintiffs and Defendants B. Any Scientific Validity the "Any Exposure Theory" May Have Does Not Eliminate Howard's Burden to Show Frequent Exposure under Gregg Substantial Factor Causation Requires More Than Mere Scientific Possibility Howard's Broad Causation Standard Would Unfairly Subject Marginal Asbestos Producers to Potentially Ruinous Litigation, Despite the Fact That Their Products Likely Were Not a Substantial Factor in Causing His Injuries CONCLUSION

3 TABLE OF AUTHORITIES Page Cases Abrams v. Pneuma Abex Corp., 602 Pa. 627, 981 A.2d 198 (2009) Anchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) Bartel v. John Crane, Inc., 316 F. Supp. 2d 603 (N.D. Ohio 2004), aff'd sub nom. 427 F3d 488 (6th Cir. 2005) Betz v. Pneuma Abex LLC, _ Pa. _, 44 A.3d 27 (2012) Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007) Braatan v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995) Eagle-Picher Industries, Inc. v. Bathos, 326 Md. 179, 604 A.2d 445 (1992) Gregg v. V-J Auto Parts, 596 Pa. 274, 943 A.2d 216 (2007) passim Hoerner v. ANCO Insulations, Inc., 812 So. 2d 45 (La. Ct. App. 2002) In re Breast Implant Litig.\ 11 F. Supp. 2d 1217 (D. Colo. 1998) Lindstrom v. A-C. Prod. Liab. Trust, 427 F.3d 488 (6th Cir. 2005) Lohrmann v. Pittsburgh Corning Corp, 782 F.2d 1156 (4th Cir. 1986) Macias v. Saberhagen Holdings, Inc., 171 Wn.2d 1012, 249 P.3d 1029 (2011) Marder v. G.D. Searle & Co., 630 F. Supp (D. Md. 1986), aff'd, 814 F.2d 655 (4th Cir. 1987) Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950 (6th Cir. 2011) Olivo v. Owens-Illinois, Inc., 186 N.J. 394,895 A.2d 1143 (2006)

4 Page O'Neil v. Crane Co., 53 Cal. 4th 335, 266 P.3d 987 (2012) Sanderson v. Int'l Flavors & Fragrances, Inc., 950 F. Supp. 981 (C.D. Cal. 1996) Satterfield v. Breeding Insulation, 266 S.W.3d 347 (Tenn. 2008) Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 568 A.2d 1196 (App. Div. 1989) Simonetta v. Viad Corp., 137 Wn. App. 15, 151 P.3d 1019 (2007) Slaughterv. Southern Talc Co., 949 F.2d 167 (5th Cir. 1991) Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152 (2010) Thacker v. UNR Indus., Inc., 151 Ill. 2d 343, 603 N.E.2d 449 (1992) , 14 Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992) Other Authorities Mark A. Behrens, The "Any Exposure" Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 Sw. U. L. Rev. 479 (2008) , 12 Mark A. Behrens, What's New In Asbestos Litigation?, 28 Rev. Litig. 501 (2009) David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brooklyn L. Rev. 51 (2008) , 5, 6 Alan Calnan & Byron G. Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459 (2008) , 11, 12 John T. Hodgson & Andrew Darnton, The Quantitiative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure, 44 Ann. Occup. Hyg. 565 (2000) Deborah J. La Petra, Freedom, Responsibility and Risk: Fundamental Principles Supporting Tort Reform, 36 Ind. L. Rev. 645 (2003)

5 Page William M. Landes & Richard A. Posner, Causation in Tort Law: An Economic Approach, 12 J. Legal Stud. 109 (1983) Johns Manville, Company History, available at (Last visited Dec. 13, 2012) Harvey Perlman, Interference with Contract and Other Economic Expectancies: A Clash oftortand Contract Doctrine, 49 U. Chi. L. Rev. 61 (1982) , 9 James Pizzirusso, Increased Risk, Fear of Disease and Medical Monitoring: Are Novel Damage Claims Enough To Overcome Causation Difficulties in Toxic Torts?, 7 Envtl. Law. 183 (2000) Restatement (Second) of Torts 431 (1965) Deborah L. Rhode, Frivolous Litigation and Civil Justice Reform: Miscasting the Problem, Recasting the Solution, 54 Duke L.J. 447 (2004) Paul J. Riehle, et al., Products Liability for Third Party Replacement or Connected Parts: Changing Tides from the West, 44 U.S.F. L. Rev. 33 (2009) , 5, 11, 12 Victor E. Schwartz, et al., A Letter to the Nation's Trial Judges: Serious Asbestos Cases -How to Protect Cancer Claimants and Wisely Manage Assets, 30 Am. J. Trial Advoc. 295 (2006) , 8 U.S. Dep't of Health & Human Servs., Public Health Serv., Agency for Toxic Substances & Disease Registry, Toxicological Profile for Asbestos Fedor Valic, The Asbestos Dilemma: Assessment of Risk, available at (Last visited December 13, 2012) iv-

6 INTEREST OF AMICUS Pacific Legal Foundation (PLF) was founded nearly 40 years ago and is widely recognized as the largest and most experienced nonprofit legal foundation of its kind. PLF engages in research and litigation over a broad spectrum of public interest issues in state and federal courts, representing the views of thousands of supporters nationwide who believe in limited government, individual rights, and free enterprise. PLF' s Free Enterprise Project engages in litigation, including the submission of amicus briefs, in cases affecting America's economic vitality and the legal burdens imposed on small businesses. PLF has filed amicus briefs nationwide in numerous cases involving the expansion of civil liability, particularly in the context of asbestos litigation. See, e.g., O'Neil v. Crane Co., 53 Cal. 4th 335,266 P.3d 987 (2012); Macias v. Saberhagen Holdings, Inc., 171 Wn.2d 1012, 249 P.3d 1029 (2011); Braatan v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008); Simonetta v. Viad Corp., 137 Wn. App. 15, 151 P.3d 1019 (2007); Satterfield v. Breeding Insulation, 266 S.W.3d 347 (Tenn. 2008); Olivo v. Owens-Illinois, Inc., 186N.J. 394,895 A.2d 1143 (200{5). PLF has also participated as amicus curiae before this Court in Abrams v. Pneuma Abex Corp., 602 Pa. 627, 981 A.2d 198 (2009). In addition, PLF attorneys have published articles on the effects of tort liability on the business community. See, e.g., Deborah J. La Fetra, Freedom, Responsibility and Risk: Fundamental Principles Supporting Tort Reform, 36 Ind. L. Rev. 645 (2003). Pacific Legal Foundation attorneys are familiar with the legal issues raised by this case and believe that its public policy perspective and litigation experience in support of free enterprise principles will provide a useful additional viewpoint on the issues presented.

7 STATEMENT OF QUESTIONS INVOLVED Amicus writes to address only one of the two questions as to which allowance of appeal was granted, to wit: Does the Superior Court's holding, which permits a plaintiff who fails to produce sufficient evidence of regularity, frequency, and proximity of exposure to a defendant's specific asbestos-containing product to defeat summary judgment by submitting generic, noncase-specific expert affidavits, conflict with this Court's holding in Gregg v. V-J Auto Parts, 596 Pa. 274, 943 A.2d 216 (2007)? The trial court required such evidence, but the Superior Court reversed. SUMMARY OF THE ARGUMENT Since the issue first arose in the 1970s, courts have struggled to create new rules for causation in asbestos cases that are both consistent with longstanding tort principles and fair to all parties. David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brooklyn L. Rev. 51 (2008). These new rules have lowered traditional standards for proving causation in an attempt to lessen the inherent burden asbestos plaintiffs face proving specific causation. Mark A. Behrens, The "Any Exposure" Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 Sw. U. L. Rev. 479, (2008); see also Gregg v. V-J Auto Parts Co., 596 Pa. 274, , 943 A.2d 216 (2007) (recognizing the difficulties facing asbestos plaintiffs). Yet, as tort rules departed further and further from the precision of traditional causation standards, the risk that innocent parties could be forced to compensate plaintiffs for injuries inflicted by others necessarily increased. See Harvey Perlman, Interference with Contract and Other Economic Expectancies: A Clash oftort and Contract Doctrine, 49 U. Chi. L. Rev. 61,70 (1982) ("the extension of liability increases the likelihood... that the rule will be applied erroneously")

8 The result was an unprecedented explosion in litigation so large that by 1997, the Supreme Court declared that the nation was in the midst of an asbestos "litigation crisis." Anchem Products, Inc. v. Windsor, 521 U.S. 591, (1997). In response to these growing concerns, this Court adopted an approach in Gregg that balanced the need for relaxed causation standards with the real threats such standards created for marginal defendants. The result was a test that lowered specific causation requirements for asbestos plaintiffs who were exposed to multiple sources of asbestos, but which required that those plaintiffs prove that their contact with a given defendant's product was frequent, regular, and in a close enough proximity to justify a finding that it was the defendant's product, and not some other product, that likely caused their injuries. Gregg, 596 Pa. at 292, 943 A.2d at A form of this balanced approach has been adopted in the vast majority of jurisdictions across the country. See, e.g., Slaughter v. Southern Talc Co., 949 F.2d 167, 171 (5th Cir. 1991) ("The most frequently used test for causation in asbestos cases is the 'frequency-regularity-proximity' test."). Plaintiffs Margaret and Robert Howard ("Howard") would upset that balance by carving out a special exception to the Gregg standard for plaintiffs in mesothelioma cases. In particular, Howard argues that because mesothelioma can be caused by extremely low doses of asbestos, plaintiffs in mesothelioma cases should not have to provide evidence of frequent, regular exposure to a defendant's product in order to recover. See Respondent's Opposition to the Petition for Allowance of Appeal at 7. Indeed, Howard argues that once evidence of any exposure to an asbestos-containing product has been established, he has met his burden of proving causation for summary judgment purposes, even if evidence of exposure to other asbestos-containing products is present. /d

9 Yet it cannot be enough that a plaintiff "was exposed to asbestos sometime during his lifetime, and that exposure caused his illness." Gregg, 596 Pa. at 281, 943 A.2d at 220 (quoting the trial court). The plaintiff must show that there is sufficient evidence that "links his asbestos exposure to the defendant in this matter." ld. To hold as plaintiff suggests, that exposure alone proves causation, conflates risk with causation, and would subject even marginal producers of asbestos to potentially ruinous litigation. See id. at 292, 943 A.2d at While Amicus takes no position on whether Howard's claims ultimately meet the Gregg standard, this Court should reject Howard's invitation to create an exception to Gregg for mesothelioma cases, for the reasons explained below. ARGUMENT I THIS COURT SHOULD NOT ALLOW PLAINTIFFS IN MESOTHELIOMA CASES TO CIRCUMVENT THE REQUIREMENTS OF GREGG. A. The Frequency, Regularity, and Proximity Test Strikes an Appropriate Balance Between Plaintiffs and Defendants. The frequency, regularity, and proximity test must be viewed in the context of the problem it was designed to solve. Before knowledge of asbestos's harmful effects became widespread, asbestos products could be found almost everywhere. By the middle of the twentieth century more than 3,000 products-including textiles, building materials, insulation, and brake linings-contained some amount of asbestos. Paul J. Riehle, et al., Products Liability for Third Party Replacement or Connected Parts: Changing Tides from the West, 44 U.S.F. L. Rev. 33, 34 (2009). The United States Navy alone used thousands of metric tons of asbestos to create thermal insulation that - 4-

10 wrapped the pipes and lined the boilers, engines, and turbines of its ships. Alan Calnan & Byron G. Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459, 460 (2008). In short, any person born prior to the 1970s probably had some exposure to asbestoscontaining products from a variety of different companies. Not surprisingly, once a link between asbestos and various illnesses was discovered, 1 lawsuits soon followed. In the first three decades following the discovery of asbestos related injuries, some 730,000 asbestos lawsuits were filed nationwide. Riehle, supra at 34. Yet, due to the widespread use of asbestos products and the latency of the resulting illnesses, asbestos plaintiffs often were unable to prove with any precision how much exposure they had to any particular defendant's products. James Pizzirusso, Increased Risk, Fear of Disease and Medical Monitoring: Are Novel Damage Claims Enough To Overcome Causation Difficulties in Toxic Torts?, 7 Envtl. Law. 183, 187 (2000). As a result, stringent specific causation requirements made it nearly impossible for plaintiffs to prove that a defendant's product, and not some other source of asbestos, caused their injuries.!d. Given that this could prove an insurmountable barrier to many deserving plaintiffs, courts were faced with the dilemma of how to reduce the evidentiary burden on plaintiffs while still absolving defendants who were not responsible for plaintiffs' injuries. David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brooklyn L. Rev. 51, (2008). The "frequency, regularity, proximity test" pioneered by the Fourth Circuit Court of Appeals in Lohrmann v. Pittsburgh Corning Corp, 782 F.2d 1156, (4th Cir. 1986), and adopted by 1 In the 1960s and 1970s, Dr. Irving Selikoff at the Mount Sinai School of Medicine famously undertook scientific research that revealed associations between asbestos and illness. Calnan & Stier, supra at 460. However, reports of possible health hazards of exposure to asbestos had been suggested as early as the 1930s, id. at

11 this Court in Gregg, was designed to address these concerns. Bernstein, supra at The Gregg test allows a plaintiff to prove that a defendant's product caused his injury, even absent direct evidence that he inhaled asbestos fibers from that product, if he can show circumstantial evidence that exposure to the product was frequent, regular, and within a close proximity. Gregg, 596 Pa. at 292, 943 A.2d at The test strikes a delicate balance between the needs of plaintiffs and defendants-i.e., lesser specific causation requirements for plaintiffs in exchange for measures that require, as a prerequisite to recovery, the reasonable elimination of sources other than a defendant's product as a cause of a plaintiff's disease. Victor E. Schwartz, et al., A Letter to the Nation's Trial Judges: Serious Asbestos Cases- How to Protect Cancer Claimants and Wisely Manage Assets, 30 Am. J. Trial Advoc. 295, 316 (2006) ("The frequency, regularity, and proximity test offers a rational method for eliminating inconsequential exposure cases consisting of one-time or infrequent exposures."). Howard objects that the frequency, proximity, and regularity requirement of Gregg is unsuited to mesothelioma, which purportedly can develop upon even minimal exposure to asbestos fibers. But the flexibility of the Gregg standard already accounts for low-threshold diseases like mesothelioma. As this Court explained, "the frequency and regularity prongs become 'somewhat less cumbersome' in cases involving diseases that the plaintiff's competent medical evidence indicates can develop after only minor exposures to asbestos fibers." Gregg, 596 Pa. at 290, 943 A.2d at 225 (quoting Tragarz v. Keene Corp., 980 F.2d 411, (7th Cir. 1992)). What Gregg does not allow is for plaintiffs with such low threshold diseases to circumvent the requirement that they eliminate other possible sources of asbestos as a cause for their injuries. See Betz v. Pneuma - 6-

12 Abex LLC, _ Pa. _, 44 A.3d 27, 58 (2012) (cautioning against discounting substantiality in exposure when determining liability). B. Any Scientific Validity the "Any Exposure Theory" May Have Does Not Eliminate Howard's Burden to Show Frequent Exposure under Gregg. Plaintiffs' advocacy of the any-exposure theory-i.e., that a single exposure to asbestos fibers, regardless of intensity or duration, is sufficient to cause mesothelioma-has met with little success. Recent court decisions have held that the "any exposure" theory is not "good science" and is therefore insufficient to prove causation. See, e.g., Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 774 (Tex. 2007); Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 611 (N.D. Ohio 2004), aff'd sub nom. Lindstrom v. A-C. Prod. Liab. Trust, 427 F.3d 488 (6th Cir. 2005). Just this year, this Court dismissed a case on similar grounds. Betz, 44 A.3d at (approving trial court's dismissal of plaintiff's expert's testimony about "any exposure" theory on Frye grounds). Other cases applied lower standards. See, e.g., Thacker v. UNR Indus., Inc., 151 lll. 2d 343, 603 N.E.2d 449, 457 (1992) (The substantial factor test was satisfied even though the court acknowledged that "significantly less" than 3% of plaintiff's total workplace exposure to asbestos came from defendant's product.); Hoerner v. ANCO Insulations, Inc., 812 So. 2d 45, 56 (La. Ct. App. 2002) (holding that exposure to a defendant's asbestos could satisfy the substantial factor test even if it was not a proximate cause of the plaintiff's injury). Yet this Court need not step into the scientific fray to decide this case. Arguments that single exposure theory undermines the viability of Gregg's frequent exposure requirement misunderstand that requirement's purpose. This Court does not require evidence of multiple exposures to an asbestos-containing product because it has adopted a particular scientific theory. Summers v

13 Certainteed Corp., 606 Pa. 294, , 317 n.19, 997 A.2d 1152, , 1166 n.19 (2010) (judgments as to the amount of exposure necessary to cause disease are the province of experts). Evidence of frequent exposure is required because it is fundamentally unfair to hold a party liable for injuries likely caused by others. Gregg, 596 Pa. at 292, 943 A.2d at (Evidence of frequent exposure is necessary for the purpose of excluding other sources as the likely cause of plaintiffs' injuries.); Schwartz, supra at 316 (same). Accordingly, as explained below, even if the highly questionable single exposure theory were valid, Howard still would need to provide sufficient evidence of the frequency, regularity, and proximity of his exposure to Defendants' products in order to show that it is more likely than not that Defendants' products, and not some other exposure to asbestos, caused his injuries. 1. Substantial Factor Causation Requires More Than Mere Scientific Possibility. Howard contends that because a single exposure to asbestos theoretically could cause mesothelioma, he need only provide evidence of a single exposure to an asbestos-containing product in order to meet his burden of proving causation for summary judgment purposes. In doing so, Howard falsely conflates scientific causation and legal causation. When a plaintiff has been exposed to multiple sources of asbestos, this Court requires that plaintiff show not only that a defendant's product could have contributed to her injuries, but that it was a "substantial factor" in producing the harm suffered. Gregg, 596 Pa. at 284, 943 A.2d at Like the closely related concept of "proximate cause," the term "substantial factor" goes beyond the logically simple question whether the defendant's action (or inaction) was a "necessary" or "sufficient" condition of harm to the plaintiff. Both proximity and substantiality describe whether - 8 -

14 "the defendant's conduct has. such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility[.]" Restatement (Second) of Torts 431 (1965). The reason for this distinction is as much pragmatic as it is moral, as any number of factors can contribute to the occurrence of any event, and "at some point, it is generally agreed that [an] act cannot fairly be singled out from the multitude of other events that combine to cause loss." Perlman, supra at 70. Accordingly, some articulable standard for where to draw the line establishing liability is necessary. /d. at 71. It is generally accepted that any exposure to asbestos creates an increased risk of illness. U.S. Dep't of Helath & Human Servs., Public Health Serv., Agency for Toxic Substances and Disease Registry, Toxicological Profile for Asbestos, 20 app. F (2001) 2 ; John T. Hodgson & Andrew Darnton, The Quantitiative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure, 44 Ann. Occup. Hyg (2000) (there is no perfectly "safe" amount of asbestos exposure; rather, decreasing exposure implies only decreasing risk, and vice versa). However, it is also widely accepted that not every exposure to asbestos will necessarily cause any given illness. Indeed, even people who are regularly exposed to asbestos do not have a 100% rate of developing the disease. Fedor Valic, The Asbestos Dilemma: Assessment of Risk, at 8. 3 Thus, even if every exposure to asbestos may increase the risk of mesothelioma, one cannot definitively say that any particular exposure to asbestos will, or did, cause a plaintiff's disease. In short, evidence that a particular product caused a plaintiff's injuries is necessarily probabilistic. 2 Available at (last visited Dec. 13, 2012). 3 Available at (last visited Dec. 13,

15 When the question of causation is probabilistic, "substantiality" and "responsibility" necessarily imply some test of magnitude (viz., how much must exposure have increased one's risk of harm) in order to hold the responsible party liable. See William M. Landes & Richard A. Posner, Causation in Tort Law: An Economic Approach, 12 J. Legal Stud. 109, 133 (1983). For some courts, the answer to that question lies in mathematics. Fer example, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, (9th Cir. 1995), the Ninth Circuit held that causation under a preponderance standard is equivalent to a "relative risk" of two. In other words, a plaintiff's risk of injury must have at least doubled in order to hold that the defendant's action was "more likely than not" the actual cause of the plaintiff's injury. Other courts have taken a similar approach. See, e.g., In re Breast Implant Litig., 11 F. Supp. 2d 1217, (D. Colo. 1998) ("Plaintiffs must present expert testimony demonstrating that exposure to breast implants more than doubled the risk of their alleged injuries."); Marder v. G.D. Searle & Co., 630 F. Supp. 1087, 1092 (D. Md. 1986), aff'd, 814 F.2d 655 (4th Cir. 1987) (same); Sanderson v. International Flavors & Fragrances, Inc., 950 F. Supp. 981, 1000 (C.D. Cal. 1996) (acknowledging a relative risk of two as a threshold for plaintiff to prove specific causation); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 718 (Tex. 1997) ("The use of scientifically reliable epidemiological studies and the requirement of more than a doubling of the risk strikes a balance between the needs of our legal system and the limits of science."). The twofold test has the benefits of a bright-line rule and dovetails nicely with the required legal burden of proof-a showing of causation by the preponderance of the evidence or, in other words, a probability of greater than 50%. Marder, 630 F. Supp. at This approach properly emphasizes that some consideration of magnitude is necessary when determining whether exposure to a particular defendant's product was a "substantial" contributing - 10-

16 factor to a plaintiff's injuries. Gregg, 596 Pa. at 286, 943 A.2d at 223. If, as Howard suggests, any increase in risk necessarily caused by a de minimis exposure to asbestos were enough to prove substantial factor causation, then "the 'substantial factor' test would be meaningless." Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950, 955 (6th Cir. 2011). It would be akin to claiming that dumping a bucket of water into the sea is a "substantial contributing factor" to the size of the ocean. Gregg, 596 Pa. at 286, 943 A.2d at Howard's Broad Causation Standard Would Unfairly Subject Marginal Asbestos Producers to Potentially Ruinous Litigation, Despite the Fact That Their Products Likely Were Not a Substantial Factor in Causing His Injuries. Tort remedies are about more than compensating injured individuals-remedies must be just. As one author opined, "the issue is not whether asbestos victims should receive compensation from some entity, but rather which entity can fairly be called upon to shoulder the financial burden." Paul J. Riehle, et al., Products Liability for Third Party Replacement or Connected Parts: Changing Tides from the West, 44 U.S.F. L. Rev. 33, 61 (2009). This is particularly true given the history of asbestos litigation. Unlike defendants in other mass tort cases, most of the major asbestos producing companies have declared bankruptcy. From 1976 through 2004 there were 72 defendant bankruptcies caused by asbestos litigation, Calnan & Stier, supra at462-63, including the principal asbestos manufacturer and supplier Johns-Manville in As defendants have gone bankrupt, the litigation has expanded to ever-more peripheral defendants.!d. Most of the defendants today are not asbestos companies or insulation suppliers, but are companies that sold or used products with limited asbestos 4 Johns-Manville, Company History, available at (last visited Dec 13, 2012)

17 in them. Behrens, supra at 507. Often the asbestos in the products used or sold by these defendants was sealed in resins or binders and thus would not ordinarily produce much, if any, exposure. Id. As one attorney candidly described it, modern asbestos litigation has devolved into an "endless search for a solvent bystander." Riehle, supra at 38. Indeed, the same widespread use of asbestos that once made it difficult for plaintiffs to prove that any particular product caused their injuries has, under expanded tort theories, provided modern asbestos plaintiffs with a seemingly endless supply of possible defendants. At least 8,400 entities spanning 75 out of 83 industries classified by the U.S. Department of Commerce have been sued in asbestos litigation. Calnan & Stier, supra at While the difficulty of proving causation years after the fact may make recovery for some legitimate injuries difficult, it would be equally unjust to bankrupt companies that had only a peripheral connection to asbestos to begin with, unless the product they manufactured or sold was actually responsible for a plaintiff's injuries. This is particularly true when one considers that the financial windfalls produced by verdicts in asbestos cases often fail to effect any reparation or justice. "Plaintiffs' attorneys collect an estimated $30 billion annually in legal fees-money that could otherwise help prevent or compensate injuries... [I]n mass tort litigation involving asbestos, two-thirds of insurance expenditures have gone to lawyers and experts." Deborah L. Rhode, Frivolous Litigation and Civil Justice Reform: Miscasting the Problem, Recasting the Solution, 54 Duke L.J. 447, 464 (2004). Allowing asbestos plaintiffs to recover only when they present e:ridence of frequent, regular, and proximate contact with a defendant's product alleviates these concerns in a commonsense way. There is no dispute that the likelihood of contracting an asbestos-related illness increases with the - 12-

18 frequency and density of exposure. Hodgson & Darnton, supra at (there is no perfectly "safe" amount of asbestos exposure; rather, decreasing exposure implies only decreasing risk, and vice versa). Thus, a plaintiff who handled asbestos insulation on a daily basis for twenty years is more likely to develop an asbestos-related ailment from the contact with that product than from a box of asbestos-containing brake pads he carried upstairs one afternoon. It makes little sense to allow that plaintiff to recover from the brake pad manufacturer merely because the insulation manufacturer is now bankrupt. The Gregg frequency, proximity, and regularity requirement thus is designed to serve a pragmatic function by requiring plaintiffs to seek out the defendants who most likely caused their injuries, and not merely the ones with the deepest pockets. By contrast, if any exposure to asbestos, however fleeting, is sufficient to prove substantial factor causation then the incentive to find the most likely culprit would be removed. Behrens, supra at 507 ("[I]t is nearly impossible for a defendant to claim zero fiber exposure-the only defense that could avoid a trial under an any exposure attack."). Plaintiffs will be rationally driven to bring suit against even the most tangentially related asbestos producers in order to find a party that is solvent, rather than the party that is responsible. Indeed, in this case Howard originally sued eighty different defendants, arriving at the current defendants only once other defendants had settled or otherwise been dismissed. Such a scattershot approach to litigation has more in common with gambling than justice, and is precisely the type of tactic that the frequency, proximity, and regularity test was designed to prevent. CONCLUSION The "frequency, proximity, and regularity" test has come to be seen as a reasonably balanced means of proving causation in asbestos litigation. Numerous courts implement some form of the - 13-

19 test, many of which cite to decisions from Pennsylvania courts. See, e.g., Thacker v. UNR Industries, Inc., 151lll. 2d 343,603 N.E.2d 449,359 (1992); Eagle-Picher Industries, Inc. v. Bathos, 326 Md. 179,604 A.2d 445, (1992); Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 568 A.2d 1196, (App. Div. 1989). Indeed, Pennsylvania courts have been seen as leaders in determining the. course of asbestos litigation. Mark A. Behrens, What's New In Asbestos Litigation?, 28 Rev. Litig. 501, 529 (2009) (pointing to Peimsylvania and Texas as states with positive asbestos litigation reforms). This case provides a perfect opportunity for this Court to lay down a clear standard that the "frequency, proximity, and regularity" test applies regardless of disease. Such a ruling would go a long way towards establishing more coherent and uniform asbestos tort rules throughout the country. DATED: December 14, Respectfully submitted, ALFRED W. PUTNAM, JR. Pa. ID No KENNETH A. MURPHY Pa. ID No D. ALICIA HICKOK Pa. ID No Drinker Biddle & Reath LLP One Logan Square, Suite 2000 Philadelphia, Pennsylvania Telephone: (215) Facsimile: (215) dbr.com Counsel of Record - 14-

20 DEBORAH J. LA FETRA Ca. Bar No CHANCE D. WELDON, Tx. Bar No Pacific Legal Foundation 930 G Street Sacramento, California Telephone: (91 6) Facsimile: (916) D pacificlegal.org pacificlegal. org Of Counsel Attorneys for Amicus Curiae Pacific Legal Foundation - 15-

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