IN THE SUPREME COURT OF PENNSYLVANIA. 48 EAP 2012, 49 EAP 2012 and 50 EAP 2012 (Related Cases)

IN THE SUPREME COURT OF PENNSYLVANIA 48 EAP 2012, 49 EAP 2012 and 50 EAP 2012 (Related Cases) MARGARET HOWARD and ROBERT HOWARD, CO-EXECUTORS OF THE ESTATE OF JOHN C. RAVERT, DECEASED PLAINTIFFS-APPELLEES v. A.W. CHESTERTON, INC., ACE HARDWARE, INC., MONSEY PRODUCTS COMPANY, PECORA CORPORATION AND UNION CARBIDE CORPORATION DEFENDANTS-APPELLANTS BRIEF OF PLAINTIFFS-APPELLEES APPEAL FROM THE ORDER ENTERED SEPTEMBER 16,2011, IN THE SUPERIOR COURT OF PENNSYLVANIA AT 2978 EDA 2010, REVERSING AND REMANDING THE ORDER OF MAY 14, 2008 OF THE OF PHILADELPHIA COURT OF COMMON PLEAS GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AT JUNE TERM, 2007, NO. 202 Robert E. Paul Richard P. Myers Suite 500 1608 Walnut Street Philadelphia, PA 19103 (215) 735-9200 Attorney for Appellees

TABLE OF CONTENTS TABLE OF AUTHORITIES....i COUNTER-STATEMENT OF THE STANDARD AND SCOPE OF REVIEW... 1 COUNTER-STATEMENT OF THE CASE... 2 SUMMARY OF ARGUMENT... 10 ARGUMENT... 12 I. Plaintiffs' concessions that Mr. Ravert was not regularly and frequently exposed to asbestos fibers shed from Monsey, Pecora or Ace Hardware products should resolve this case... 12 H. Plaintiffs concede that inadequacies in the factual record cannot be cured by expert affidavits... 15 HI. Betz v. Pneumo Abex is inapplicable to the summary judgment issues in this case... 25 A. Defendants failed to preserve a challenge under Betz to Plaintiffs' experts' opinions when they did not request a Frye hearing prior to this appeal... 25 B. Betz did not hold that there was a quantifiable de minimis level or "dose" of asbestos that had to be established to show medical causation in a mesothelioma case... 2 7 C. Since Defendants have presumably spoliated any asbestos products manufactured during the era in which Mr. Ravert used those products, Betz cannot be applied to require Plaintiffs to produce reports on products that no longer exist... 30 CONCLUSION... 32 CERTIFICATE OF SERVICE... 33

TABLE OF AUTHORITIES Cases Albright v. Abington Memorial Hasp., 696 A.2d 1159 (Pa. 1997)... 5 Andaloro v. Armstrong World Indus.. Inc., 799 A.2d 71 (Pa. Super. 2002)... 27 Asbestos Info. Ass'n/North America v. Reich, 117 F.3d 891 (5th Cir. 1997)... 20, 21 Ayres v. Pittsburgh. C.C. & St.L.Ry.Co., 50 A.968 (Pa.1902)... 12 Basile v. H&R Block. Inc., 761 A.2d 1115 (Pa. 2000)... 12 Betz v. Pneuma Abex. LLC, 44 A.3d 27 (Pa. 2012)... passim Brosie v. A.W. Chesterton Co., 2012 Pa. Dist. & Cnty. Dec. LEXIS 275 (Wash. Co. 2012)... 26 Borough ofnanty-glo v. American Surety Co. of New York 163 A. 523 (Pa. 1932)... 2, 21,25 Blum v. Merrell-Dow Pharms. Inc., 764 A.2d 1 (Pa. 2000)... 24 Bremmer v. Protected Home Mut. Life Ins., 260 A.2d 785 (Pa. 1970)... 24 Commonwealth v. Daniels, 390 A.2d 172 (Pa. 1978)... 29 Commonwealth v. Jacobs, 639 A.2d 786 (Pa. 1994)... 29 Commonwealth v. Nasuti, 123. A.2d 435 (Pa. 1956)... 29 Commonwealth v. Williams, 9 A. 3d 613 (Pa. 2010)... 1 Cooper v. Metropolitan Life Ins. Co., 186 A. 125 (Pa. 1936)... 29 Donoughe v. Lincoln Electric Co., 936 A.2d 52 (Pa.Super. 2007)... 25, 27 Ford v. Jeffries, 379 A.2d 111 (Pa.1977)... 28 Frye v. United States. 293 F. 1013 (D.C. Cir. 1923)... passim Gregg v. V-J-Auto, Inc., 943 A.2d 216 (Pa. 2007) on remand, 975 A.2d 1171 (Pa. Super. 2009)... passim Hicks v. Dana Corp., 984 A.2d 943 appeal denied, 19 A.3d 1051 (Pa. 2011)... 25 ii

Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633 (Pa. Super. 1988)... 28 Junge v. Garlock. Inc., 629 A.2d 1029 (Pa. Super. 1993) appeal denied, 641 A.2d 310 (Pa. 1994)... 27 Leberv. Stretton, 928 A. 2d 262 (Pa. Super. 2007)... 1 Kozakv. Struth. 531 A.2d 420 (Pa. 1987)... 28 Lonasco v. A-Best Products. Inc., 757 A.2d 367 (Pa. Super. 2000) appeal denied, 781 A.2d 145 (Pa. 2001)... 27 McManamon v. Washko. 906 A.2d 1259 (Pa. Super. 2006) appeal denied, 906 A.2d 1259 (Pa. 2007)... 29 Mitzelfelt v. Kamrin. 584 A.2d 888 (Pa. 1990)... 25 Stanton v. Lackawanna Energy. Ltd., 886 A.2d 667 (Pa. 2005)... 12 Summers v. CertainTeed Corp., 997 A.2d 1152 (Pa. 2010)... passim Tragarz v. Keene Corp., 980 F. 2d 411 (7th Cir. 1992)... 14 Wehmeier v. UNR Industries Inc., 572 N.E. 2d 320 (Ill. App. 1991)... 14 Statutes. Rules and Regulations 29 u.s.c. 653(b)(4)... 20, 21 16 C.F.R. 1304.5... 14 29 C.F.R. 1926.1101(a)(8)... 20, 21 Pa. R. Civ. P. 207.1... 10, 17, 26 Pa. R. Civ. P. 1035.2... 12 Pa. R. Evid. 702... 24 Pa. R. Prof. Conduct 1.1... 2 Pa. R. Prof. Conduct 3.1... 2 iii

Other Authorities Pennsylvania Standard Jury Instruction (Civ.) 3.15... 30 Restatement (Second) Torts 431... 28 Restatement (Second) Torts 433... 28 Mathews, "Ghost Story: At Medical Journals, Writers Paid by Industry Play Big Role," Wall St.]., December 13, 2005, A1, col1... 24 Michaels, D., Doubt Is Their Product: How Industry's Assault on Science Threatens Your Health (2008)... 24 Rand Institute for Civil Justice, "Asbestos Litigation in the U.S." A New Look at an Old Issue," August 2001.... 14 iv

COUNTER-STATEMENT OF THE STANDARD AND SCOPE OF REVIEW The standard of review in this case is whether there was an error of law by the trial court. Summers v. CertainTeed Corp.. 997 A.2d 1152 (Pa. 2010). Whether or not there is a genuine issue of material fact that precludes summary judgment is a question of law.!d. at 1159. The "abuse of discretion" standard is no longer applied in appeals of grants of summary judgment when there is a question of law.!d. The scope of review is a plenary review of the entire factual record below in the light most favorable to the nonmoving party, as the matter concerns a grant of summary judgment. Summers,!d. at 1159; Albright v. Abington Mem. Hosp.. 696 A.2d 1159 (Pa. 1997). The interpretation of procedural rules presents a question oflaw. Commonwealth v. Williams. 9 A 3d 613 (Pa. 2010). When the question raised is a question of law, the standard of review is de novo, and its scope of review is plenary. ld. at 617; Leber v. Stretton, 928 A 2d 262 (Pa. Super. 2007). 1

COUNTER-STATEMENT OF THE CASE Introduction On November 8, 2012, Plaintiffs Margaret Howard and Robert Howard moved this Court to discontinue their lawsuit against the defendants-appellants in this case. On January 31, 2013, this Court denied Plaintiffs' motion. Plaintiffs have authorized counsel to concede that Defendants-Appellants are entitled to relief in this case, and in order to achieve that relief with the least expenditure of time and effort, counsel respectfully requests that this Court summarily reverse the Superior Court and reinstate the entries of summary judgment in defendants' favor.l Consistent with counsel's duty to the client under Pa. R. Prof. Conduct 1.1 and Pa. R. Prof. Conduct 3.1, counsel has carefully reviewed the record on appeal in this case together with this Court's opinions in Gregg v. V-J-Auto. Inc., 943 A.2d 216 (Pa. 2007), and Betz v. Pneuma Abex. LLC, 44 A. 3d 27 (Pa. 2012). Even though Plaintiffs prevailed in the Superior Court in getting the summary judgments against the instant defendants reversed, counsel has reviewed the Superior Court's opinion in the light ofthe questions that this Court has asked the parties to address on appeal and has concluded that the record in this case does not provide a basis upon which a jury could find that Mr. Ravert was exposed to enough respirable fibers shed from any of the instant defendants-appellants' asbestos-containing products that such products could be a factual cause of his malignant mesothelioma.z For 1 Although this Court denied defendant Union Carbide's petition for allowance of appeal, upon remand, Plaintiffs will discontinue their case against Union Carbide in addition to the instant defendants-appellants. 2 The Defendants-Appellants in this case do not contest that Mr. Ravert's mesothelioma was caused by the totality of his asbestos exposure. 2

the reasons that follow, Plaintiffs respectfully suggest that this Court reinstate the entries of summary judgment in the instant case based upon Gregg. Procedural History and Prior Determinations On June 4, 2007, John Ravert ("Mr. Ravert'') filed a Complaint in the Philadelphia Court of Common Pleas in 2007, alleging that his malignant mesothelioma was caused by exposure to asbestos from Defendants' and others' products. (R.85a, 99a) Mr. Ravert died on September 18, 2007. On November 16, 2007, his sister and brother-in-law, Margaret Howard and Robert Howard ("Plaintiffs"), the co-executors of Mr. Ravert's estates, were substituted as parties. Defendants-Appellants ("Defendants") herein moved for summary judgment, claiming that there was insufficient evidence of Mr. Ravert's exposure to asbestos from any of their products. Plaintiffs opposed these motions. Philadelphia Court of Common Pleas Judge Allan L. Tereshko granted the motions of Defendants herein, but denied the motions of two defendants, Goodyear Tire & Rubber Co. ("Goodyear") and Weil-McLain ("Weil").3 3 On June 23, 2008, Defendant Monsey moved to quash the state court appeal, claiming that the orders granting summary judgment were not final appealable orders, as the denial of Goodyear's and Weil's motions did not dispose of all claims against all parties, even though the claims against Goodyear and Weil were in federal court. Monsey argued that the orders granting summary judgment were not final, appealable orders, due to the continued viability of the claims against Goodyear and Weil in federal court. Plaintiffs opposed the Motion to Quash. On July 25, 2008, the Superior Court denied Monsey's motion without prejudice to raise the issue before the merits panel. The Superior Court merits panel subsequently dismissed Plaintiffs' appeal as interlocutory and remanded the case to the trial court due to the existence of the federal claims against Goodyear and Weil (R.62a). Once the claims in federal court were resolved, the federal court then remanded the case to state court (R.63a). Plaintiffs then filed a motion to reinstate the appeal, which was opposed by Defendants. The Superior Court denied the motion to reinstate the appeal, but directed Plaintiffs to file a new notice of appeal, which Plaintiffs promptly did. (R.63a). This present proceeding is a result of the second appeal after the remand from federal court. 3

On May 20, 2008, Goodyear and Weil removed the case to the United States District Court for the Eastern District of Pennsylvania. Plaintiffs moved to remand the case on the grounds that it was one case, and Plaintiffs had not agreed to dismiss nondiverse defendants Pecora Corporation ("Pecora") and Monsey Products Company ("Monsey"). Plaintiffs argued that the case was not removable under 28 U.S.C. 1441(b). Plaintiffs also moved for reconsideration of the grants of summary judgment to the five Defendants herein. Plaintiffs were advised that both motions were orally denied by the Chief Judge James T. Giles, as communicated by his law clerk Plaintiffs requested that the federal court reconsideration rulings be reduced to written orders, as the judge stated that he could not reconsider summary judgment motions that had been granted in Philadelphia County, as he lacked jurisdiction over those defendants (one of whom is a Defendant herein). No such order was ever signed or docketed. Plaintiffs protectively filed appeals of the state court grants of summary judgment to the Superior Court, as it was unclear if the dismissed claims were removed to federal court. Defendant Monsey moved to quash the state court appeal, claiming that the orders granting summary judgment were not final appealable orders. Monsey argued that the orders granting summary judgment were not final, appealable orders, due to the continued viability of the claims against Goodyear and Weil in federal court. The Superior Court denied Monsey's motion without prejudice to raise the issue before the merits panel. The Superior Court merits panel dismissed Plaintiffs' appeal as interlocutory and remanded the case to the trial court due to the existence of the federal claims against Goodyear and Weil. (R.62a). After the claims in federal court were resolved, the federal court remanded the case to state court (R.63a). Plaintiffs filed a motion to reinstate the 4

appeal, which Defendants opposed. The Superior Court denied the motion to reinstate the appeal, but directed Plaintiffs to file a new notice of appeal, which Plaintiffs promptly did. (R.63a). After briefing and oral argument, the second Superior Court merits panel reversed the grants of summary judgment and remanded the case to the Philadelphia County Court of Common Pleas. Defendant Union Carbide Corporation ("Union Carbide") filed a motion for rehearing en bane with the Superior Court on September 30, 2011. On October 11, 2011, Plaintiffs filed an answer opposing Union Carbide's motion for a rehearing. On October 18, 2011, the Superior Court denied Union Carbide's motion for rehearing en bane without prejudice tore-file once the panel's opinion was published. On October 28, 2011, the Superior Court published its opinion. Howard v. A.W. Chesterton. Inc., 31 A.2d 971 (Pa. Super. 2011). Union Carbide re-filed its motion for rehearing en bane on November 10, 2011, which Plaintiffs opposed. The Superior Court denied the motion for a rehearing on December 20, 2011. Thereafter, Ace Hardware Corporation ("Ace"), Monsey, Pecora and Union Carbide then petitioned this Court for allowance of appeal. On October 11, 2012, this Court granted Ace's, Monsey's and Pecora's petitions for allowance of appeal, but denied Union Carbide's petition for allowance of appeal. Factual History In his June 4, 2007 complaint filed in the Philadelphia County Court of Common Pleas, Mr. Ravert alleged that his malignant mesothelioma was caused by his exposure to asbestos products manufactured andjor sold by the instant defendants and others. Because of Mr. Ravert's terminal disease, his deposition was scheduled quickly. Mr. Ravert 5

testified about his exposures to asbestos products during a deposition which stretched over parts of four days from June 25, 2007 to June 26, 1007, and July 17 to July 18, 2007. As a result of his poor health, Mr. Ravert had difficulty testifying. On June 27, 2007, Mr. Ravert said that he had had "a small attack this morning," (R.511a), and that the night before he had needed an air supply just to breathe. (R.533a). He said he "should have stayed home." (R.533a). He said his chest was "tight." (R.518a). At one point, he said he had had a "small seizure" during a break. (R.532a). He asked that the deposition be concluded because, "I need to go home." (R.533a). At the continuation of his deposition on July 18, 2007, Mr. Ravert testified that he had spent the previous day at the hospital being intubated and medicated so he could breathe. (R.551a). Understandably, Mr. Ravert's deposition testimony is not completely coherent. In summary, Mr. Ravert testified to being exposed to asbestos in 1963-1964 when he worked for a fuel oil company, from the late 1960s and early 1970s as a maintenance man at a fishing rod and reel company, in the mid-1970s as a maintenance man at an apartment management company and thereafter as a maintenance man at the Baldwin School. Mr. Ravert also used asbestos products when repairing his mother's and neighbors' roofs. All ofthe parties in this case have agreed that Mr. Ravert's malignant mesothelioma was caused by his asbestos exposure. Mr. Ravert was the sole witness to his asbestos exposures, and there were no other living witnesses who were in a position to know anything about how Mr. Ravert was exposed to asbestos. The factual record related to Mr. Ravert's exposures to asbestos products was, therefore, complete after Mr. Ravert's deposition was concluded. 6

Defendants Monsey and Pecora do not dispute that Mr. Ravert worked with their asbestos-containing products. Mr. Ravert used Monsey asbestos roof cement while working at Penn Fishing & Tackle factory from 1969-1970. (R.328a, 334a). At one point in his deposition, Mr. Ravert testified that he had to repair the roof five or six times a month. (R.334a). At another point in his deposition, he testified that he repaired the roof over two dozen times. (R.336a). Although Mr. Ravert said that he returned to work on the same area of the roof where he had applied Monsey cement after the cement had dried, he did not testify that he saw or breathed dust on those occasions. (R.337-338a). Mr. Ravert testified he used Monsey roof cement on his mother's roof starting in the 1960s. He used the Monsey product many times on her roof before her death in 2000. (R.339a). He also patched a skylight in his mother's house with Monsey asbestos cement. (R.340a). He said that he repaired his mother's roof with Monsey asbestos roof cement "many, many, many, many times" over the decades. (R. 339a, 342a). Mr. Ravert testified that he did roof repair for his mother's neighbors, as well. (R.341a). Mr. Ravert did not testify that the use of the product gave off any dust. Mr. Ravert worked at the Hamilton Apartments as a maintenance man from 1976-1980. (R.85a). This apartment complex had 96 units, and Mr. Ravert was the only maintenance man. (R.342a). He used Monsey roof coating at the Hamilton Apartments. (R.331a, 342a). He described the quantity used as "a lot." (R.471a). Mr. Ravert did not identify any circumstances during which he was exposed to visible dust from the Monsey roof cement. From 1962-64, when Mr. Ravert was a teenager, he worked with his brother-in-law for Bee Fuel Oil Company performing burner cleanouts of residential boilers. (R.85a, 7

Plaintiffs' Amended Complaint). Mr. Ravert estimated that they did 350 houses during the summer. (R.569a). He also assisted with emergency furnace repair in the winter. (R.569a). He used Pecora's asbestos furnace cement during his years of employment at Bee Fuel. (R.566a). Mr. Ravert applied the furnace cement on the flue and other parts of the furnace with a trowel or with his hands. (R.568a). At times the cement had dried in the can, and had to be mixed with water before it could be applied. (R.618a). Mr. Ravert also used a Pecora asbestos gasket cement. (R.563a). He used it on pipe threads (R.574a). He used it many times. (R.574a). After four or five months, the seal would dry out and crack (R.S49a). Mr. Ravert was "constantly" in areas in where he applied Pecora asbestos gasket seal, and to which he would return when the Pecora asbestos cement had dried, cracked and peeled off. (R.622a). 4 Mr. Ravert did not describe any circumstances in which he breathed dust from the Pecora products. At summary judgment, Plaintiffs proffered affidavits, excerpts from plaintiff and defense expert testimony, plus medical textbook excerpts and journal articles to support their medical causation argument. Plaintiffs proffered an affidavit from James Girard, Ph.D., in which he stated that all wet asbestos products gave off invisible fibers when applied. (R.201a-202a). Plaintiffs also proffered an affidavit by Arthur Frank, M.D., that included a statements that there was no safe level of asbestos exposure below which mesothelioma could not occur. (R.204a-207a). Plaintiffs' expert's view that that respirable asbestos fibers were not visible to the naked eye, (R.201a), was undisputed by Monsey's own expert's report. (R.361a). Other defense experts made similar admissions such as Dr. William Krebs, (R.282a-283a), Dr. Victor Roggli, (R.491a; 246a-248a). Judge Tereshko also acknowledged 4 Plaintiffs have also decided not to pursue further any claims against Ace Hardware, Inc., and thus have not discussed the evidence of record against it. 8

SUMMARY OF ARGUMENT Plaintiffs concede that Defendants Monsey, Pecora and Ace are entitled to relief on this record. In Summers v. CertainTeed Corp., 997 A.2d 1152 (Pa. 2010), this Court held that whether there is a genuine issue of material fact is a question of law, and the standard of review was whether or not there was an error oflaw.jd. at 1159. Defense arguments based on an "abuse of discretion" standard should be disregarded as contrary to Summers. Although defendant Monsey misstated this Court's standard and scope of review, Plaintiffs concede that the factual record fails to demonstrate regular and frequent enough exposures during which respirable asbestos fibers were shed by either Monsey's, Pecora's or Ace Hardware's asbestos-containing products to defeat summary judgment. Gregg v. V I-Auto, Inc., 943 A.2d 216 (Pa. 2007). Absent a hearing pursuant to Frye v. United States, 293 F. 1013 (D. C. Cir. 1923), regarding expert methodology prior to the consideration of summary judgment, consideration of Plaintiffs' and Defendants' expert witness affidavits are irrelevant to the question of whether a given plaintiffs' exposures to particular asbestos products are sufficiently regular, frequent and proximate enough under~ Defendants failed to preserve a challenge to Plaintiffs' experts' opinions by failing to request a hearing pursuant to Pa. R. Civ. P. 207.1. A Rule 207.1 hearing is the exclusive means by which an expert's opinions can be challenged. Betz v. Pneuma Abex, LLC. 44 A.3d 27 (Pa. 2012). Betz did not address the standard of proof on medical causation at the summary judgment stage, nor did Betz hold that there was a quantifiable de minimis level or "dose" of asbestos exposure that must be shown to establish medical causation. 10

To the extent that Betz would require that Plaintiffs' experts proffer opinions on the release of asbestos fibers by a particular defendant's products, then that defendant would have to provide product testing samples to Plaintiffs that were manufactured under the identical process and the identical chemical composition that was used during the years the worker was exposed to that product. 11

ARGUMENT I. Plaintiffs' concessions that Mr. Ravert was not regularly and frequently exposed to asbestos fibers shed from Monsey, Pecora or Ace Hardware products should resolve this case. Summary judgment may be only granted when the pleadings, depositions, interrogatory answers, admissions, affidavits, and expert reports, if any, show that there is no genuine issue as to any material fact and that the record entitles the moving party to judgment as a matter of law. Pa. R. Civ. P. 1035.2. Summary judgment is only appropriate "when the facts are so clear that reasonable minds cannot differ." Basile v. H&R Block. Inc., 761 A.2d 1115, 1118 (Pa. 2000). When an appellate court is considering whether the evidence tending to establish a certain issue is sufficient to raise a jury question, the court will assume the truth of facts of which there is any sufficient evidence. Ayres v. Pittsburgh. C.C. & St.L.Ry.Co., 50 A. 968 (Pa. 1902). In its brief, Monsey criticizes the Superior Court for not applying the "abuse of discretion" standard in this proceeding. (Monsey Brief at 38-42). Monsey incorrectly relies on Stanton v. Lackawanna Energy. Ltd., 886 A.2d 667 (Pa. 2005), which was overruled by this Court in Summers v. CertainTeed Corp.. 997 A.2d 1152 (Pa. 2010). This Court held in Summers that the "abuse of discretion" standard is not the proper standard for review of a grant of summary judgment on appeals Summers, Id. at 1160. The proper standard when there is a claim of genuine issues of material fact is whether the trial court committed an error of law. Summers. I d. The "error of law" standard set forth by this Court in Summers is s Monsey does not refer to Summers at any place in its entire Brief, despite the fact Summers is the most current precedent from this Court on the standard and scope of review for summary judgment in asbestos cases. This was no mere oversight, as the law firm that represents Monsey in this appeal also represented Allied Signal, Inc. in Summers. 12

a mandatory standard of review that the Superior Court was required to apply. Monsey's arguments in PartI-E of its Brief only address an "abuse of discretion" standard. Monsey not only disregards the Summers standard, but also substitutes its own "gatekeeper" standard that it claims it derives from Gregg. 6 According to Monsey, the trial court acts as a gatekeeper, making a threshold sufficiency-of-evidence determination. Monsey argues that the appellate court lacks any power to review this gatekeeper determination, but that the reviewing court should simply defer to the trial court's determination. (Monsey Brief at 19). This is the identical "abuse of discretion" standard rejected by this Court in Summers.? Under Summers, since a reviewing court is required to apply only the "error of law" standard, the reviewing court must, by necessity, examine the trial court's "gatekeeper" determinations to see if the trial court applied the law properly, based on the facts of record which are reviewed de novo. Plaintiffs concede, however, that when the correct standard is applied to the evidence in this case against Monsey, Pecora and Ace Hardware, Plaintiffs' evidence is insufficient to prove that Mr. Ravert breathed asbestos fibers shed by the defendants' products regularly and frequently enough to withstand summary judgment. In Gregg v. V- J-Auto. Inc., 943 A.2d 216 (Pa. 2007), this Court recognized that malignant mesothelioma, which is also at issue here, can be caused by relatively small amounts of asbestos exposure. 6 Monsey also incorrectly states the basis for the Superior Court's affirming the grant of summary judgment in Gregg on remand. On remand, the Superior Court in Gregg did not find that there were insufficient instances of exposure to asbestos brakes bought at V-J Auto, but that plaintiffs' witnesses could not testify that the brakes they saw the decedent install at any one time were actually the same brakes that witnesses testified were purchased at V-J Auto, since the decedent and his family patronized more than one auto supply store. Gregg v. V-I Auto. Inc., 975 A.2d 1171, 1178 (Pa. Super. 2009). 7 Summers also held that the scope of review was a plenary review of the entire factual record. Id. at 1159. 13

Gregg, 943 A.2d at 226. In Tragarz v. Keene Corp., 980 F. 2d 411 (7th Cir. 1992), which reasoning this Court adopted in Gregg, medical experts testified at trial that there was no safe level of exposure below which mesothelioma could not occur. 8 Tragarz applied the Illinois Court of Appeal's holding in Wehmeier v. UNR Industries Inc., 572 N.E. 2d 320 (Ill. App. 1991 ), that "the regularity, frequency and proximity test becomes even less rigid for purposes of proving substantial factor when dealing with cases in which exposure to asbestos causes mesothelioma." Tragarz. 980 F. 2d at 421: The decision in Tragarz v. Keene Corp., 980 F. 2d 411 (7th Cir. 1992), referenced by both parties, provides helpful guidance concerning the application of the frequency, regularity and proximity factors in asbestos litigation. Tragarz explains that these criteria do not establish a rigid standard with an absolute threshold necessary to support liability. Rather, they are to be applied in an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficient 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 products... Similarly, under Tragarz, the frequency and regularity prongs become "somewhat less cumbersome" in cases involving diseases that the plaintiffs competent medical evidence indicates can develop after only minor exposure to asbestos fibers. We agree with the Tragarz court's approach and adopt it here. This scientific view is generally accepted, and is even acknowledged by defense experts. See, e.g., Dr. Roggli at R.445a-44 7a. Plaintiffs concede in this case, however, that because of the manner in which Mr. Ravert testified to the use of Monsey and Pecora asbestos products and the nature of his usage of those products, Plaintiffs' evidence is 8 See also Rand Institute for Civil Justice, "Asbestos Litigation in the U.S." A New Look at an Old Issue," August 2001, at 19. "Certain diseases, such as mesothelioma, can occur even when there has been a relatively low level of exposure." See also 16 C.F.R. 1304.5: "The [Consumer Product Safety] Commission noted that in the scientific literature, there is general agreement that there is no known threshold level below which exposure to respirable free-form asbestos would be considered safe." 14

inadequate under Gregg. Had Mr. Ravert testified to usages involving the removal of Monsey or Pecora products under circumstances that produced visible dust, or where the evidence might have fairly allowed that inference to be drawn, Plaintiffs' evidence against Monsey and Pecora might have withstood summary judgment. However, after reviewing the record carefully in this case, in the light of the question that this Court asked, Plaintiffs concede that such inferences cannot fairly be drawn from Mr. Ravert's testimony in this case. This Court allowed appeal of the following question in this case: Does the Superior Court's holding that a plaintiff need not produce evidence that a defendant's asbestos-containing product produced dust conflict with this court's holding in Gregg? Plaintiffs concede that the answer to this question is "yes" because the factual record must, at a minimum, allow the inference that the particular asbestos exposure produced some amount of dust. Plaintiffs concede that for products such as Monsey's and Pecora's, which were applied wet, Plaintiffs would have to have shown that the products were handled after they had dried in a manner that produced dust. 9 There was no such evidence of Mr. Ravert handling these products after they had dried. II. Plaintiffs concede that inadequacies in the factual record cannot be cured by expert affidavits. This Court also asked the parties to address the following issue in this appeal: 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 9 In Gregg, this Court used the terms "dust" and "fibers" interchangeably in the context of how a particular product used in a particular way. Reference to "dust" occurs at 943 A.2d 221, 224, 225, and 228; reference to "fibers" occurs at 943 A.2d 220, 225, and 228). 15

summary judgment by submitting generic, non-case-specific expert affidavits, conflict with this Court's holding in Gregg? Plaintiffs recognize that this Court will not allow Plaintiffs to prove that a plaintiffs exposure to a particular asbestos-containing product is substantially causative of disease by the use of affidavits in which the expert's methodology is founded upon a belief that every single fiber of asbestos is causative. In Gregg, this Court articulated that the usage of a particular product had to be substantial enough when measured against the totality of the exposures, that the particular product usage was substantial enough to be a factual cause of the disease. Under this flexible standard, a particular product exposure which might be adequate in one case might be inadequate in another. The test for adequacy is the comparison of the particular product exposure(s) to the totality of the person's asbestos exposures. So, for example, in a mesothelioma case, the exposures of a person who used asbestos furnace cement like Pecora's on his home heater on a yearly basis over twenty years might be adequate if the person had little other demonstrable asbestos exposure, but might be inadequate for a person who daily worked with asbestos insulation at a shipyard for the same twenty years. Because the overwhelming number of asbestos exposures occurred where no dust measurements were taken, the Gregg test will almost always be applied to lay testimony. Even where experts claim to have tested the products at issue in a particular case, substantial questions arise as to the nature of the product tested (i.e. whether it was the same as that used by the exposed person), how the product was used, and how the fibers shed from that product compared with the totality of fibers shed from all products. The only product exposure testimony in this case came from Mr. Ravert, and Plaintiffs have conceded that his deposition testimony did not raise an inference that his exposures to 16

Monsey and Pecora asbestos-containing products were sufficient to show that these exposures were factual causes of his disease, given the totality of his exposures. Defendants and their amici, however, have used the question posed by this Court as a springboard for suggesting that summary judgment proceedings be turned into non-jury trials under the guise of the "gatekeeping" function of the trial court. Defendants want trial courts at summary judgment to apply Frye hearing concepts to expert witness affidavits without their having to request a Rule 207.1 hearing. Defendants ask this Court to apply the opinion in Betz v. Pneuma Abex, LLC, 44 A.3d 27 (Pa. 2012), an appeal of a ruling following a Frye hearing, to summary judgment determinations in all asbestos cases. Plaintiffs have conceded that their evidence in this case does not make out a prima facie case against the instant defendants' products. Because the suggestions made by defendant Monsey and Monsey's amici would effect such a drastic change in summary judgment practice, Plaintiffs feel constrained to respond from a policy perspective. Defendants seek to require Plaintiffs to essentially try their entire cases on paper, including defending their experts' opinions, without the opportunity for those experts to explain their views in a Frye hearing, by deposition or by trial testimony.lo In this case, the defendants have criticized Plaintiffs "generic" affidavits. However, the substance of most of the defense affidavits is just as "generic." That is, the bulk of the defense expert witness reports and affidavits refer to product testing and literature reviews that are identical from case to case. Defendants are attempting to turn the summary judgment process into a motion for a directed verdict done on pleadings, without experts on either side exposed to cross-examination. 1o Defendants' failure to request a Frye hearing in this case pursuant to Pa.R.Civ. P. 207.1 is discussed in Part III(A), infra. 17

Defendants use the term "generic" in a pejorative way to describe Plaintiffs' expert affidavits. They fail to acknowledge that certain generally-accepted facts about asbestos products and asbestos-caused diseases are independent of the particular facts in any one case.ll Thus, instead of referring to "generic facts," a more neutral (and accurate) term would be "fundamental facts" about which there is little disagreement. Many of those fundamental facts were set forth in Plaintiffs' expert affidavits, and in the testimonial excerpts from defense experts that Plaintiffs attached to their summary judgment motions. One example of such fundamental facts is that respirable asbestos fibers that cause disease cannot be seen by the naked eye. Monsey conceded such in its opposition to summary judgment. Monsey conceded that defense expert Dr. Victor Roggli's statement, i.e., that asbestos fibers that are potentially harmful are too small to be seen by the naked eye, was a fundamental fact to which there was scientific consensus and with which there was virtually no disagreement. (R.491a). Monsey's own expert report in this case also conceded, "respirable asbestos fibers are not visible to the naked eye." (R.361a).1 2 James Girard, Ph.D., a research chemist and the former Chairman of the Department of Chemistry at American University in Washington, D.C.,B stated in his affidavit in support 11 In Betz v. Pneuma Abex LLC. 44 A.3d 27 (Pa. 2012), discussed infra, this Court referred to the evidentiary hearing under review as a "generic Frye determination." 44 A3d at 55, n.34. 12 This is in accord with the views of other defense experts such as Dr. William Krebs, who testified for asbestos brake defendants (R279a, 282a), and Dr. Victor Roggli, who testified for asbestos brake and gasket defendants (R.246a), as well as Plaintiffs' own expert, Dr. James Girard. 13 At the time of the taking of the affidavit, Dr. Girard was the former Chairman of the Department. He has since become Chairman of the Department of Chemistry again at American University. 18

of Plaintiffs' opposition to the motions that handling asbestos products, including cements could release millions of invisible asbestos fibers: It is generally accepted in the medical and scientific community that all asbestos products, including gaskets, brake linings, packing, welding rods and cement, when abraded, handled or installed release respirable asbestos fibers. c,-r 4) It is generally accepted in the medical and scientific community that it is the respirable asbestos fibers that cause disease that are invisible to the naked eye. c,-rs) Levels of asbestos fibers as high as 10 or 20 asbestos fibers per cc of air are often invisible to the naked eye, yet the dust is respirable. c,-rs) An exposure as high as 10 asbestos fibers would expose a worker to millions, perhaps a billion, fibers and would be invisible to the naked eye. (,-r9) Any witness herein who testified that when he or a coworker handled asbestos gaskets, packing, welding rods, brake linings or even cement products, that he did not see asbestos or other airborne fibers, was exposed to, and inhaled without his knowledge, millions of asbestos fibers. (,-r10) (R.201a-202a). Arthur Frank, M.D., is a board certified occupational medicine physician who has worked in the field of asbestos-related disease for nearly forty years. (R.204a) He has consulted for the EPA and NIOSH, as well as several foreign countries. (R.204a) Dr. Frank stated in part in his affidavit: The encapsulation of asbestos-containing materials does not prevent individuals from being exposed to asbestos fibers in a manner that can cause disease, as the encapsulation is never 100% and various factors cause the encapsulation to break apart, such as heat, fracture, friction or abrasion. Also, initially moist asbestos-containing material can dry out and subsequently release disease-causing asbestos fibers. The encapsulation is often damaged in the operations described in this paragraph, releasing asbestos fibers under such circumstances. (,-r18) (R.206a) 19

Despite its criticism of "generic" affidavits, Monsey itself relies on generic statements by experts in support of its argument that its products do not give off sufficient respirable asbestos fibers to cause mesothelioma. Monsey relies on generic regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), 29 C.F.R. 1926.1101(a)(8)(2000), and to a 1997 opinion by the United States Court of Appeals for the Fifth Circuit, Asbestos Info. Ass'n. North America v. Reich, 117 F.3d 891 (5th Cir. 1997). (Monsey Brief at 41-42). The opening paragraph in Reich states: In 1986, OSHA issued a rule regulating occupational exposure to asbestos. The D.C. Circuit upheld part of the rule and remanded other parts to OSHA for further action. Building & Canst. Trades Dept., AFL-CIO v. Brock 838 F.2d 1258 (D.C.Cir.1988). In 1994, pursuant to the remand and after notice-andcomment, OSHA published a final rule. 59 Fed. Reg. 40964 (August 10, 1994). After additional challenges, OSHA made modifications to the final rule. 60 Fed. Reg. 50411 (Sept. 29, 1995). 117 F.3d at 892. Nothing in this regulation refers to any particular use of asbestos products under the conditions in which Mr. Ravert used Monsey products, starting in 1969.14 The bulk of the regulation concerns the safe abatement ofin-place asbestos products. Furthermore, the ruling in Reich was also based on the evidence in that record. 117 F.3d at 893-894. The Fifth Circuit based its ruling only on the evidence proffered in its own proceeding, which does not include any of the evidence similar to that in Mr. Ravert's case. Monsey suggests that the trial court should accept the views of its experts at summary judgment and reject the views of Plaintiffs' experts. Monsey attacks the credibility of Dr. Frank's and Dr. Girard's affidavits, and then offers expert reports of its 14 Monsey ignores the fact that, as a matter of federal law, OSHA standards cannot be used to affect state law claims. 29 U.S.C. 653(b)(4). 20

own that it claims are more credible than Plaintiffs'. Monsey alleges that its own experts' generic 2005 tests somehow reproduced the working conditions under which Mr. Ravert used Monsey asbestos products on the tackle shop roof, the apartment complex roof, and on Mr. Ravert's mother's house's and neighbors' roofs from 1961-2000. (Monsey expert report at R.347a-363a in the Reproduced Record). First, at summary judgment, the Monsey expert reports should be disregarded because the reports would be non-dispositive under this Court's holding in Borough of Nanty-Glo v. American Surety Co. of New York. 163 A. 523 (Pa. 1932). In Nanty-Glo, this Court held that the trial court cannot assume that a witness' testimony, even if unrebutted by other evidence, is enough to prevent a case from going to a jury.!d. at 524. In this case the two Monsey experts' statements were certainly contested by statements from both Plaintiffs' experts, as well as from defense experts in other cases. 15 Next, Monsey criticizes Plaintiffs affidavits as being insufficiently case-specific, but it does not explain how its own experts' generic tests, done two years before Mr. Ravert's case was even filed, and without any information about Mr. Ravert's particular use of 15 Monsey relies on regulations promulgated by the Occupational Safety and Health Administration ("OSHA"), 29 C.F.R. 1926.1101(a)(8)(2000), and to a 1997 opinion by the United States Court of Appeals for the Fifth Circuit, Asbestos Info. Ass'n/North America v. Reich, 117 F.3d 891 (5th Cir. 1997). (Monsey Brief at 41-42). As noted above, Monsey's use of OSHA standards in its argument contravene the express provisions of federal law. See 29 u.s.c. 653(b)(4). Monsey also does not explain why Reich or the current OSHA regulation would be relevant to the kind of Monsey roofing products that Mr. Ravert used from 1962 until at least 1986, if not 1997. The regulations could only address asbestos roofing products manufactured under processes developed some years after Mr. Ravert had been using Monsey roofing products, which would make the regulations irrelevant to any pre-1986 exposure. 21

Monsey asbestos products, are more credible. The generic testing by Monsey's experts on Monsey roof cement was done in 2005, before Mr. Ravert's 2007lawsuit, and before Monsey had any specific information about Mr. Ravert's use of Monsey products. The roof sections on which Monsey did its tests were constructed in 2005, before Monsey knew anything about Mr. Ravert's use of asbestos products. (R.356a-358). When Monsey's experts did their 2005 tests, they did not know exactly what kind of Monsey roofing products that Mr. Ravert used for forty years because they knew nothing about Mr. Ravert, who had yet to file a lawsuit. Only after they received information about Mr. Ravert's use of Monsey asbestos roofing products did Monsey's experts try to extrapolate their generic 2005 testing results to Mr. Ravert's working conditions in their 2008 report. hey wrote in their report that the products that they tested in 2005 were "assumed to be representative of potential exposure that Mr. Ravert may have received in his roofing patch work. (R.356a). (emphasis added).1 6 Monsey also assumed in its 2005 tests that the average time for application of its asbestos roofing products was 30 minutes, although it had no information on Mr. Ravert's use of asbestos products at the time the test was designed. (R.358a). Once it had its data from its 30-minute tests on roofing sections to which various Monsey asbestos products had been applied, the experts then spread the amount of asbestos exposure over an eighthour day, in an attempt to pretend that the daily exposure was de minimis, regardless of the 16 Amici Richard Wilson, eta! (hereinafter referred to as the "Defense Scientists' Brief'), also assume, without foundation, that the re-created asbestos products Monsey tested in 2005 were the identical Monsey asbestos products that Mr. Ravert used, starting in the 1960s. (Defense Scientists' Brief at 31-32). See Part III(C) of this Brief for the discussion of Monsey's re-creation of asbestos products for its 2005 tests. 22

intensity or length of the actual exposure. However, Monsey did not then multiply the daily asbestos exposure to arrive at the 40-year use of Monsey asbestos products to get the approximate lifetime exposure to asbestos from Monsey productsp Monsey also assumed, without any basis, that Mr. Ravert had no other exposure to Monsey asbestos products other than these 30 minutes. Whether Monsey could even have designed laboratory tests in 2005 or 2008 that could be considered accurate duplications of Mr. Ravert's working conditions at his various uses of specific Monsey products from 1969-2000 is also an issue that could only be explored under cross-examination. It is certainly an issue for the jury to decide. Finally, Monsey's experts' qualifications should not simply be accepted at face value at the summary judgment stage. According to her curriculum vitae, Dr. Fionna Mowat was a biomedical engineer who worked primarily in hip and knee replacement surgery. In the mid-2000s, without any documented experience, she became an expert on asbestos products and the release of asbestos fibers during their usage. (R.366a-376a). Dr. Patrick Sheehan worked in the toxicology of groundwater, soil and wildlife contamination until the 2000s. This included effects upon prairie nesting ducks and mussels, among other species. Thereafter Dr. Sheehan suddenly became an expert on human beings' exposures to asbestos products, the release of asbestos fibers during the use of such asbestos-containing products and the medical causation of asbestos-related diseases. (R.379a-391a). Plaintiffs 17 Another weakness in the Monsey experts' methodology can be seen if one takes their methods and applies them to an hospital X-ray technician who is frequently exposed to radiation from a leaky X-ray machine for 30 consecutive minutes a day. Monsey's experts would claim that when this amount of radiation is spread over eight hours, the technician had a de minimis level (time-weighted average or "TWA") of daily exposure to radiation similar to that from the everyday environment. 23

recognize that even though the threshold for experience for an expert witness is low, 18 a factfinder might very well question the true expertise of Monsey's experts and the conclusions they drew.19 Expert credibility is typically the kind of issue that requires that a case go to the jury, as this Court so held in Bremmer v. Protected Home Mut. Life Ins., 260 A.2d 785 (Pa. 1970). A trial judge reviewing the evidence submitted in opposition to summary judgment cannot pick and choose what evidence to believe, nor can a reviewing court, as this Court ruled in Summers. 997 A.2d at 1165. A jury can believe any part of a witness' testimony that they choose, and may disregard any portion of the testimony that they disbelieve. 18 Pa. R. Evid. 702 states that "a witness qualified by knowledge, skill, experience, training or education may testify therefor in the form of an opinion or otherwise." 19 The Monsey experts' credibility would also have to be assessed by the jury after cross-examination, including the influence of the experts' financial interests on the outcome of the testing and trial, and whether the two individuals were "hired experts," to use a phrase from the Defense Scientists' Brief, or whether the tests that Monsey designed and paid for were "litigation science." (Defense Scientists' Brief at 1). The Monsey's experts' article in the Annals of Occupational Medicine (R.807a-818a), states that the 2005 tests were paid for by Monsey and its parent company, the Henry Company. (R.817a). This payment would be relevant to the experts' credibility at trial. The only products tested in that study were allegedly similar to those made by Monsey. (R.808a). the 2005 tests described in the article were also the basis for the 2008 Monsey expert report in this case. (R.807a-817a; 356a-360a). The potential expert bias from industry-funded research was also noted by Justice (now Chief Justice) Castille in his dissent in Blum v. Merrell-Dow Pharmaceuticals. Inc., 764 A.2d 1, 17 (Pa. 2000). A front-page article in the Wall Street journal exposed some of the conflicts and biases that researchers have when their research is funded by industry, even when the research results are published in "peer-review" journals. See Mathews, "Ghost Story: At Medical Journals, Writers Paid by Industry Play Big Role," Wall St.]., December 13, 2005, A1, col1. See also, Michaels, D., Doubt Is Their Product: How Industry's Assault on Science Threatens Your Health (2008). 24

Mitzelfelt v. Kamrin. 584 A2d 888, 893 (Pa. 1990).20 Only a jury could decide whether Plaintiffs' or Defendants' experts best explained the causal relationship between Mr. Ravert' s mesothelioma and his use of Monsey and Pecora asbestos products. HI. Betz v. Pneuma Abex is inapplicable to the summary judgment issues in this case. A. Defendants failed to preserve a challenge under Betz to Plaintiffs' experts' opinions when they did not request a Frye hearing prior to this appeal. To the extent that Defendants thought that Plaintiffs' experts' conclusions were not supported by science, they could have appropriately challenged such conclusions pursuant to Pa.R.Civ. P. 207.1. However, a Rule 207.1 challenge is not a summary judgment motion.21 Rather, it is a challenge of an expert's conclusions through a hearing pursuant to Frye v. United States. 293 F. 1013 (D.C. Cir. 1923). According to the Explanatory Comment to Rule 207.1, "The purpose of new Rule 207.1 is to provide the procedure for pre-trial motions 2o In Donoughe, supra, Judge (now Justice) McCaffrey, writing for a unanimous panel, stated that a jury was entitled to disregard "unrebutted" testimony if the jury did not find the witnesses credible. Donoughe, /d. at 65. The contradictions and admissions of the defense experts in this case on cross-examination could effectively "rebut" their testimony on direct, which is another reason why these opinions should be presented in full to a factfinder. Another area of dispute between experts is whether chrysotile asbestos can cause mesothelioma. The Defense Scientists' Brief claims that chrysotile asbestos fiber only causes mesothelioma with very high doses. (Defense Scientists' Brief at 23). Other experts have opined that all asbestos fibers cause mesothelioma. See Hicks v. Dana Corp., 984 A.2d 943, 954-955 appeal denied, 19 A3d 1051 (Pa. 2011). This issue is not presented to this Court for review, and the Defense Scientists' interjection of the "chrysotile defense" into this case should be disregarded. 21 Defendants did attempt to challenge Plaintiffs' experts' opinions by offering expert reports of their own, which created a credibility issues addressed in Part I of this Brief, supra. Pursuant to this Court's opinion in Borough of N anty-glo v. American Surety Co. of New York. 163 A. 523 (Pa. 1932), affidavits of the moving parties, including Defendants' expert reports, are insufficient to support a grant of summary judgment. 25

concerning the admissibility of expert testimony which relies on novel scientific evidence" (emphasis added.), and the only procedure for evaluating such testimony. 22 In Summers, this Court noted that the defendants' failure to request a Frye hearing prior to the appeals meant that any challenges to the competence of medical testimony were not properly before the Court. This Court stated, "Again, we recognize that discovery in these cases may not be closed; there have been no requests for a Frye hearing; nor have motions in limine or an omnibus motion to exclude evidence been filed, litigated or adjudicated by the trial court." Summers.!d. at 1165-1166, n. 20. 2 3 It is manifestly unfair in this case to require Plaintiffs to engage in an abbreviated Frye "hearing" at this stage of the case, when Defendants could have requested that the trial court defer ruling on the summary judgment motions and conduct a Frye hearing on Plaintiffs' experts' theories before ruling on the motions. Defendants should be estopped from raising Frye issues at this point of the proceedings due to their failure properly to raise these issues in the trial court.2 4 22 As Washington County President Judge Debbie O'Dell-Seneca noted in Brosie v. A.W. Chesterton Co.. 2012 Pa. Dist. & Cnty. Dec. LEXIS 275 (Wash. Co. 2012), the article "the" modifies the noun "procedure" in Rule 207.1, and thus makes it clear that there is only one procedural method for challenging an expert's opinions.!d. at *9-10. Since Defendants in Brosie waived a Frye hearing, Judge O'Dell-Seneca held that they could not challenge expert opinions pursuant to Betz in their summary judgment motions. I d. at *10-11. Monsey is surely aware of this ruling, as its counsel's Pittsburgh office represented Honeywell International in Brosie. 23 In his dissent in Gregg, Justice Baer observed that if the defendants wanted to challenge the experts' opinions in plaintiffs' affidavits in that case, then the defendants should have requested a Frye hearing at which those opinions could have been fully explored. Gregg, 943 A.2d at 229-230. 24 As a matter of practicality, it makes sense for trial courts to rule on asbestos exposure issues under Summers and.g.r.ggg before conducting expert witness hearings under Pa. R.C.P. 207.1. As in this case, where a trial court rules that the asbestos exposures 26

B. Betz did not hold that there was a quantifiable de minimis level or "dose" of asbestos that had to be established to show medical causation in a mesothelioma case. Appellants' reliance on Betz v. Pneuma Abex. LLC, 44 A.3d 27 (Pa. 2012), as quantifying the amount of asbestos exposures, is also misplaced, because this Court did not hold in Betz that there was a certain threshold of exposure required in mesothelioma cases. Nor did this Court hold that ifthere was exposure to one manufacturer's product that was somewhat more regular and frequent than other exposures, then there could only be one factual cause. Betz also did not render Summers; Martin v. Owens Corning Fiberglas Corp., 528 A.2d 947,951 (Pa.1987); Donoughe v. Lincoln Elec. Co., 936 A.2d 52 (Pa. Super. 2006); lunge v. Garlock Inc., 629 A.2d 1029 (Pa. Super. 1993) appeal denied, 641 A.2d 310 (Pa. 1994); Lonasco v. A-Best Products. Inc., 757 A.2d 367 (Pa. Super. 2000) appeal denied, 781 A.2d 145 (Pa. 2001); or Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71 (Pa. Super. 2002), which Pennsylvania trial courts are required to follow, moot. Betz only addressed the standards that would apply if there was a Frye challenge to an expert's opinions, and if those opinions were only based on an "each and every breath" theory of causation. Betz rejected the view, espoused by plaintiffs expert at the Frye hearing, that every inhalation of asbestos was a substantial contributing factor. This Court affirmed the trial court's finding that there was insufficient scientific evidence to support Plaintiffs expert's opinion. Betz, 44 A.3d at 56-57. This Court refrained from establishing any quantifiable de minimis level of asbestos exposure that would be required to be shown in a mesothelioma case. to a defendant's products do not satisfy Gregg. there is no need to conduct a hearing with regard to the experts. 27

Betz reaffirmed Gregg in requiring that the injured person's asbestos exposures to particular products had to be viewed against the totality of asbestos exposure established in the evidentiary record to determine if an exposure to a particular manufacturer's product could be significant enough to be a factual cause.!d., n.36, citing Restatement (Second) Torts 433. 25. Only regular and frequent exposures clearly established in the evidentiary record can be considered in assessing the totality of exposure. Speculative exposure, such as a suggestion that a plaintiff once attended a school in which asbestos might have been used, cannot be used to expand the totality of asbestos exposures. Amicus Products Liability Advisory Council ("PLAC") makes much of Plaintiffs' expert Dr. Frank's use of the phrase "substantial contributing factor" in one paragraph of his four-page affidavit. (R.204a-207a). PLAC claims that this is an inappropriate legal conclusion, and cites cases on evidentiary rulings at trial in support of its argument, and discusses at length cases involving expert testimony and the risk of jury confusion. However, this is not a review of a trial proceeding, and there is no factfinder at this stage which might or might have not been confused by such a statement from an expert.26 Whether or not Dr. Frank would be permitted to make such a statement at trial would be 25 In Ford v. Jeffries. 379 A.2d 111 (Pa.1977), this Court held that so long as a defendant's product is a substantial contributing factor, other factors cannot prevent the defendant from being liable.!d. at 115, quoting Restatement (Second) Torts 442B. See also Martin v. Owens Corning Fiberglas Corp.. 528 A.2d 947,951 (Pa.1987), citing Restatement (Second) Torts, 431. In Teter v. Owens-Corning Fiberglas Corp., 716 A.2d 633, 637 (Pa. Super. 1988), the Superior Court held that a substantial contributing factor need not be large in quantity, so even if a defendant's asbestos product was one of several to which Mr. Ravert was exposed, evidence of other exposures would not necessarily exonerate a defendant. 26 The trial judge has the discretion to admit or exclude expert opinions on the ultimate issue depending on the helpfulness of the testimony versus its potential to cause confusion or prejudice. Kozak v. Struth. 531 A.2d 420 (Pa. 1987). 28

within the discretion of the trial judge. It would be speculative for this Court to rule on whether or not a particular statement by an expert could ultimately be made at trial, given how the questioning might develop on cross-examination and re-direct. PLAC fails to explain why possible trial evidentiary rulings that may never be made should be considered by this Court at this time. As a matter of Pennsylvania law, experts are permitted to opine at trial on ultimate issues. Commonwealth v. Daniels, 390 A.2d 172 (Pa. 1978); Cooper v. Metropolitan Life Ins. Co., 186 A. 125 (Pa. 1936). This includes the issue of causation. Commonwealth v. Jacobs, 639 A.2d 786, 789 (Pa. 1994); Commonwealth v. Nasuti. 123. A.2d 435, 443 (Pa. 1956); McManamon v. Washko, 906 A.2d 1259, 1278 (Pa. Super. 2006) appeal denied, 906 A.2d 1259 (Pa. 2007). Monsey itself has used its expert report to argue the ultimate issue, causal relationship, in this case by claiming that its 2005 tests show that Mr. Ravert's mesothelioma could not have been caused by its roofing products. ("It is therefore our opinion, based on the results of our exposure simulation and what is known about his exposure, that Mr. Ravert' s diagnosis of mesothelioma is unrelated to his work with roofing products." (R.363)). PLAC equates "legal conclusion," with "legal standard," and "legal cause," but these terms are not interchangeable. For liability to attach in an asbestos case, exposure to a defendants' asbestos product must be a substantial contributing factor, or factual cause of the disease. This is a matter about which the jury cannot reach a decision absent expert evidence, because the jury lacks the scientific knowledge of disease processes, so at trial all parties would introduce evidence on medical causation. The jury would decide which expert's opinion on medical causation that it would accept in assessing legal causation. 29

Every asbestos defendant who has argued in a summary judgment motion that the exposure to its asbestos products was de minimis by using expert evidence, was also proffering evidence to show that a plaintiff did not meet a legal standard, and therefore its products could not be the legal cause of the plaintiffs injuries. Monsey and the PLAC ignore the Summers court's reiteration of Pennsylvania law on factual causation. Summers cited Pennsylvania Standard Jury Instruction (Civ.) 3.15, "The defendant's conduct need not be the only factual cause. The fact that some other causes concur... does not relieve the defendant of liability." 997 A2d at 1166, n.18. Thus, even if there were other exposures to asbestos fibers from other products, those exposures would not relieve other defendants of liability where their products were also shown to have resulted in asbestos exposures. Appellants' argument that a plaintiff must somehow quantify the "dose" of exposure from each manufacturer's asbestos product into measurable units at the summary judgment stage is without foundation. C. Since Defendants have presumably spoliated any asbestos products manufactured during the era in which Mr. Ravert used those products, Betz cannot be applied to require Plaintiffs to produce reports on products that no longer exist. Appellants also distort Betz to suggest that Betz requires that plaintiffs produce their own expert reports, possibly based on testing results of a defendant's asbestos products, to show that the particular product did give off sufficient asbestos fibers to cause disease. Nearly all of the asbestos products to which workers were exposed in past decades in this country are no longer manufactured. Plaintiffs would be unable to do tests 30

on the actual products a worker used because in all likelihood no samples of those products still exist.27 Plaintiffs could not be expected to rely on test done by defense experts. If Defendants are to insist on such expert reports, then Defendants would have to produce samples for testing or expert review that are identical to those products the worker used.2s The few products that do contain currently contain asbestos may have had their chemical composition and manufacturing process or factory air quality control altered over the years. If the chemical composition or manufacturing process for a particular product changed over the decades, then a test on a product by defense experts in 2005 or 2013 would not necessarily duplicate the asbestos fiber release of the product used by the worker in 1966, 1976, or 1986. It would be fundamentally unfair to require Plaintiffs to produce product-specific expert reports on non-existent products or on products that are solely within Defendants' control. 27 The 2005 tests to which the Monsey experts extrapolated for their 2008 report on Mr. Ravert were done with re-created Monsey products. (R.356a-360a; R.807a-818a). The companies' asbestos roofing products were no longer being made, so the experts were permitted by Monsey's parent company, the Henry Company, to manufacture new Monsey and Henry asbestos roofing products "mixed on original equipment still present at the [Henry] site." (R.808a). 2s Monsey itself conceded that it did not know exactly what kind of Monsey asbestos roofing products Mr. Ravert used for forty years, but its experts said that the re-created products it tested in 2005 before Mr. Ravert's lawsuit was filed were "assumed to be representative of potential exposure that Mr. Ravert may have received in his roofing repair work. (R.356a). 31

CONCLUSION For the reasons set forth above, based upon Plaintiffs' concessions, this Court should summarily reverse the Superior Court's orders vacating the trial courts' orders granting summary judgment in favor of Monsey, Pecora and Ace Hardware's motions for summary judgment, should reinstate the orders granting summary judgment in those Defendants' favor, and should remand the case to the Philadelphia County Court of Common Pleas. Respectfully submitted, Richard P. Myers Attorneys for Plaintiffs-Appellees 32

CERTIFICATE OF SERVICE Richard P. Myers, Counsel for Plaintiffs-Appellees, hereby certifies that two copies of Plaintiffs-Appellants' Brief were served by first class mail on February _i_, 2013 on counsel listed below.!-f---"':...:=.-"'jj!:...;z----'"--=-j,/richard P.'Myers Paul, Reich & Myers Attorney for Plaintiffs-Appellees Carl D. Buchholz, Esq. Rawle & Henderson The Widener Building Philadelphia, P A 1910 7 Attorney for Monsey Products Corp. Jennifer A. Stern, Esq. Marks, O'Neill, O'Brien & Courtney 1800 JFK Boulevard Philadelphia, PA 19103 Attorney for Pecora Corp. John J. Bateman, Esq. Lavin, O'Neil, Ricci, Cedrone & DeSipio 190 North Independence Mall West Philadelphia, PA 19106 Attorney for Ace Hardware Corp. Catherine Jasons, Esq. Kelley, Jasons, McGowan, Spinelli & Hanna Suite 1900 Two Liberty Place Philadelphia, PA 19102 Attorney for Union Carbide Corp. 33

M. Douglas Eisler, Esq. Wilbraham, Lawler & Buba Suite 3100 1818 Market Street Philadelphia, PA 19103 Attorney for AW. Chesterton Co. James M. Beck, Esquire ReedSmith 1650 Market Street Philadelphia, PA 19103 Attorney for Amicus Curiae Product Liability Advisory Council, Inc. Martin S. Kaufman, Esquire Atlantic Legal Foundation Suite 104 2039 Palmer Avenue Larchmont, NY 10538 Attorney for Amicus Curiae Atlantic Legal Foundation William L. Anderson, Esquire Crowell & Moring LLP 1001 Pennsylvania Avenue N.W. Washington, D.C. 20004 Attorney for Amicus Curiae Coalition for Litigation Justice Chance Weldon, Esquire Pacific Legal Foundation 930 G Street Sacramento, CA 95814 Attorney for Amicus Curiae Pacific Legal Foundation 34