Client Alert Newsletter

In Philadelphia's Mass Tort Program, Court Makes Road to Recovery Significantly More Difficult for Asbestos Plaintiffs

Historically, one of the hallmark elements of asbestos personal injury litigation—and one of the reasons why plaintiffs and their counsel have been so successful in pursuing such claims against thousands of non-traditional asbestos defendants with extremely small exposures—has been the "any exposure" theory of causation, which essentially contends that any exposure to asbestos fiber, no matter how minimal, is a substantial contributing factor to asbestos-related disease. In 2007, however, the Pennsylvania Supreme Court joined more than a dozen federal and state courts that have in recent years rejected or heavily criticized this "any exposure" causation theory, and the ramifications are now being felt by asbestos plaintiffs at the trial court level.

By Memorandum and Order dated September 24, 2008, Judge Allan L. Tereshko, Coordinating Judge of the Philadelphia Court of Common Pleas' Complex Litigation Center and Mass Tort Program, barred plaintiffs' experts in three asbestos cases from offering testimony that each and every exposure to asbestos was a substantial contributing factor in the plaintiffs' asbestos-related diseases, affirmatively concluding that "not all asbestos exposures cause disease." The court further suggested that to get to a jury in Philadelphia and to ultimately succeed at trial, asbestos plaintiffs will need to establish a causal link between the defendants' products and their claimed injuries through the use of "well conducted epidemiological studies"—a proof threshold that may prove to be impossible to overcome in low-level exposure cases.