"Every Breath" Of Asbestos Is Not A Substantial Factor In Pennsylvania

The Pennsylvania Supreme Court unanimously found that plaintiffs cannot rely on the theory that "every breath" is a substantial contributing factor in causing an asbestos-related disease in an asbestos case involving friction exposures, i.e., brakes and clutches. The May 23, 2012, ruling in Diana K. Betz v. Pneumo Abex LLC ("Simikian") overturns the en banc decision of the state Superior Court, which the Pennsylvania Supreme Court found to be based on an "unduly cramped perspective." (Note: Duane Morris represented defendant Ford in this case.)

While the Superior Court of Pennsylvania concluded that the "every breath" opinion was not novel, the Pennsylvania Supreme Court disagreed and found that the trial court's decision to conduct a Frye¹ hearing was appropriate. The court noted that challenges to expert testimony are "vetted through the Frye litmus, which winnows the field of the attacks by application of the threshold requirement of novelty."² The court held