J-E02002-14

2014 PA Super 286

DARLENE NELSON, EXECUTRIX OF THE 

ESTATE OF JAMES NELSON

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

AIRCO WELDERS SUPPLY, ALLIED 

SIGNAL (A/K/A ALLIED CORP.), 

AMERICAN STANDARD, A.W. 

CHESTERTON, INC., BASIC, INC., BAYER 

CROPSCIENCE, INC., (F/K/A AVENTIS 

CROPSCIENCE, USA, INC.), ACHEM 

PRODUCTS, INC., RHONE POULENC, AG 

CO. AND BENJAMIN FOSTER COMPANY, 

BEAZER EAST (A/K/A KOOPERS CO., 

INC. AND KOOPER), BIRD, INC., BOC 

GROUP, BORG-WARNER CORP., BRAND 

INSULATIONS, INC., CBS CORPORATION 

(F/K/A VIACOM, INC. AND 

WESTINGHOUSE ELECTRIC 

CORPORATION), CERTAINTEED 

CORPORATION, CHRYSLER CORP. (A/K/A 

AMC, NORTHWEST AUTO RENTAL CO. 

AND CHRYSLER SERVICE CONTRACT 

CO.), CRANE CO., DEMMING DIVISION, 

CRANE PACKING, ESAB WELDING AND 

CUTTING EQUIPMENT, EJ LAVINO & CO., 

EUTECTIC CORP., FERRO ENGINEERING, 

FORD MOTOR CO., FOSECO, INC., 

FOSTER WHEELER CORPORATION, 

GARLOCK, INC., GENERAL ELECTRIC 

COMPANY, GENERAL MOTORS CORP., 

GEORGE V. HAMILTON, INC., GEORGIAPACIFIC CORPORATION, GOULD PUMPS, 

INC., GREEN, TWEED & COMPANY, INC., 

HAJOCA PLUMBING SUPPLY COMPANY, 

HARNISCHFEGER CORP., HEDMAN 

RESOURCES LIMITED (F/K/A HEDMAN 

MINES LTD.), HOBART BROTHERS CO., 

HONEYWELL INTERNATIONAL, INC., 

INGERSOLL RAND CO., JOY GLOBAL 

INC., LINCOLN ELECTRIC CO., LUKENS 

STEEL CO., MALLINCKRODT GROUP, 
J-E02002-14

2

INC. (F/K/A INTERNATIONAL MINERALS 

& CHEMICALS CORP.), MELRATH 

GASKET, INC., MINE SAFETY APPLIANCE 

(MSA), METROPOLITAN LIFE INSURANCE 

COMPANY, NOSROCK CORPORATION, 

OWENS-ILLINOIS, INC., PEP BOYS 

(A/K/A MANNY, MOE AND JACK), UNION 

CARBIDE CORP., UNIVERSAL 

REFRACTORIES DIVISION OF THIEM 

CORPORATION

APPEAL OF: CRANE CO. No. 865 EDA 2011

Appeal from the Judgment Entered on February 23, 2011

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: 1335 Dec. Term 2008

DARLENE NELSON, EXECUTRIX OF THE 

ESTATE OF JAMES NELSON

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

AIRCO WELDERS SUPPLY, ALLIED 

SIGNAL (A/K/A ALLIED CORP.), 

AMERICAN STANDARD, A.W. 

CHESTERTON, INC., BASIC, INC., BAYER 

CROPSCIENCE, INC., (F/K/A AVENTIS 

CROPSCIENCE, USA, INC.), ACHEM 

PRODUCTS, INC., RHONE POULENC, AG 

CO. AND BENJAMIN FOSTER COMPANY, 

BEAZER EAST (A/K/A KOOPERS CO., 

INC. AND KOOPER), BIRD, INC., BOC 

GROUP, BORG-WARNER CORP., BRAND 

INSULATIONS, INC., CBS CORPORATION 

(F/K/A VIACOM, INC. AND 

WESTINGHOUSE ELECTRIC 

CORPORATION), CERTAINTEED 

CORPORATION, CHRYSLER CORP. (A/K/A 

AMC, NORTHWEST AUTO RENTAL CO. 

AND CHRYSLER SERVICE CONTRACT 

CO.), CRANE CO., DEMMING DIVISION, 

CRANE PACKING, ESAB WELDING AND 

CUTTING EQUIPMENT, EJ LAVINO & CO., 
J-E02002-14

3

EUTECTIC CORP., FERRO ENGINEERING, 

FORD MOTOR CO., FOSECO, INC., 

FOSTER WHEELER CORPORATION, 

GARLOCK, INC., GENERAL ELECTRIC 

COMPANY, GENERAL MOTORS CORP., 

GEORGE V. HAMILTON, INC., GEORGIAPACIFIC CORPORATION, GOULD PUMPS, 

INC., GREEN, TWEED & COMPANY, INC., 

HAJOCA PLUMBING SUPPLY COMPANY, 

HARNISCHFEGER CORP., HEDMAN 

RESOURCES LIMITED (F/K/A HEDMAN 

MINES LTD.), HOBART BROTHERS CO., 

HONEYWELL INTERNATIONAL, INC., 

INGERSOLL RAND CO., JOY GLOBAL 

INC., LINCOLN ELECTRIC CO., LUKENS 

STEEL CO., MALLINCKRODT GROUP, 

INC. (F/K/A INTERNATIONAL MINERALS 

& CHEMICALS CORP.), MELRATH 

GASKET, INC., MINE SAFETY APPLIANCE

(MSA), METROPOLITAN LIFE INSURANCE 

COMPANY, NOSROCK CORPORATION, 

OWENS-ILLINOIS, INC., PEP BOYS 

(A/K/A MANNY, MOE AND JACK), UNION 

CARBIDE CORP., UNIVERSAL 

REFRACTORIES DIVISION OF THIEM 

CORPORATION

APPEAL OF: HOBART BROTHERS CO. No. 866 EDA 2011

Appeal from the Judgment Entered on February 23, 2011

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: 1335 Dec. Term 2008

DARLENE NELSON, EXECUTRIX OF THE 

ESTATE OF JAMES NELSON

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

AIRCO WELDERS SUPPLY, ALLIED 

SIGNAL (A/K/A ALLIED CORP.), 

AMERICAN STANDARD, A.W. 

CHESTERTON, INC., BASIC, INC., BAYER 

CROPSCIENCE, INC., (F/K/A AVENTIS 
J-E02002-14

4

CROPSCIENCE, USA, INC.), ACHEM

PRODUCTS, INC., RHONE POULENC, AG 

CO. AND BENJAMIN FOSTER COMPANY, 

BEAZER EAST (A/K/A KOOPERS CO., 

INC. AND KOOPER), BIRD, INC., BOC 

GROUP, BORG-WARNER CORP., BRAND 

INSULATIONS, INC., CBS CORPORATION 

(F/K/A VIACOM, INC. AND 

WESTINGHOUSE ELECTRIC 

CORPORATION), CERTAINTEED 

CORPORATION, CHRYSLER CORP. (A/K/A 

AMC, NORTHWEST AUTO RENTAL CO. 

AND CHRYSLER SERVICE CONTRACT 

CO.), CRANE CO., DEMMING DIVISION, 

CRANE PACKING, ESAB WELDING AND 

CUTTING EQUIPMENT, EJ LAVINO & CO., 

EUTECTIC CORP., FERRO ENGINEERING, 

FORD MOTOR CO., FOSECO, INC., 

FOSTER WHEELER CORPORATION, 

GARLOCK, INC., GENERAL ELECTRIC 

COMPANY, GENERAL MOTORS CORP., 

GEORGE V. HAMILTON, INC., GEORGIAPACIFIC CORPORATION, GOULD PUMPS, 

INC., GREEN, TWEED & COMPANY, INC., 

HAJOCA PLUMBING SUPPLY COMPANY, 

HARNISCHFEGER CORP., HEDMAN 

RESOURCES LIMITED (F/K/A HEDMAN 

MINES LTD.), HOBART BROTHERS CO., 

HONEYWELL INTERNATIONAL, INC., 

INGERSOLL RAND CO., JOY GLOBAL 

INC., LINCOLN ELECTRIC CO., LUKENS 

STEEL CO., MALLINCKRODT GROUP, 

INC. (F/K/A INTERNATIONAL MINERALS 

& CHEMICALS CORP.), MELRATH 

GASKET, INC., MINE SAFETY APPLIANCE 

(MSA), METROPOLITAN LIFE INSURANCE 

COMPANY, NOSROCK CORPORATION, 

OWENS-ILLINOIS, INC., PEP BOYS 

(A/K/A MANNY, MOE AND JACK), UNION 

CARBIDE CORP., UNIVERSAL 

REFRACTORIES DIVISION OF THIEM 

CORPORATION

APPEAL OF: LINCOLN ELECTRIC CO. No. 867 EDA 2011
J-E02002-14

5

Appeal from the Judgment Entered on February 23, 2011

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: 1335 Dec. Term 2008

DARLENE NELSON, EXECUTRIX OF THE 

ESTATE OF JAMES NELSON, AND IN HER 

OWN RIGHT,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 APPELLANT

v.

AIRCO WELDERS SUPPLY, ALLIED 

SIGNAL (A/K/A ALLIED CORP.), 

AMERICAN STANDARD, A.W. 

CHESTERTON, INC., BASIC, INC., BAYER 

CROPSCIENCE, INC., (F/K/A AVENTIS 

CROPSCIENCE, USA, INC.), ACHEM 

PRODUCTS, INC., RHONE POULENC, AG 

CO. AND BENJAMIN FOSTER COMPANY, 

BEAZER EAST (A/K/A KOOPERS CO., 

INC. AND KOOPER), BIRD, INC., BOC 

GROUP, BORG-WARNER CORP., BRAND 

INSULATIONS, INC., CBS CORPORATION 

(F/K/A VIACOM, INC. AND 

WESTINGHOUSE ELECTRIC 

CORPORATION), CERTAINTEED 

CORPORATION, CHRYSLER CORP. (A/K/A 

AMC, NORTHWEST AUTO RENTAL CO. 

AND CHRYSLER SERVICE CONTRACT 

CO.), CRANE CO., DEMMING DIVISION, 

CRANE PACKING, ESAB WELDING AND 

CUTTING EQUIPMENT, EJ LAVINO & CO., 

EUTECTIC CORP., FERRO ENGINEERING, 

FORD MOTOR CO., FOSECO, INC., 

FOSTER WHEELER CORPORATION, 

GARLOCK, INC., GENERAL ELECTRIC 

COMPANY, GENERAL MOTORS CORP., 

GEORGE V. HAMILTON, INC., GEORGIAPACIFIC CORPORATION, GOULD PUMPS, 

INC., GREEN, TWEED & COMPANY, INC., 

HAJOCA PLUMBING SUPPLY COMPANY, 
J-E02002-14

6

HARNISCHFEGER CORP., HEDMAN 

RESOURCES LIMITED (F/K/A HEDMAN 

MINES LTD.), HOBART BROTHERS CO., 

HONEYWELL INTERNATIONAL, INC., 

INGERSOLL RAND CO., JOY GLOBAL 

INC., LINCOLN ELECTRIC CO., LUKENS 

STEEL CO., MALLINCKRODT GROUP, 

INC. (F/K/A INTERNATIONAL MINERALS 

& CHEMICALS CORP.), MELRATH 

GASKET, INC., MINE SAFETY APPLIANCE 

(MSA), METROPOLITAN LIFE INSURANCE 

COMPANY, NOSROCK CORPORATION, 

OWENS-ILLINOIS, INC., PEP BOYS 

(A/K/A MANNY, MOE AND JACK), UNION 

CARBIDE CORP., UNIVERSAL 

REFRACTORIES DIVISION OF THIEM 

CORPORATION

No. 889 EDA 2011

Appeal from the Judgment Entered on February 23, 2011

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: 1335 Dec. Term 2008

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J., 

ALLEN, J., OTT, J., WECHT, J., STABILE, J., AND JENKINS, J.

DISSENTING OPINION BY WECHT, J.: FILED DECEMBER 23, 2014

I write principally to note my respectful dissent from the learned 

majority’s resolution of a dispositive question regarding the admission of 

expert testimony, which I fear sets a precedent that will narrow further the 

avenues for relief available to plaintiffs who suffered often-fatal injury from 

extensive exposure to asbestos. I also disagree with the majority’s holding 

that comments made in the closing argument of counsel for plaintiff Darlene 

Nelson (“Appellee”) require us to intrude upon the trial court’s discretion in 

denying Appellants relief.
J-E02002-14

7

I begin, however, by noting one point upon which I agree with the 

heart of the majority’s analysis but differ with its result. The majority’s 

discussion and analysis of the intended-user constraint on strict products 

liability litigation is among the finest I have seen. See Maj. Op. at 27-31. 

The majority relates with clarity and probity the contours of a restriction 

upon such claims that has bedeviled Pennsylvania courts. The majority 

distills from existing law an excellent account of what constitutes an 

intended use, and I join that analysis.

That being said, I cannot join the majority’s application of that 

doctrine in the instant case. The majority finds insufficient evidence from 

which the jury could have concluded that James Nelson’s use of Crane’s 

sheeting constituted an intended use or that Nelson was an intended user of 

that product. Furthermore, even if there was sufficient evidence to establish 

intended use by an intended user, the majority finds that the court’s jury 

charge was insufficient to put that question squarely before the jury. I do 

not dispute the general accuracy of the majority’s characterization of the 

record. And yet, for two reasons neither of these points of agreement 

permits me to join the majority in reversing the trial court’s ruling on this 

issue. 

It is hornbook law that the decision of whether or not to admit 

evidence lies in the trial court’s discretion. The contested exclusion of 

evidence will not furnish grounds for relief unless the court abuses its 

discretion. McManamon v. Washko, 906 A.2d 1259, 1274 
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8

(Pa. Super. 2006). Moreover, “[t]o constitute reversible error, a ruling on 

evidence must be shown not only to have been erroneous but harmful to the 

party complaining. An evidentiary ruling which did not affect the verdict will 

not provide a basis for disturbing the fact-finder’s judgment.” Peled v. 

Meridian Bank, 710 A.2d 620, 626 (Pa. Super. 1998) (internal quotation 

marks and modifications omitted); see Kremer v. Janet Fleisher Gallery, 

Inc., 467 A.2d 377, 388 (Pa. Super. 1983) (“A new trial will not be granted 

where the evidence would not have affected the verdict.”). 

The same proposition holds for errors in jury instructions, which will 

provide grounds for overturning a verdict only when they are not harmless in 

context. Stevens v. SEPTA, 518 A.2d 810, 813-14 (Pa. Super. 1986). 

Indeed, our review of any claims seeking a new trial must be “grounded 

firmly in the harmless error doctrine[], which underlies every decision to 

grant or deny a new trial. A new trial is not warranted merely because some 

irregularity occurred during the trial . . .; the moving party must 

demonstrate to the trial court that he or she has suffered prejudice from the 

mistake.” Egan v. UISI Mid-Atlantic, Inc., 92 A.3d 1, 11 (Pa. Super. 

2014).

The majority’s analysis makes clear that, to find Crane strictly liable, 

Appellee had the burden of establishing that Nelson was an intended user 

and that the sheeting manufactured by Crane and used by Nelson was 

unsafe for want of an adequate warning. The majority’s analysis, however, 

compels the conclusion that Nelson was an intended user, that his 
J-E02002-14

9

interaction with the asbestos sheeting was consistent with its intended use, 

and that the product had no warning whatsoever. While Crane observes 

that the trial court prevented it from presenting evidence regarding its 

product’s intended use, it does not specify what evidence it had to present 

on that point. This is problematic insofar as Crane conceded that, in its 

intended use as a gasket material, the sheeting would have to be cut to fit 

the application precisely as Nelson attested he did to make the sheeting suit 

his purposes.

In order to establish prejudice arising from the evidentiary ruling and 

the jury charge, Crane effectively must rely on its own more narrow 

definition of “intended user,” which the majority correctly rejects: Factfinding, however trivial, might be warranted if establishing that the intended 

end use was the governing consideration. However, the majority correctly 

concludes that, where steps toward the intended end use are common to 

different end uses, the manufacturer may still be liable. Under this rubric, 

Crane effectively admitted that its product was used as intended, i.e., Nelson 

cut the sheeting to size in the same manner an intended end user would 

have done to facilitate the intended end use. Crane’s lack of foundation for 

establishing prejudice on this point is underscored by its conclusory proffer: 

Crane offers no comment as to how its intended evidence would have been 

such that a jury might have ruled otherwise than it did had it been charged 

with the intended use doctrine as explained by the majority. 
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10

In finding Crane liable, the jury credited Nelson’s testimony that he 

used Crane’s product in the way that he attested. The jury also concluded 

that the sheeting contained and emitted asbestos in sufficient amounts to 

have caused Nelson’s mesothelioma. Finally, the jury concluded that Crane 

had a duty to warn of hazards associated with its product and that Crane 

breached that duty. These findings, paired with Crane’s lack of a nonconclusory assertion or proffer to the effect that Nelson’s cutting of the 

product differed in any material way from another user’s performance of the 

same act, lead me to conclude that there was, essentially, no dispute of 

material fact relative to intended use for the jury to resolve. While the 

presence of any doubt on these points would militate in favor of a clearer 

jury charge on the question, and while the trial court apparently 

misconstrued the interplay between failure to warn liability and the intended 

user principle, I believe that Crane has failed to establish that the errors 

complained of could have changed the outcome of the jury’s determination 

of liability. Consequently, I dissent from the result reached by the majority, 

notwithstanding its excellent analysis of the applicable law.

Turning to the next issue, I respectfully dissent from the learned 

majority’s determination that the testimony of Daniel DuPont, D.O., was 

subject to exclusion as a matter of law pursuant to Frye v. United States, 

293 F. 1013 (D.C. Cir. 1923), based upon our Supreme Court’s decision in 

Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012). While Betz is the 

most recent in a series of opinions circumscribing the range of expert 
J-E02002-14

11

testimony that may be admitted to establish substantial causation in 

asbestos litigation,1I do not believe that it is dispositive of the case at bar. 

Both Betz and Gregg v. V-J Auto Parts, Co., 943 A.2d 216 (Pa. 2007), 

which Betz was at pains to harmonize, concerned cases in which substantial 

causation rose or fell solely upon the “any-exposure” theory of causation 

that now undisputedly is disfavored under Pennsylvania law. In those cases, 

plaintiffs could not produce any evidence of greater than de minimis

exposure to asbestos emitted from the defendants’ products. Thus, liability 

could be established only if expert testimony based upon the any-exposure

theory was admitted and credited by the jury. 

The case before us, however, is distinguishable. James Nelson 

undisputedly was exposed regularly to numerous asbestos-containing 

____________________________________________

1 Our Supreme Court recently granted allowance of appeal in yet 

another related case. See Rost v. Ford Motor Co., 309 EAL 2014, 2014

WL 5800550 (Pa. Nov. 6 2014) (granting review of the question 

“[w]hether . . . a plaintiff in an asbestos action may satisfy the burden of 

establishing substantial-factor causation by an expert’s ‘cumulativeexposure’ theory that the expert concedes is simply an ‘any-exposure’ 

theory by a different name”). In Rost, a decision that does not bind this 

panel, see Commonwealth v. Morris, 958 A.2d 569, 580 n.2 

(Pa. Super. 2008) (en banc) (“[T]his Court, sitting en banc, may overrule 

the decision of a three-judge panel of this Court.”), this Court ruled that 

Betz did not control a trial court’s decision not to grant a new trial, because, 

unlike in Betz, plaintiff’s experts testified in great detail to the mechanisms 

by which the asbestos fibers in question could cause mesothelioma. See 

Rost v. Ford Motor Co., 404 EDA 2012 (Pa. Super. May 19, 2014). While 

Rost differs from this case in certain regards, I believe that its analysis, 

which in many ways echoes my own, was sound. 
J-E02002-14

12

products over many years. See Maj. Op. at 8-9. Moreover, he testified to 

frequent, regular, and proximal use2of and exposure to products 

manufactured by Appellants that contained asbestos that could be released 

into the air under certain conditions. See, e.g., Notes of Testimony Nelson 

Deposition (“Nelson Depo.”) at 63-76, 113, 115, 117 (regarding extensive 

use of welding rods manufactured by Hobart and Lincoln); id. at 186-99 

(regarding use of Cranite sheeting that was heavy for two months, frequent 

for two years, and less frequent in the years that followed).3 Unlike 

Dr. Maddox in Betz, who was unfamiliar with the plaintiff’s medical history, 

Dr. DuPont acquainted himself with Nelson’s medical records and his history 

of exposure to products that allegedly released respirable asbestos fibers. 

See Notes of Testimony DuPont deposition (“DuPont Depo.”), 8/11/2010, at 

26-27, 34-37, 49, 121-27. Moreover, unlike Dr. Maddox in Betz, Dr. 

DuPont had a lengthy history of treating individuals with a history of 

occupational exposure to asbestos. Conversely, in Betz, Dr. Maddox was 

____________________________________________

2 The well-established frequency, regularity, and proximity test governs 

the sufficiency of proof to establish sufficient exposure to a given product to 

establish substantial causation. See Weible v. Allied Signal, Inc., 

963 A.2d 521, 525 (Pa. Super. 2008) (citing Eckenrod v. GAF Corp., 

544 A.2d 50 (Pa. Super. 1988)). The majority does not find it necessary to 

discuss this test, despite its predominance in asbestos litigation and 

essential questions, highlighted infra, regarding its relationship with the 

problematic expert testimony at issue in this case.

3 Nelson’s deposition spanned several days, but is paginated 

continuously across the transcripts.
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13

called to testify only as to the any-exposure theory to establish substantial 

causation in that case, and did not testify to the plaintiff’s exposure history. 

In the instant case, Dr. DuPont testified that Nelson’s extensive exposure 

over decades to respirable asbestos, albeit from myriad products, was the 

substantial cause of his mesothelioma. 

Notably, Dr. DuPont, while acknowledging a degree of doseresponsiveness4

in mesothelioma, testified that the necessary exposure to 

cause mesothelioma was diminished relative to other asbestos-related 

diseases such as pleural thickening and asbestosis. Specifically, he indicated 

that “[m]alignant mesothelioma occurs with significant asbestos exposure, 

but it does not require the dose or duration or intensity of exposure that 

other diseases do.” Id. at 31-32. Dr. DuPont’s reference to “significant 

asbestos exposure” also illustrated that his testimony regarding causation 

was not contingent upon the validity of an any-exposure theory of causation, 

notwithstanding that, speaking generally and in concert with many others, 

he endorsed such a view.

____________________________________________

4

“With dose-responsive ailments, generally, exposure to higher levels 

carries with it a higher risk, and exposure to lower levels is accompanied by 

a reduced risk.” Betz, 44 A.3d at 53 & n.33 (quoting Indus. Union Dep’t, 

AFL-CIO v. Amer. Petroleum Inst., 448 U.S. 607, 632 n.33 (1980)). 

That asbestos-related diseases are fundamentally dose-responsive is 

uncontroversial. See id. at 33 (acknowledging any-exposure theory as a 

matter of general causation, and finding it problematic only when 

“extrapolated down” to establish substantial causation). 
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The majority’s reading of Betz transforms expert testimony 

acknowledging the essentially uncontroversial proposition that there are “no 

innocent fibers” of asbestos into a totem that precludes the admission of 

that expert’s testimony as a matter of law, no matter the quantum of casespecific evidence of the plaintiff’s exposure to a given product. Maj. Op. 

at 17-25. That interpretation and its application to this case are problematic 

inasmuch as the exposure at issue in Betz, as in Gregg, was de minimis, 

rendering the any-exposure testimony indispensable to a finding of 

substantial causation. See Betz, 44 A.3d at 30 (noting the exposure at 

issue arose from occasional work with asbestos-containing brake 

components during decedent’s career as a mechanic); Gregg, 943 A.2d 

at 217-18 (explaining that the exposure at issue was “focused on 

Mr. Gregg’s personal automotive activities,” i.e., exposure arising from his 

occasional work with asbestos-containing brake components); cf. Betz, 44 

A.3d at 58 (concluding that “a complete discounting of the substantiality in 

exposure would be fundamentally inconsistent with Pennsylvania law”). For 

precisely this reason, the Betz litigation was chosen as a “test case” on the 

question of whether any-exposure testimony could be sufficient, without 

more, to establish substantial causation in cases of de minimis exposure. 

Betz, 44 A.3d at 30; see id. at 55 (observing that “plaintiffs repeatedly 

advised [the trial court] that there was no need for them to discuss 

individual exposure histories, so long as they could establish exposure to at 

least a single fiber from each defendant’s product,” and that Dr. Maddox 
J-E02002-14

15

“rendered his opinion without being prepared to discuss the circumstances of 

any individual’s exposure”). Betz answered the question with a resounding 

“No.” However, the Betz question simply is not posed by this case. 

Substantial exposure to many products does not equate to substantial 

exposure to one or more of Appellants’ products. But that Dr. DuPont was 

unable to testify to the relative exposure to each product does not preclude 

submission of the case to a jury regarding the degree of exposure to 

Appellants’ products. No Pennsylvania court has held that product 

identification and the nature of a plaintiff’s exposure must be established by 

expert testimony on peril of dismissal. See Weible v. Allied Signal, Inc., 

963 A.2d 521, 527 (Pa. Super. 2008) (holding that “[t]he nexus between an 

asbestos product and plaintiff may be established by direct and 

circumstantial evidence,” and that testimony by someone “with knowledge 

relating to the plaintiff’s workplace exposure to an asbestos-containing 

product is admissible”); Andaloro v. Armstrong World Indust., Inc., 

799 A.2d 71, 86 (Pa. Super. 2002) (quoting Coward v. Owens-Corning 

Fiberglas Corp., 729 A.2d 614, 622-23 (Pa. Super. 1999)) (“In asbestos 

litigation, evidence is sufficient to establish product identity where the record 

shows that plaintiff inhaled asbestos fibers shed by that manufacturer’s 

specific product. The evidence . . . must demonstrate that the plaintiff 

worked, on a regular basis, in physical proximity with the product, and that 

his contact with it was of such a nature as to raise a reasonable inference 
J-E02002-14

16

that he inhaled asbestos fibers that emanated from it.”); accord Junge v. 

Garlock Inc., 629 A.2d 1027 (Pa. Super. 1993).

In Junge, this Court made the following observation:

Our case law includes no requirement that a plaintiff in an 

asbestos case prove through an industrial hygienist, or any other 

kind of opinion witness, how many asbestos fibers are contained 

in the dust emissions from a particular asbestos[-]containing 

product. Instead, in order to make out a prima facie case 

[sufficient to avoid summary judgment], it is well[-]established 

that the plaintiff must present evidence that he inhaled asbestos 

fibers shed by the specific manufacturer’s product. A plaintiff 

must establish more than the presence of asbestos in the 

workplace; he must prove that he worked in the vicinity of the 

product’s use.

Id. at 1029 (emphasis in original; citation omitted). Thus, despite the 

presence of problematic any-exposure testimony, the Gregg Court declined 

to rule upon “whether, in light of [the a]ppellee’s evidence concerning the 

frequency, regularity, and proximity of Mr. Gregg’s exposure to asbestoscontaining products sold by Appellant, the common pleas court correctly 

determined that a jury issue was not present.” 943 A.2d at 227. The Betz

Court showed similar restraint in not conflating the aspects of the substantial 

causation inquiry that must be addressed by an expert and those concerning 

actual exposure that may be resolved by lay evidence. See 44 A.3d at 55 

n.34. 

In Junge, we held that the plaintiff had made out a prima facie case 

requiring submission to a jury based upon his own positive identification of 

the product in question, his own testimony that he worked in close proximity 
J-E02002-14

17

to the product on a regular basis and that his work produced dust, and the 

manufacturer’s acknowledgment that the product in question contained and 

emitted asbestos. 629 A.2d at 1029-20. Nelson’s testimony in this case is 

quite similar, and neither Betz nor Gregg undermines Junge’s ruling in that 

regard. Indeed, Gregg echoed that proposition. See Gregg, 943 A.2d 

at 290 (noting that the frequency, regularity, and proximity factors “are to 

be applied . . . as an aid in distinguishing cases in which the plaintiff can 

adduce evidence that there is a sufficiently significant likelihood that the 

defendant’s product caused his harm from those in which such likelihood is 

absent on account of only casual or minimal exposure to the defendant’s 

product”).

In contravention of this consistently-applied rule, the majority holds 

that “the questions an expert must answer in order to establish that [a 

defendant’s] products were a substantial factor in causing” the plaintiff’s 

disease include whether exposure to a given product was above a nonnegligible level and that the given product “did it,” i.e., was itself the cause 

of the disease, evidently to the exclusion of all other products. Maj. Op. 

at 24 (emphasis added). In support of this ruling, the majority cites 

Fisher v. Sexauer, 53 A.3d 771 (Pa. Super. 2012). However, Fisher did 

not impose upon the plaintiff the burden of establishing by expert

testimony that the plaintiff had frequent, regular, and proximal exposure to 

the product in question. Indeed, it echoed the general application of that 

test, something no party to this litigation disputes. As Junge and other 
J-E02002-14

18

cases demonstrate, and as common sense would dictate, product 

identification and exposure history do not necessarily require the testimony 

of an expert.

Stripping the question to its essentials, this much is clear: In order to 

sustain his claim, Nelson had to adduce evidence based upon which a jury 

could conclude (1) that Nelson used Appellants’ products frequently, 

regularly, and proximally; (2) that those products released asbestos into the 

air; and (3) that his disease was substantially caused by asbestos. 

However, given the nature of multiple alleged exposures to numerous 

asbestos-containing products over decades, neither could his expert 

reasonably assert, nor could the court reasonably expect him to assert, that 

product A, to which Nelson frequently was exposed, caused Nelson’s 

mesothelioma to the exclusion of product B, to which Nelson also frequently 

was exposed. The inference juries long have been allowed to make, the one 

that animates the frequency, regularity, and proximity test, is that a 

manufacturer of an asbestos-releasing product to which the plaintiff was 

exposed to the requisite degree caused the plaintiff’s mesothelioma, 

notwithstanding that he also was exposed to other asbestos-containing 

products. 

Nelson plainly satisfied each of these burdens, if not conclusively then 

sufficiently to warrant submission to a jury. First, he testified extensively to 

the frequency with which he used each of the asbestos-containing products 

manufactured by Appellants. He identified them affirmatively, anchored 
J-E02002-14

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their use in certain time periods, and associated them with certain tasks that 

he performed. Second, evidence was adduced that these products contained 

asbestos at the time Nelson attested to using them. Third, Dr. DuPont 

testified that such asbestos, if inhaled in sufficient amounts, could cause 

mesothelioma.

Betz, Gregg, and other such cases are defined by the unavailability 

of the sort of evidence that we have in this case of frequent, regular, and 

proximal exposure to products that undisputedly contained asbestos. Cf. 

Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010) (Saylor, J., 

concurring) (“Notably, in [Gregg], this Court recently credited the opinion 

announcing the judgment of the Superior Court in the present case . . . to 

the degree that it rejected the ‘any breath’ theory as establishing a jury 

issue in cases in which the plaintiffs’ exposure to a defendant’s 

asbestos-containing product is de minimus [sic].” (emphasis added)). 

Notably, in the cases relied upon by the trial court and Nelson, in which anyexposure causation was deemed admissible and/or sufficient to create a 

prima facie case requiring submission to a jury, the exposure at issue was 

not de minimis. See Smalls v. Pittsburgh Corning Corp., 843 A.2d 410 

(Pa. Super. 2004); Cauthorn v. Owens Corning Fiberglas Corp., 840 

A.2d 1028 (Pa. Super. 2004); Lonasco v. A-Best Prods. Co., 757 A.2d 367 

(Pa. Super. 2000). I discern no indication that Betz had the effect of 

abrogating, or was intended to abrogate, these cases’ precedential value. 

Indeed, the Betz Court cited but did not purport to diminish the effect of 
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these decisions. See 44 A.3d at 50 n.26; cf. Gregg 943 A.2d at 221 

(discussing Judge Bowes’ citation of Lonasco in her dissent from the 

underlying direct appeal). I find no case law that requires exclusion solely 

because an expert who testifies to causation in connection with a plaintiff’s 

extensive occupational exposure to asbestos also acknowledges a defining 

attribute of dose-responsive toxicity: That, independently of substantial

causation, every fiber contributes to the accretion of harmful fibers that, in 

sufficient quantities, may cause the affliction(s) in question.

The Gregg Court approvingly quoted the trial court’s opinion in that 

case to the following effect: 

[T]here is no requirement that plaintiff must prove how many 

asbestos fibers one must inhale necessary to a determination of 

causation; however, evidence of exposure must demonstrate 

that the plaintiff worked, on a regular basis, in physical proximity 

with the product and that his contact with same was of such 

nature as to raise a reasonable inference that he inhaled 

asbestos fibers that emanated from it.

Gregg, 943 A.2d at 220. This quotation makes very little sense if the mere 

mention of the any-exposure proposition, which is associated with any doseresponsive illness, compromises the probative value of all of the testimony 

of the expert who mentioned it. 

In my view, even a modest extension of the Betz holding beyond 

cases involving only de minimis exposure threatens to eclipse a considerable 

proportion of asbestos litigation, given the challenges confronting plaintiffs in 

establishing substantial causation decades after the allegedly causative
J-E02002-14

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exposure. See Gregg, 943 A.2d at 226 (acknowledging “the difficulties 

facing plaintiffs in this and similar settings, where they have unquestionably 

suffered harm on account of a disease having a long latency period and must 

bear a burden of proving specific causation under prevailing Pennsylvania 

law which may be insurmountable”). While it is difficult to balance 

Pennsylvania’s well-settled law regarding the establishment of substantial 

causation with the need to ensure the existence of a meaningful remedy for 

grave injury, the majority’s application of Betz to this case tips that balance 

heavily in favor of defendants. 

Our legislature has had decades to impose a bright-line rule precluding 

all testimony that contains any reference to an any-exposure theory of 

causation, but it has declined to do so. Nor has our Supreme Court imposed 

such a bright-line rule, despite its opportunity to do so in Gregg, Betz, and 

other asbestos cases. Each body, in its own sphere, is more qualified than 

this Court to embark upon change of such sweeping consequence. 

Even if I allow that this is a case closer to Betz than I believe it to be, 

I encounter a second problem with the majority’s ruling. It is beyond cavil 

that a trial court’s decisions regarding the admissibility of evidence, including 

expert testimony, lie in that court’s discretion. We will overturn such 

decisions only when that discretion is abused. See Grady v. Frito-Lay, 

Inc., 839 A.2d 1038, 1046 (Pa. 2003). “An abuse of discretion may not be 

found merely because an appellate court might have reached a different 

conclusion, but requires . . . manifest unreasonableness, or partiality, 
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prejudice, bias, or ill-will, or such lack of support so as to be clearly 

erroneous.” Id. Notably, in both Gregg and Betz, our Supreme Court 

affirmed trial court decisions to exclude expert testimony; it did not 

determine that either court abused its discretion, and the Court did not 

reverse upon that basis. 

This case arises in the opposite context. Here, the trial court, 

following a detailed and careful inquiry into the qualifications and opinions of 

Dr. DuPont, determined that he should be permitted to testify. Pennsylvania 

courts long have characterized our standard for the admissibility of expert 

testimony as “liberal.” See, e.g., Flanagan v. Labe, 666 A.2d 333, 335 

(Pa. Super. 1995) (“Pursuant to Pennsylvania’s liberal standard, witnesses 

may testify as experts if they possess knowledge outside the ordinary reach 

and offer testimony that could assist the trier of fact.”). Unlike in Betz, 

where our Supreme Court focused upon Dr. Maddox’s selective reliance upon 

epidemiological evidence, his avoidance of further development of the topic, 

and his lack of qualifications regarding same in his career as a pathologist, in 

the instant case Dr. DuPont testified to his extensive experience as a clinical 

pulmonologist in an industrial area treating patients with asbestos-related 

ailments, his responsibility as such to remain familiar with the medical 

literature, his reliance upon peer-reviewed epidemiological materials as well 

as authoritative texts, and other relevant matters scrupulously avoided by 

Dr. Maddox in Betz. See DuPont Depo. at 28-29, 31-33. For all of the 

foregoing reasons, I dissent from the trial court’s substantial expansion of 
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Betz and its finding that, under its interpretation of that case, the trial court 

abused its discretion.5

Finally, I also disagree with the majority’s determination that certain 

comments made by Appellee’s counsel’s during closing argument so 

prejudiced the jury that a new trial was required. “[I]t is well-settled that 

whether to declare a mistrial is [a] decision within the discretion of the trial 

court, whose vantage point enables it to evaluate the climate of the 

courtroom and the effect on the jury of closing arguments.” Clark v. Phila. 

Coll. of Osteopathic Med., 693 A.2d 202, 206 (Pa. Super. 1997); see 

Narciso v. Mauch Chunk Twp., 87 A.2d 233, 234-35 (Pa. 1952) (noting 

that the determination of whether the trial court abused its discretion in 

denying a mistrial for an allegedly improper comment in a closing argument 

“is determined by an examination of the remark made, the circumstances 

under which it was made and the precautions taken by court and counsel to 

remove its prejudicial effects”). 

____________________________________________

5 The majority stops once it determines that the trial court erred in 

admitting Dr. DuPont’s testimony. Because I disagree with that ruling, I also 

would take up Appellants’ related challenge to the sufficiency of Dr. DuPont’s 

testimony to establish substantial causation. Nelson’s testimony standing 

alone established a basis upon which a jury, crediting Nelson’s testimony, 

could conclude that he was frequently, regularly, and proximately exposed 

to asbestos released from products manufactured by one or more of the 

Appellants during many years of Nelson’s employment. Pennsylvania case 

law establishes that questions of proximate causation should be submitted to 

a jury. Summers, 997 A.2d at 1163-64. Finding, as I would, that 

Dr. DuPont’s testimony was admissible, I would hold that the trial court did 

not abuse its discretion in submitting the case to the jury.
J-E02002-14

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In this case, the issue is the propriety of Appellee’s counsel’s 

comments to the general effect that the noneconomic damages in this case 

should be assessed at a level greater than the $1 million award for economic 

damages to which the parties stipulated. It certainly is true that attorneys 

may not propose that a jury award an amount certain in non-economic 

damages. See, e.g., Joyce v. Smith, 112 A. 549, 551 (Pa. 1921); Maj. Op. 

at 32 (citing cases). However, despite this limitation, counsel retains a great 

deal of latitude to argue his or her case zealously and dramatically, latitude 

that courts do not intrude upon lightly. Millen v. Miller, 308 A.2d 115, 117 

(Pa. Super. 1973). 

Appellants and the majority analogize this case to Joyce, in which 

counsel specifically urged a jury to award an amount certain in damages. 

See Maj. Op. at 33. I cannot subscribe to that analogy. To the contrary, as 

did the trial court, I find this case to be on all fours with our opinion in 

Clark, which the majority labors to distinguish. See Maj. Op. at 33-36. 

There, as here, the attorney in question referred to economic damages—

there, symbolically, in the form of a horizontally transected triangle; in this 

case, by reference to the $1 million in economic damages stipulated by the 

parties. Clark, 693 A.2d at 206. There, as here, the attorney in question 

suggested that the jury should award noneconomic damages well in excess 

of economic damages—there, symbolically, by suggesting that noneconomic 

damages should be akin to the wider portion of the triangle, with economic 

damages being only “the tip of the iceberg,” id.; in this case, by counsel’s 
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mathematically hyperbolic comments that he believed non-economic 

damages were worth “infinitely more” than the stipulated economic 

damages. See Maj. Mem. at 35 (quoting Notes of Testimony (“N.T.”), 

3/8/2010, at 78).6

At the sidebar prompted by Appellants’ objections, Appellee’s counsel 

admitted that he was precluded from proposing a specific award of damages 

as to any category of non-economic damages. See N.T., 3/8/2010, at 84-

87 (Appellee’s counsel: “The law provides that I am not allowed to suggest 

a monetary amount.”). Moreover, counsel for Crane acknowledged that 

Appellee’s counsel “absolutely” could “say to [the jury that] you can start at 

____________________________________________

6

In a non-trivial mischaracterization, the majority treats infinity as 

though it were a number, both implicitly—in its reliance on Joyce and 

similar cases—as well as explicitly. See Maj. Op. at 36 (“[C]ounsel for 

Nelson provided the jury with a formula to calculate damages and an 

amount to plug into that formula. Here, counsel’s express reference to the 

stipulated economic damages was not evocative, but declarative and 

algebraic.”). However, an injunction to assess damages by “infinity’s” 

measure is no more numerical or “formulaic” than the suggestive use of 

geometry at issue in Clark; infinity is no more a number than a triangle is. 

Cf. David Foster Wallace, Everything and More: A Compact History of Infinity

§ 1 (Atlas Books Reissue ed. 2010) (“Beware of thinking that ∞ is just an 

incredibly, unbelievably enormous number. . . . Take some . . . 

transcomputational number[, i.e., 10x], imagine it’s a grain of sand, 

conceive of a whole beach, or desert, or planet, or even galaxy filled with 

such sand, and not only will the corresponding 10x number be <∞, but its 

square will be <∞, . . . and so on; and actually it’s not even right to 

compare 10xand ∞ arithmetically in this way because they’re not even in 

the same mathematical area code—even, as it were, the same dimension.”); 

id. (quoting Galileo, specific source omitted) (“The fundamental flaw of all 

so-called proofs of the impossibility of infinite numbers is that they attribute 

to these numbers all of the properties of finite numbers, whereas the infinite 

numbers . . . constitute an entirely new type of number . . . .”). 
J-E02002-14

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a million dollars[, the stipulated economic damages,] and this other stuff 

is even more valuable than that.” Id. at 86 (emphasis added). As well, 

counsel for Appellee made quite clear to the jury that calculating a just 

award of non-economic damages was the jury’s task and no one else’s. See 

id. at 78 (“It’s up to you folks. Use your common sense. You have a sense 

of what these things are worth. . . . I’m not permitted by law to give you a 

number. I can’t tell you a damage award, that I would be happy with and 

say I think that’s great, I think that’s fair. . . . It’s up to you folks to do 

that.”).

The majority conflates counsel’s references to the stipulated economic 

damages with the complained-of comments:

Effectively, counsel (1) identified twelve individual elements of 

non-economic damages; (2) suggested to the jury that it 

consider a different award for each element but then add the 

individual amounts onto a single line; and (3) in rather express 

language, suggested that the jury award Nelson at least $1M for 

each.

Maj. Op. at 36. However, counsel’s comments read in context do not so 

enjoin the jury, and certainly not “in rather express language.” It is at least 

equally reasonable to understand counsel’s comments as conforming to the 

rule as interpreted in Clark. Counsel’s complained-of argument culminated 

in his suggestion to the jury that it “start at $1 million, and I believe that 

each of those elements of damages starting at physical pain are worth 

infinitely more than that $1 million figure. Now you add a million plus 

whatever other numbers you assign for these.” Maj. Mem. at 35 (quoting 
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N.T., 3/8/2010, at 80-81). It is not at all clear that counsel directed the jury 

to start at $1 million as to each of twelve factors; it is at least equally 

reasonable to interpret the last sentence as counsel returning to that $1 

million figure one last time to remind the jury that it had no discretion to 

assess fewer than $1 million in stipulated economic damages, and encourage 

them to award “whatever other numbers you assign” for the twelve 

categories of non-economic damages. See N.T., 3/8/2010, at 80 (“I need 

somebody to remember you must start at $1 million.”). 

In urging noneconomic damages in excess of the economic damages, 

counsel did nothing more objectionable than what counsel did in Clark, 

albeit in words rather than a pictorial representation. In Clark, we held that 

the trial court did not abuse its discretion in declining to award a mistrial. 

Here, as in Clark, we are bound to defer to the trial court’s assessment—

based upon the context of a live and dynamic courtroom rather than our 

distanced review of a cold record—that this at-most implied attempt to urge 

the jury to award a specific value for non-economic damages did not fall 

afoul of the Joyce rule. The majority acknowledges that “it discern[s] no 

error in the[] substance” of the trial court’s “instructions on damages.” Maj. 

Op. at 36. Moreover, “[i]t is well-established that juries are presumed to 

follow the trial court’s instructions.” Commonwealth v. Jones, 811 A.2d 
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1057, 1063 (Pa. Super. 2002).7 Even if a majority of this panel might have 

ruled otherwise in a trial setting, it is not this Court’s province to yield to 

that inclination on appellate review. 

After a professional career that involved pervasive and persistent 

exposure to respirable asbestos from a wide variety of products, Nelson 

began to suffer from diminished lung function at the age of fifty-three.8 He 

was diagnosed a month later with mesothelioma and died approximately one 

year later. Nelson’s final year of life was fraught with suffering: He endured 

the insertion of a tube to drain fluid from his chest; the extreme pain of a 

thoracotomy; the severe side effects of three different courses of 

chemotherapy; gastrointestinal bleeding that could not be treated due to his 

weakness and ultimately required blood transfusions; and, near the end of 

his life, a fall that broke his ribs, which were weakened by tumors, the 

consequences of which prevented Nelson from seeking the radiation 

treatment that he hoped would prolong his life. In light of Nelson’s relative 

youth at the time of his death, and the degree of his suffering in the last 

____________________________________________

7 The majority observes that the trial court issued no curative 

instruction. Naturally, my analysis would not require such an instruction. 

However, the majority concedes that the trial court’s instructions on 

damages betray “no error in their substance,” Maj. Op. at 36, and provides 

no analysis as to why the failure to issue a curative instruction furnishes a 

separate basis for relief under the circumstances of this case.

8 This discussion of Nelson’s clinical history is derived from the trial 

court’s opinion. Trial Court Opinion, 6/13/2011, at 8-11.
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year of his life, it is not at all surprising that Appellee’s counsel implored the 

jury to award substantial non-economic damages, and the particulars of his 

manner of doing so in this case did not so patently exceed the bounds of 

permissible argument as to warrant this Court’s interference with the trial 

court’s discretion. Consequently, on this issue, too, I dissent.9

Our law speaks clearly of the considerable deference we must afford to 

trial courts in their evidentiary decisions and their decisions regarding 

whether and when to grant a mistrial or JNOV. Our law also reflects our 

faith that a jury, properly charged, can reconcile and measure complex 

factual circumstances against the applicable law governing causation and 

damages. Given our absence from the courtroom, where much information 

that cannot be recorded by a reporter is available to the judge, I believe that 

it is error to reverse the trial court’s exercises of discretion in connection 

with Dr. DuPont’s testimony and Appellee’s closing argument. It is precisely 

to acknowledge close cases that our standard of review calls for deference.

President Judge Emeritus Ford Elliott joins the dissenting opinion.

____________________________________________

9 The majority also acknowledges “Appellants’ other complaints 

regarding counsel’s closing arguments in the damages phase,” including 

oblique references to settlement discussions and suggestions of punitive 

considerations in the assessment of damages. Maj. Op. at 37. While I 

agree with the majority that such language may be “inflammatory, 

particularly to the extent that it attributes improper motives to Appellants,” 

id., these brief comments, which only indirectly touched upon problematic 

matters, would not sway my analysis. 
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Judge Ott concurs in the result.