Recently on our Mesothelioma Lawyer Blog, we noted the importance of identifying employers responsible for a mesothelioma victim’s asbestos exposure. In Gallagher v. Nat’l Grid USA/Narragansett Elec., for instance, the court assigned likely blame on an employer based on the victim’s work history and the fact that mesothelioma typically takes 35 to 40 years to develop after an employee is exposed to asbestos.

Recently, Betz v. Pneumo Abex LLC, looked at whether a trial court acted appropriately in sustaining a Frye challenge. ‘Frye v. United States’ (293 F. 1013 (D.C. Cir. 1923)) provides a legal threshold for determining the admissibility of scientific evidence. The underlying case dealt with the admissibility of expert testimony to the effect that every inhaled asbestos fiber is a substantial contributing factor to asbestos-related diseases.

Mesothelioma plaintiff’s attorneys in this case sued Ford Motor Company, Allied Signal, Inc. and others, claiming exposure to asbestos during 44 years as an auto mechanic resulted in a diagnosis of mesothelioma. Attorneys for the defendant sought to exclude such testimony — sometimes called the “any-breath” or “any-exposure” theory of legal causation — under the litmus test of whether such testimony is generally accepted in the scientific community from which it derives.

Frye v. United States, is a 1923 case that dealt with the admissibility of polygraph evidence. In that landmark ruling the court opined: “Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define… the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Attorneys for the defense argued that the Frye test bars such testimony until it has achieved general acceptance within its relevant scientific community. The trial judge sustained the Frye challenge, precluding the plaintiffs from introducing the exposure opinion. On appeal, the Superior Court, a statewide intermediate appellate court in Pennsylvania criticized the judge’s opinion, saying that the judge had ample evidence to reach the conclusions at issue.

First, the court criticized the judge’s threshold determination, finding that the judge abused his discretion in determining whether or not the opinion of the plaintiff’s medical expert was generally accepted. Ultimately, the Pennsylvania Supreme Court sided with the trial court, vacated the Superior Court opinion, and remanded the case for a determination on whether there are remaining issues for appeal.

The Frye standard is still used in a number of states, including Alabama, Arizona, California, Florida, Illinois, Kansas, Maryland, Minnesota, New Jersey, New York, Pennsylvania, and Washington. In other courts, it has been replaced by the Daubert standard, which is not substantially different. Another alternative to the standard is Rule 702 of the Federal Rules of Evidence, which also addresses expert testimony and scientific evidence.

Not regularly used in construction and consumer products since the 1970s, asbestos was once used in brakes, heating and air conditioning products, paints, floor tiles and many other construction materials. Because of its decades-long incubation period, the number of cases in the United States is expected to increase substantially over the next two decades. Presently, about 3,000 people a year are diagnosed. The average life expectancy after being diagnosed with mesothelioma is about 18 months.

The five-year survival rate is only about 10 percent.

Betz v. Pneumo Abex LLC is one more high-court case adding to the enormous body of case law concerning mesothelioma and asbestos-exposure litigation. It’s critical that affected patients and their loved ones dealing with a mesothelioma diagnosis seek out an experienced law firm that dedicates a significant portion of its legal practice fighting for the legal rights of mesothelioma victims and their families in these complex cases.