Last Gasp of the “Each and Every Breath” Doctrine

After many years and many battles, the “each and every breath” theory of causation in Pennsylvania asbestos litigation appears to have finally breathed its last breath. With its holding in Howard v. A.W. Chesterton, 78 A.3d 605, 607, CCH Prod. Liab. Rep. P19,238 (Pa. 2013), the Pennsylvania Supreme Court has finally established that the theory, perhaps the most incongruous legal theory in Pennsylvania jurisprudence, is no longer good law.

Asbestos litigation is an unwieldy beast, to be sure. The number of asbestos-containing products in regular use throughout the 20th Century combined with the latency of asbestos-related diseases made causation in the early days of asbestos litigation a logistical nightmare. As asbestos dockets exploded in the 1980s, overwhelmed Pennsylvania courts came to accept the “each and every breath” theory of causation out of practicality.

The “each and every breath” theory contends that because asbestos disease is cumulative, each and every exposure to asbestos during a person’s lifetime, no matter how small or trivial, substantially contributes to the ultimate disease.  Thus, the theory allowed attorneys for plaintiffs to sue numerous defendants whose contribution to disease development was often trivial at best. This certainly helped streamline asbestos litigation, and put a dent in the asbestos docket. As a legal theory, however, its validity was attenuated, at best, and over the years it became clear that in addition to being grounded on shaky legal principle, the “any exposure” concept was also bad science. 

The tide began to turn when, in 2007, the Pennsylvania Supreme Court adopted the "frequency, regularity and proximity" test for proving asbestos exposure.  Gregg v. V-J Auto Parts, 943 A.2d 216 (Pa. 2007). The focus of this test is on the ability of the plaintiff to show that the injured worker (1) regularly worked in an area where the defendant's asbestos was frequently used, and (2) that he or she did, in fact, work sufficiently close to this area so as to come into contact with the defendant's product.

In adopting this test, the Court disclaimed the “each and every breath” theory, stating that “such generalized opinions do not suffice to create a jury question in a case where exposure to the defendant's product is de minimis, particularly in the absence of evidence excluding other possible sources of exposure.” Id.  The Court further explained that such opinions were, “not fairly grounded in ... the underlying facts and ... not couched within accepted scientific methodology.” Id.

Despite this clear mandate, however, lower courts in Pennsylvania continued to apply the each and every breath doctrine.  See e.g. Howard v. A.W. Chesterton, 31 A.3d 974 (Pa. Super. 2011).

In 2012, the “each and every breath” theory reached the Pennsylvania Supreme Court for the second time. Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27, 56 (2012).  In Betz, the Court reiterated its rejection of the each and every exposure theory, noting that “the any exposure opinion [of the plaintiff's expert] is in irreconcilable conflict with itself. Simply put, one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive.” Id.

Finally, in 2013, the Pennsylvania Supreme Court issued its latest and final rejection of the each and every breath doctrine. Howard v. A.W. Chesterton, 78 A.3d 605, 607 (Pa. 2013).  Providing the lower courts with a clear, bright line, checklist of what plaintiffs experts may no longer do, the Court explained that de minimus expert causation opinions are inadmissible under any factual context.  This opinion will function to permanently bar the each and every breath theory from Pennsylvania courts. 

Although courts in Arizona, Delaware, Hawaii, Maine, Maryland, Massachusetts, and Pennsylvania have all excluded or criticized the each and every breath theory, some states continue to allow this scientifically unsound evidence.  In New Jersey, for example, courts continue to accept the “any exposure test,” which is the New Jersey equivalent of the each and every breath doctrine.  Buttitta v. Allied Signal, Inc., 2010 WL 1427273, at *12-13 (N.J. Super. Ct. App. Div. 2010) (per curiam).  The New Jersey Superior Court in Buttita accepted “any exposure” testimony of the plaintiff’s expert at face value, holding that the courts of New Jersey will not require dose evidence in a mesothelioma case if a plaintiff expert contends that the disease only requires minor exposures.

Over time, most jurisdictions are likely to follow Pennsylvania’s lead, holding that peripheral defendants who did not make the products that caused plaintiff's harm should not be deemed liable. In the meantime, manufacturers subject to suit in New Jersey and Pennsylvania should be aware of the sharp contrast between the asbestos laws of these two states. 

The information herein is provided for consumer educational purposes only.  The statements contained herein are general statements of law, as of the date stated, and there may be exceptions that are not set forth below, or changes due to later legislative developments and/or newer case law.  The Nicolson Law Group does not suggest that any provision contained herein will or must apply to any specific issue or case.  For legal information and advice for any particular matter, you are encouraged to consult advice from one of Nicolson Law Group’s licensed attorneys.