Walsh v. BASF Corp.

234 A.3d 446

Richard Thomas WALSH, Executor of the ESTATE OF Thomas J. WALSH, Deceased

v.BASF CORPORATION; Bayer Corporation d/b/a Bayer CropScience, L.P., and Bayer CropScience Holding, Inc., and/or Bayer CropScience, L.P. and Bayer CropScience Holding, Inc., in their own right; Biosafe Systems, L.L.C.; Chemtura Corporation; Cleary Chemical Corp. ; Dow Agrosciences, L.L.C.; E.H. Griffith, Inc. ; E.I. Du Pont De Nemours and Co., Inc.; G.B. Biosciences Corporation; John Deere Landscaping, Inc., Successor To Lesco, Inc.; Monsanto Company; Nufarm Americas, Inc.; Regal Chemical Co.; Scotts-Sierra Crop Protection Co. ; and Syngenta Crop Protection, Inc.

Appeal of: Dow Agrosciences, LLC, Bayer CropScience, LP, Bayer Corporation, and Bayer CropScience Holding, Inc.

Richard Thomas Walsh, Executor of the Estate of Thomas J. Walsh, Deceased

v.BASF Corporation; Bayer Corporation d/b/a Bayer CropScience, L.P., and Bayer CropScience Holding, Inc., and/or Bayer CropScience, L.P. and Bayer CropScience Holding, Inc., in their own right; Biosafe Systems, L.L.C.; Chemtura Corporation; Cleary Chemical Corp. ; Dow Agrosciences, L.L.C.; E.H. Griffith, Inc. ; E.I. Du Pont De Nemours and Co., Inc.; G.B. Biosciences Corporation; John Deere Landscaping, Inc., Successor to Lesco, Inc.; Monsanto Company; Nufarm Americas, Inc.; Regal Chemical Co.; Scotts-Sierra Crop Protection Co. ; and Syngenta Crop Protection, Inc.

Appeal of: Deere & Company

Richard Thomas Walsh, Executor of the Estate of Thomas J. Walsh, Deceased

v.BASF Corporation; Bayer Corporation d/b/a Bayer CropScience, L.P., and Bayer CropScience Holding, Inc., and/or Bayer CropScience, L.P. and Bayer CropScience Holding, Inc., in their own right; Biosafe Systems, L.L.C.; Chemtura Corporation; Cleary Chemical Corp. ; Dow Agrosciences, L.L.C.; E.H. Griffith, Inc. ; E.I. Du Pont De Nemours and Co., Inc.; G.B. Biosciences Corporation; John Deere Landscaping, Inc., Successor To Lesco, Inc.; Monsanto Company; Nufarm Americas, Inc.; Regal Chemical Co.; Scotts-Sierra Crop Protection Co. ; and Syngenta Crop Protection, Inc.

Appeal of: Syngenta Crop Protection, Inc.

Richard Thomas Walsh, Executor of the Estate of Thomas J. Walsh, Deceased

v.BASF Corporation; Bayer Corporation d/b/a Bayer CropScience, L.P., and Bayer CropScience Holding, Inc., and/or Bayer CropScience, L.P. and Bayer CropScience Holding, Inc., in their own right; Biosafe Systems, L.L.C.; Chemtura Corporation; Cleary Chemical Corp. ; Dow Agrosciences, L.L.C.; E.H. Griffith, Inc. ; E.I. Du Pont De Nemours and Co., Inc.; G.B. Biosciences Corporation; John Deere Landscaping, Inc., Successor To Lesco, Inc.; Monsanto Company; Nufarm Americas, Inc.; Regal Chemical Co.; Scotts-Sierra Crop Protection Co. ; and Syngenta Crop Protection, Inc.

Appeal of: Monsanto Company

Richard Thomas Walsh, Executor of the Estate of Thomas J. Walsh, Deceased

v.BASF Corporation; Bayer Corporation d/b/a Bayer CropScience, L.P., and Bayer CropScience Holding, Inc., and/or Bayer CropScience, L.P. and Bayer CropScience Holding, Inc., in their own right; Biosafe Systems, L.L.C.; Chemtura Corporation; Cleary Chemical Corp. ; Dow Agrosciences, L.L.C.; E.H. Griffith, Inc. ; E.I. Du Pont De Nemours and Co., Inc.; G.B. Biosciences Corporation; John Deere Landscaping, Inc., Successor to Lesco, Inc.; Monsanto Company; Nufarm Americas, Inc.; Regal Chemical Co.; Scotts-Sierra Crop Protection Co. ; and Syngenta Crop Protection, Inc.

Appeal of: BASF Corporation

No. 14 WAP 2019

No. 15 WAP 2019

No. 16 WAP 2019

No. 17 WAP 2019

No. 18 WAP 2019

Supreme Court of Pennsylvania.

Argued: October 16, 2019

Decided: July 21, 2020

OPINION

JUSTICE DONOHUE

Appellants, the manufacturers of various pesticides, appeal from the decision of the Superior Court reversing the trial court's grant of summary judgment in their favor following the trial court's determination that the testimony of the experts proffered by Appellee, the Executor of the Estate of Thomas J. Walsh ("Walsh"), failed to satisfy the test set forth in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923). For the reasons set forth herein, we affirm the Superior Court's ruling, with instructions that on remand to the trial court, the Appellants should be given the opportunity to renew their Frye motions for the reasons addressed in this Opinion.

Factual and Procedural Background

For nearly forty years, Walsh served as a groundskeeper and golf course superintendent at several Pittsburgh area golf courses. His work involved the regular application of various pesticides (primarily insecticides and fungicides) on the golf courses. Over this time, Walsh kept a detailed record of his activities regarding the pesticides he used, including a detailed log of the specific products and the dates of their applications. In addition, a coworker, Blaise Santoriello, testified with regard to Walsh's activities, including how the pesticides were applied, the protective gear they wore when doing so, what pesticides were used and in what concentrations. In the early years, gloves were the only protective gear that they used, although in later years they also wore overalls, rubber boots and masks. Eventually they began wearing disposable protective gear. Even with these protections, Santoriello explained, exposure to the dust from the pesticide products would occur while opening the bags and mixing the chemicals.

On October 5, 2008, Walsh was suffering from fever, chills, and a cough when he arrived at an emergency room. A bone marrow biopsy resulted in a diagnosis of Acute Myelogenous Leukemia ("AML"). Cytogenetic testing revealed significant chromosomal aberrations. On February 2, 2009, Walsh died. His treating oncologist, James Rossetti, D.O., later opined that Walsh's extensive exposure to pesticides raised a high degree of suspicion that said exposure played a significant role in the development of his AML.

Walsh's executor commenced this wrongful death and survival action against the manufacturers of various pesticides that he had applied during his career, asserting claims in strict products liability, negligence, and breach of warranty. Based upon a lack of expert testimony identifying various pesticides as substantial contributing factors in Walsh's death, the trial court granted summary judgment in favor of a large number of manufacturers. Appellants, the remaining manufacturers, manufacture fifteen pesticides products to which Walsh was exposed.

Three of the current Appellants, Bayer CropScience LP, Bayer Corporation and Bayer CropScience Holdings, Inc. (collectively "Bayer"), filed a Frye motion¹ to exclude the testimony of the Executor's expert witnesses, Nachman Brautbar, M.D ("Dr. Brautbar") and April Zambelli-Weiner, Ph.D. ("Dr. Zambelli-Weiner"). The remaining defendants either joined Bayer's Frye motion or filed their own. In these motions, the Appellants alleged that Drs. Brautbar and Zambelli-Weiner failed to apply methodologies generally accepted in the relevant scientific communities.

In his original expert report,² Dr. Brautbar explained that "[k]nowledgeable physicians approach the question whether a person's disease was caused by a particular chemical by considering two separate, but related, questions." Brautbar Initial Report, 2/17/2014, at 13. The first question is whether the chemical can cause "the particular condition the person has" (general causation), and the second question is "whether a chemical that is capable of causing the condition that the person has actually caused the person's condition." Id. For general causation, Dr. Brautbar described the generally accepted methodology he employed as follows:

(1) identify all relevant studies, (2) read and critically evaluate all the relevant studies, (3) evaluate all the data based upon recognized scientific factors (the Bradford Hill viewpoints) and other factors relevant to the chemical and the disease; (4) exercise best professional judgment in reaching a conclusion on the issue of whether a particular chemical or class of chemicals can cause a particular disease; and (5) explain the factual basis and the reasoning supporting the conclusion.

Id.

With respect to causality, Dr. Brautbar indicated that he utilized the "Bradford Hill criteria" or "viewpoints," a set of nine factors used to determine whether a recognized association is in fact a causal link. Id. at 13-15 (citing Sir Austin Bradford Hill, The Environment and Disease: Association or Causation , Section of Occupational Medicine, at 295 (January 1965)). In his 1965 article,³ Sir Bradford Hill indicated that his new methodology was necessary to decide whether an observed association between a potential toxin and a particular disease was in fact the outcome of an actual causal relationship.

[M]ore often than not we are dependent upon our observation and enumeration of defined events for which we then seek antecedents. In other words, we see that the event B is associated with the environmental feature A, that, to take a specific example, some form of respiratory illness is associated with a dust in the environment. In what circumstances can we pass from this observed association to a verdict of causality ? Upon what basis should we proceed to do so?

Id. (emphasis in original).

After an association between agent and disease has been identified, the nine factors are evaluated to determine the strength of that association, with a strong association pointing to a causal relationship. Sir Bradford Hill explained the process as follows:

Here then are nine different viewpoints from all of which we should study association before we cry causation. What I do not believe – and this has been suggested is that that we can usefully lay down some hard-and-fast rules of evidence that must be obeyed before we accept cause and effect. None of my nine viewpoints can bring indisputable evidence for and against the cause-and-effect hypothesis and none can be required as a sine qua non. What they can do, with greater or less strength, is help us to

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