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Pennsylvania Supreme Court Ruling Allows ‘Any Breath’ Testimony to Stand

In February 2013, the Pennsylvania Superior Court made the decision to uphold a $950,000 judgment against a welding products company in an asbestos injury case.

The company, Lincoln Electric Co., filed an appeal seeking a modified verdict or new trial after a doctor testifying on behalf of the plaintiff argued that every breath the plaintiff took while in the presence of asbestos was enough to establish causation for his illness. The appeal claimed that the doctor’s testimony was inadmissible under the standards set by a previous Pennsylvania Supreme Court decision in Betz v. Pneumo Abex, LLC, which rejected the same “any breath” theory (sometimes called the “any exposure” theory).

The plaintiff was the family of Robert Wolfinger, a Philadelphia man who worked for Lincoln Electric. In 2005, Wolfinger filed a suit against several defendants, claiming that he suffered from pleural thickening as a result of asbestos exposure. Wolfinger has since died from what his family believes was exposure to the asbestos contained in Lincoln Electric’s welding rods.

  • Although Lincoln Electric argued that the precedent set by the Betz case should disqualify the testimony of Wolfinger’s physician, the superior court ruled that the plaintiffs had offered sufficient additional evidence to support their claims.
  • In addition, the court stated that the Supreme Court decision in Betz was only meant to review the “any breath” causation claim by itself, and not when any other evidence was presented alongside it.

While the Betz verdict marked a significant shift in Pennsylvania asbestos litigation, the Wolfinger case may encourage victims of asbestos exposure to include “any breath” testimonies — along with additional evidence — in future court cases.

If you or someone you know is suffering from medical conditions due to asbestos exposure, be sure to speak with a knowledgeable Philadelphia personal injury attorney right away. 

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