Pennsylvania Record

Monday, September 16, 2019

Asbestos trial under way in Philadelphia

By Jon Campisi | May 10, 2011


A non-malignancy asbestos trial involving two out of state plaintiffs diagnosed as having symptomatic pleural disease is under way at the Philadelphia Court of Common Pleas before Judge Norman Ackerman. 

Plaintiff attorney Eliot Present of Paul, Reich & Myers in Philadelphia explained to the 10-member jury during opening arguments May 9 that asbestos cases are tried using what is known as reverse bifurcation, which is when monetary damages are considered first, only to be followed by determinations of liability.

Present, who represents David F. Myers, and his wife, Barbara Ann Myers, said the jury will soon come to agree that David Myers’ non-malignant lung ailment was the direct result of the work he did for the defendants.

The Myers case was originally part of a mass tort involving three plaintiffs. The case of Joseph and Kathleen Young, a Pottsville, Pa. couple, settled before the trial began, according to the court docket.

The couple was in court May 9 during opening arguments.

Plaintiff Richard Nybeck, whose case is also being heard, was not present. The elderly man, who lives in Arizona and is on oxygen, was unable to make it to court, his attorneys explained. He was, however, expected to be present at some point during the trial through the use of a satellite feed. 

The main defendant in the Myers case is A.W. Chesterton Inc., and the main defendant in the Nybeck case is Airco Welders Supply, according to court documents.

Defense attorney Kevin Hexstall of Marshall, Dennehey, Warner, Coleman & Goggin in Philadelphia, who represents the Hobart Brother Company and the Lincoln Electric & Welding Co., said the jury will eventually come to find that his clients are not responsible for Myers’ aliment.

Hexstall said Myers, who will turn 75 at the end of the month, is out of breath for the same reason others in his generation are out of breath: he’s aging.

Hexstall stressed that he was not trying to be rude in any way, but simply was pointing out that people become short of breath the older they get.

He also described asbestos as a natural mineral, and one that can’t be avoided by the general populace.

Hexstall noted that the pleural disease Myers is suffering from does not attack the inside of the lungs, but rather the membrane surrounding the lungs. This was also noted by Present.

Hexstall said Myers worked for a period of time near the site of the Keasbey and Mattison asbestos manufacturing plant in Ambler, Pa. He said in working near the site, Myers was clearly exposed to much more asbestos than the average person.

Following Hexstall’s opening, attorney Ellen Wilber of Dickie McCamey in Philadelphia, who represents defendant John Crane Inc., also spoke. She, too, urged the jury to render a fair verdict with regard to damages, since she believes her client is also not responsible for Myers’ condition.

The plaintiffs are seeking in excess of $50,000 in compensatory damages and in excess of $50,000 in punitive damages, according to the lawsuit.

The Nybeck case was first filed a decade ago, and the complete civil complaint was not immediately available, so the specifics as to his lawsuit were unable to be ascertained.

Attorneys for the remaining two defendants did not make opening statements. The attorneys are Scott Griffith, of the firm Rawle & Henderson LLP, who represents American Biltrite, and Terence Pitt, of the firm Goldfein and Joseph P.C.

The Myers case number is 080704794 and the Nybeck case number is 010404652.  

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