Pennsylvania Record

Thursday, December 12, 2019

Jury reaches verdict in non-malignancy asbestos trial

By Jon Campisi | May 18, 2011

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A Philadelphia Common Pleas Court jury May 16 awarded two elderly men who claimed they suffered shortness of breath because of asbestos-related conditions more than $1 million in total compensatory damages, according to plaintiff’s attorney Eliot Present.

The 10-member jury–two were alternates–returned the verdict Monday afternoon after a week of testimony, arguments and cross-examinations.

At issue was whether an asbestos related condition, called Symptomatic Pleural Disease, contracted by plaintiffs David Myers and Richard Nybeck, was the factual cause behind their respective shortness of breath.

The trial, before Common Pleas Court Judge Norman Ackerman, originated from a mass tort asbestos docket with dozens upon dozens of complaints, but that was eventually narrowed down to a handful of defendants, the main one of which was A.W. Chesterton Inc. in the Myers case, and Airco Welders Supply in the Nybeck case.

The jury awarded Nybeck $1,200,000, and Myers $150,000, according to Present.

Before the jury reached its verdict Monday afternoon, Ellen Wilber, a lawyer with the firm Dickie McCamey, who represented defendant John Crane Inc., argued that Nybeck’s condition was caused by COPD, or chronic obstructive pulmonary disease, something, she maintained, was related to the elderly man’s smoking history.

Nybeck, it was revealed in court, smoked one-and-a-half to two packs of unfiltered cigarettes for a 40-year time period, from roughly 1957 to 1997.

Nybeck is on oxygen and lives in Arizona so he was unable to attend the proceedings. David Myers and his wife, Barbara, however, came to Philadelphia from their Florida home to attend phase one of the trial, which lasted just over a week.

Other defense attorneys agreed during trial that in Nybeck’s case, it most likely wasn’t his exposure to asbestos during his working career that led to breathing problems; it was his lifestyle and health habits, they had said.

In the Myers case, defense attorneys argued similarly that testimony by expert witnesses, including two doctors, showed that Myers’ shortness of breath could not be directly attributed to asbestos exposure.

Plaintiff’s attorney Present, of the firm Paul, Reich & Myers, had argued that so-called “concurrent causes” could, and should, be given weight by juries. The concept refers to the fact that multiple things can exist independently of each other at any given time.

In this case, Present argued, it could be said that the plaintiffs could have both asbestos-related ailments and something like COPD.

In both cases, which were tried concurrently, the plaintiffs were seeking compensatory damages to cover their medical bills and court costs. No punitive damages were considered in the case.

In the Myers case, the jury also had to consider a count of what’s known as “loss of consortium,” which basically says Barbara Myers has been deprived the companionship of her spouse due to his ailments.

The mass tort originally involved a third plaintiff, Joseph Young of Pottsville, Pa., but his lawsuit was settled before the case went to trial. The specifics of his settlement were not immediately known.

In the early days of the trial, defense attorney Kevin Hexstall, a lawyer with the firm Marshall, Dennehey, Warner, Coleman & Goggin, who represented the remaining defendants, Hobart Brother Company and the Lincoln Electric & Welding Company, had argued that the shortness of breath experienced by the plaintiffs could be attributed to the aging factor, since both Myers and Nybeck are older gentlemen.

Monday’s verdict wrapped up the first phase of the trial, which dealt strictly with damages, known as reverse bifurcation.

Phase two of the trial, which addresses liability, is expected to begin May 23 at 9:30 a.m. in Courtroom 633 in City Hall.

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