Opening statements made in asbestos lung cancer trial

By Jon Campisi | Jun 6, 2011

“Death and destruction.”

“Death and destruction.”

These words were uttered by Philadelphia attorney Benjamin Shein during his opening statements June 6 in what was the first full day of a mass tort asbestos trial at the Philadelphia Court of Common Pleas.

The trial involves a lung cancer death and two cases of cancer in which the plaintiffs are still living, but have been essentially handed a death sentence by doctors who see little chance for recovery, their lawsuits claim.

The civil trial, being heard before Common Pleas Court Judge Victor J. DiNubile, Jr., is expected to last two to three weeks.

On Monday, Shein introduced the jury to the plaintiffs who are having their cases tried together in courtroom 253 at City Hall.

The first case involves Mary Anne Adamkovic, who was diagnosed with malignant mesothelioma at age 72. Her complaint was filed in December 2007.

Adamkovic’s husband, Anthony Adamkovic, who is the executor of his wife’s estate, attributes his wife’s illness and subsequent death to the asbestos fibers she was exposed to while cleaning her husband’s clothes, Shein said in court.

Anthony Adamkovic worked for years as a welder, Shein said, and his wife would regularly wash his work clothes for him.

Mary Anne Adamkovic was a “relatively healthy woman” until the summer of 2007, when she began to experience a shortness of breath and had to be taken to the emergency room, Shein said.

Mary Anne Adamkovic’s illness moved through her quickly, with doctors soon categorizing her tumor as “extensive,” Shein said. She succumbed to the disease in April 2008, leaving behind two sons, a daughter and her husband, who was not in court Monday due to the flu, but is expected to testify at some point during the proceedings.

“Ladies and gentlemen, that is what asbestos does to you,” Shein told the jury during his opening statement, showing a picture of a once healthy-looking Mary Anne Adamkovic and contrasting it with descriptions of her end days. “With malignant mesothelioma, there is no treatment and there is no cure.”

The second case involves Douglas Hake, a former home remodeler who was also diagnosed with malignant mesothelioma, a cancer of the lining of the lungs that is usually attributed to asbestos exposure.

Hake, who will turn 66 on Wednesday, is not expected to live much longer, Shein said.

“It will not be a happy birthday for Doug Hake,” Shein said.

Hake’s wife, Kathleen, was in court Monday. She dabbed her eyes with a tissue when Shein talked about her husband.

“They have nothing good to look forward to as far as Doug and his mesothelioma,” Shein told the jury.

The third case being tried concurrently is that of Charles Teller, a Lansdale, Pa. resident diagnosed with malignant mesothelioma in April 2009. According to court documents, Teller for years worked around asbestos products in various capacities.

A look at the lawsuit, filed in September 2009, shows that Teller worked at an industrial products manufacturing company in Fort Washington, Pa., a plumbing and heating company in Philadelphia, as a carpenter and as a general contractor. He worked other jobs as well.

Teller’s complaint alleges that his lung cancer diagnosis can be attributed to his work history.

“Asbestos is poison,” Shein said. “Most of these companies never put a warning on their product. They never made sure that the warning got to the end user.”

During their own opening arguments, the team of defense lawyers representing a handful of clients who engaged in the manufacture, sale or distribution of asbestos or asbestos-related products took issue with Shein’s statements for various reasons.

Attorney Michael Terry, who represents defendant Union Carbide Corp., said Shein is wrong to insinuate that the placement of warning labels, or lack thereof, was the fault of the companies dealing in asbestos.

Terry said the federal government ordered companies to put warning labels on asbestos packaging in 1972, but opted to leave out the word “cancer.” For Shein to criticize companies like Union Carbide, Terry said, is wrong; it’s government regulators who Shein should direct his anger toward, he said.

“There’s more to this case than just what the lawyers tell you,” Terry told the jury.

Terry, who stressed he’s only involved with the Hake case, said Union Carbide contends it is not to blame for Hake’s cancer.

Similarly, attorney Matt Greenberg, who represents defendant Pneumo Abex Corp., and is only involved in the Adamkovic case, told the jury that “no exposure to Abex material caused Mrs. Adamkovic’s condition,” since the company produces brake linings, which, he contends, “does not cause mesothelioma.”

The defense attorney stressed that mesothelioma is a very rare cancer in general, even rarer in women, and the fact that Mary Anne Adamkovic is alleged to have contracted the disease due to washing her husband’s clothes is highly unlikely.

He said he can relate to the family’s plight, and feels bad for the survivors, noting it’s “unfortunate and unfair” what happened to Mary Anne Adamkovic, but he also said it’s unfortunate and unfair to blame someone who had nothing to do with the diagnosis.

The remaining two defendants are Tremco, a commercial sealant company, and DAP Inc., which markets products for contractors such as caulks, sealants and adhesives. Those two are being represented by attorney Kevin Hexstall, of the firm Marshall, Dennehey, Warner, Coleman & Goggin.

During the trial, a handful of doctors are expected to testify, as are family members of the plaintiff’s. Anthony Adamkovic, Mary Anne’s widower, is also expected to testify, plaintiff’s attorney Shein said.

The trial is expected to continue Tuesday.

Asbestos cases in Pennsylvania are tried using what is known as reverse bifurcation, meaning damages will be addressed first, and liability will be determined second.

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