Phase two in non-malignant asbestos trial ends in mixed verdict

By Jon Campisi | Jun 8, 2011

The second phase of a non-malignant asbestos mass tort case has ended in a split verdict.

The cases of David Myers and Richard Nybeck were being tried jointly in front of Philadelphia Common Pleas Court Judge Norman Ackerman.

In mid May, the eight-member jury awarded the men a total of more than $1 million in compensatory damages for their respective diagnoses of pleural plaques disease, a non-malignant condition affecting the lining of the lungs.

Nybeck, who was unable to attend the weeks-long trial because he is on oxygen and lives out west, had been awarded $1.2 million, while Florida resident Myers, who had attended the proceedings with his wife, was given $150,000.

A loss of consortium count in the Myers case, however, was unfounded, with the jury finding that Barbara Myers was not deprived of her husband’s companionship, according to court documents.

Phase two of the trial, which determines liability, had begun shortly thereafter, with the jury grappling for weeks with whether or not the sole remaining defendant at trial, John Crane Inc., was responsible for the two men’s health issues. Other defendants had settled before trial.

Both plaintiffs attributed their pleural plaques disease to years of working around asbestos.

In the end, the jury split between the two cases.

According to plaintiff’s attorney Eliot Present, of the law firm Paul, Reich & Myers, the jury found John Crane liable for Nybeck’s condition, but it found the defendant not liable in the Myers case.

During the argument phase of the trial, defense attorneys had argued that in the Nybeck case, it was the man’s habits and lifestyle that contributed to his condition, namely that he smoked for a number of years.

In the Myers case, the defense had argued that his shortness of breath that led to a pleural disease diagnosis was simply due to old age.

No punitive damages were sought in either case, the trial only was designed to determine compensatory damages since the plaintiffs said they’ve had to expend various sums of money for medical treatment.

Asbestos trials are tried using what is known as reverse bifurcation, by which monetary damages are addressed first, with liability determined in a trial’s second phase.

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