PENNSYLVANIA RECORD

A Philadelphia judge has declared a mistrial in a hotly contested asbestos mass tort case,

with the jurist overseeing the matter claiming defense counsel attempted to intimidate her by writing to the administrative judge of the First Judicial District in the middle of the trial with complaints about the way the trial court judge was handling the case.

In an opinion dated July 26, Philadelphia Common Pleas Court Judge Esther Sylvester cited the “overreaching courtroom tactics of defense counsel” as the catalyst for her decision to declare a mistrial in a case that ended in a defense verdict. It was initiated by George and Tina Webber against manufacturers of asbestos-containing products.

The Pottsville, Pa. couple sued a host of companies back in December 2010 over allegations that George Webber developed peritoneal mesothelioma due to exposure to asbestos containing products during his working years.

Peritoneal mesothelioma is a rare type of cancer that occurs in the thin cell walls that line the abdominal cavity, or the peritoneum.

Court records and the judge’s order show that the trial ended earlier this summer in favor of the defendants who made it to trial, which were Pneumo Abex LLC, Honeywell International and Ford Motor Co.

Court records show that Sylvester declared the mistrial in late June, but she didn’t elaborate upon the decision until her eight-page order was docketed on July 26.

In her order, Sylvester wrote that the “hotly contested,” weeks-long trial engendered dozens of motions in limine, numerous objections and included the occasional “overreaching and improper trial tactics by both sides, who continued arguments after rulings they disagreed with despite being told by the court to desist.”

The judge wrote that these improper tactics reached their boiling point when defense counsel wrote to the administrative judge of the civil trial division, John W. Herron, in an attempt to intimidate and improperly influence Sylvester.

The letter to Herron came in the middle of the trial, according to Sylvester, and complained that the trial judge was “biased against defendants,” despite a number of rulings favorable to the defense, according to Sylvester.

“Defendants attached a lengthy ‘Motion for Recusal and for a Mistrial’ to their impertinent letter to the Administrative Judge for the First Judicial District in a blatant attempt to usurp the trial court’s authority and prerogatives, taint the trial record, and circumvent the appellate process,” Sylvester’s order reads.

Sylvester also wrote that there is a “murky dispute” as to whether the defense letter was ex parte, or written without the knowledge of others involved in the case, although it does appear that plaintiffs’ counsel was made aware of the letter.

“Nonetheless, Defendants’ attempt to have the Administrative Judge admonish or override the trial judge during trial was improper whether, or not, it was ex parte,” Sylvester wrote.

The judge also wrote in her order that the matter led to Herron addressing the letter in the form of public comments to local legal media, something that also created further issues involving the integrity of the case.
“The resulting public imbroglio created by defense counsel (in which Plaintiffs’ counsel has not been without blame) has now literally spilled out of the Courtroom into the streets and legal suites of Philadelphia,” Sylvester wrote.

In their motion for recusal and for mistrial, defense counsel accused Sylvester of being biased against them, citing numerous examples of what they felt was unfair treatment.

In the letter to Herron, Honeywell counsel wrote the following: “Honeywell respectfully submits that the Honorable Judge Sylvester has improperly exhibited feelings of bias and prejudice toward Defendants, and in favor of Plaintiffs, in presiding over trial of the instant matter such that her impartiality is now justifiably and reasonably questioned, and the appearance of impropriety cannot be eradicated.

“To the extent that Honeywell’s request for Recusal is denied, Honeywell nevertheless continues to request that this Court declare a mistrial.”

Portions of the defense letter were included in Sylvester’s mistrial order.

Sylvester wrote that contrary to the picture of the trial proceedings the defendants seek to portray in their letters, motions and in the press, “their subjective, impressionistic, daubs only succeed in creating a grave appearance of impropriety and reflect poorly on themselves. Their communications to the Administrative Judge not only appear improper, they were improper.”

In her order, Sylvester wrote that at all times the court conducted itself appropriately, even with restraint, despite the “frequent intentional provocation bordering on contempt” that took place during the proceedings.

“The appearance that has been created by counsel for both sides, and the accusations from both sides of court bias from counsels’ arguments on Motions in Limine through Post Trial Argument, left the Court no choice but to grant the mistrial that was repeatedly requested by both sides during and after the trial,” the order states.

The defendants appealed the mistrial order to the state’s Superior Court early last month, the court docket shows.

Sylvester, however, wrote that such an order is non-appealable.

The heart of the case involved George Webber’s mesothelioma diagnosis in mid October 2010, an illness he claimed was directly related to his exposure to asbestos dust and fiber while working as a railroad trackman and welder.

Webber, who was born in the spring of 1968, claimed he was also exposed to asbestos on his father’s clothing while the father worked around motor vehicles and vehicle parts.

The plaintiffs were represented by attorney Robert E. Paul of the firm Paul, Reich & Myers.

Defense counsel on the case included attorneys from Duane Morris, Rawle & Henderson and Kelley Jasons McGowan Spinelli Hanna & Reber.