Pa. Superior Court panel reverses Phila. judge's granting of new trial in asbestos case

By Jon Campisi | Nov 25, 2012

A three-judge panel of the state’s Superior Court has reversed a Philadelphia judge’s

A three-judge panel of the state’s Superior Court has reversed a Philadelphia judge’s

order for a new trial in an asbestos mass tort case.

In an opinion filed Nov. 20, the three appellate judges reversed the Feb. 17, 2011, order by Philadelphia Common Pleas Court Judge Ricardo C. Jackson that granted a plaintiff’s motion for post-trial relief that sought a new trial as to John Crane Inc. only, which was one of five defendants in a strict liability case that had been initiated by Margaret Shelhamer on behalf of her late husband, Thomas Shelhamer, who had developed mesothelioma as a result of asbestos exposure.

The case originally involved an additional plaintiff, Thomas Jones, and four additional defendants, B.F. Goodrich, Buffalo Pumps, Garlock Company and Ingersoll Rand.

A jury trial took place in late 2010 that was done in a reverse bifurcated format, with damages addressed during the first phase, and liability issues addressed during the second phase.

During phase one, the jury had determined that Shelhamer had proven by a fair preponderance of the evidence that asbestos exposure was a factual cause of her late husband’s mesothelioma, according to the court record.

During the second phase, the jury determined that Thomas Shelhamer had been exposed to the asbestos products of B.F. Goodrich, Buffalo Pumps, Garlock Co. and Ingersoll Rand, but not those of John Crane Inc.

The jury then determined that the asbestos products of the four aforementioned defendants were defective, but not John Crane’s asbestos product.

The third and final question asked to the jury was whether the jurors found that the defective product of any of the defendants was a factual cause of Thomas Shelhammer’s asbestos-related mesothelioma, to which the jury answered in the affirmative to all defendants, including John Crane.

The jury’s answers to all three questions were recorded on the verdict sheet and also read aloud in court, the record shows.

Counsel for John Crane at this point asked the judge to require the jury foreperson to again read aloud the answer to the third and final question to make sure there was no confusion.

The foreperson again stated that the jury had found the asbestos products of every defendant, including John Crane, were a factual cause of Shelhamer’s injury.

Neither party initially objected to the verdict, however, so it was officially recorded in court in mid-December 2010.

In the end, an $8 million verdict was awarded to the plaintiffs against all defendants except John Crane.

Margaret Shelhamer filed a motion for post-trial relief on Dec. 17, 2010, asserting that the jury’s findings showed “confusion and contradiction,” which she contended proved the need for a new trial.

Attorneys for John Crane argued that Shelhamer had waived this claim by not raising the issue following the reading of the verdict.

Nevertheless, Jackson, the trial judge, granted Shelhamer’s request for a new trial on all phase two liability issues with regard to John Crane.

Crane then appealed to the Superior Court, asking the appellate judges to determine whether Jackson erred in granting the new trial.

Crane agued that Shelhamer waived the right to argue that the verdict was inconsistent by failing to object to it at trial, and that even if a new trial was properly granted, the trial court judge erred in limiting the trial to phase two only.

The Superior Court, in agreeing with the defendant, wrote that Shelhamer, as the party seeking post-trial relief on the grounds of an inconsistent jury verdict, was required to make a “contemporaneous objection to that inconsistency,” and her failure to do so barred a later attempt to raise the claim via post-trial motion.

“Here, Shelhamer was granted a new trial on the basis that the jury’s findings were inconsistent. Clearly, however, Shelhamer did not raise this inconsistency at the time the verdict was rendered,” the Superior Court opinion reads.

“We therefore conclude that it was error for Judge Jackson to grant Shelhamer’s post-trial motion on a claim which had been waived.”

The opinion was written by Superior Court President Judge Correale F. Stevens.

Judges Anne E. Lazarus and Robert E. Colville joined in the decision.

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