PENNSYLVANIA RECORD

A three-judge Pennsylvania Superior Court panel has thrown out a $14.5

million plaintiff’s verdict in an asbestos case out of Philadelphia, determining that the trial court should have granted a mistrial because the plaintiff’s attorney made prejudicial remarks during closing arguments, and also due to the fact that the judge erred in allowing certain expert witness testimony.

Crane Co., Hobart Brothers and The Lincoln Electric Company, who were the defendants who made it to trial in the case, appealed the Feb. 23, 2011, multi-million-dollar judgment in favor of plaintiff Darlene Nelson, who sued on behalf of her late husband, James Nelson, over contentions that the trial court erred in allowing the admission of Nelson’s expert witness testimony that every asbestos exposure must be considered a cause of mesothelioma, according to the appellate court ruling, which was handed down on Sept. 5.

The appeals judges vacated the hefty plaintiff’s award and remanded the case to the Philadelphia Court of Common Pleas for a new trial on damages.

Darlene Nelson sued a host of companies that dealt in asbestos products over the mesothelioma related death of her husband, who contended he developed the disease as a result of occupational exposures during his career at the Lukens Steel Plant in Coatesville, Chester County.

James Nelson, who worked as a pitman, laborer, welder and mechanic at the plant during his decades-long career from 1973 to 2006, was diagnosed with mesothelioma in the winter of 2008, the record shows.

He died a result of his cancer on Oct. 30, 2009.

In her subsequent complaint, the widow alleged that her husband had been exposed to asbestos while working with pipe coverings, gaskets, packing, furnace cement and something called “hot tops,” which is an asbestos-containing board.

In February 2010, attorneys for Hobart Brothers and The Lincoln Electric Company filed a motion seeking to preclude the testimony of plaintiff’s expert Daniel DuPont on the doctor’s “each and every breath causation” theory.

Crane Co. and others filed similar motions.

The court, which ordered the trial bifurcated, deferred the motions until the liability phase of the trial was under way.

In early March 2010, following the completion of the first phase in the trial, the jury found damages in excess of $14.1 million for the plaintiff, the record shows.

The deposition of DuPont, the plaintiff’s expert witness, was taken 10 days later.

Attorneys for Crane Co. and the plaintiff agreed that defense lawyers would object to the “each and every breath testimony,” the record shows.

Meanwhile, at the conclusion of phase two in the trial, jurors returned a verdict in favor of the plaintiff as to liability.

The defense subsequently filed post-trial motions, which were ultimately denied by the trial court judge in late February 2011.

Defense lawyers then filed their appeal with the state’s Superior Court.

One argument on appeal was whether expert testimony that “every asbestos exposure must be considered a cause of disease” was legally sufficient to establish causation under the facts presented in this case in light of state court precedent.

In another defense argument on appeal it was alleged that the trial court erred in denying a mistrial and in failing to grant a new trial in response to post-trial motions where the structure and size of the verdict demonstrated conclusively that the jury was improperly prejudiced after a lawyer for the plaintiff “repeatedly wrongfully appealed to emotion and interjected [their] conduct into his closing argument” at the conclusion of both phases of the trial.

Examples given of the conduct included the plaintiff’s attorney improperly urging a specific minimum amount of damages by stating in his phase one argument that each of the 12 separate elements of non-economic damages was worth “at least $1 million,” and by improperly injecting alleged settlement discussions into his phase one closing argument by saying that Hobart and Lincoln “did not place an adequate ‘value’ on Decedent’s life, and ‘has it dawned on any of you yet that the reason we’re here and the only reason we’re here is because I can’t agree with these people with the value of my client’s life’ and ‘I can’t agree with any of these people on how much money should be awarded … for what has been done in this case …’”

The appeals judges first turned their attention to the issue of whether or not the trial court improperly allowed the each and every exposure witness testimony by the plaintiff’s expert.

DuPont, the expert witness, had testified that mesothelioma has a long latency period and that each and every exposure to asbestos is a substantial controlling factor in eventually developing disease.

The Superior Court judges held that DuPont’s testimony was analogous to testimony in another asbestos mass tort case that was found to be inadmissible, and that the trial court’s admission of it in the Nelson case was inconsistent with Supreme Court precedent.

“The admission of this prejudicial evidence was reversible error,” the appeals panel wrote. “Therefore, we vacate the judgment and remand for a new trial as to liability. Because of the resolution of this issue, we need not address the other issues raised relating to the liability phase of the trial.”

The panel next turned to the issues raised as to the damages phase of the trial, including the defendants’ contention that the plaintiff’s lawyer made improper remarks during closing arguments.

Hobart and Lincoln asserted that Nelson’s lawyer improperly asked the jury to award $12 million in pain and suffering damages, while Nelson countered that her attorney didn’t suggest a specific amount and that if there was prejudice, it was cured by the trial court’s jury instructions regarding damages.

Hobart and Lincoln averred that the trial judge’s instructions on damages had no curative effect, and Crane averred that the plaintiff’s counsel improperly suggested a value of at least $1 million on each of 12 separate items of damages, the record shows.

The appeals judges agreed with defense attorneys that Nelson’s lawyer suggested a value of at least $1 million for each of the 12 types of damages, and they disagreed with the trial court that its jury instructions cured the “taint of [Nelson’s] counsel’s improper suggestion of a specific sum for non-economic damages to the jury.”

Superior Court Judges Jacqueline Shogan, David Wecht and James Fitzgerald participated in the decision.

Wecht filed a separate dissent in which he disagreed with the majority’s conclusion that DuPont’s testimony was subject to exclusion as a matter of law, and the determination that a mistrial should have been declared due to Nelson’s attorney’s closing comments.

“I believe, respectfully, that the learned majority has substituted its judgment for that of the trial court in determinations properly entrusted to that court’s discretion, which are reversible only for an abuse thereof,” Wecht wrote. “I detect no abuse of discretion in the trial court’s rulings on these issues.”

As for the issue involving the expert witness testimony, Wecht wrote that the Nelson case is distinguishable from the case cited by the majority panel, Betz v. Pneumo Abex LLC.

“While Betz is the most recent in a serious of opinions circumscribing the range of expert testimony that may be admitted to establish substantial causation in asbestos litigation, I do not believe that it is dispositive of the case at bar,” the jurist wrote.

The Betz case, Wecht wrote, was one in which substantial causation rose or fell solely upon the every-exposure theory that is now disfavored under state law.

In cases such as Betz, the jurist continued, the plaintiff had no choice but to rely upon the every-exposure theory because the exposure at issue was de minimus as to the defendants’ products.

“Thus, the plaintiffs could establish substantial causation only if expert testimony based upon the every exposure theory was admitted,” he wrote. “The case before us, however, is distinguishable. James Nelson undisputedly was exposed to a great deal of asbestos-containing products over many years of employment, some of them undisputedly manufactured by one or more of [the defendants].”

Unlike the plaintiff’s expert in Betz, Wecht wrote, DuPont, Nelson’s expert, was “intimately familiar with [Nelson’s] exposure history.

Wecht also disagreed with the majority that the plaintiff’s attorney’s closing comments prejudiced the jury.