PENNSYLVANIA RECORD

A trial court judge recently upheld a $2.3 million plaintiff’s verdict in an

asbestos mass tort case out of Philadelphia, disputing defense assertions that the defendants were entitled to a new trial because the plaintiff’s case for causation failed as a matter of law.

Common Pleas Court Judge Mark I. Bernstein refused to throw out the multi-million dollar verdict against Crane Co., DAP Inc., Duro Dyne Corp., The Goodyear Tire & Rubber Co. and Goodyear Canada Inc., which had been reached following a jury trial in late February.

The plaintiff in the case, Charlotte Vinciguerra, filed suit in late June 2012 on behalf of her late husband, Frank Vinciguerra, who died on Nov. 3, 2010, as a result of malignant mesothelioma.

Numerous companies were initially listed as defendants in the litigation, but many were dismissed before trial, the court record shows.

A joinder complaint had been filed in early 2011 against Industrial Petolic Corp., but Bernstein ultimately dismissed the action, determining that Frank Vinciguerra had not been exposed to any of Industrial Petolic’s asbestos-containing products.

In her complaint, Charlotte Vinciguerra claimed that her late husband contracted mesothelioma as a result of his exposure to asbestos while on the job.

The record shows that the man had worked as a sheet metal helper and sheet metal mechanic for E.I. DuPont De Nemours & Co. from 1951 to 1985.

Frank Vinciguerra learned he had malignant mesothelioma in the summer of 2010, the record shows.

The plaintiff, who resides in New Jersey, alleged that E.I. DuPont failed to exercise reasonable care to protect her husband and others from the hazardous, dangerous and harmful conditions that existed at the property.

In their post-trial motion, the defendants maintained that they were entitled to a new trial because the trial judge allowed the plaintiff’s expert witness to testify that “each and every breath” and “every exposure” to asbestos-containing fiber was causative of Frank Vinciguerra’s injuries, in violation of precedence set by the Pennsylvania Supreme Court in the case of Betz v. Pneumo Abex LLC.

In his Nov. 8 opinion, however, Bernstein, the trial judge, wrote that none of the plaintiff’s expert witnesses ever offered this opinion during the course of the litigation.

Bernstein singled out the testimony of Dr. Steven Markowitz, an occupational and environmental medicine expert, who testified that it was his opinion that Frank Vinciguerra’s exposure to asbestos likely caused the man’s disease.

During his testimony, the record shows, Markowitz explained the dose-response relationship and concepts of cumulative exposure to asbestos.

The doctor’s testimony was based upon his individual analysis of the specific factors in Vinciguerra’s condition, was offered to a reasonable degree of medical certainty, and was “fully subject to cross-examination,” Bernstein noted.

The latter was particularly important to the judge, who noted in his opinion that “the defense may not appeal on the basis of truthful expert opinion that they solicited.”

In one of Markowitz’s responses during cross-examination, the judge noted, the doctor “did not opine that every breath causes mesothelioma.

“Rather,” Bernstein wrote, “the witness clearly explained that it is the cumulative effect which causes the disease.”

Bernstein also ruled that Crane Co., one of the defendants, is not entitled to judgment notwithstanding the verdict on the grounds that the plaintiffs have made a complete recovery of their damages.

Crane had argued in post-trial motions that the plaintiff cannot recover more than the full amount awarded and surmised that Charlotte Vinciguerra may attempt to do just that in the future.

The defendant claimed that the plaintiff had submitted various asbestos claims in the past and will in the future likely submit additional claims to asbestos bankruptcy trusts.

The judge, however, wrote that “the speculation that Plaintiff will unethically and improperly seek compensation beyond that awarded by the jury is unsupported by any evidence.”

Bernstein added, “Crane is wrong when they claim that amounts received from settling Defendants, whose liability was not presented to the jury because insufficient evidence was presented at trial for any liability to be found, must be included in the total compensation calculation.”

Bernstein also noted that Crane had the ability throughout the course of the case to join other parties into the action or pursue cross-claims against other parties initially named as defendants in the suit who subsequently settled with the plaintiff.

In his opinion, Bernstein also said he had properly refused to offer jurors instructions that are not the law in Pennsylvania.

Crane’s attorneys argued that Bernstein erred during jury instructions, saying that because federal courts have predicted that the Pennsylvania Supreme Court will adopt Section Two of the Restatement (Third) of Torts, that Bernstein should have used that prediction as his jury instruction.

“Crane claims that a new trial must be granted because this Court failed to charge the jury in accordance with the law as it is predicted to be changed,” Bernstein wrote. “It needs no citation of authority for this Court to state as a black letter proposition of law that cases are to be tried, and all rulings made, in accordance with the law at the time trial occurred.”

Bernstein also disputed a defense assertion that the Vinciguerra case was improperly consolidated with another asbestos mass tort case, writing that Pennsylvania appellate courts have for decades ruled the practice proper.

“The Philadelphia Court recently administratively reviewed and revised these procedures and imposed significant restrictions on the number and types of cases that may be consolidated into trial groupings,” Bernstein wrote. “There was no error in following standard practice and procedure in the Philadelphia Courts as modified to reduce the number of plaintiffs presented in one trial.”

Bernstein asked the Pennsylvania Superior Court to affirm his ruling on appeal.

In April, Bernstein approved of delay damages in excess of $56,000, the docket sheet in the case shows.

Then, in late July, he molded the verdict to reflect the reduction of bankruptcy trust settlement in the amount of $68,449.39.

Adding the delay damages, the total verdict for the plaintiff came in at $2,286,376.44.

The plaintiff was represented by Philadelphia attorney Benjamin Shein.