PENNSYLVANIA RECORD

A divided en banc Superior Court affirmed a 2013 split-decision by a three-judge panel to

vacate a $14.5 million asbestos verdict awarded in 2011 and order new trials for damages and liability at the trial court based on improper comments made by the plaintiff's attorney during closing arguments and the use of the "any breath" theory for the cause of mesothelioma.

Defendants Crane Co., Hobart Brothers and The Lincoln Electric Company, 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.

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.

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.

Daniel 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.

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.

"Counsel’s express reference to the stipulated economic damages was not evocative, but declarative and algebraic," writes Judge John T. Bender in the majority opinion. "It is no coincidence, therefore, that the jury’s award to Nelson comprised $7 million in non-economic damages pursuant to the Survival Act and $5 million in non-economic damages under the Wrongful Death Act. Clearly, counsel’s remarks were inappropriate."

Bender was joined by judges Mary Jane Bowes, Jacqueline Shogan, Cheryl Lynne Allen, Victor Stabile and Patricia Jenkins.

The dissenting opinion was authored by Judge David N. Wecht, who also disagreed with the original appeals panel decision in 2013. He was joined by President Judge Emeritus Kate Ford Elliot.

"In light of Nelson's relative youth at the time of his death, and the degree of his suffering in the last year of his life," Wecht said in his opinion, "it is not at all surprising that appellee's counsel implored the jury to award substantial noneconomic damages, and the particulars of his manner of doing so in this case did not so patently exceed the bounds of permissible argument as to warrant this court's interference with the trial court's discretion."