PENNSYLVANIA RECORD

PHILADELPHIA (Legal Newsline) – For years, the Philadelphia Court of Common Pleas employed an improper practice of mandatory consolidation in asbestos cases despite restrictions being in place on the process, an asbestos defendant hit with a $1 million verdict is arguing.

Attorneys who are representing Ford Motor Co. in an appeal pending before the Pennsylvania Supreme Court take issue with what they call Philadelphia’s “unique-in-the-Commonwealth practice of automatically consolidating unrelated asbestos cases for trial, so long as one criterion was met: all plaintiffs suffered from the same disease.”

Under the Pennsylvania Rules of Civil Procedure, consolidation is allowed as a matter of judicial discretion, but it is never required as a condition of receiving a trial date, Ford’s lawyers maintain.

But for years, Philadelphia’s asbestos docket was handled in just such a way.

In this case, Ford says consolidation resulted in “extraordinary prejudice that violated Ford’s due process rights: Defendants with nothing in common were consolidated in one trial, forced to present defenses that contradicted one another, and foreclosed from cross-examining adverse witnesses because those witnesses were testifying for or against a different defendant in another case.”

The assertions were contained in a brief submitted to the state Supreme Court earlier this year by attorneys Robert L. Byer and Sharon L. Caffrey of the Philadelphia-based law firm Duane Morris.

The two are representing Ford Motor Co. in its appeal of a May 2014 Superior Court decision that affirmed a December 2011 Philadelphia Common Pleas Court ruling in favor of plaintiffs Richard and Joyce Rost.

The couple sued in the fall of 2010 after Richard Rost developed mesothelioma, a diagnosis he blamed on his exposure to asbestos contained within various products, including some manufactured by Ford.

In its brief to the high court, Ford seeks either judgment as a matter of law or a new trial.

But Ford also seeks to have the Supreme Court remind trial courts that “consolidation – even in asbestos cases – can come only after a reasoned exercise of discretion on a case-by-case basis.”

The defense lawyers point out in their brief that the Philadelphia Court of Common Pleas subsequently ended up amending its consolidation practice, but it was too-little-too-late for their clients, since the Rost case was tried while mandatory consolidation was still in effect at the local level.

Ford’s lawyers argue that the motor company should have never been lumped in with the other defendants in the first place.

According to the record, Richard Rost had a lengthy history of asbestos exposure while working for three-plus decades at the Metropolitan Edison power plant in Portland, Pa.

Rost admitted as much, saying he was exposed to “pretty high levels” of asbestos during this time, the defense brief states.

Rost also maintained he may have been exposed to asbestos while working for a vacuum tube manufacturer during the 1950s, the record shows.

“Despite these prolonged and persistent exposures to asbestos, Mr. Rost claimed that a substantial cause of his mesothelioma was a summer job he had at a Ford dealership, Smith Motors, in 1950,” the brief states.

Ford’s attorneys argue that their client was unfairly tainted by having to go through trial alongside the defendants in the cases of Estate of Wasekanes v. Sears and Graver v. Foster Wheeler Corp., in what was originally a three-case trial group.

Ford was never a party in Graver and it was not a party in Wasekanes at the time of trial because it had previously been granted summary judgment in that case, the brief notes.

Ford’s lawyers maintain that the three cases not only lacked common defendants, but that they also lacked common claims, defenses, products, facts, worksites and legal counsel.

Ford objected to consolidation, the record shows, arguing that it would be prejudiced if such dissimilar cases were tried together and that consolidation would violate its due process rights, but the trial court denied Ford’s motion, it says, “with little explanation.”

One example of the anticipated prejudice surfaced at trial, Ford’s lawyers wrote in their brief, when the attorneys were unable to cross-examine a witness in Wasekanes who used Ford brakes to illustrate his testimony regarding asbestos release because Ford was not a party to that case.

“In this case, consolidation cost Ford the right to cross-examine adverse witnesses and forced Ford to present a defense theory that conflicted with those of other defendants,” the brief states.

In an interview, Sharon Caffrey, one of the Ford attorneys who wrote the brief, said that Philadelphia was the only place she was aware of in the Commonwealth that had a process of mandatory consolidation in asbestos cases.

In other jurisdictions, cases might be consolidated for pretrial workup, but not for trial, she said, something that makes “Philadelphia unique as far as the handling of asbestos cases in Pennsylvania.”

And unique, in this sense, is not necessary a good thing, she claimed.

“I still think that consolidation should never be automatic,” Caffrey said. “Even though there may be some expediency … if there’s prejudice, you cannot proceed with consolidation. In my view the court should make a rational determination before consolidating.”

Caffrey praised a move by Philadelphia Common Pleas Court Administrative Judge John Herron to revamp the consolidation process a few years back, but she still feels more could be done to level the playing field for defendants in mass tort cases.

In February 2012, Herron instituted various changes in mass tort cases, one of which was to do away with consolidation absent an agreement of all parties.

“I feel that Judge Herron’s order is a step in the right direction,” she said, “[but] I don’t think it gives the parties enough protection.”

In Ford’s brief, it was noted that the Pennsylvania Superior Court – a lower tier appellate body – rejected the defense argument that the trial court erred in refusing to sever the plaintiffs’ case from the Wasekanes and Graver cases because the Supreme Court’s past superintendence of the asbestos-case backlog in the Philadelphia court left the Superior Court without “’authority to address procedural issues’ like Ford’s complaint about consolidation, at least ‘absent of a claim of violation of constitutional rights.’”

Caffrey, the defense lawyer, said oral argument was held before the Supreme Court in early May.

She expects a decision to be handed down in the appeal sometime in the next few month.

In their brief to the high court, Caffrey and her co-counsel also argued that consolidation in the Rost case led to juror confusion at trial since the trial court “sprinkled references” to Rost into its instructions about the other two cases.

“It was implausible that jurors could keep the cases hermetically sealed,” the defense brief reads.

The brief notes that juror confusion was on display at trial, with an example being that jurors at one point asked the court for Rost’s last annual income, even though the plaintiff had been retired for years and had not asserted a claim for lost wages.

“The jury’s question about income therefore suggested that it could not keep the different plaintiffs and their different claims straight,” the brief states.

In her interview, Caffrey said research by jury consultants and psychologists has shown that once three or more cases are consolidated, the harder it becomes for jurors to keep facts and expert opinions separate for each case.

“It becomes very confusing to juries,” she said.

And the more diverse the cases are, “the more difficult that becomes,” she said.