Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - April 2015

April 20, 2015

Edited by Timothy Rau, Esq.

New York Judge Vacates $11 Million Asbestos Verdict

In finding that the plaintiffs' experts lacked proper bases for their causation opinions, New York Supreme Court Judge Barbara Jaffe entered an order and issued a 41-page opinion on April 13, 2015, which set aside an $11 million verdict awarded in a mesothelioma case. In Juni v. AO Smith, Index No. 190315/ 12, it was alleged that plaintiff Arthur Juni was exposed to asbestos through his work as a mechanic at a garage in the 1960s and 1970s and through work on his personal vehicles. Ford filed post-trial motions that sought to set aside a verdict in which a jury found that the plaintiff was exposed to asbestos from brakes, clutches, or gaskets and that the products caused his mesothelioma.

In its motion, Ford challenged the opinions of Dr. Stephen Markowitz and Dr. Jacqueline Moline as inadmissible because the opinions lacked a sufficient foundation and were based on invalid assumptions. Ford further argued that the evidence presented at trial demonstrated that exposure to asbestos-containing friction products does not cause mesothelioma.

Dr. Markowitz, an internal and occupational medical specialist, testified that all instances of exposure cumulatively contributed to causing the decedent's disease. He relied on studies involving factory workers who mass-produced friction products, and he conceded that those exposures differed from exposures by a mechanic in a garage. He was unaware of any epidemiological study that showed an increased risk of mesothelioma from exposures to brakes, clutches or gaskets.

Dr. Moline, also an expert in internal and occupational medicine, similarly relied on the cumulative exposure theory as the basis of her causation opinions. She also relied on case studies for her conclusions.

In considering the motion, the court analyzed the expert opinions under Parker v. Mobil Oil, 7 NY3d 434 (2006) to determine whether there was an appropriate foundation for the experts' opinions rather than whether the opinions were admissible under Frye.

The judge wrote that the fact that mesothelioma is only caused by asbestos does not dispose of the issue of whether a specific product caused the disease. The sufficiency of the exposure and the ability of the product to cause disease is the issue the court considered.

Judge Jaffe looked at the studies cited by the plaintiffs' experts and found that the reports or studies showing an association between mesothelioma and garage mechanics was merely an association and not sufficient for a causation opinion. The court also rejected case studies and findings of governmental agencies as insufficient to prove causation. The court found insufficient evidence supplied by the plaintiffs to show there was an increased risk of disease from exposure to friction products.

The plaintiffs also presented a hypothetical question to Dr. Moline at trial to which she concluded that the exposures caused the decedent's mesothelioma. The court rejected the argument by holding that Dr. Moline could not reach such a conclusion without specific knowledge as to the amount, duration or frequency of the exposures.

The court also considered the cumulative exposure theory presented by the plaintiffs and rejected the theory as lacking scientific merit. The court cited to the Howard, Betz, and Gregg from Pennsylvania and opinions from Virginia, Nevada and Georgia as other opinions supporting its conclusion.

Ultimately, the court found that the plaintiffs failed to legally establish a prima facie case that exposure from brakes, clutches and gaskets caused the mesothelioma in the case and set aside the verdict.

The plaintiffs were represented by Weitz & Luxenberg at trial. We will monitor the case regarding any appeal taken from this decision.

For a copy of the opinion or for more information, please contact Tim Rau in Philadelphia, PA; Art Bromberg in Roseland, NJ, or Anna DiLonardo in our Melville, NY office.

New Jersey Jury Awards $1.5 Million to 83-Year-Old Plumber for Mesothelioma

A Middlesex County jury recently handed down a $1.5 million verdict in favor of the plaintiff in a New Jersey asbestos lawsuit before the Honorable Ana C. Viscomi, JSC. The plaintiffs, Ronald Roe and Donna Rowe, his wife, sued a variety of defendants for asbestos exposure arising out of Ronald Rowe’s 35-year career as a residential heating and plumbing contractor.

Ronald Rowe alleged that he encountered asbestos cement and pipe covering products when he installed, maintained and serviced heating and plumbing equipment, such as boilers, burners, furnaces and other products. As a result of the alleged exposure, he claimed that he contracted mesothelioma. Ronald Rowe also testified that he also worked for two years in the automotive industry, working on brakes, gaskets and clutches.

Mr. Rowe, 83-years-old at the time of trial, did not appear or testify in person at trial since he now resides in Arizona and did not wish to travel to New Jersey.

The plaintiff tried the case against the sole remaining defendant, Universal Supply Company, on the allegation that they sold 1,000 pounds of raw asbestos to the plaintiff over the course of his career. Universal did not dispute the sales or the quantity; however, they did dispute the characterization of the product as “raw asbestos,” maintaining that Universal actually sold cement products to the plaintiff. Universal presented a fiber defense.

After deliberating for parts of four days, the jury returned its verdict on February 24, 2015, awarding Ronald Rowe $250,000 for compensatory damages and $500,000 for future damages. The jury awarded Donna Rowe $250,000 for her present per quod claim and $500,000 for future damages.

The jury allocated 20% liability to Universal Supply, for a total verdict to Universal Supply of $300,000. The jury apportioned liability to several additional settled defendants as follows: Borg Warner – 5%; Burnham – 14%; Dana – 6%; ECR/Dunkirk – 9%; Honeywell – 14%; Peerless – 12%; Trane/American Standard – 10%; Weil McLain – 10%.

For more information on the opinion, please contact Paul Johnson in our Cherry Hill, NJ office.

Pennsylvania Wrongful Death Claims for Asbestos Injuries Must Be Filed Within Two Years of Date of Diagnosis

In Wygant v. G.E., PA. Super. No. 470 WDA 2014, a case involving claims for asbestos-related death and injury, the Pennsylvania Superior Court affirmed the ruling of the Allegheny County trial court and held that the appellant/decedent's wrongful death claims were barred because they were brought more than two years after the date the decedent was diagnosed with mesothelioma. As a result of this ruling, some wrongful death claims may be barred even before the cause of action accrues if a person lives for more than two years after the date he or she was diagnosed with an asbestos-related disease that ultimately leads to death.

In Wygant, Margaret Klan (decedent) was diagnosed with mesothelioma on June 17, 2011, and subsequently died on July 9, 2012. On January 9, 2014, the estate filed survival and wrongful death actions to recover damages related to the her disease and death. GE filed motions for summary judgment, seeking to dismiss the claims because they were filed more than two years after the date of diagnosis and in violation of 42 Pa.C.S. §5524 (8). At issue was whether the statute was the applicable law and whether the statute began to run from the date of diagnosis or the date of death. The dismissal of the survival action was not appealed.

GE argued that 42 Pa.C.S.§ 5524(8) was controlling. The statute provides that "an action to recover damages for injury to a person or for the death of a person caused by exposure to asbestos shall be commenced within two years from the date on which the person is informed by a licensed physician that the person has been injured by such exposure…"

The court recognized that a cause of action for wrongful death generally accrues when the action can be maintained. This normally allows a plaintiff two years from the date of death to file a wrongful death claim.

In rejecting the appellant's arguments that § 5524(8) was rescinded, the court analyzed the applicable statute provisions and held that the statute began on all causes of action related to the asbestos-related disease on the date of diagnosis. The appellant argued that such an interpretation could lead to "absurd" results where a plaintiff cannot bring a wrongful death claim because the decedent lived longer than two years from the date of diagnosis and, therefore, the claim would be barred before it could even be brought.

The court recognized that wrongful death claims are purely a creation of statute and that the legislature is free to modify the rules governing wrongful death claims if the rule governing the claims is deemed too harsh.

For now, any plaintiff who does not bring a claim for wrongful death within two years of the date of diagnosis will not be able to bring forth such a claim.

For more information on the opinion, please contact Tim Rau in our Philadelphia office.

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