Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - August 2014

Edited by Timothy Rau, Esquire

Delaware Supreme Court Reverses $2.8 Million Verdict

The Delaware Supreme Court reversed a verdict in favor of the Plaintiff, the Estate of Michael Galliher, on the grounds that the trial court failed to instruct the jury as to the responsibility of the employer and because the Plaintiff's expert, Dr. Barry Castleman, gave inflammatory testimony. The Plaintiff was represented by Simmons Hanly Conroy out of Alton, Illinois.

The Decedent, who died of mesothelioma, was employed at a Borg Warner plant in Mansfield, Ohio, which manufactured bathroom fixtures. Borg Warner used industrial talc, which R.T. Vanderbilt mined, sold and distributed to Borg Warner, to dust molds for ceramics that were manufactured at the shop where the Decedent worked. A former employee of the plant testified that Borg Warner did not require its employees to wear masks in its cast shop until the mid to late 1980s.

The Simmons firm filed suit against several Defendants, including Vanderbilt, and proceeded solely against Vanderbilt, and the case was tried in 2012 before the Honorable John Parkins. The jury returned a verdict in favor of Galliher, awarding $2,864,583.33 in damages. Vanderbilt was found 100 percent liable for Galliher's injuries, and no liability was assessed to Borg Warner. Vanderbilt filed a motion for a new trial and then appealed to the Delaware Supreme Court.

On appeal, Vanderbilt raised two primary arguments. First, it argued that the trial court failed to adequately instruct the jury on the duties which Borg Warner owed to the Plaintiff. When Vanderbilt submitted a proposed instruction to the trial Judge regarding the duty of care owed by a premises owner, he ruled that the instruction was too long and never instructed the jury as to the standard. The Supreme Court agreed that the trial court committed reversible error by not providing that charge to the jury. The trial court only instructed the jury to determine if Borg Warner was at fault without giving the jury any guidance as to what acts or omissions would establish fault on the part of an employer as a matter of law.

The second basis on which the appeal was granted was the inflammatory testimony of Dr. Barry Castleman. Castleman testified that Vanderbilt spent millions of dollars "buying Senators and lobbying the government." Vanderbilt objected, and the trial court sustained the objection, telling the jury to disregard the statement about buying Senators and Governors. Vanderbilt then moved for a mistrial, which the trial court denied.

The Court ruled that Castleman's statement that Vanderbilt engaged in bribery was egregious and required a new trial. The trial Judge's curative instruction was insufficient to mitigate the prejudice caused by the impermissible testimony. On these two bases, the Supreme Court reversed the judgment of the Superior Court and remanded the case for a new trial.

Since 2005, when out-of-state plaintiffs' firms began filing cases in Delaware, only a handful of cases have gone to verdict. The verdict in this case was the highest in an asbestos case tried in Delaware since 2005. The Supreme Court's decision is significant also because it involves the Simmons firm, which was the original out-of-state plaintiffs' firm to file cases in Delaware in 2005. The number of cases filed in Delaware by the Simmons firm has drastically decreased since 2005, and this decision may further discourage future filings.

For more information regarding this decision, please contact Armand Della Porta of our Wilmington office.


PA Superior Court Rules Statute of Repose Applies to Asbestos Cases

In Graver v. Foster Wheeler, 2014 PA Super 132, the court held that Pennsylvania's statute of repose for improvements to real property, 42 PA. Cons. Stat. Ann § 5536, is available as a defense to asbestos personal injury claims.

The case was brought forth by Plaintiff David Graver, who alleged that his mesothelioma was caused by exposure to asbestos from a Foster Wheeler boiler which was present at his workplace when he worked for Pennsylvania Power & Light's (PP&L) Holtwood steam plant from 1983 until 2010. The Foster Wheeler boiler was 11-13 stories tall and was constructed in 1955. Foster Wheeler designed and constructed the boiler, including the asbestos insulation contained in the boiler.

Pennsylvania's statute of repose provides that suits resulting in personal injury as a result of deficiencies in the design, planning, supervision or observation of construction of any improvement to real property must be commenced within 12 years of the completion of the construction of such improvement. Foster Wheeler argued that its boiler was an improvement to real estate contemplated by the statute, while the Plaintiff argued that the statute did not apply to asbestos cases based on Abrams v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009).

In considering whether the Foster Wheeler boiler was an improvement to real estate that qualified as a fixture, the court applied the three-prong test set forth in Noll by Noll v. Harrisburg YMCA, 643 A.2d 81, 87 (Pa. 1994), which considers "(1) the relative permanence of the attachment to realty; (2) the extent to which the chattel is necessary or essential to the use of the property; and (3) the intention of the parties to make a permanent addition to the property." The court found that that the boiler constituted an improvement to real estate that was essential to the function of the plant.

The court further rejected the Plaintiff's assertions that Abrams barred a statutory right to repose in asbestos cases by finding that the Abrams case dealt with the interplay between the statute of limitations and the "two disease" rule in asbestos cases rather than the statute of repose.

At the trial level, the court denied Foster Wheeler's motion for summary judgment and motion for non-suit in the statute of repose issue. The case was a cross appeal from a trial court verdict against Foster Wheeler in the amount of $750,000.

The Plaintiff has petitioned for reargument of the appeal, which is ending with the court. We will continue to follow this case to see if reargument is granted or if the plaintiff appeals to the PA Supreme Court. 

For more information regarding this decision, please contact Tim Rau of our Philadelphia office.


NJ Supreme Court Asked to Consider Bare Metal Defense

As a follow up to the case of Hughes v. A.W. Chesterton, 2014 N.J. Super. LEXIS 54 (App. Div. 2014), which was reported in the May issue of Legal Update for Toxic Torts, the Plaintiff has petitioned to New Jersey to consider the issue of "whether a manufacturer, which has a duty to warn of the asbestos hazards created by the foreseeable replacement of its finished products’ component parts with other asbestos-containing replacement parts … is relieved of liability for breach of that duty when the components have been replaced by those of another unidentifiable supplier ….”

In Hughes, the New Jersey Superior Court essentially recognized the bare metal defense for equipment manufacturers in asbestos cases.

It has not yet been decided whether the Supreme Court will grant the plaintiff's request for certification of the appeal.

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


PA Employers' Liability for Asbestos-Related Injuries is an Evolving Issue

When the Pennsylvania Supreme Court issued its ruling in Tooey v. AK Steel, 2013 Pa. LEXIS 2816, the Court created potential liability for employers for exposing employees to asbestos where the employers had previously been protected by the Pennsylvania Workers’ Compensation Act as the sole remedy for employees.


The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. To be removed from our list of subscribers who receive these complimentary Legal Updates for Toxic Torts Litigation, please contact If however you continue to receive the alerts in error, please send a note to

ATTORNEY ADVERTISING pursuant to New York RPC 7.1
© 2014 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.