Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - January 2015

Edited by: Timothy D. Rau, Esquire


En Banc PA Superior Court Vacates $14.5 Million Asbestos Verdict and Remands for New Trial

By Carol Vanderwoude, Esq.

An en banc Superior Court recently affirmed a 2013 split decision by a three-judge panel to vacate a $14.5 million asbestos verdict and ordered new trials on damages and liability for Defendants Crane Co., Hobart Brothers Company and The Lincoln Electric Company. In Nelson v. Airco Welders Supply, 2014 PA Super 286, the plaintiffs, James Nelson and his wife Darlene Nelson, filed suit in Philadelphia County in December 2008 seeking damages for James Nelson’s mesothelioma, which he allegedly developed as a result of his occupational exposure to asbestos. The plaintiffs have petitioned the PA Supreme Court for an allowance of an appeal of this decision, and the petition is currently pending.

The underlying case proceeded to trial in March 2010 and was tried in a reverse-bifurcated format. In phase 1, the jury was asked to determine if Mr. Nelson had an asbestos-related disease and to assign a compensatory monetary value to his injury. In phase 2, the jury was asked to determine whether the defendants’ products were defective and whether the defect in those products was the legal cause of the decedent’s death.

During closing arguments in the damages phase of the trial, the defendants requested a mistrial on the ground that counsel had improperly suggested to the jury a specific dollar amount for non-economic damages. The motion for mistrial was denied, and the jury returned a compensatory damages verdict totaling $14.5 million—$1 million in stipulated, economic damages to the decedent’s estate, $1.5 million to Darlene Nelson for loss of consortium, $7 million in non-economic damages pursuant to the Survival Act and $5 million in non-economic damages pursuant to the Wrongful Death Act.

The case then proceeded to the liability phase. Daniel DuPont, D.O., a pulmonologist, was presented as the plaintiffs’ sole causation expert. The defendants moved to preclude the testimony of Dr. DuPont on the basis that he premised his opinions on the so-called “any-exposure” theory of causation. Alternatively, the defendants requested a Frye hearing. The motions were denied, and Dr. DuPont testified that “each individual exposure” above an unquantified “non-negligible” level “contributed to the causation of the disease.”

The en banc Superior Court awarded a new trial on liability based on the improper admission of Dr. DuPont’s expert testimony. Writing for the majority, Judge John T. Bender stated that the Pennsylvania Supreme Court’s ruling in Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012), which rejected the any-exposure theory of causation in asbestos cases, was dispositive. As Judge Bender explained, Dr. DuPont’s causation theory could be summarized as follows: “(1) mesothelioma occurs as a result of significant exposure to asbestos, defined as (2) any exposure above the negligible amount present in ambient air, and (3) such exposure constitutes a substantial factor in developing mesothelioma.” The Superior Court highlighted the paradox in Dr. DuPont’s causation theory—on the one hand, different levels of ambient exposure are deemed non-causative, yet each incremental exposure of an individual product is causative, no matter how small. Judge Bender pointed out that this paradox had also been implicated in Betz, where it was noted that “plaintiff’s experts in this case, as well as in other asbestos cases, have never been able to explain the scientific and logical implausibility of agreeing to the premise that a lifetime of breathing asbestos in the ambient air will not harm a person, while on the other hand arguing that every breath of asbestos from a defendant’s product, no matter how inconsequential, will.”

A new trial on damages was awarded on the basis that the plaintiffs’ counsel urged the jury to award a specific dollar amount for non-economic damages. Judge Bender explained that “counsel for Nelson provided the jury with a formula to calculate damages and an amount to plug into that formula,” and he further explained that “counsel’s express reference to the stipulated economic damages was not evocative, but declarative and algebraic.” Consequently, it was “no coincidence” that the “jury’s award to Nelson comprised $7 million in noneconomic damages pursuant to the Survival Act and $5 million in noneconomic damages under the Wrongful Death Act.”

The en banc Superior Court also addressed an issue unique to Defendant Crane Co. During trial, Crane Co. argued that Decedent was not an intended user of Cranite and that, as such, strict liability must not attach. The trial court rejected this argument, reasoning that the intended use doctrine was inapplicable to a failure to warn case. The Superior Court disagreed and held that the jury must be afforded an opportunity to make a finding as to whether the decedent was an intended user of Crane Co.’s product. Accordingly, on remand Crane Co. will be permitted to introduce evidence relevant to the intended use doctrine.

Carol is a shareholder in the Philadelphia office and a member of the firm’s Appellate Advocacy and Post-Trial Practice Group. She can be reached at 215.575.2643 or


Maune Raichle Petitions PA Supreme Court for Recusal of All Six Justices from Pending Appeal

By Timothy Rau, Esq.

In Rost v. Ford Motor Co., 56 EAP 2014, the plaintiff- Appellees have applied for recusal of all of the current justices on the PA Supreme Court, claiming that an appearance of impropriety exists between the Court and Appellant’s counsel.

The case was tried in Philadelphia in 2011 as part of a consolidated trial group of mesothelioma cases and resulted in a $994,800 verdict for the plaintiffs. The plaintiffs argued that Mr. Rost’s mesothelioma was caused in part by his exposure to asbestos from brakes during several months in 1950 when he was employed at a Ford dealership. The issues on appeal are whether the plaintiffs’ experts improperly relied on the “each and every exposure” theory for their causation opinions and whether the practice of consolidating cases is overly prejudicial to the parties. The PA Superior Court denied Ford’s request for a new trial, and the Supreme Court agreed in November 2014 to hear the appeal.

In 2014, the Supreme Court was involved in an investigation involving former PA Supreme Court Justice Seamus McCaffery and sexually explicit emails he sent to other government employees.  Justice McCaffery resigned from his position in October 2014.

During the investigation, the Court appointed Robert Byer as special counsel to investigate the emails sent by Justice McCaffery. Mr. Byer is also counsel of record for Ford in the Rost appeal.

The Appellees argue that the court is a client of Mr. Byers and that its review of the Rost case creates an appearance of impropriety. Citing to Pa. Rule of Judicial Conduct 2.11, Appellees seek to have all of the current sitting justices recuse themselves because their “impartiality might reasonably be questioned.”

We will continue to monitor the recusal petition and appeal.

Tim is a shareholder in our Philadelphia, PA office. He can be reached at 215.575.2623 or


The Effect of Tincher v. Omega Flex on Equipment Defendants in Asbestos Litigation in Pennsylvania

By Joshua Scheets, Esq.

The landscape of product liability law in Pennsylvania changed dramatically with the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc., 2014 Pa. LEXIS 3031 (Pa. Nov. 19, 2014), overruling Azzarello v. Black Bros, Inc., 391 A.2d 1020 (Pa. 1978). Now, in Pennsylvania, “the cause of action in strict product liability requires proof, in the alternative, either of the ordinary consumer’s expectations or of the risk-utility of a product.” Tincher, 2014 Pa. LEXIS 3031, *191.

In adopting this new standard in Pennsylvania, the Supreme Court relied principally on the “core insight” made by the Supreme Court of California in Barker v. Lull Engineering Co., Inc., 573 P.2d 443 (Cal. 1978) (holding that the consumer expectations test and risk-utility test apply in the alternative). This paradigm of alternative tests is born out of the “expectation that all sellers in the distributive chain are legally responsible for the product [at issue] in strict liability.” Tincher, 2014 Pa. LEXIS 3031, *195-96 (emphasis supplied).

The Pennsylvania Supreme Court took notice that the insufficiency of negligence causes of action more often manifests, not in claims against the actual manufacturer of the product, but with respect to other entities (such as suppliers). Tincher, 2014 Pa. LEXIS 3031, *196, quoting William L. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L. J. 1099, 1116-17 (1960). It is where the product at issue passes “through the hands of a whole line of other dealers” whom the “plaintiff may have good reason to sue” that negligence fails or at least may come up short. Prosser, 69 Yale L.J. at 1116 (emphasis supplied). The emphasis on a defendant’s role in the chain of distribution of the defective product in Tincher is not only logical, it is legally significant. Similarly, modeling Pennsylvania’s product liability standard on the California paradigm strongly supports the formal adoption of the bare metal defense under Pennsylvania law.

In California, a manufacturer of equipment cannot be held liable under either negligence or strict liability (consumer expectations or risk-utility) for after-market component parts which the manufacturer did not place into the stream of commerce. O’Neil v. Crane Co., 266 P.3d 987, 991, 1005 (Cal. 2012) (holding that “a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product” and expressly noting that “foreseeability alone is not sufficient to create an independent tort duty”) (citation omitted).

In fact, “California law restricts the duty to warn to entities in the chain of distribution of the defective product.” Id. at 999, quoting Taylor v. Elliott Turbomachinery Co. Inc., 171 Cal. App. 4th 564, 575 (2009).  In O’Neil, it was held that foreseeability of the replacement of originally supplied asbestos-containing components with aftermarket asbestos-containing components does not trigger a duty to warn about the aftermarket component where the equipment manufacturer neither manufactured nor distributed the component. O’Neil, 266 P.3d at 1005. A key aspect to the dismissal of the plaintiff’s claim in O’Neil was that the “imposition of strict liability requires a showing that the plaintiff’s injuries were caused by an act of the defendant or an instrumentality under the defendant’s control.” Id. at 996. While the acts of a defendant were previously irrelevant under the Azzarello regime, Tincher has opened the door to an analysis identical to that which was done in O’Neil.

While not in the context of asbestos litigation, the Pennsylvania Superior Court’s holding in Toth is nearly identical to that in O’Neil with respect to whether a manufacturer has a duty in connection with aftermarket parts placed into or onto its equipment. Simply put, Toth tells us that Pennsylvania law does not permit the imposition of a duty. Toth, 571 A.2d at 422. Thus, in the wake of Tincher, Pennsylvania’s product liability standard is nearly identical, or at least strongly analogous, to the standard in California. Similarly, Pennsylvania case law (Toth) is analogous to California case law (O’Neil) with respect to the recognition that a manufacturer does not have a legal duty with respect to aftermarket components attached to its equipment.

The issue of whether the bare metal defense applies in asbestos litigation in Pennsylvania must wind its way through the appellate process, as invited by Tincher. Until such a result is reached, equipment defendants have a compelling argument to advance at both the dispositive and trial stages of litigation, which, at the very least, should open minds at the settlement table.

Josh is an associate in the Philadelphia office and can be reached at 215.575.2751 or


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