Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - May 2018

Edited by Timothy D. Rau, Esq.

Aplastic Anemia Not Caused by Benzene Exposure, Philly Jury Says

After a two-and-one-half week trial before Judge Theresa Carpenter, a Philadelphia jury concluded that plaintiff's Aplastic Anemia (AA) was not caused by the benzene exposure, which allegedly resulted from use of the defendants' products. In the case of Estate of John Simmons v. U.S. Steel, Phila CCP, August Term 2015, No. 4219, it was alleged that Mr. Simmons developed AA at the age of 62 as a result of exposure to benzene components in products he used while working in various capacities and in non-occupational automotive repair. Mr. Simmons died two-and-one-half years after his diagnosis at the age of 65, and the action was pursued by Mr. Simmons’ wife.

At trial, plaintiff was represented by Andrew DuPont of Locks Law who relied on expert testimony from Dr. Richard Shadduck, a hematologist, Dr. Peter Infante, an occupational medicine specialist, and Andrew Armstrong, a chemical forensics expert. Plaintiff argued that the defendants' products were defective because they contained components that were comprised, in part, of benzene and that the defendants failed to warn about the hazards associated with the products.

The defendants remaining at verdict were US Steel and Berryman, who allegedly had liability for solvents that were used by Mr. Simmons. The defendants relied on experts Dr. David Pyatt, a toxicologist, Dr. Ethan Natelson and John Spencer, a certified industrial hygienist. The defendants argued that Mr. Simmons' AA was not caused by benzene exposure but was related to other risk factors, such as his 40- to 60-pack per year smoking history.

The jury deliberated for several hours and concluded that the defendants' products were not a factual cause of Mr. Simmons' disease.


U.S. Supreme Court to Review Bare Metal Defense

On May 14, 2015, the US Supreme Court granted Certiorari to review the consolidated cases of In RE: Asbestos Litigation (No. VI) DeVries and McAfee, No. 16-2602 (McAfee) to determine the applicability of the bare metal defense under maritime law. As reported in the fall, the Third Circuit issued an opinion in these cases holding that there was no bright-line test for determining if a company could be liable for others' components parts used on the defendants' equipment.

Rather, the court held that a determination needed to be made to determine if a defendant reasonably could have known the following when it placed the product into the stream of commerce:

1)         asbestos is hazardous, and

2)         its product will be used with an asbestos-containing part, because

               a)         the product was originally equipped with an asbestos- containing part...

            b)         the manufacturer specifically directed that the product be used with an asbestos-containing part, or

            c)         the product required an asbestos-containing part to function properly.

The court will issue a schedule for submission of briefs and schedule oral argument during the current term.


PA Bill Seeks to Restore Workers’ Compensation as the Exclusive Remedy Against Employers

Until 2013, Pennsylvania's Workers’ Compensation Act (Act) operated to provide workers’ compensation remedies to persons injured at work, and the Act operates as the exclusive source of recovery for persons seeking compensation from their employers for injuries that occur at work. Since the Pennsylvania Supreme Court's landmark opinion in Tooey v. AP Green, 81 A.3d 851 (Pa. 2013), Pennsylvania employers have been named as defendants in lawsuits in which they had previously been precluded from being and have increasingly become target defendants in those lawsuits.

Under the Act, claims for injuries occurring during the course of employment must be filed within 300 weeks of the date of injuries, or in the case of latent diseases, the diagnosis must occur within 300 weeks of the employee's last date of employment. Under the Act as currently written, if a latent disease is not diagnosed within 300 weeks from the employee's last date of employment, the employee's claim under the Act is time-barred.

The Tooey court ruled that because the plaintiff's claims were time barred against the employer under the Act, there was no remedy and the exclusivity that had previously barred plaintiffs from filing suit against employers in areas such as asbestos litigation no longer applied. As a result, employers in latent disease cases, such as asbestos cases, are now being named as defendants.

House Bill No. 2207 seeks to amend the language in the Act to allow a person diagnosed with an occupational disease time to file a claim related to the disease within 300 weeks after the disease is diagnosed or "the disease is detectable." It will be the burden of the claimant to prove that the latency period for the disease claimed is more than the 300 weeks typically allowed as the time period for filing claims.

The effect of the proposed change in the language would be that any persons alleging that they developed a disease as a result of their work would be limited to recovery against the allegedly responsible employers to recovery of those benefits available under the Act. The Bill has been referred to the committee for Labor and Industry, which can hold hearings on the Bill and consider whether to recommend it for a vote.


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