Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - December 2015

December 2, 2015

Edited by Timothy D. Rau, Esquire

Philly Jury Awards $1.7 Million Against Employer for Mesothelioma

by Joshua Scheets

In the first verdict against an employer in connection with an asbestos personal injury suit brought on behalf of a former employee, a Philadelphia jury returned a verdict totaling $1.7 million in favor of a deceased plaintiff and his wife. In Estate of John Busbey v. Air & Liquid Systems Corp, et al., Phila. CCP May Term 2012, No. 03046, the decedent, John Busbey, worked at a manufacturing facility for years before eventually contracting mesothelioma. While the decedent and his wife sued numerous companies, most were dismissed prior to trial except for the employer and two oven manufacturers.

The jury found the employer negligently allowed the decedent to be exposed to asbestos while working at the employer's facility and that this exposure caused his mesothelioma. The employer had argued that it did not act with negligence and used asbestos on its property because it was the best material available and that it took corrective action when appropriate. The employer defendant was the only party held as responsible for causing the mesothelioma. The jury's verdict included $200,000 for pain and suffering, $500,000 for wrongful death, and $1 million for the loss of consortium claim. The loss of consortium claim is unusually high to the extent that, typically, a loss of consortium does not exceed the awards to the injured plaintiff in this manner.

The verdict reflects the change in the legal landscape in the wake of Tooey v. A.K. Steel Corp., 81 A.3d 851 (Pa. 2013), which removed the workers’ compensation bar as a defense to personal injury claims in cases involving latent diseases that manifest after the 300-week window under the workers’ compensation statute. It also embodies a very real and legitimate concern for employers throughout the Commonwealth who must now deal with the uncertainties of liabilities for injuries that only manifest years or decades following a former employee’s last day.

For more information on the Busbey verdict, please contact Josh Scheets in our Philadelphia office.

Cosmetic Manufacturers' Talc Did Not Cause Asbestos Disease, NJ Jury Finds

by Paul Johnson

A Middlesex County jury returned a defense verdict in the matter of Fishbain v. Colgate Palmolive, an asbestos lawsuit arising out of a plaintiff’s alleged use of cosmetic talc products. The plaintiff, Linda Fishbain, alleged that asbestos fibers contaminated the talc used in Cashmere Bouquet and Desert Flower powder products. Ms. Fishbain alleged that these products caused her to suffer from mesothelioma. The plaintiff alleged that Colgate Palmolive and Shulton manufactured and sold these products using talc supplied by Whittaker Clark & Daniels—the three defendants at trial. Colgate settled with the plaintiff during the pendency of the trial, leaving Shulton and Whittaker Clark & Daniels as the final two defendants.

Judge Ana Viscomi, the dedicated asbestos judge in the state of New Jersey, presided over the six-plus weeks of trial, which began in early September and continued through mid-October. At the close of evidence, Judge Viscomi charged the nine-member jury immediately prior to a previously scheduled two-week break in the trial. The jury deliberated for approximately one day prior to the scheduled break. The jury returned to their deliberations after the break and reached a defense verdict for Shulton and Whittaker Clark & Daniels later that day.

The jury found that the plaintiff failed to prove that the defendants sold a product that was not reasonably fit, suitable and safe for its intended purposes because it lacked a warning or because it was defectively designed. The jury also found that the plaintiff failed to prove that any potential exposure to the defendants’ products was a substantial factor in contributing to her mesothelioma.

For more information on the verdict, contact Paul Johnson in our Cherry Hill office.

Ford Motor Company Obtains Defense Verdict in Allegheny County Mesothelioma Case

by Melissa Cochran

In a case tried before Judge Terrance O'Brien, an Allegheny County jury returned a defense verdict in favor of Ford Motor Company after nearly a 16-day trial. In Larry English, Administrator of the Estate of Sherry L. English v. Ford, the plaintiffs were represented by Attorney Jerry Block of the law firm of Levy Konigsberg; Steve Rineberg of Maune Raichle; and local counsel, Savinis, D'Amico, & Kane, LLC. The plaintiffs alleged that Mrs. English's "daily and decades-long exposure to asbestos from Ford vehicles and products" caused her to develop pleural mesothelioma. Mrs. English passed away prior to trial at 63 years of age.

Larry and Sherry English married in 1967, and Mr. English worked as a mechanic for two Ford dealerships in Williamsport and another when he moved to Arizona. He testified about his regular mechanical duties, including repairing engines and replacing brakes and clutches on Ford vehicles. Although each Ford dealership provided a laundry service for his work uniforms, Mr. English wore his uniform home from work every day and took it back to work once a week to be laundered. It was estimated that Mrs. English only washed her husband's uniform about six times per year, when he forgot to take it in to work to be cleaned.

The plaintiff argued that Ford was negligent and sold defective products, in that it knew of the dangers of asbestos, yet did not adequately warn users or its dealers. Ford defended its case, relying upon facts and science to convince the jury that its brakes, gaskets, and clutches were not defective and were safe for use. Ford called experts Dr. Victor L. Roggli, Bryan Hardin, Ph.D. and Dr. Mark A. Roberts to present their defense. The plaintiffs relied on Dr. Arthur Frank and Dr. Murray Finkelstein.

The jury never got to the issue of causation in this case because it found that Ford was not negligent and did not sell defective products.

_{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.}

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