Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - October 2014

October 24, 2014

Edited by: Timothy D. Rau, Esq.

PA Superior Court Affirms Motions for Summary Judgment on Asbestos Product ID Facts

In a lengthy 70-page precedential opinion issued on October 22, 2014, the Superior Court reviewed the facts against six defendants under PA's standard for summary judgment on the issue of product identification in asbestos cases and held that the trial court properly ruled on each motion. In Krauss v. Trane US Inc., et al, 2014 PA Super 241, the plaintiffs, represented by the Locks Law Firm, originally filed suit in Philadelphia and sought damages for injuries related to Henry Krauss' mesothelioma, which he allegedly developed as a result of his occupational exposure to asbestos.

In discovery, plaintiffs attempted to set forth prima facie cases for strict liability against the defendants using affidavits and deposition testimony from witnesses Mike Morgan and David Krauss, as well as defendants' discovery responses and deposition testimony from other cases. The court reviewed the sufficiency of the evidence as to each defendant under the Eckenrod "regularity, frequency and proximity" test as modified by the Gregg decision.

Plaintiffs attempted to establish liability against defendants Westinghouse, General Electric, Georgia Pacific, Goulds Pumps, Zurn and Trane f/k/a American Standard. Although the evidence differed as to each defendant, plaintiffs' arguments as to each defendant were similar as to why summary judgment was improper.

With regard to the defendants, plaintiffs attempted to overcome Mr. Morgan's deposition testimony that he did not know if the products contained asbestos by relying on his affidavit statement that the "boilers, turbines and pumps were insulated with heat-resistant asbestos products to the best of my knowledge and belief." The court held that such a statement from a lay witness was speculative and that he provided no specific evidence as to the foundation of his belief regarding the asbestos content.

In order to overcome the witnesses' lack of knowledge as to asbestos content, plaintiffs attempted to rely upon the defendants' discovery responses from other cases to establish that they sold products and equipment which contained asbestos. The court repeatedly rejected these arguments because they failed to establish the presence of the specific products at plaintiff-decedent's work site.

The opinion contains a detailed evaluation of the facts alleged by plaintiff against each of the six defendants and its reasons for affirming summary judgment. A full copy of the court's opinion can be obtained at http://www.pacourts.us/courts/supreme-court/court-opinions

We will continue to monitor the case in the event that plaintiffs appeal the decision.

Philly Jury Finds Asbestos Did Not Cause Colon Cancer

In the case of Barbara Goll, Executrix of the Estate of Louis T. Goll, III v. Ace Hardware Corp., Philadelphia County, C.C.P., October Term 2011, No. 3406, plaintiff alleged that her deceased husband, Louis Goll, contracted colon cancer and died at the age of 59 as a result of exposure to asbestos. In the case tried before Judge Ramy I. Djerassi, the jury of 12 unanimously found in favor of the defendants.

Plaintiff, represented by Alan Reich and Robert Paul of Paul, Reich & Myers, relied on Dr. Arthur Frank, an occupational medical doctor, as their lone expert at trial. Dr. Frank testified via videotape that certain medical and scientific studies found an increased risk of colon cancer among asbestos workers and opined that Mr. Goll's colon cancer was caused by exposure to asbestos. Dr. Frank's testimony that "any and all" or the "cumulative" exposure to asbestos causes cancer was precluded from being played to the jury, as Judge Djerassi held that such testimony was in violation of Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012).

The defendants presented testimony from Dr. Alan Pope (pulmonologist), Dr. Steven Peikin (gastroenterologist) and Dr. Coleen Baird (epidemiologist) to establish that Mr. Goll' s colon cancer was not caused by exposure to asbestos but was a result of other risk factors.

Mr. Goll's father was diagnosed with colon cancer. Mr. Goll never had a colonoscopy prior to his diagnosis. In addition, there were no markers of asbestos exposure in any of Mr. Goll's medical records or radiology. The defense argued that there is no medical or scientific causation between asbestos exposure and colon cancer, and that it was Mr. Goll's age, his family history of colon cancer, and lack of proper screening for the disease that caused his condition and ultimate death. The jury found that the defendants' products were defective for failure to contain adequate warnings, but Mr. Goll's colon cancer was not caused by exposure to asbestos from the defendants' products.

The remaining defendants at trial were Airco and Eaton Corporation. Airco was alleged to have supplied asbestos blankets to Mr. Goll's workplace, and Eaton was alleged to have manufactured asbestos-containing arc chutes that Mr. Goll worked with. At trial, Airco was represented by Chris Santoro, Christine Dower and John Hare of Marshall Dennehey.

For more information on the Goll trial, please contact Chris Santoro of our Philadelphia office.

Ohio Court Affirms Admissibility of Evidence that Hodgkin’s Lymphoma May Be Caused by Asbestos

The Ohio Court of Appeals recently affirmed a trial court decision which allowed plaintiff to present expert testimony that Hodgkin’s Lymphoma may be caused by exposure to asbestos. In the case of Walker v. Ford Motor Co., 2014-Ohio-4208, the Ohio Court of Appeals was asked by defendant Ford to consider whether the trial court erred in failing to grant its motion for directed verdict and failed to vacate the jury verdict based on a lack of evidence that plaintiff's lymphoma was caused by asbestos.

Plaintiff alleged that his Hodgkin’s Lymphoma and asbestosis were a result of his occupational exposure to asbestos while he was employed by Ford from 1973-1997. The case was commenced by plaintiff after the Industrial Commission of Ohio denied his claim for workers’ compensation benefits.

In support of his claim, plaintiff presented experts Dr. Carlos Bedrossian, a pathologist, and Dr. Laximinarayana Rao, a pulmonologist. Dr. Rao reviewed plaintiff's chest X-rays and testified that he observed "mild" scarring of the lung tissue, consistent with asbestosis.

Dr. Bedrossian testified that plaintiff's lymphoma was caused by his exposure to asbestos. He admitted that asbestos-related lymphoma was a "rare condition," which he had only observed in two prior cases.

Dr. Bedrossian further testified that "as long as asbestos reaches an area [of the body], regardless of where it is, it can cause different types of cancer," including lymphoma.

Ford sought to preclude Dr. Bedrossian's opinions under the Ohio Rules of Evidence and the qualification and reliability requirements for experts under Daubert v. Merrell Dow, 509 U.S. 579 (1993). Ford challenged Dr. Bedrossian's opinions because they had not been tested, were not subjected to peer review and had not gained general acceptance in the scientific community.

Relying on State v. Nemeth, 82 Ohio St. 3d 202, 210, the court found that "an expert's opinion need not be generally accepted in the scientific community to be sufficiently reliable to support a jury finding." The court found that Dr. Bedrossian was qualified as an expert and that his interpretations of the scientific literature went to credibility, rather than the admissibility of the opinions, and could be presented to a jury.

Premises Owners Not Liable for "Take Home Exposures" Under PA Law

In what was ruled to be an issue of first impression under Pennsylvania law, Judge Eduardo Robreno of the U.S. District Court for the Eastern District of Pennsylvania held that a premises owner has no duty to an employee's spouse to protect the spouse from exposure to asbestos in the context of "take-home exposure" cases.

In Marilyn Gillen v. The Boeing Co., et al., 2:13-cv-03118, plaintiff alleged that she developed mesothelioma, in part, as a result of exposure to asbestos from her husband's work clothes while he was employed by Boeing. Boeing moved to dismiss the portions of plaintiff's claims related to her take-home exposure on the basis that she was owed no legal duty under Pennsylvania law.

Recognizing that plaintiff's take-home claims were based in negligence and that there was no precedent under PA law, Judge Robreno considered a number of factors including: (1) the relationship of the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and forseeability of the harm incurred; (4) the consequences of imposing a duty on the actor; and (5) the public interest in the proposed solution.

Judge Robreno held that Boeing owed no duty to Mrs. Gillen for her claim for "take-home exposure" to asbestos and granted Boeing's motion to dismiss. The case was permitted to proceed on other asserted claims and is currently being litigated.

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