Kevin Hexstall and Mohamed Bakry (Philadelphia) successfully litigated a complex asbestos case, obtaining a non-suit on behalf of their client, a manufacturer of asbestos-containing building materials. The case involved a deceased 71-year-old mesothelioma plaintiff. There was an initial seven-figure dollar demand from plaintiff’s counsel. The lawsuit alleged the plaintiff was exposed to asbestos when employed as a construction product salesman from 1967 to 1972. During this time, he was employed by a renowned manufacturer of building materials. The plaintiff died before being deposed, but his wife served as the product identification witness. She testified that she would often go out to job sites with her husband when he supervised the work being performed using his company’s products. She stated that he was exposed to asbestos-containing joint compound when he would perform product demonstrations, as well as when he inspected the trade work being performed on various job sites. She also claimed that he would come into contact with laborers at different construction sites who were using joint compound manufactured by various similar companies. She testified that she believed the laborers regularly mixed, applied, sanded, created dust, and cleaned such joint compound in her husband’s presence.

The plaintiff’s diagnosis was pericardial mesothelioma, which is the rarest form of this type of cancer, comprising less than one percent of all mesothelioma diagnoses.

Three witnesses were presented by the plaintiff in her case-in-chief: a causation expert, an occupational medicine physician who is also an epidemiologist; the plaintiff’s widow; and the plaintiff’s daughter. The widow and daughter presented very emotional testimony on the issue of damages. The plaintiff’s expert witness opined that all forms of mesothelioma are caused by asbestos exposure, and the plaintiff’s occupational exposure to joint compound contributed to his development of pericardial mesothelioma. On cross examination, he admitted that he had no personal experience with products and industrial hygiene. He also admitted that he never tested products, such as joint compound, and has no knowledge regarding any products’ asbestos content or fiber release. He finally revealed that, although he has been a plaintiff’s expert since the 1980s, he had never testified in a pericardial mesothelioma case.

At the close of the plaintiff’s case-in-chief, the defense made an oral motion for  non-suit, arguing the widow’s testimony did not provide sufficient evidence as to frequency, regularity, or proximity of any product manufactured or supplied by the manufacturer, and thus, there was no evidence of record which would establish the plaintiff’s prima facie case. The defense also argued that the plaintiff’s expert opinions failed to establish a causal link between pericardial mesothelioma and asbestos exposure. After hearing detailed arguments from both sides, the judge granted the manufacturer’s motion for non-suit.