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[U] Nelson v. Airco Welders Supply

Superior Court of Pennsylvania

September 5, 2013

DARLENE NELSON, EXECUTRIX OF THE ESTATE OF JAMES NELSON
v.
AIRCO WELDERS SUPPLY, ALLIED SIGNAL (A/K/A ALLIED CORP.), AMERICAN STANDARD, A.W. CHESTERTON, INC., BASIC, INC., BAYER CROPSCIENCE, INC., (F/K/A AVENTIS CROPSCIENCE, USA, INC.) ACHEM PRODUCTS, INC., RHONE POULENC, AG CO. AND BENJAMIN FOSTER COMPANY, BEAZER EAST (A/K/A KOOPERS CO., INC. AND KOOPER), BIRD INC., BOC GROUP, BORG-WARNER CORP., BRAND INSULATIONS, INC., CBS CORPORATION (F/K/A VIACOM, INC. AND WESTINGHOUSE ELECTRIC CORPORATION), CERTAINTEED CORPORATION, CHRYLSER CORP. (A/K/A AMC, NORTHWEAST AUTO RENTAL CO. AND CHRYSLER SERVICE CONTRACT CO.) CRANE CO., DEMMING DIVISION, CRANE PACKING, ESAB WELDING AND CUTTING EQUIPMENT, EJ LAVINO & CO., EUTECTIC CORP., FERRO ENGINEERING, FORD MOTOR CO., FOSECO, INC., FOSTER WHEELER CORPORATION, GARLOCK, INC., GENERAL ELECTRIC COMPANY, GENERAL MOTORS CORP., GEORGE V. HAMILTON, INC., GEORGIA-PACIFIC CORPORATION, GOULD PUMPS, INC., GREEN, TWEED & COMAPNY, INC., HAJOCA PLUMBING SUPPLY COMPANY, HARNISCHFEGER CORP., HEDMAN RESOURCES LIMITED (F/K/A HEDMAN MINES LTD.), HOBART BROTHERS CO., HONEYWELL INTERNATIONAL, INC., INGERSOLL RAND CO., JOY GLOBAL, INC., LINCOLN ELECTRIC CO., LUKENS STEEL CO., MALLINCKRODT GROUP, INC. (F/K/A INTERNATIONAL MINERALS & CHEMICALS CORP.), MELRATH GASKET, INC., MINE SAFETY APPLIANCE (MSA), METROPOLITAN LIFE INSURANCE COMPANY, NOSROCK CORPORATION, OWENS-ILLINOIS, INC., PEP BOYS (A/K/A MANNY, MOE AND JACK), UNTION CARBIDE CORP., UNIVERSAL REFRACTORIES DIVISION OF THIEM CORPORATION

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered February 23, 2011 In the Court of Common Pleas of Philadelphia County Civil No(s).: 1335 Dec. Term 2008

BEFORE: SHOGAN, WECHT, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellants/Cross Appellees, Crane Co., Hobart Brothers Company, and The Lincoln Electric Company[1] and Appellee/Cross Appellant, Darlene Nelson, appeal from the judgment entered in the Philadelphia County Court of Common Pleas in favor of Appellee in the amount of $14.5 million. Appellants contend, inter alia, that the trial court erred in the admission of Appellee's expert witness testimony that every asbestos exposure must be considered a cause of mesothelioma. We agree, reverse pursuant to Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012), [2] and remand for a new trial on liability. Appellants further contend that improper remarks by Appellee Nelson's counsel during closing arguments in the damages phase of the trial were prejudicial and that the trial court should have granted a mistrial. We agree, vacate the judgment, and remand for a new trial on damages. Finally we grant Appellants Hobart and Lincoln's motion to take judicial notice of Philadelphia General Court Regulation No. 2012-12.[3]

The trial court summarized the facts of this case as follows:

James Nelson [("Decedent")] developed mesothelioma as a result of occupational exposures during his career at Lukens Steel Plant in Coatesville, Pennsylvania. [Decedent] worked as a pitman, laborer, welder and mechanic from 1973 until 2006.
For the first five years, [Decedent] was a pitman, and then a general laborer. During this time, he was exposed to asbestos pipe covering, gaskets, packing, furnace cement, and "hot tops, " an asbestos-containing board.
In 1978, he became a welder and continued in that position until he left . . . in 2006. During his time as a welder, [Decedent] used large numbers of welding rods per day. Some of the rods he regularly used contained asbestos through 1981. The asbestos was part of the "flux, " which was the outer coating of the rod. According to [Decedent], pulling the rods out of the boxes in which they were packaged caused dust to be released from the flux and he would inhale that dust. He would also knock off the flux, which caused dust to be released into the air, and then wipe the flux on his gloves. [Decedent] testified that when he would clap his hands together to remove the dust on his gloves[, dust] was released into the air, and he would inhale it.
As a welder, [Decedent] used Cranite asbestos-containing sheet packing to protect plant machinery from being damaged by welding sparks and to shield other workers from the flash of the welding arc. [Decedent] had to cut the sheet packing material in order to use them for his intended purpose. When [Decedent] cut the sheet packing, dust was released and subsequently inhaled by [Decedent]. Crane distributed all of the Cranite sheet packing, which contained asbestos until the early 1980s.
In November 2008, [Decedent] was diagnosed with mesothelioma as a result of his asbestos exposure. During the year following his diagnosis, [Decedent] underwent several regimens of chemotherapy and had fluid drained from his chest. Although one of the chemotherapy regimens slowed the growth of his tumor, [Decedent] could not continue with the regimen because the side effects of the treatment were so debilitating. [Decedent] died on October 30, 2009.

Trial Ct. Op., 6/13/11, at 3-4.

On December 5, 2008, Appellee, Decedent's spouse and executrix of his estate, filed a complaint against, inter alia, Appellants.[4] On February 9, 2010, Appellants Hobart and Lincoln filed a motion to preclude Appellee's expert Dr. Daniel DuPont's each and every breath causation opinion testimony. Appellants Hobart and Lincoln's Joint Motion to Preclude [Appellee's] Expert Daniel DuPont's Causation Opinions. On February 22, 2010, Appellant Crane filed a motion to exclude the each and every breath causation opinion testimony. Motion in Limine to Exclude Expert Testimony. On March 1, 2010, a motions hearing was held at which time a Frye[5]hearing was requested. N.T., 3/1/10 a.m., at 51. All of the named defendants joined in the arguments and the motions. Id. at 53. The court held the motions deferred until the liability phase of the trial. Id. at 57. The trial was reverse bifurcated. On March 1, 2010, phase 1, the damages trial commenced, and as stated above, the jury found damages of $14.5 million for Appellee.

On March 11, 2010, Dr. DuPont's deposition was taken. Counsel for Appellee and counsel for Appellant Crane agreed that it would be presumed that Crane's counsel objected to the "each and every breath testimony." N.T. Dep., 3/11/10, at 2-3. On March 25, 2010, the court entered an order admitting Dr. DuPont's every/breath testimony.[6] See Docket.

At the second phase of trial, On March 23, 2010, the jury returned a verdict in favor of Appellee and against Appellants as to liability. All parties filed post-trial motions which were denied on February 22, 2011. This timely appeal followed. All parties filed timely court-ordered Pa.R.A.P. 1925(b) statements of errors complained of on appeal and the trial court filed a responsive opinion.

Appellant Crane raises the following issues for our review:
1. Was the trial court correct when it determined that Crane Co. could be held strictly liable for the injuries allegedly arising from [Decedent's] use of "Cranite" brand gasket material when the trial evidence demonstrated that [Decedent] was not an intended user of Cranite, and he did not use it in an intended manner?
2. Is testimony from an expert witness that "every asbestos exposure must be considered a cause of disease" legally sufficient to establish causation under the facts presented in this case in light of Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216 (2007), and did [Appellee's] evidence pass the "frequency, regularity, proximity" test?
3. Did the trial court act within its discretion in conducting the consolidated, reverse-bifurcated trial of a series of tort claims with many differences and only one significant similarity─that they involve diseases caused by asbestos?
4. Does a trial court act within its discretion in permitting a party's counsel to suggest a damages amount and discuss the conduct and actions of a defendant in closing argument when the only claim is one for strict liability?
5. Is a plaintiff in an asbestos action entitled to recover all of his or her jury─awarded damages from solvent defendants, and then to recover additional amounts on account of the same injury from "asbestos bankruptcy trusts, " without any accounting by the trial court?

Appellant Crane's Brief at 4-5.

Appellants Hobart and Lincoln raise the following issues for our review:

1. Did the trial court commit prejudicial error in denying a mistrial and in failing to grant a new trial in response to [their] post-trial motions where the structure and size of the verdict demonstrate conclusively that the jury was improperly prejudiced, after [Appellee's] counsel repeatedly wrongfully appealed to emotion and interjected [their] conduct into his closing argument in both Phase 1 and Phase 2 of the reverse bifurcated proceeding, including:
a. Improperly urging a specific minimum amount of damages by stating in his Phase 1 argument that each of twelve separate elements of non-economic damages was worth "at least $1 million;"
b. Improperly injecting alleged settlement discussions into his Phase 1 closing argument by stating that [Hobart and Lincoln] did not place an adequate "value" on Decedent's life, and "has it dawned on any of you yet that the reason we're here and the only reason we're here is because I can't agree with these people with the value of my client's life" and "I can't agree with any of these people on how much money should be awarded . . . for what has been done in this case . . .;"
c. Improperly attributing bad motives to [Hobart and Lincoln] in Phase 2 arguments when the case was being tried only on a strict liability cause of action in which the conduct of [Hobart and Lincoln] was not at issue in the case; and
d. Improperly injecting conduct and punitive elements into both phases of the reverse-bifurcation proceeding by asking the jury to send a message and "act as the conscience of the community, " knowing that a curative instruction would not actually cure the harm and prejudice to [Hobart and Lincoln].
2. Did the trial court commit prejudicial error in failing to exclude testimony from [Appellee's] proffered experts and failing to grant a nonsuit or new trial in response to [Hobart and Lincoln] post-trial motions where:
a. The trial court erroneously relied on Donoughe v. Lincoln Electric Company, 936 A.2d 52 (Pa.Super. 2007), to permit [Appellee's] physician, Dr. Daniel DuPont, to express the opinion that "any exposure to asbestos is a substantial contributing factor to asbestos disease, " a view that has been rejected by the Pennsylvania Supreme Court in [Gregg]; and
b. The trial court erroneously admitted [Appellee's] expert Dr. Daniel DuPont's testimony, even though [Appellee's] hypothetical questions to Dr. Daniel DuPont had no evidentiary support; even though Dr. Daniel DuPont had no expertise independent of the defective hypothetical questions to render any competent opinion about asbestos fiber release from welding rods; and even though neither [Appellee's] hypothetical questions nor Dr. Daniel DuPont's own testimony met the standard that [Appellee] established for causation of mesothelioma?
3.Did the trial court commit prejudicial error in permitting reverse bifurcation and consolidation of four unrelated mesothelioma cases even though the plaintiffs had different exposure histories at different plants to different manufacturers' products─and even though only one plaintiff alleged exposure to asbestos in welding rods?

Appellant Hobart and Lincoln's Brief at 9-10.

Appellee raises the following issue for our review:[7]

6. Did the trial court err as a matter of law in assigning a share of the judgment to a joint tortfeasor defendant who filed a petition in bankruptcy before paying [Appellee] any of its agreed-upon settlement amount and before the court entered judgment?

Appellee's Brief at 4-5.

First, we address the issue of the admissibility of Appellee's expert witness testimony, which is dispositive of the liability phase of the trial. Appellants Hobart and Lincoln argue that the trial court erroneously relied on Donoughe, 936 A.2d 52, to permit Appellee's expert, Dr. Daniel DuPont, to express the opinion that "minimal exposure nonetheless substantially contributed to decedent's injury because 'mesothelioma may be caused by even a small exposure to asbestos.'" Appellants Hobart and Lincoln's Brief at 33-34. Appellants contend that this view has been rejected by the Pennsylvania Supreme Court in Gregg, 943 A.2d 216. Appellant Crane also contends that Gregg is controlling. Appellants contend that Appellee failed to meet the threshold of showing causation and, therefore, they were entitled to a judgment notwithstanding the verdict or a new trial.

Our standard of review of the trial court's evidentiary ruling is well- established:

When we review a trial court's ruling on admission of evidence, we must acknowledge that decisions on admissibility are within the sound discretion of the trial court and will not be overturned absent an abuse of discretion or misapplication of law. In addition, for a ruling on evidence to constitute reversible error, it must have been harmful or prejudicial to the complaining party.
Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super. 2008)[.] A party suffers prejudice when the trial court's error could have affected the verdict. Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 550, 561 (Pa.Super. 2006).

Gaudio v. Ford Motor Co., 976 A.2d 524, 535 (Pa.Super. 2009).

On May 23, 2012, three weeks after this Court heard argument in the instant appeal, the Pennsylvania Supreme Court announced a decision in Betz, 44 A.3d 27, which we find is dispositive.[8] Our Pennsylvania Supreme Court addressed the issue of "the admissibility of expert opinion evidence to the effect that each and every fiber of inhaled asbestos is a substantial contributing factor to any asbestos-related disease.[9] The inquiry has proceeded under principles derived from Frye."[10] Id. at 30. Betz "was selected among test cases for the any-exposure opinion as a means, in and of itself, to establish substantial-factor causation." Id. at 55. In Betz, the trial court sustained the defendants' Frye challenge and found this evidence was inadmissible. Id. at 39. In a published opinion, this Court reversed and remanded. Betz v. Pneumo Abex LLC, 998 A.2d 962 (Pa.Super. 2010). As stated above, at the time the parties submitted their appellate briefs to this Court and the Court heard argument, only the Superior Court decision in Betz was available. Subsequently, the Pennsylvania Supreme Court reversed this Court. Betz, 44 A.3d at 58.

The expert in Betz, John C. Maddox, M.D., testified:

Asbestos-related mesothelioma, like other diseases induced by toxic exposures, is a dose response disease: each inhalation of asbestos-containing dust from the use of products has been shown to contribute to cause asbestos-related diseases, including mesothelioma. Each of the exposures to asbestos contributes to the total dose that causes mesothelioma and, in so doing, shortens the period necessary for the mesothelioma to develop. . . . [E]ach exposure to asbestos is therefore a substantial contributing factor in the development of the disease that actually occurs, when it occurs.

Id. at 31.[11] "He also highlighted the long latency period between asbestos exposure and the manifestation of disease, with the minimum time lapse being about ten years." Id. at 33 (emphasis added). "As a component of this testimony in support of the plaintiffs' claim of general causation, Dr. Maddox frequently indicated that each and every exposure 'should be considered, ' 'contributes to' and 'increase[s] the risk of' asbestos-related diseases." Id. at 34. "Dr. Maddox also said that he drew his conclusions from case reports, animal studies, government regulatory assessments, and other scientific and medical literature." Id. "Additionally, while claiming some support in epidemiological science, the witness sought to avoid deeper discussion of the subject matter. ('I am not really prepared to discuss epidemiology with you.')." Id.[12] (reference to record, footnote omitted and emphasis added). He "expressed the same opinion relative to cigarette smoking, namely, that '[a]ll the cigarettes that one smokes are considered to be contributory to the development of the lung cancer.'" Id. at 35-36 (citation to record omitted and emphasis added). The Betz Court found:

Dr. Maddox's any-exposure opinion simply was not couched in terms of a methodology or standard peculiar to the field of pathology. . . . Indeed, [Dr. Maddox] acknowledged that the rendition of a broad and generally applicable opinion concerning specific causation was outside the range of his usual professional activities. ("[M]ost of my day-to-day work deals with individual patients, not with groups of patients that epidemiologic concepts will be used upon. . . .").

Id. at 54-55 (emphasis added).

The plaintiff in Betz argued to the trial court "that [her] position was consistent with the admission of opinion evidence reflecting the any-exposure theory in other cases, most notably, Smalls v. Pittsburgh– Corning Corp., 843 A.2d 410 (Pa.Super. 2004)." Id. at 32. Further, the plaintiff averred on appeal:

Dr. Maddox's methodology is "utterly mainstream" and has been utilized in a similar context before the Pennsylvania courts by numerous well qualified experts over many years. In support, [the plaintiff] provides pages of citations to trial and deposition transcripts, as well as references to several Superior Court opinions, including Smalls. 26
26 See also Cauthorn v. Owens Corning Fiberglas Corp., 840 A.2d 1028, 1038–39 (Pa.Super. 2004) (approving expert testimony to the effect that "[e]ach breath of air that contained asbestos fibers substantially contributed to the development of [the plaintiff's] diseases, " explaining that "[b]ecause any asbestos fiber will cause some degree of injury . . . each fiber will have some small effect and it's the cumulative effect of all the different fibers."); Lonasco v. A–Best Prods. Co., 757 A.2d 367, 375 (Pa.Super. 2000) (approving the opinion that "each exposure to asbestos . . . before the latency period . . . has . . . been a substantial, contributing cause").

Id. at 49-50 (citations to appellate brief omitted).

The Betz Court noted, "the any-exposure opinion is also very significant, in that it obviates the necessity for plaintiffs to pursue the more conventional route of establishing specific causation . . . ." Id. at 54.

The Supreme Court concluded:
. . . Dr. Maddox's explanations do not undercut, but rather support, what we said in Gregg:
We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable. Other jurisdictions have considered alternate theories of liability to alleviate the burden. See, e.g., Menne v. Celotex Corp., 861 F.2d 1453, 1464–70 (10th Cir. 1988). See generally Comment, The Threshold Level of Proof of Asbestos Causation: The "Frequency, Regularity and Proximity Test" and a Modified Summers v. Tice Theory of Burden–Shifting, 24 Cap.
U.L.Rev. 735 (1995). Such theories are not at issue in this case, however, and we do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every "direct-evidence" case. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.
Gregg, 596 Pa. at 291–92, 943 A.2d at 226–27.

Id. at 56-57 (footnote omitted). Furthermore, the Court reasoned that "with regard to the cigarette analogy, Dr. Maddox offered no scientific basis for concluding that a single cigarette of the potentially half-million a person might smoke in a lifetime is substantially causative of such person's lung cancer." Id. at 57 (emphasis added). Our Supreme Court found this Court erred in finding the expert's "each and every breath" testimony admissible: "Certainly a complete discounting of the substantiality in exposure would be fundamentally inconsistent with Pennsylvania law." Id. at 58.

In the instant case, the trial court opined:
[Appellants Hobart and Lincoln] contend that Dr. Dupont's each and every breath testimony in support of causation should have been precluded because it was unreliable and invalid. However, a long line of Pennsylvania cases has held that expert testimony stating that, "[e]ach and every breath of asbestos fibers is [a] significant and substantial contributing factor to the [plaintiff's] asbestos related disease" is admissible. Smalls[, 843 A.2d at 414]; See also Cauthorn, [840 A.2d at 1038-39]; Lonasco, [757 A.2d at 375]. Pursuant to this line of the (sic) cases, the trial court properly allowed the each and every breath testimony.

Trial Ct. Op. at 11. Applying the Supreme Court's decision in Betz, we reverse.

Dr. DuPont's testimony was similar to that of Dr. Maddox in Betz, supra. Dr. DuPont was board certified in general and pulmonary medicine. N.T., 3/11/10, at 10. He testified:

[Counsel for Appellee]: Q: Doctor, do you have any special affinity or special experience in diagnosing and treating asbestos-related disease?
A: I do.
Q: Would you tell us just a little bit about that, please?
A: Well, . . ., ou[r] office is located in an area where i[n] the past, many residents were employees at various sites that had asbestos in an occupational fashion potentially for them to be exposed; shipyards, refineries, steel mills, manufacturing facilities, locomotive works, turbine facilities, to name some of them.
So as a result of where I have practiced, and the type of patients I've seen, I became more involved and typical (sic) with patients with this condition.
I have since become accepted as a consultant for the U.S. Department of Labor Employment Standards Administration, which supervises individuals that worked at a federal facility, the Philadelphia Navy Shipyard.
* * *
Q: Doctor, you are not an industrial hygienist; is that correct.
A: I am not.
* * *
Q: You are not an epidemiologist; is that correct?
A: That is correct. I am not.
Q: An epidemiologist does what? I am not sure the jury has heard that.
A: Well, an epidemiologist is a health professional. Some are physicians. Some are not, who are involved in studies of large populations looking for trends or tendencies in the occurrence of disease, and if possible, relationship of causation of occurrence of diseases.
* * *
Q: [H]ave you ever authored any textbooks in the field of asbestos-related diseases?
A: I have not.
Q: You treat people?
A: That's what ...

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