Heather Isringhausen Gvillo Nov. 25, 2014, 9:57am

PHILADELPHIA (Legal Newsline) – The Pennsylvania Supreme Court has agreed to hear Ford Motor Company’s appeal out of the Pennsylvania Superior Court, which affirmed a $1 million jury verdict in favor of a former auto mechanic in an asbestos action.

The Supreme Court filed the Nov. 6 order granting petition for allowance of the appeal regarding the verdict in favor of plaintiffs’ Richard and Joyce Rost.

When reviewing the appeal, the court will address “whether a plaintiff in an asbestos case may satisfy the burden of establishing substantial-factor causation by an expert’s ‘cumulative exposure’ theory that the expert concedes is simply an ‘any exposure’ theory by a different name,” the order states.

The Supreme Court will also address whether the trial court’s “mandatory practice of consolidating unrelated asbestos cases – even where the defendants suffer severe prejudice as a result – is consistent with the Pennsylvania Rules of Civil Procedure and Due Process, whether consolidation in this case was proper and whether the Superior Court has the authority to review a trial court’s case-consolidation decisions in asbestos cases.”

This action comes after both the plaintiffs and the defendant appealed the original verdict entered Dec. 28, 2011, in the Court of Common Pleas of Philadelphia County.

An appeal was made to the Pennsylvania Superior Court, where Judge Jack Panella affirmed the lower court’s judgment on May 19 noting expert inconsistencies on behalf of Ford.

Ford followed with another appeal to the Pennsylvania Supreme Court.

The plaintiffs filed their case in October 2009 against various defendants alleging Richard Rost was exposed to asbestos, causing him to develop mesothelioma.

Only Ford remained at the time of trial. General Electric, Westinghouse and Ingersoll Rand settled their cases with Rost.

Despite Ford’s objection, Rost’s trial was consolidated with two other cases involving plaintiffs suffering from mesothelioma.

According to Panella’s opinion, Rost worked at a Ford dealership for several months in 1950 after graduating from high school. Fellow employees at the dealership were mechanics and were responsible for sanding breaks and fixing clutches as part of their job.

Rost testified that about 85 to 90 percent of the vehicles serviced by the dealership were Ford vehicles, adding that Ford brakes and clutches from 1945 to 1950 were approximately 40 to 60 percent asbestos by weight.

In addition to Rost’s work at the dealership, evidence was also presented at trial revealing asbestos exposure while he worked at Metropolitan Edison in power generation. While there, Rost worked with pumps and turbines.

Rost worked as a pump operator for “four or five years,” during which time he was present while others worked on the pumps, including asbestos insulation removal.

Following the trial, the jury found Ford, General Electric, Westinghouse and Ingersoll Rand liable for Rost’s injuries, awarding Richard Rost $844,800 in damages and Joyce Rost $150,000 for loss of consortium.

After reviewing the expert opinions as well as Rost’s testimony, Panella concluded that the record was more than sufficient to support the jury’s verdict.

Panella concluded that Rost’s experts provided sufficient and consistent evidence supported by published research from several scientists. In contrast, Ford’s experts, he continued, were occasionally inconsistent and centered on beliefs that had not been subjected to peer-review by fellow scientists.

“Accordingly, while it is true that the ‘every exposure’ theory does not, by itself, meet the standard for establishing substantial causation in a legal sense, this record is more than sufficient to establish its general scientific legitimacy,” Panella wrote. “As we have already determined that the rest of the certified record is sufficient to establish a triable issue on whether Rost’s exposure at the garage was a substantial cause of his mesothelioma, this defect in the ‘every exposure’ theory is not sufficient to warrant reversal in this case.”

Ford further argues that the trial court erred in consolidating that Rost case with other asbestos cases, but it failed to point to another case supporting its argument, the lower court concluded.

“As such, the court exercised its ‘general supervisory and administrative authority over all the courts…’ to direct the implementation of procedural measures, in particular mandatory preliminary non-jury trials, to address the problem,” Panella stated.

“In summary, we conclude that none of the issues raised by either party merit relief on appeal. As such, we affirm the judgment entered by the trial court,” Panella concluded.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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