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Pa. appellate court affirms $1M jury verdict, cites inconsistencies in defense expert opinions

By Heather Isringhausen Gvillo | May 23, 2014

PHILADELPHIA (Legal Newsline) - Following appeals from both parties, a panel of judges in the Superior Court of Pennsylvania has affirmed a jury's $1 million verdict for a former auto mechanic after detailing expert inconsistencies on behalf of Ford Motor Company.

Plaintiffs Richard and Joyce Rost as well as defendant Ford Motor Company appealed the verdict entered Dec. 28, 2011, in the Court of Common Pleas of Philadelphia County.

Judge Jack Panella delivered the May 19 opinion in the Superior Court of Pennsylvania. Judges Judith Olson and James Fitzgerald concurred.

Ford appealed the trial court's denial of its post-trial motion for judgment. The Rosts appealed the trial court's jury instructions, arguing the trial court's instructions confused the jury and prevented them from awarding full compensation against all defendants.

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 the 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.

He also claimed he was exposed to asbestos when the mechanics removed brake drums as part of brake work and would blow out the asbestos dust with compressed air. Rost testified that the dust would carry throughout the garage because the exhaust system was "very limited."

Rost was responsible for cleaning the garage, including removing brake linings from brake shoes to prepare the shoes for re-use. He claimed the task generated visible dust from the brake drums, causing Rost to inhale the dust.

He was also responsible for cleaning the garage floors at the end of each day. As part of this task, he would scoop up the dust and debris, disposing of it in large containers and causing it to "billow" back into the air, he testified. He estimated that he disposed of three shovelfuls of the dust each day.

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.

Both parties appealed. The appeals court consolidated the appeals, designating Ford as the primary appellant.

Ford argues it was entitled to judgment as a matter of law, or a new trial, based on the Betz decision.

Panella wrote that the appeals court must decide whether Betz prohibits all expert opinion relying on the "every exposure" theory.

However, the appeals court concluded that the Gregg was more appropriate, which held that it was "appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity and proximity of a plaintiff/decedent's asserted exposure, a jury would be entitled to make the necessary inference of a sufficient casual connection between the defendant's product and the asserted injury."

However, because Ford argues that the trial court erred in denying its post-trial motion for judgment as a matter of law, Panella wrote that neither Betz nor Gregg is directly on point. Ultimately, though, Gregg is the better fit for the case, he added.

Ford argued the plaintiffs were required to provide expert opinion demonstrating that asbestos exposure from Ford's products was sufficient to qualify as a substantial factor in Rost's mesothelioma. But both Gregg and Betz refute such arguments, the court ruled.

"Clearly, neither of these opinions required the dismissal of the plaintiff's cause of action merely due to the problems with the plaintiff's expert's opinion on causation," Panella wrote.

He added that Ford also misrepresented the conclusion reached by the Supreme Court of Pennsylvania in the Betz decision, which concludes that the trial court did not abuse its discretion in determining that that the plaintiff's expert "had not established the legitimacy of his legal conclusion that any exposure was a substantial cause of the plaintiff's disease."

"A conclusion that a trial court did not abuse its discretion by coming to a given legal determination is not equivalent to a conclusion that a trial court must make that same legal determination," Panella stated.

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.

Rost presented evidence from Arthur Frank, M.D., who found that brake mechanics could develop asbestos-related diseases and concluded that asbestos risk increases with each exposure. He testified that the only safe level of exposure to asbestos is "zero," the opinion states.

Frank also testified that about 17 fibers per cubic centimeter of air are generated when a mechanic uses compressed air to clean out dust from a brake drum. He added that fiber counts greater than background were observed as far as 60 feet away from the brake drum work.

Frank also testified that if a garage worker wore his work clothes home every day, the exposure caused by the brake "blow outs" could have continued for decades. In Rost's case, he claimed he did wear his "pretty filthy" work clothes home from the garage.

Rost also presented evidence from Dr. Arnold Brody, Ph.D., who testified on the science behind how mesothelioma develops.

Panella wrote that Rost provided enough evidence showing frequency, regularity and proximity. He added that it's safe to assume based on Frank's and Rost's evidence that he was directly exposed to roughly a million asbestos fibers while working at the garage.

However, in contrast to Rost's expert testimonies, Panella stated that Ford's experts had not published any research on asbestos during their long careers.

Ford expert Michael Graham, M.D., admitted that he performed no basic research on the pathology of asbestos and based his opinions on research by others.

Graham testified that several published studies have concluded that chrysotile asbestos is the predominant fiber present in cases of mesothelioma, but admitted that such fibers can cause asbestosis and lung cancer. However, "he was unshaken in his belief that chrysotile asbestos from brakes could not cause mesothelioma."

Ford also presented evidence from Dr. Herman Gibb, Ph.D., who argued that exposure to asbestos brakes while working as an auto mechanic did not increase the risk of getting mesothelioma and contributed Rost's disease to his work at Metropolitan-Edison. He said he understood that his opinion was contrary to other experts' opinions directly involved in asbestos research, Panella explained.

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 also argued the trial court erred in ruling that the plaintiffs were not required to prove that the asbestos brakes were defective under the products liability law.

Panella wrote that the appeals court will not reverse the order denying a new trial because the outcome of the case was not controlled by an error of law.

"A litigant is entitled only to a fair trial and not a perfect trial," the opinion stated.

Ford further argued 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, Panella ruled

"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.

As for the plaintiffs' issues on appeal, they each concern the status of settled defendants Ingersoll-Rand, General Electric and Westinghouse, which were included in the verdict sheet despite their previous settlements.

The Rosts first argue that the jury instructions and jury sheet relating to the settled defendants were confusing, resulting in them only awarding damages they felt were caused by Ford.

The jury sheet only included one question relating to the settled defendants, which asked the jury to determine whether Rost's exposure from each of the settling defendants' products was a substantial cause of his mesothelioma.

The appeals court agreed that the language was inappropriate and alone could have confused the jury. However, when viewed with the entire jury sheet and instructions, the appeals court concluded that the error was not significant enough to "vitiate the adequacy and clarity of the jury charge" because they were not asked to apportion blame amongst the defendants.

"Indeed, the Rosts' theory of the case, and propounded expert opinion, was that there was no viable way to distinguish between exposures," Panella wrote. "Accordingly, we conclude that the inclusion of the qualifying language did not control the ultimate verdict."

The Rosts also argue that there was insufficient evidence at trial to include the settling defendants on the verdict sheet at all, entitling them to judgment notwithstanding the verdict.

Panella disagreed, finding that there was sufficient evidence supporting the jury's findings that the defendants were a substantial cause of Rost's mesothelioma.

According to testimony provided at trial, Rost was exposed to asbestos at Metropolitan-Edison through General Electric turbines insulated with asbestos, Westinghouse pumps insulated with asbestos and Ingersoll-Rand pumps insulated with asbestos.

Rost stated that asbestos was "coming down like snow" at Metropolitan-Edison.

"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 concludes.

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

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