A divided state Superior Court panel has thrown out a $14.5 million asbestos verdict awarded to the widow of a man who died from mesothelioma, determining that her counsel's suggestion of a specific sum for damages to the jury was improper and that the plaintiff's expert's testimony was inadmissable.
In Nelson v. Crane, the three-judge panel ruled 2-1 to remand the case for new trial, concluding the trial court erred in admitting expert testimony deemed prejudicial, and that the trial court's jury instructions failed to remove the taint of plaintiff's counsel's remarks made to the jury, and ultimately that the court erred in denying the defendants' request for a mistrial.
The court's majority opinion was penned by Senior Judge James J. Fitzgerald III, who was joined in the majority by Judge Jacqueline O. Shogan. Judge David N. Wecht offered a concurring and dissenting opinion.
"The admission of this prejudicial evidence was a reversible error," Fitzgerald said in the majority opinion. "Furthermore we disagree with the trial court that its jury instructions cured the taint of appellee's counsel's improper suggestion of a specific sum for non-economic damages to the jury. Therefore we find the trial court abused its discretion in denying appellants' motion for a mistrial and remand for a new trial on damages."
In his concurring and dissenting opinion, Wecht noted that the majority's contention that expert testimony from Dr. Daniel DuPont was inadmissible — based on the majority's interpretation of the state Supreme Court ruling that expert testimony was inadmissible in the asbestos case Betz v. Pneumo Abex LLC — was not relevant.
"While Betz is the most recent in a series of opinions circumscribing the range of expert testimony that may be admitted to establish substantial causation in asbestos litigation, I do not believe that it is dispositive of the case at hand," Wecht said in his opinion.
Wecht also disagreed with the majority's conclusion that the trial court abused its discretion in denying a mistrial based on the remarks made by Nelson's counsel.
According to the opinion, the decedent, James Nelson, worked as a pitman, laborer, welder and mechanic at Lukens Steel Plant in Coatesville, Pa., from 1973 until 2006. During that time, the opinion said, he was exposed to asbestos pipe covering, gaskets, packing, furnace cement and "hot tops," as well as sheet packaging containing asbestos that was distributed by Crane Co.
On December 5, 2008, Darlene Nelson, acting as the executrix of the estate of James Nelson, who died at age 54 from mesothelioma, filed a complaint in the Philadelphia Court of Common Pleas against defendants Crane Co. and several others, TheLegal reported in April 2010.
On March 23, 2010, the jury awarded $14.5 million to Nelson, finding all of the defendants listed on the verdict sheet liable for the damages. Only three defendants remained in the case, however — Crane Co., Hobart Brothers Co. and Lincoln Electric Co. The companies' shares of the verdict equaled $3.95 million, TheLegal reported.
During trial, DuPont, a pulmonary specialist, testified that "minimal exposure nonetheless substantially contributed to [James Nelson's] injury because mesothelioma may be caused by even small exposures to asbestos," according to Fitzgerald.
The defendants argued that DuPont "failed to meet the threshold of showing causation" and thus, claimed they were entitled to a new trial, Fitzgerald noted.
On May 2012, three weeks after the Superior Court first heard the defendants' appeal, the state Supreme Court announced a decision in Betz regarding the admissibility of expert opinion evidence to the effect that each and every fiber of asbestos inhaled is a significant contributing factor to any asbestos-related disease, Fitzgerald said.
In Betz,the plaintiff's expert, Dr. John C. Maddox, equated inhaling asbestos to cigarette smoking in the way that all the cigarettes that one smokes are considered to be contributory to the development of lung cancer. However, the Supreme Court determined "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," according to Fitzgerald.
"Accordingly, we hold that Dr. DuPont's 'each and every breath' opinion was analogous to that of Dr. Maddox found inadmissible in Betz, and that the trial court's admission of it is inconsistent with Betz," Fitzgerald said.
In terms of the remarks made by Nelson's counsel to the jury, the defendants attested that suggesting a specific dollar amount for each of the 12 separate damages items, in this case $1 million apiece, was inappropriate, according to Fitzgerald.
Fitzgerald cited Stassun v. Chapin, noting, "In cases where the damages are unliquidated and incapable of measurement by a mathematical standard, statements by plaintiffs' counsel as to the amount claimed or expected are not to be sanctioned, because they tend to instill in the minds of the jury impressions not founded upon the evidence."
Fitzgerald said the trial court's attempts to correct the jury of any allegedly skewed impression made upon them by Nelson's counsel regarding damages sums was ineffective. Additionally, he said that the trial court's denial of the defendants' motion for a mistrial was in error.
(Copies of the 56-page opinion in Nelson v. Crane, PICS No. 13-2592, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •