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A sheet metal worker who worked at the Philadelphia Naval Shipyard and suffered from asbestosis will keep his jury verdict of $1.043 million, a Pennsylvania court ruled. The strict liability action involved 34 defendant-manufacturers of asbestos products. “We find that the verdict was supported by the evidence,” wrote Judge Zoran Popovich. Popovich authored the unanimous opinion in Lonasco v. A-Best Products Co., joined by Senior Judge John G. Brosky and Senior Judge Phyllis W. Beck. INJURIES Raymond Lonasco and his wife, Ann, sued various manufacturers for Raymond’s personal injuries. They alleged Raymond’s asbestos-related injuries were caused by exposure to the defendants’ asbestos products during the time he worked at the Naval shipyard, from 1965 to 1971. According to the opinion, Lonasco testified that for eight hours a day during a period spanning “approximately one month to five weeks” he worked with gaskets containing asbestos, which defendant Garlock manufactured. He said his duties required him to punch many holes into the gaskets, which created large amounts of asbestos-laden dust that he inhaled. Additionally, Lonasco said he also inhaled dust from cleaning heaters that contained Garlock gaskets at work. Lonasco presented a physician at trial to testify that he had “asbestosis, pleural thickening and plaque formation,” and that this resulted from his exposure to asbestos. Lonasco said he complained of shortness of breath when climbing stairs or ladders. He also testified he could no longer engage in his usual physical exercise or housework and that he was placed on light duty at work, according to the opinion. HISTORY The reverse-bifurcated trial was completed in two phases. Phase I determined medical causation and damages. Phase II — held before a different judge and jury — determined the liability of the defendants. During phase I of the trial, the defendants first moved for nonsuit and then a directed verdict, claiming the Lonascos failed to demonstrate a compensable asbestos-related condition. The defendants’ motions were denied. The phase I jury returned a plaintiffs’ verdict of $1.043 million, $174,000 of which was awarded to Mrs. Lonasco for loss of consortium. The Lonascos’ case was then consolidated with several others for phase II. Garlock initially moved for nonsuit against the plaintiffs, which the court denied. However, at the end of the phase II trial, Garlock moved for a directed verdict. This time, the manufacturer was successful. In a post-trial motion, Garlock co-defendant Owens-Corning asserted that the trial court erred in granting Garlock the directed verdict and further requested that a new phase II trial be granted for Garlock. The Lonascos also moved for a new trial to determine Garlock’s liability. In September 1998, the phase II court granted a new phase II trial for Garlock. Garlock filed an interlocutory appeal challenging the new trial. At the same time, Owens-Corning appealed the trial judge’s denial of the its motions regarding outstanding phase I issues. The Superior Court addressed the consolidated appeals of Garlock and Owens-Corning, which Popovich said were “similar.” ASBESTOS JURY STANDARD Both Garlock and Owens-Corning argued the trial court erred during phase I by failing to grant a judgment notwithstanding the verdict in their favor, because the plaintiffs, in their opinion, “failed to prove that Mr. Lonasco suffered a compensable asbestos-related injury.” Both defendants cited Giffear v. Johns-Manville Corp.., a 1993 Superior Court case, and Simmoms v. Pacor, a 1996 Pennsylvania Supreme Court case, for the proposition that a plaintiff claiming non-malignant asbestos-related personal injuries must present “objectively verifiable proof of functional impairment” in order to support a cause of action. Prior to Giffear, Popovich noted, an asbestos-related injury claim was judged under the “two-disease rule.” A plaintiff could recover twice for his exposure to asbestos, first by getting nominal damages for non-malignant, “asymptomatic pleural thickening,” and then later, by bringing a separate action for any malignancy. Giffear changed all that by specifically holding that “pleural thickening, absent disabling consequences or manifest physical symptoms, is a non-compensable injury,” Popovich said. After Giffear, mere pleural thickening without symptoms was no longer a cognizable claim in Pennsylvania, he said. Simmons, which affirmed Giffear, stated that pleural thickening is considered asymptomatic when individuals are able to lead “active, normal lives, with no pain or suffering, no loss of an organ function, and no disfigurement due to scarring.” But in addition to the Giffear-Simmons standard, Popovich said, Owens and Garlock relied on two more cases, Taylor v. Owens-Corning Fiberglass Corp. and Randt v. Abex Corp., 1995 and 1996 Superior Court cases respectively, for their application of Giffear-Simmons. Under Taylor-Randt, Popovich said, shortness of breath alone was not considered a compensable injury. The rationale of Taylor-Randt was that shortness of breath was “not a discernible physical symptom, a functional impairment, or a disability” because “it is common knowledge that breathlessness is also associated with any number of non-asbestos-related ailments including lung cancer … smoking, heart disease, obesity, asthma, emphysema and allergic reactions.” But Lonasco’s case was distinguishable from those benchmark cases, Popovich said, because “Mr. Lonasco does not suffer from shortness of breath alone. “Unlike the majority of appellants in the cases of Taylor and Randt, Mr. Lonasco suffered from none of the non-asbestos-related ailments commonly associated with shortness of breath. “Although Mr. Lonasco smoked for a portion of his life, the parties’ medical experts testified that Mr. Lonasco suffered no damage from his previous smoking habit,” said Popovich. “Further, unlike the appellants in Taylor, the record does not indicate that Mr. Lonasco continues to lead an active, normal life. “To the contrary, Mr. Lonasco can no longer engage in numerous physical activities he once performed,” said the judge. A 1998 case the Superior Court considered added another dimension to the Giffear-Simmons and Taylor-Randt holdings that bore mentioning here, Popovich said. McCauley v. Owens-Corning Fiberglass Corp. held that “where the plaintiff was experiencing pulmonary asbestosis and consequent shortness of breath, the plaintiff’s disease was no longer asymptomatic.” Popovich said neither Owens-Corning nor Garlock were entitled to judgment as a matter of law on the JNOV motion. “[Lonasco's] medical expert testified that [his] shortness of breath [was] a result of his asbestos exposure,” said Popovich. “The jury properly exercised its discretion and chose to believe the evidence [viewed with all reasonable inferences in the light most favorable to plaintiffs] presented by plaintiffs. This verdict was supported by the evidence, he said. NEW TRIAL, DIRECTED VERDICT MOTIONS Garlock argued the grant of a new phase II trial was error on the part of the trial court, because the testimony of Lonasco’s medical expert was “inconsistent and based upon speculation.” Popovich said that did not amount to error. “Our standard of review [for granting a new trial] is limited to those reasons upon which the trial court relied,” said Popovich. “Because the trial court is uniquely qualified to evaluate factual matters, we will not disturb its decision absent an abuse of discretion or error of law.” Popovich also stood by the trial court’s own recognition that it erred in granting a directed verdict, because “the issue of liability … was a matter for the jury to decide.” There was still conflicting evidence at that point in the proceedings, and Lonasco and the other plaintiffs “were entitled to present their claims to a jury,” Popovich said. “Therefore, we agree with the trial court’s determination that it erred in granting Garlock’s directed verdict.” Finally, Popovich addressed Owens-Corning’s argument that the plaintiffs failed to prove a prima facie case in strict liability because it did not establish that Owens’ failure to warn was a proximate cause of their injuries. That position, he said, was “without merit.” In cases where warnings are required to make a product non-defective and a warning isn’t given, the plaintiff should be afforded the presumption that he or she would have followed such a warning, and Owens-Corning made no attempt to rebut that presumption, said the judge. “Owens-Corning produced no evidence bearing upon Mr. Lonasco’s knowledge of the risk of injury posed by inhalation of asbestos. Accordingly, the burden did not shift back to [the] plaintiffs.”

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