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An agreement to settle before a jury decides liability is typical of asbestos litigation in Philadelphia, where asbestos trials are separated into two phases — the first determining damages and the second deciding liability. But recently more defendants are making the decision that Bell Asbestos Mines Ltd. and Ericsson Inc. made — to defend their product before the jury, say lawyers and court administrators. A Philadelphia jury issued a $15.6 million verdict against a group of asbestos-product manufacturers and other companies on Oct. 20. But before the jury decided each one’s share of the liability, at least 10 of the defendants named in the three cases had settled. Settlement amounts were confidential. Only two defendant companies, Bell and Ericsson, didn’t settle and went through the entire liability phase of the Rabold v. AC&S trial. Each will pay one-tenth of the $3.5 million verdict, or $350,000, to the estate of Clarence Rabold. During the trial, Rabold, 68, died of malignant mesothelioma, a rare form of cancer caused by inhaling asbestos fibers, his lawyer said. The reverse bifurcation of asbestos trials was set up in the late 1980s when the number of cases pending in Philadelphia was high, judges said. “The purpose was to expedite the disposition of the cases and encourage settlements,” said Common Pleas Judge William J. Manfredi, who supervises the civil division. “It’s worked.” The number of pending asbestos cases in the county’s mass tort program is a fraction of what it once was, at least in part because of the two-phase trials, Manfredi said. Previously, cases rarely went to the second phase of the trial to determine liability, but court administrators have recently noticed asbestos cases proceeding to the liability phase of trial more often, he said. “With the reduced case inventory, there is more time and resources to have the trials,” Manfredi said. Doug Eisler also has noticed that more parties are going on to the liability portion of the trial in uncontested mesothelioma cases. In these uncontested cases, the defendants do not challenge that the plaintiff has developed cancer as result of exposure to asbestos. Eisler, a products liability defense lawyer at Wilson Elser Moskowitz Edelman & Dicker, said the trend has to do with the fact that many of the targeted defendants in uncontested cases — defendants like big manufacturers of asbestos-containing thermal insulation — have been wiped out by prior lawsuits. “The companies and products that are truly responsible are in bankruptcy,” said Eisler, who represented A.W. Chesterton, a manufacturer of gasket and packaging products that was sued in all three cases. Eisler argued two days in the liability phase of the Rabold trial before A.W. Chesterton settled. “What we used to call the ‘peripheral defendants’ are now the target defendants,” Eisler said. “That’s why we’re seeing more defendants proceed to the liability phase, because the defense of their product is better.” With this shift in defendants, for example, smaller companies that produced wire, cable and gaskets using encapsulated asbestos fibers are being sued, and plaintiffs that used to demand $2,500 of these companies now demand $250,000, Eisler said. Some of these products can be successfully defended in the liability phase, and, increasingly, they are, he said. For this reason, the defense bar is coming to view reverse bifurcation in uncontested mesothelioma cases as ineffective and unhelpful to parties, Eisler said. Less time would be wasted if the trial phases were flipped. “We’ve filed motions in court to do away with the reverse in some cases,” he said. Those motions have been denied. Benjamin Shein, an asbestos litigator, said defense attorneys have other reasons for wanting to do away with the reverse in uncontested cases. They have nothing to argue during the damages phase of uncontested claims, and so they want to get straight to the issue of liability, he said. Defense attorneys’ complaint about trial structure would make sense if more of them were successful during the liability phase, Shein said. They are not, he added. “I believe that if a product contains asbestos, and in its installation or removal it manifests asbestos dust in the air, it’s capable of causing mesothelioma. Says the Environmental Protection Agency, says the Occupational Safety and Health Administration,” said Shein, an attorney at the Shein Law Center. “I am a firm believer that mesothelioma are the types of cases that should settle.” Shein noted that other defendants likely to go to the liability phase are those who have to because the company has a so-called “do-not-settle” policy. John M. DiDonato represented Luke Andrews and Larry Box, the plaintiffs in two of the three verdicts issued last week. Both Andrews and Box died of mesothelioma before the trial began. The jury awarded Andrew’s estate $5.5 million and Box’s estate $6.6 million, DiDonato said. “When the jury gives this much money, it’s rare they would not have found liability in the second phase,” DiDonato said. The five defendants in Box and Andrews’ cases all settled, although one small manufacturer did go three days into the liability phase of the trial before settling, DiDonato noted. Mary McGovern, who oversees the mass torts program at the Complex Litigation Center, said last week’s verdict of $15.6 million for the three cases was one of the highest asbestos verdicts ever assessed by a Philadelphia jury. Clarence Rabold was the only plaintiff living when the trial began, and he died on Oct. 16, the third day of trial, said his attorney, Neil B. Kitrosser of Brookman Rosenberg Brown & Sandler. Rabold, who was from Myerstown, Pa., worked as an electrician for 42 years. He was diagnosed with mesothelioma almost two years ago as a result of exposure to asbestos fibers, according to court documents. Rabold had sued more than 10 companies for pain and suffering and loss of life’s pleasures, Kitrosser said. Two of those companies were Bell and Ericsson. Ericsson manufactured high-temperature wire that contained asbestos and that Rabold handled in his career as an electrician, Kitrosser said. Bell was a mining company in Quebec, which shipped bags of raw asbestos fiber to companies that manufactured asbestos products, Kitrosser said. Rabold worked in the room where his employer used to receive these bags from Bell and process them. The jury took nearly three hours to deliberate the verdict in phase one of the trial, and approximately five minutes to deliberate liability in phase two, lawyers said. Local counsel for Bell and Ericsson were unavailable for comment Wednesday. The verdicts issued Oct. 20 were in Estate of Luke Andrews v. AC&S, Estate of Larry Box v. AC&S and Charles Rabold v. AC&S.

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