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An appeal by a manufacturer held partially liable for a furnace factory worker’s asbestos-related lung injuries has been denied by the Superior Court, even though the worker acknowledged that, whenever handling rope containing asbestos, he could not distinguish between the brand made by the manufacturer and other brands used in his workplace. “On cross-examination, it was elicited from [plaintiff Francis Cauthorn] that, at any given time, he did not know whether PARS [Manufacturing, Inc.] or [appellant] John Crane, Inc. supplied the rope he was using,” Senior Judge Peter Paul Olszewski wrote in Cauthorn v. Owens Corning Fiberglas Corp., et al. “We, however, do not expect a plaintiff to come in with a journal describing what asbestos product he used on a given day. Mr. Cauthorn’s description of the asbestos rope was specific and demonstrated that he worked consistently with John Crane rope.” Olszewski was joined by Judge Correale F. Stevens. Senior Judge Phyllis W. Beck concurred in the result but did not submit a separate opinion. In affirming the order of the trial court, the panel also attempted to clarify which standards should be used when an asbestos plaintiff’s symptomatology is in dispute. Here, the court ruled that Cauthorn “established that his asbestos-related injuries are symptomatic” and negatively impact his day-to-day activities. According to the opinion, Cauthorn — 64 years old at the time of the trial a couple of years ago — built and inspected furnaces for the Leeds & Northrup Co. from 1966 to 1980. He alleged that he handled numerous asbestos-containing products daily over the course of his employment, including asbestos rope supplied by PARS and John Crane, which he would often have to cut with a knife. In 1999, the opinion stated, Cauthorn began to complain of breathing difficulties that prohibited his walking even minor distances. However, as the opinion noted, he was taking medication for a number of illnesses at the time of the trial, including diabetes, a kidney disorder, a heart condition and high cholesterol. In addition, he testified that he had smoked up to two packs of cigarettes a day for roughly four decades. During the Philadelphia Court of Common Pleas trial, according to the opinion, Dr. Stanley L. Altschuler gave expert testimony that Cauthorn was afflicted with asbestosis, a lung disease related to asbestos inhalation, which was evidenced most noticeably by a crackling at the bottom of Cauthorn’s lungs. A defense expert for John Crane, Dr. Thaddeus C. Bartter, testified that his examination of Cauthorn had not resulted in a diagnosis of asbestosis. The trial was reverse-bifurcated, meaning that the jury determined the damages to be awarded to Cauthorn before liability percentages were allotted between the defendant companies, according to the opinion. Following the first phase of the trial, the jury concluded that an asbestos-related injury existed and awarded Cauthorn $150,000 in damages. Shortly thereafter, the second phase began, with the jury ultimately finding that Cauthorn had met his burden of proof concerning John Crane’s liability. In addition to addressing John Crane’s point about Cauthorn’s not being able to distinguish between the two brands of rope, the court dealt with a contention by John Crane that it was entitled to a judgment notwithstanding the verdict because Cauthorn did not sufficiently prove he was suffering from the symptoms of an asbestos-related disease. “If appellant is correct in this assertion, it would be entitled to the j.n.o.v. it seeks. This is because in the commonwealth, it is no longer possible for a plaintiff to recover for ‘asymptomatic asbestos-related injuries,’” Olszewski wrote, citing the court’s 1993 opinion in Giffear v. Johns-Manville Corp. According to the opinion, Giffear requires a plaintiff to prove “discernible physical symptoms or functional impairment” for his or her claim to be deemed compensable. In addition, the Cauthorn opinion noted subsequent Superior Court rulings that form a framework for symptomatology assessments in asbestos cases: 1995′s Taylor v. Owens Corning Fiberglas Corp. states the need for symptomatic evidence more compelling than mere shortness of breath before compensability can be established; the opinion in White v. Owens Corning Fiberglas Corp., also from 1995, mandates that the claimant must prove that his or her ailment carries lifestyle-hampering side effects. “Even under the Taylor/White analysis,” Olszewski wrote, “Mr. Cauthorn has suffered a compensable injury from asbestos inhalation.” The opinion also cited the court’s 2003 decision in Quate v. American Standard Inc. In that case, the plaintiff was diagnosed with asbestosis, resulting in shortness of breath, by his medical expert. He also suffered from diabetes and a prostate condition and had smoked up to two packs a day for roughly 10 years. However, he testified that his shortness of breath did not keep him from functioning normally. The Quate court held that the presence of non-asbestos-related medical conditions whose symptoms mirrored those of asbestos-related diseases prevents a claimant from establishing a causal link between symptoms and asbestos exposure. The panel in Cauthorn deferred to the jury on the potential conflict presented by Quate, concluding that because the jury had heard evidence from both sides and still found that Cauthorn’s asbestos inhalation contributed to his injuries, the verdict was proper. As to the second of John Crane’s issues addressed by the court — whether Cauthorn proved that the company’s products caused his injuries — the panel ruled that Cauthorn’s ability to describe the packaging and appearance of the John Crane rope proved that he had been exposed to the company’s product, regardless of whether he knew which brand he had handled on a daily basis. David Abernethy of Drinker Biddle & Reath represented John Crane, along with associate Michael Daly. Abernethy said he did not wish to comment on the court’s decision. Cauthorn’s case was handled by George Howard, Michael Cancelliere Jr. and Edward Nass, all of Howard Brenner & Nass. Cancelliere and Nass said John Crane had been apportioned one-fifth of the liability in the $150,000 verdict. They also said PARS was deemed liable by the jury, as well. “We believe this is a great opinion for plaintiffs,” Nass said, “mostly because, up until this decision, the Quate opinion was causing a lot of confusion in the bar as to what constituted a compensable injury in asbestos cases.” Cancelliere said the wording in Quate had resulted in an increase in summary judgments against Pennsylvania plaintiffs in asbestos cases that did not involve cancer.

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