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The Superior Court has thrown out a $2.5 million award assessed by a Philadelphia jury in a personal injury asbestos case, calling the verdict “patently excessive.” Saying there was “scant physical evidence” that exposure to asbestos had caused a longtime plumber for the city Housing Authority to contract a severe asbestos-related disease, three Superior Court judges unanimously concluded that the trial judge should have granted remittitur of the damages in Smalls v. Pittsburgh-Corning Corp. In December 2001, a jury awarded $2 million to the plaintiff, Oscar L. Smalls, who had sued John Crane Inc., an international company that manufactures sealing and lubricating products for the pipeline and gasket industry, as well as Pars Manufacturing Co. and Uniroyal Inc. and more than 30 other companies that produced similar products, according to the opinion. Crane, Uniroyal and Pars were the only ones that hadn’t been dismissed or hadn’t settled when the damages phase of the reverse-bifurcated trial began, said William C. Bensley of Howard Brenner & Nass, who argued the case before the Superior Court panel. Bensley said Pars and Uniroyal settled before the liability phase of the trial, in which Smalls alleged that his exposure to the companies’ products contributed to his asbestosis. The jury attributed one-third of the liability to Crane, directing it to pay $666,667, or one-third of the $2 million, Bensley said. Smalls’ wife, Lizzie, was awarded $500,000 for loss of consortium, according to the opinion. The trial judge did not issue an opinion in the case, according to the Superior Court opinion. Crane appealed the verdict, arguing in part that the trial court had erred in refusing to grant a remittitur of the damages. The Superior Court agreed, reversing the trial court’s order on the sole issue of damages. “Although prudence dictates that we exercise our authority sparingly, appellate courts are not powerless to grant remittitur in instances where the verdict is substantially larger than that which the plaintiff’s evidence can sustain,” wrote Judge Mary Jane Bowes, who authored the Feb. 13 opinion. “We find that the evidence adduced during trial in the case sub judice fails to support either the $2 million verdict in favor of Mr. Smalls or the $500,000 verdict in favor of Mrs. Smalls, and the trial court abused its discretion in concluding that the excessive awards did not shock its sense of justice.” Asbestosis is a chronic lung disease caused by the inhalation of asbestos particles. Smalls, who is now 77, handled materials containing asbestos during his 25 years of work as a plumber at the North Philadelphia Raymond Rosen housing community, according to the opinion. Bensley said that the Crane product Smalls worked with was “valve-packing material” that was used to seal valve surfaces. Smalls retired in 1984. Thirteen years later, he visited his doctor after having shortness of breath, but the doctor didn’t diagnose an asbestos-related disease. Smalls didn’t seek treatment from a doctor again until 1999, when an attorney who had represented one of Smalls’ deceased co-workers prompted him to, according to the opinion. Bensley said he was unsure who that attorney was. But Bowes said that Smalls’ evidence that he suffered greatly from an asbestos-related condition “pales in comparison” to other, more serious exposures in which, for example, a plaintiff’s lungs kept deteriorating over time and caused severe respiratory limitations. “At best, the undisputed evidence demonstrates only that a sedentary, 74-year-old man with cirrhosis and a 20-year smoking habit became winded after moderate exercise and no longer was as active around the house as he once was,” Bowes wrote. “Mr. Smalls proffered no evidence to suggest that his condition was deteriorating or that he had a reasonable fear of it deteriorating, which are significant factors.” Despite the permanency of asbestosis, Smalls’ evidence “does not justify the damage award” when weighed against other factors in Smalls’ case, Bowes said. The only visible symptom that Smalls had relating to asbestosis was shortness of breath after walking several blocks or climbing a flight of stairs, Bowes said. Considering Smalls’ age and lifestyle, as well as his failure to consult a doctor until prompted by an attorney, his impairment is “insubstantial,” Bowes said. “At the time of trial, Mr. Smalls was a 74-year-old man in poor physical condition who suffered from a myriad of ailments unrelated to asbestos exposure,” Bowes wrote. “He had been diagnosed with chronic obstruction pulmonary disease, anemia, cirrhosis of the liver, abdominal and colon conditions, and previously contracted pneumonia. Moreover, he smoked for 20 years prior to quitting.” At trial, the plaintiff’s medical expert, Richard Katz, had opined that the membranes lining Smalls’ lungs were thick and that he suffered from pulmonary asbestosis. But Katz also said that Smalls did not show any of the classic symptoms of severe asbestosis, according to the opinion. The defendants’ expert witness, Paul Epstein, testified that Smalls didn’t suffer from an asbestos-related disease; instead, he said Smalls’ lungs had sustained scarring as a result of pneumonia, according to the opinion. Considering this testimony and noting that Smalls’ family doctor had never diagnosed an asbestos-related condition, Bowes concluded that there was little evidence that he had developed a “severe” asbestos disease. Bowes also noted that the jury’s $2 million award was for pain and suffering only. Smalls had sought no compensation for lost wages, out-of-pocket expenses or other economic claims because he had retired in 1984 and had not continued medical treatment for his shortness of breath. Smalls had argued that the Superior Court should consider only the amount of the verdict that Crane was directed to pay — one-third of $2 million — in deciding whether the award was excessive. Smalls pointed to a footnote in the Superior Court’s 1995 decision in Giordano v. AC&S Inc., which said that the court should limit its consideration of excessiveness to the size of a judgment an individual defendant is directed to pay, according to the opinion. Bowes rejected this contention, concluding that the Giordano footnote was merely dicta. Thus, even when considering only the $666,667 Crane was supposed to pay out of the overall award, the jury’s verdict was “inappropriate,” Bowes concluded. There was also insufficient evidence to support the $500,000 award to Lizzie Smalls for loss of consortium because there was no proof that Smalls’ injuries had harmed the marriage, Bowes said. Bensley said his office is considering whether it will appeal the Superior Court’s decision to the Pennsylvania Supreme Court. Bensley’s colleague, Richard P. Hackman, handled the case at trial. “The jury had a chance to actually view these witnesses at trial and had a chance to evaluate what they were saying and how they were saying it,” Bensley said, referring to the testimony of the Smallses. “Just as a jury will sometimes decide a witness is exaggerating and issue a verdict accordingly, here they found the witnesses had underreported how much Mr. Smalls’ condition limited his lifestyle.” Bensley described Smalls as a man from a different generation who was reticent to detail his physical weaknesses in a public forum. “That’s the kind of circumstance a jury picks up on — they use their common sense,” Bensley said. “Here, the Superior Court judges seemed to lose sight of that.” The Superior Court also considered other issues Crane brought up for consideration. Crane had protested the admissibility of some evidence that the trial court had permitted, but Bowes upheld the admissions. Crane also questioned whether the trial court was correct to consider the loss of consortium award when it calculated delay damages of $135,800. Bowes did not consider this issue because it was unnecessary after remanding the case for a new trial for determining damages. David Abernethy of Drinker Biddle & Reath represented Crane and was assisted by Nancy Marvel and Michael Daly. Abernethy declined to comment Tuesday. Senior Judge Phyllis W. Beck and Judge Joan Orie Melvin joined Bowes on the panel that decided Smalls.

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