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A 4-4 split by an en banc Pennsylvania Superior Court panel means that a top Philadelphia judge’s rulings against two asbestos plaintiffs have been allowed to stand. Philadelphia Complex Litigation Center Coordinating Judge Norman C. Ackerman had originally held in Summers v. CertainTeed Corp. and Nybeck v. Union Carbide Corp. that the plaintiffs — both longtime smokers who did not yet suffer from illnesses undeniably caused by asbestos exposure — could not prove asbestos-related injuries, and so granted the defendants’ summary judgment motions. But late last summer, a three-judge Superior Court panel ruling on Nybeck reversed, concluding that an asbestos plaintiff can establish a prima facie case by presenting evidence of asbestos exposure and of symptoms of breathlessness. ( Nybeck and Summers were consolidated for hearing before an en banc panel after the former had been ruled on by the three-judge panel but before a separate three-judge panel had ruled on the latter.) The en banc panel’s split in its Thursday holding means that the three-judge panel’s ruling has been reversed, and Ackerman’s has been sustained. The unusual decision featured the recusal of one member of the original three-judge panel and the participation of another on the en banc’s dissenting side. Richard Myers of Paul Reich & Myers in Philadelphia, who was the plaintiffs’ attorney in both actions, said the holding would be appealed, calling it “just one more bizarre [instance] of procedural nuance” from the Superior Court. Carl Buchholz III of Rawle & Henderson in Philadelphia, who represented defendant Allied Signal Inc. in Summers and defendant Drever Furnace Co. in Nybeck, said that although the Pennsylvania Supreme Court has in the past been reticent to get involved in asbestos litigation cases, he is interested to see whether the justices will agree to hear the matters, given the 4-4 split below. “The decision becomes extremely important to the asbestos litigation area … in that [the judges] have finally come to grips with rejecting what has been the plaintiffs’ medical experts’ mantra in those cases, that every breath can lead to asbestosis,” Buchholz said. The en banc panel judges in favor of affirming Ackerman argued in Summers/Nybeck that a common pleas judge with significant expertise in asbestos litigation can look beyond the parameters of an expert witnesses’ testimony when ruling on a summary judgment motion. “Just because a hired expert makes a legal conclusion does not mean that a trial judge has to adopt it if it is not supported by the record and is devoid of common sense,” Judge Richard B. Klein wrote. “For example, [the expert in Summers] used the phrase, ‘Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted.’ However, suppose an expert said that if one took a bucket of water and dumped it into the ocean, that was a ‘substantial contributing factor’ to the size of the ocean. [The expert's] statement saying every breath is a ‘substantial contributing factor’ is not accurate.” Klein was joined by Judges Joseph A. Hudock and Susan Peikes Gantman. Judge Joan Orie Melvin concurred in the result. Judge Jack A. Panella was joined in his dissenting opinion by Judges Kate Ford Elliott, John T. Bender and Mary Jane Bowes, who sat on the original Nybeck panel. Judge Michael T. Joyce recused himself and did not participate. Myers said that when Joyce was on the original Nybeck panel, he offered to recuse himself because an adviser to one of his campaigns was a member of a firm representing one of the defendants, but that plaintiff’s counsel did not object to his participating. Immediately before arguments before the en banc panel began, according to Myers, the parties were informed that Joyce would not be participating, and arguments proceeded before the remaining eight judges. Buchholz said that he was involved in Joyce’s early 1990s Superior Court campaign. No one from his firm argued on their client’s behalf before the Nybeck panel, on which Joyce sat, he said, but Angela Heim, a firm associate who works out of Altoona, Pa., was one of the defense attorneys who argued before the en banc panel post-consolidation. According to Klein’s opinion, Frederick Summers was 64 in 2003 when expert medical witness Jonathan Gelfand diagnosed him as suffering from asymptomatic pleural thickening. He had a “40-pack year” smoking history, meaning that he had averaged a pack a day for 40 years. Richard Nybeck, who was also diagnosed as having pleural thickening by Gelfand, was 63 years old and had an “80-pack year” smoking history, which would indicate two packs per day for 40 years. Klein noted that smoking often causes “obstructive” lung disease, while asbestos exposure will result in “restrictive” disease; both can often be asymptomatic. Under the Superior Court’s 1993 holding in Giffear v. Johns-Manville Corp., later affirmed in principle by the state Supreme Court, asbestos plaintiffs cannot seek recovery until they exhibit physical impairments. “Judge Ackerman held that because the plaintiffs both had significant lung diseases from smoking and other causes, it was impossible to find that asbestos exposure caused any functional impairment or disability, and granted summary judgment,” Klein wrote. Nybeck and Summers, he continued, were effectively asking the en banc panel to overrule the Superior Court’s 2003 panel in Quate v. American Standard Inc., in which summary judgment in favor of the defense was deemed proper when the presence of multiple medical problems made it impossible to link a plaintiff’s shortness of breath to a particular asbestos-related condition. Klein and the judges who joined him declined to do so. They deferred to Ackerman, just as the Quate court did to Philadelphia Common Pleas Judge Allan L. Tereshko, who preceded Ackerman in supervising the city’s asbestos litigation docket. Klein also called attention to the fact that in Quate, the Superior Court had rejected expert medical testimony presented by Stanley Altschuler that was similar to that given in Summers by Gelfand, Altschuler’s practice partner. “In ascertaining whether Judge Ackerman abused his discretion, it is not enough to blindly follow the language of the experts hired by the plaintiffs,” Klein wrote. “It is not the expert who makes the ultimate decision but the judge by reviewing the entire record. In this case, the experienced judge reviewing the record is not a judge that needs an explanation on the record of each element of the asbestos litigation jargon.” In his dissent, Panella argued that the opposing bloc of judges had relied on dictum in Quate that should not be “expanded beyond the scope of the facts before that court.” Buchholz said the decision is significant because it reaffirms the idea that trial judges presiding over asbestos cases do not need to feel that they should blindly follow the conclusions of medical experts. He noted that Klein himself once heard asbestos cases when he sat on Philadelphia’s Common Pleas bench. Plaintiffs’ attorney Myers, who handled the cases with partner Robert Paul, said he fears Klein’s analysis on the deference to expert witnesses issue could create a slippery slope. “While I did not ask [Ackerman] to blindly accept [Gelfand's report],” he said, “he’s the doctor, he’s got a white coat; you’ve got a black robe.”

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