A hotly contested Philadelphia asbestos case has resulted in a post-trial motion in which the plaintiffs’ counsel claims that the verdict sheet in the case was developed because of alleged ex parte contact by the defense lawyers with the leadership of Philadelphia’s civil courts.
The plaintiffs’ post-trial motion came in the wake of a defense motion during the trial seeking the recusal of the presiding judge as well as a mistrial.
The case of Webber v. Ford Motor Co. also involved several other unique legal issues.
A jury found for three defendants in a case involving the theory that Ford Motor Co. was liable for the plaintiff’s asbestos-related disease because the design of the Ford vehicles necessitated the use of brake products containing asbestos.
The case was one of the very first asbestos cases to be tried straight-through after Philadelphia Common Pleas Court Judge John W. Herron, the administrative judge of the trial division, ordered the end of reverse bifurcation in all asbestos cases unless both sides agree to it.
During the trial, the three nonsettling defendants — Ford, Honeywell International Inc. and Pneumo Abex — moved for mistrial and the recusal of Senior Judge Esther R. Sylvester.
The plaintiffs’ expert on damages for medical expenses, Chad Staller, was giving direct testimony Feb. 10 and defense counsel asked to see the document Staller was referring to, according to the motion for mistrial and recusal by Honeywell.
During the exchange, Sylvester said, “‘You are not entitled to anything until cross-examination. Please don’t stand up and ask for anything. Do you understand? Because I’m going to call — the sheriff was in here, I’m going to call the sheriff.”
Two sheriff’s officers appeared at 9:48 and 9:53, the motion said. The sheriffs stood by the defense table in full view of the jury and were an “overt and intentional intimidation of defense counsel,” according to defense court papers.
In addition to the allegation about the sheriffs, defense lawyers raised several other issues in their recusal motion.
“Judge Sylvester has consistently raised her voice to defense counsel, spoken to counsel in a taunting and intimidating fashion, paced behind her bench in anger during argument, and gesticulated in a frustrated and aggressive fashion. More often than not, her conduct and demeanor in this regard cannot be discerned from the written record. … Such conduct is a clear violation of a judge’s duty to maintain high standards of conduct, integrity, and decorum, while presiding over trial,” Honeywell’s counsel, Scott F. Griffith of Rawle & Henderson, said in the motion.
In separate motions, Pneumo Abex’s counsel, Thomas P. Hanna of Kelley Jasons McGowan Spinelli Hanna & Reber in Philadelphia, and Ford’s counsel, Sharon L. Caffrey of Duane Morris in Philadelphia, joined in Honeywell’s motion for recusal and mistrial.
Caffrey said in Ford’s motion that Sylvester commented on the weight of the evidence.
In response, plaintiffs’ counsel Robert E. Paul of Paul Reich & Myers said in court papers that it was defense counsel who “constantly interrupted the court, refused to accept its rulings, attempted to violate court rulings and have lengthened the trial by their behavior.”
The defendants did not write in their motion that the court officer explained on the record that sheriff’s deputies appear in the courtroom for routine surveillance of courtrooms, the plaintiffs’ papers said.
In another issue, plaintiffs’ counsel said in the motion for post-trial relief that Sylvester committed an error of law to have the jury answer in question number one of the verdict sheet if “exposure to asbestos [is] a factual cause of George Webber’s peritoneal mesothelioma” and answer in question four of the verdict sheet if “the exposure to the defective product of the following defendants [is] a factual cause of George Webber’s peritoneal mesothelioma.”
Peritoneal mesothelioma is a rare type of cancer that arises in the lining surrounding the abdominal cavity known as the peritoneum.
“The adoption of this form of verdict sheet was the direct result of the intimidation of the court by defendants,” Paul wrote in a motion for post-trial relief filed Feb. 27. “Defendants communicated ex parte to Judges Herron, [Philadelphia Common Pleas Court's Allan L.] Tereshko [supervising judge of the trial division's civil section], and [Philadelphia Common Pleas Court's Sandra Mazer] Moss [coordinating judge of the mass tort program, Complex Litigation Center] falsely complaining about illusory favoritism toward plaintiffs in a letter never sent to plaintiffs counsel. Adoption of this verdict sheet was at direct ex parte instigation by defendants.”
Paul said in an interview March 2 that the letter was advising the judges of the defendants’ motion that Sylvester should recuse herself. He said he has since seen the letter.
In Paul’s motion, he said that “the court made clear when it noted that the supervising judges had proposed the verdict sheet in response to the ex parte contact at a meeting convened by the supervising judges after the ex parte letter from defendants.”
Sylvester did not specify in court if the meeting involved Herron, Moss or Tereshko, or some combination of them, Paul said.
Herron said in a short interview Tuesday that a letter and a brief was sent to other judges and him, but Herron said that he does not know if it was sent ex parte. Defendants said they sent the letter to plaintiffs’ counsel, but the plaintiffs said they didn’t get it, Herron said.
Herron said that he was not going to comment further on post-trial motions and that further response would only be appropriate from defense lawyers involved in the case.
Sylvester did not respond to a request for comment left at her chambers March 2.
The plaintiff and his wife said in court papers his peritoneal mesothelioma was diagnosed in October 2010. The plaintiffs argued that Webber was exposed to asbestos from brake linings and clutches used in Ford vehicles, from Bendix brakes and brake linings and from Abex brake linings. Honeywell is the successor to Bendix.
Webber was exposed to asbestos while working on Ford vehicles with a friend, Charles Hummel, and exposed as a bystander when he came in contact with his father Jim Webber’s clothing after Jim Webber was working with or near Fords whose brakes, clutches and gaskets were being removed and installed, the plaintiffs said in court papers.
Ford argued in its motion for a compulsory nonsuit that it could not be held strictly liable for Webber’s mesothelioma because plaintiffs’ counsel argued, “‘I don’t have any evidence that Mr. Webber actually bought a Ford brake shoe and put it in. What we do know is that Ford was responsible for the design of their vehicle.’”
“A manufacturer may not be held liable for a defective product that the manufacturer neither manufactured or supplied, even though it was foreseeable that the defective product might be used in conjunction with the manufacturer’s original equipment,” Ford said in court papers.
Even though the brakes were not made by Ford, Ford could have liability because it designed its automobiles to use brakes that contained asbestos, Paul said in an interview.
Asbestos plaintiffs’ counsel, when arguing that a carmaker is liable to an asbestos plaintiff because the design of vehicles required the use of brakes containing asbestos, have beaten summary judgment motions on the same theory, Paul said.
This case was the first to go to trial because the other cases have settled, Paul said.
In another issue, the jury found that George Webber was exposed to asbestos from the products of all seven defendants and that the products of all seven companies were defective but then found that exposure to the defective products of all seven defendants was not a factual cause of Webber’s peritoneal mesothelioma.
The jury was clearly confused, Paul said, because they answered the two questions on causation in conflicting ways. If they did not believe Webber’s mesothelioma was caused by exposure to asbestos, “why didn’t they just answer question number one ‘No’ and go home?” Paul asked.
The trial defendants offered evidence from potential exposure to asbestos from the settled defendants, which were Georgia-Pacific, BorgWarner, Fel-Pro and Union Carbide, but the defendants failed to show Webber breathed asbestos from the settled defendants’ products, the plaintiffs’ post-trial motion said.
Pneumo Abex argued in court papers that Webber’s possible use of Abex brakes was in the mid-1990s, eight years after Abex stopped manufacturing and selling “asbestos-containing automotive friction parts.”
Honeywell said in court papers that “the weight of the scientific and medical literature demonstrates that exposure to chrysolite asbestos fibers — the only type of asbestos found in Bendix brakes — does not cause peritoneal mesothelioma.”
There is no credible evidence that any fiber type but amphibole asbestos is capable of causing peritoneal mesothelioma, Honeywell also argued in court papers.
As well, the brake changes the plaintiff performed personally or with his friend took place between the 1980s and the 2000s when brakes were asbestos-free, Honeywell said in its motion for compulsory nonsuit.
In another issue, the plaintiffs argue that Sylvester should not have allowed the alternative juror to sit with the eight-member jury. Plaintiffs’ counsel said in their post-trial motion that, because the motion was made by Abex’s counsel in front of the jury, “this ploy was a deliberate intent to embarrass the court and plaintiff’s counsel into agreement with Abex’s counsel to seat the alternate juror after ex parte contact. Having sat together as a jury, plaintiffs were afraid that objection to this suggestion would prejudice the jurors against plaintiffs as the jurors would feel that plaintiffs were being unfair and unreasonable if they objected.”
The alternate juror was elected as the foreman, the plaintiffs’ papers said, and “two of the duly certified jurors [of nine] did not agree to the verdict when polled so only six of the duly certified jurors actually joined in the vote,” the plaintiffs’ papers said.
The plaintiffs also said in their post-trial brief that they should not have been barred from proceeding on a negligence theory in addition to the strict liability theory.
Honeywell’s attorneys also included Kevin Hexstall of Marshall Dennehey Warner Coleman & Goggin and Bruce T. Bishop of Willcox & Savage in Norfolk, Va.
Ford also was represented by Joseph F. Lagrotteria of Leclair Ryan in Newark, N.J.
Pneumo Abex also was represented by John R. Brydon of Brydon Hugo & Park in San Francisco.
Griffith and Caffrey declined comment. A Honeywell corporate spokeswoman did not respond to a request for comment.
Hanna, an attorney for Pneumo Abex, could not be reached for comment.
Fellow plaintiffs’ counsel were Maune Raichle Hartley French & Mudd.
The jury issued its verdict Feb. 24.