Date of Verdict: March 12.
Court and Case No.: C.P. Philadelphia No. 101101848.
Judge: Victor DiNubile.
Type of Action: Wrongful death; products liability.
Injuries: Death; mesothelioma.
Plaintiffs Counsel: Lawrence Cohan and David Carney, Anapol Schwartz, Philadelphia.
Defense Counsel: Robert P. Corbin and Tiffany Giangiulio, German Gallagher & Murtagh, Philadelphia.
Plaintiffs Experts: Dr. Arthur Frank, occupational medicine specialist, Drexel University; Dr. Harvey Spector, pathologist, Crozer-Keystone Health System; Neil Jurinski, industrial hygienist, Maryland.
Defense Experts: Charles Blake, industrial hygienist, Atlanta.
Comment: A Philadelphia jury awarded $7.2 million against nine companies whose products were allegedly used by a shipfitter whose estate claimed his exposure to the asbestos-containing products caused the man’s mesothelioma and death.
With eight of the nine defendants settling before or during trial, the sole defendant, RSCC Wire and Cable, will be on the hook for one-ninth of the award, or approximately $805,000, the plaintiff’s attorney, Lawrence Cohan, said.
Edward Merwitz worked as a shipfitter at the Philadelphia Naval Shipyard from 1965 to 1971 before spending the rest of his career as a nurse anesthetist. He was diagnosed with mesothelioma in 2010 and died six months later at the age of 62.
Merwitz’s wife and administrator of his estate, Rosemarie Merwitz, filed the suit on his behalf against RSCC, which was listed on the verdict sheet as Rockbestos, and eight other companies: General Electric, Westinghouse, Greene Tweed, Buffalo Pumps, Blackmer Pumps, Warren Pumps, Square D and DeLaval Turbine. Cohan said all of those companies, with the exception of Rockbestos, settled before or during the trial.
All nine defendants were listed on the jury sheet and the eight jurors voted 7-1 in finding all of the defendants created products that were a substantial factor in causing Merwitz’s mesothelioma. The trial opened Feb. 27 and the jurors deliberated for about three hours March 12 before returning with their verdict.
The jury awarded about $3.6 million in Survival Act damages and about $3.6 million in wrongful-death damages, according to a copy of the verdict sheet provided by Cohan.
The case against Rockbestos presented challenges, Cohan said, because Merwitz was a shipfitter who didn’t deal directly with Rockbestos’ electrical wire products.
“Regular, frequent and proximate is a particularly daunting defense when you have a plaintiff who is a shipfitter” in a case against an electrical manufacturer, Cohan said.
Cohan was referring to the requirement in asbestos cases that the plaintiff prove he had regular, frequent and proximate exposure to a defendant’s asbestos-containing product. Cohan said Rockbestos argued Merwitz didn’t directly handle its product and so it couldn’t have been something he was regularly exposed to. Cohan said Merwitz had second-hand exposure to the product through being around other shipyard employees who were using the wiring.
There were three other main arguments at trial, Cohan said. Rockbestos first argued that the two plaintiff witnesses—former co-workers of Merwitz—didn’t correctly identify a Rockbestos product as the specific wiring product to which Merwitz was exposed.
The second battle, Cohan said, was over whether the type of asbestos fibers contained in Rockbestos’ product could actually cause mesothelioma. The fiber in wiring products, Cohan said, is known as chrysotile. He said there is a debate in the medical community as to whether that type of fiber causes mesothelioma. The parties’ respective experts came down on either side of the issue, and Cohan said the jury clearly believed the plaintiff’s argument that the fiber does cause mesothelioma.
The other defense in the case, Cohan said, was that the Rockbestos product did not give off enough asbestos fibers to have been a factor in Merwitz developing mesothelioma. Cohan said the defense wanted to point out that the asbestos levels were below the Occupational Safety and Health Administration requirements, but he said those requirements weren’t in place at the time Merwitz worked in the shipyard and aren’t relevant to the determination in this case.
“The battle is not over whether they meet some threshold limit value or permissible exposure level,” Cohan said. “It’s whether or not it gives off fiber above the ambient air levels.”
Defense attorney Robert P. Corbin did not return a call seeking comment.
—Gina Passarella, of the Law Weekly