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From Products Liability Law Daily, April 20, 2015

Crane can’t shake $4.8M award to women whose husbands died from asbestos exposure

By Pamela C. Maloney, J.D.

An attempt by a manufacturer of asbestos-containing products to set aside jury verdicts in the amount of $2.5 million and $2.3 million to two women whose husbands had contracted asbestos-related malignant mesothelioma after exposure to its products on the basis that the failure-to-warn jury instruction was inappropriate in light of Pennsylvania’s rejection of the Restatement (Third) of Torts: Products Liability was denied by the Superior Court of Pennsylvania. The court also rejected the manufacturer’s claim that these verdicts should have been offset by recoveries obtained from settling non-party tortfeasors in order to prevent the women from recovering damages in excess of the full amount of their damages (Amato v. Bell & Gossett, April 17, 2015, Lazarus, A.).

Background. This consolidated action in two asbestos-related lawsuits involved two workers who, while employed as boilermakers, had been exposed to Cranite, a sheet gasket material which Crane Company had purchased from another manufacturer for use in its business. One of the workers, Thomas Amato, had been employed at the Philadelphia naval shipyard, and the other, Frank Vinciguerra worked as a sheet metal worker at E.I. DuPont de Nemours and Co.’s Chambers Works plant in Deepwater, New Jersey. After determining that exposure to Cranite was the factual cause of each of the worker’s mesothelioma, the jury awarded Amato and his wife $2.5 million in damages and awarded Vinciguerra’s estate $2.3 million. Crane appealed the verdicts on a number of grounds.

Failure-to-warn instruction. The crux of the manufacturer’s challenge was that the trial court’s failure-to-warn jury instruction was inappropriate in light of the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) [see Products Liability Law Daily’s November 21, 2014 analysis], in which the court declined to adopt the Restatement (Third), and overruled its decision in Azzarello v. Black Brothers Co., 391 A.2d 1020 (Pa. 1978), which had created a strict separation between negligence and strict liability theories under Pennsylvania law. The manufacturer had submitted a proposed failure-to-warn jury instruction that incorporated a reasonableness test, arguing that a consideration of the reasonableness of its conduct was proper under the Restatement (Second), which was the law at the time of trial. The trial court declined to issue that instruction, giving one of its own instead.

On appeal, the manufacturer argued that the trial court’s failure-to-warn instruction did not permit consideration of whether the absence of a warning rendered its product “unreasonably dangerous,” and thus, did not comport with Tincher. The manufacturer also claimed that it was entitled to a “state of the art” jury instruction, which would permit the jury to make a determination as to the reasonableness of the manufacturer’s action, i.e., its failure to warn, based solely upon whether the risk inherent to asbestos was known or knowable in light of the scientific knowledge available at the time the product was sold.

After determining that the manufacturer had preserved its failure-to-warn jury instruction argument for appellate review, the court instructed that although Tincher was a design defect case, the decision in that case provided a “road map” for navigating the broader world of post-Azzarello strict liability law in the state. The court went on to find that the manufacturer’s requested instruction was not justified by its theory of the case and the evidence presented at trial. The manufacturer’s defense was not that Cranite was not unreasonably dangerous but rather that it was not dangerous at all. The manufacturer would have no need for a state-of-the-art instruction as to the foreseeability of the risks or the reasonableness of its conduct because, under its theory of the case, there was no risk, and, thus, warnings were not required.

Reduction in jury verdict. In rejecting the manufacturer’s argument that the trial court should have ruled either that the workers and their estates were not entitled to recover additional sums from the manufacturer or that the verdict should have been offset to reflect recoveries obtained from non-party tortfeasors, the appellate court held that the manufacturer’s liability was not predicated upon the liability of any third party. According to the appellate court, the manufacturer’s liability was based on the deleterious effects its own products had upon the workers and their estates. Furthermore, the manufacturer failed to demonstrate that Pennsylvania law requires the offset of settlement funds provided by non-parties not determined to be joint tortfeasors.

Expert testimony. The trial court’s exclusion of testimony by the manufacturer’s psychology expert regarding human cognitive ability and related scientific studies to refute identification testimony by the workers regarding presence of Granite in their respective workplaces was proper. The state supreme court had “clearly and repeatedly” held that credibility questions could not be the subject of expert opinion testimony. In this case, the expert’s testimony would not have aided the jury in evaluating the reliability of the workers’ identification statements or those offered by co-workers. The members of the jury were able to draw upon their common knowledge and experience, aided by cross-examination, to evaluate the reliability of the identification testimony and introduction of the expert’s testimony would have infringed on the jury’s basic function in that regard.

Dual recovery under wrongful death/survival statutes. With regard to the Vinciguerra verdict, the court also clarified that the jury’s award of loss-of-consortium damages under the state’s Wrongful Death Act and under the Survival Act were not duplicative. Damages awarded under the wrongful death statute are intended to compensate the decedent’s enumerated family members for damages arising as a result of the death. On the other hand, the Survival Act compensates a surviving spouse for pre-death loss of services, society, and conjugal affection.

The case is No. 2344 EDA 2013.

Attorneys: George D. Bruch, Jr. (Swartz Campbell LLC), and Nicholas P. Vari (K&L Gates LLP) for Crane Co. Benjamin Peter Shein (Shein Law Center, Ltd.) for Thomas Amato, and Charlotte Vinciguerra et al.

Companies: Crane Co.

MainStory: TopStory WarningsNews ExpertEvidenceNews DamagesNews AsbestosNews PennsylvaniaNews

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