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From Products Liability Law Daily, October 11, 2013

Review of $9.5 million award in asbestos exposure case denied

By Pamela C. Maloney, J.D.

In a one-sentence order, the Pennsylvania Supreme Court has denied an appeal by a manufacturer of asbestos-containing welding rods challenging a $952,281.68 damage award entered against it in favor of a welder who died from an asbestos-related illness  (Wolfinger v. 20th Century Glove Corp. of Texas; Petition of : The Lincoln Electric Co., October 10, 2013). The judgment included the verdict award of $825,000 plus $127,281.68 delay damages.

Background. A welder, Robert Wolfinger, filed an asbestos product liability against a number of defendants, including The Lincoln Electric Co., a manufacturer of welding rods, alleging that he developed asbestos-caused Pleural Thickening as a result of his exposure to their products that contained asbestos. The jury determined that Lincoln’s asbestos-containing welding rods were defective and a factual cause of the welder’s illness. On appeal, Lincoln challenged the admissibility of the worker’s causation expert, the use of lay testimony to establish exposure to its products, and the exclusion of evidence supporting Lincoln’s defense that the welder had been exposed to products manufactured by bankrupt companies. The Pennsylvania Superior Court, in a non-precedential decision, affirmed the judgment and Lincoln appealed

Expert testimony. Lincoln challenged the welder’s causation expert’s testimony on the ground that the expert had offered a broad-scale opinion applicable to anyone inhaling a single asbestos fiber, even though he acknowledged that asbestos diseases are dose-responsive. However, the court declared that the expert’s each and every breath theory of general causation was not proffered on its own to establish substantial factor causation of the welder’s illness and death from exposure to Lincoln’s products. Other evidence,  including the welder’s own testimony, was considered by the jury in determining whether the welder’s exposure to respirable asbestos fibers from Lincoln’s welding rods was a substantial factor in causing the welder’s injuries.

The court also explained that the expert’s testimony that each exposure to respirable asbestos fibers contributed to asbestos-caused diseases addressed general cumulative causation and was relevant to, but not dispositive of, the issue of substantial factor causation from Lincoln’s products. Furthermore, these opinions were offered in response to hypothetical questions posed based on the particular circumstances frequency, and duration of the welder’s exposure to asbestos fibers from Lincoln’s products. His responses were also grounded in his experience with welders, asbestos-containing welding products, epidemiological studies, and encapsulation methods. Thus, the trial court did not abuse its discretion in admitting the causation expert’s testimony.

Lay testimony regarding exposure. Lincoln insisted that the welder’s own testimony about his exposure to “dust” from his handling and use of welding rods manufactured by Lincoln was not legally sufficient to prove inhalation of respirable asbestos fibers and could not support the hypothetical questions posed to the causation expert. Citing Pennsylvania precedent, the court held that the estate had supplied the jury with the worker’s full history of exposure to Lincoln’s products together with his expert’s opinion about general and substantial factor causation and that this was sufficient to prove the estate’s case. Lincoln’s argument that its products contained only encapsulated asbestos incapable of releasing respirable asbestos fibers was a defense that had been fully presented to the jury and the jury was free to weigh, accept or reject the evidence supporting that defense.

Evidence relating to bankrupt defendants. The court also determined that the trial court’s refusal to allow the jury to consider the welder’s exposure to asbestos from products of bankrupt companies in order to establish the relative culpability of those companies in causing the welder’s illness was proper. The jury could make no determination in connection with the liability of those companies; the proposed evidence was not relevant to Lincoln’s liability, which was based on the welder’s exposure to asbestos from Lincoln’s welding rods; and Lincoln’s insistence that the welder could not have been exposed to asbestos from its products was a defense not dependent on possible exposure to other products. In response to Lincoln’s argument that the verdict should have been set-off by the amount of payments received from any bankruptcy trusts, the court explained that the record contained insufficient facts upon which to mold the verdict in such a manner.

The case number is: 283 EAL 2013 (Pa. Sup Ct.); 1393 EDA 2011 (Pa. Super. Ct.)

Attorneys: Eliot B. Present (Paul, Reich & Meyers PC) for Michelle Wolfinger. John Jacob Hare (Marshall, Dennehey, Warner, Coleman & Goggin P.C) for The Lincoln Electric Co.

Companies: The Lincoln Electric Co.

MainStory: TopStory ExpertEvidenceNews EvidentiaryNews AsbestosNews PennsylvaniaNews

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