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Defense Verdict In Peritoneal Mesothelioma Trial In Philadelphia County
02/27/10
Contact
Peter J. Neeson
(215) 575-4320
A Publication of Rawle & Henderson LLP
PENNSYLVANIA
Abestos – Defense Verdict
By: Kevin E. Hexstall and Scott F. Griffith
Rawle & Henderson LLP Partner Kevin E. Hexstall and Counsel Scott F. Griffith recently attained a defense verdict on behalf of Honeywell International Inc., successor in interest to Bendix brakes, in a peritoneal mesothelioma case tried before a jury and the Honorable Stephen E. Levin in the Court of Common Pleas, Philadelphia County.
The case, captioned Shiel v. Honeywell International, Inc., et. al, was filed in October 2006 by Richard Shiel and his wife Joan, following his diagnosis of peritoneal mesothelioma, a cancer of the lining of the abdominal cavity. The complaint alleged that Shiel was exposed to asbestos containing materials, specifically Bendix automobile brakes. Shiel maintained that he had worked since age 11 or 12 assisting a family friend in changing brakes on stock cars, which were raced in the Erie, Pennsylvania area during the years 1955 to 1966. Shiel stated that he had performed approximately 25 to 35 brake jobs on those stock cars over that period. Shiel then continued to work on his own personal vehicles, performing another 10 to 15 brake jobs until 1977.
Shiel was diagnosed with peritoneal mesothelioma in April of 2006. He died in January of 2008 at age 62. After his death, the complaint was amended to reflect an action for wrongful death and for survival by his estate, of which his wife Joan was the personal representative. The complaint sounded in strict liability and negligence, and was premised on the failure of Bendix to warn of the hazards of asbestos, along with general design defect claims.
Peritoneal mesothelioma is perhaps the most rare of all mesothelioma, with only approximately 250 cases diagnosed per year in North America. Pleural mesothelioma, found in the lining of the lung pleura, is likewise rare, with only about 2500 cases diagnosed yearly. It had been generally held by the scientific and medical community that mesothelioma is caused primarily by exposure to asbestos. However, recent developments in the science have demonstrated that the type of asbestos to which an individual is exposed is critical to a determination of causation.
There are two categories of asbestos. The first, known as serpentine asbestos, is found in chrysotile. Bendix used chrysotile to manufacture its brake linings in the 1930’s through the 1980’s. Chrysotile is known as the “white” fiber asbestos. The second category is amphibole asbestos, comprised of five different types, including amosite and crocidilite, which are found in products like pipe covering, foundry brick and asbestos cement. Amosite is generally known as the “brown” fibers. When brown fibers are inhaled or ingested, they are not easily expelled from the lungs. Science has shown that amosite exposure and inhalation results in the fibers staying in the body for some 20 years or more. Chrysotile fibers are easily expelled through simple coughing, and generally stay in the body, if at all, for a period of less than 90 days. The chrysotile in brake dust is predominantly small fibers less than 5 microns in length.
The prevailing scientific and medical view is that full time brake mechanics are not at an increased risk of developing mesothelioma, either pleural or peritoneal, as a result of exposure to used brake dust. Epidemiological studies of tens of thousands of brake workers across the globe show no increased risk. The scientific and medical community believe these studies to be true based largely on the fact that science has shown that 99% of the dust from used brakes is asbestos free. Based on the heat transfer that is occasioned in the working of the brakes to stop the vehicle, the asbestos lining of the brakes is transformed into a chemical composition that includes fosterite, which has no carcinogenic effect.
Shiel had testified during a December 2006 videotaped trial deposition to preserve his testimony following his diagnosis that his work with Bendix brakes was in removing the brake drum on each of the wheels of the vehicle, spraying out the dust from the used brakes with an air compressor, and then installing new Bendix brakes, which he did not grind or sand in any way. He stated that his only exposure to asbestos containing materials had come from working on the stock cars and his personal vehicles, and that his exposure included valve gaskets, clutches, and Bendix brakes. Shiel stated unequivocally that he had not been exposed to asbestos during the course of his full time work from 1967 to 1977 at a local porcelain enameling plant, or at any of his other retail based jobs throughout his career, which included work as a dog groomer, an automobile rust proofing applicator, an ice cream shop owner, and as part of the retail sales team at the local Walmart, from which he retired in 2005.
Faced with this limited information, Hexstall and Griffith, sought to investigate Shiel’s claims of limited asbestos exposure. Knowing what the scientific and medical communities believed about brake mechanics, and knowing the limited number of brake jobs Shiel had performed - which occupationally put him at approximately two weeks of full time exposure - they knew there must be other exposure about which they were not being told. They turned first to an investigation of those companies who had manufactured asbestos containing products who had gone into bankruptcy, and who had bankruptcy trust funds to which a plaintiff such as Shiel could have made application. They found that Shiel had indeed made application to three bankruptcy trusts: Johns Manville, National Gypsum Corporation, and Amatex Corporation, for exposures he alleged to products while working at the porcelain enameling plant from 1967 to 1977. They found that the Amatex Trust application had been signed, sworn and verified some three weeks before his deposition where, when asked, Shiel denied exposure. Each of these corporations were well known manufacturers of amphibole asbestos products, including pipe covering, furnace brick and cement.
In a series of pretrial motions, Hexstall and Griffith argued for the admission of the bankruptcy trust documents to prove Shiel’s alternative exposure history and to use the documents as impeachment of his videotaped trial testimony. In defending the asbestos medical causation, they sought to argue the complex theory of “dose-response”: that in order to have an asbestos related disease, Shiel needed to have been exposed to asbestos containing products with sufficient frequency, regularity, and amount. Crucial to this argument was that Shiel had exposure to amphibole asbestos, which was the medical cause of his peritoneal mesothelioma. They further sought to limit the plaintiff’s expert testimony concerning the “every exposure” theory of causation, which states that every exposure to asbestos containing products is a causative factor in the development of disease. They relied upon the September 2008 decision of the Honorable Allen L. Tereshko of the Philadelphia Court of Common Pleas, who, after extensive hearings on the issues, issued an exhaustive opinion granting the Frye motion of friction defendants such as Bendix on the “every exposure” theory.
The trial, which lasted 10 days, was tried as a reverse bifurcation, and was composed of two phases. Honeywell was the only defendant at trial. The first phase involved a determination by the jury of medical causation and monetary damages. Prior to the commencement of Phase I, Judge Levin refused to follow the Tereshko ruling and denied the motion to preclude the plaintiff’s expert testimony under Frye. Levin also denied the Bendix motion to admit the bankruptcy trust documents. The jury found that exposure to asbestos generally caused Shiel’s peritoneal mesothelioma and awarded $732,000 to the Shiel estate.
The trial proceeded to the second phase, where the jury was called upon to resolve the question of whether exposure to Bendix brakes was a factor in causing Shiel’s peritoneal mesothelioma. Prior to Phase II, Judge Levin granted the motion to permit the use of the bankruptcy trust documents. In his opening statement, Griffith showed the jury the bankruptcy trust documents, setting the stage for his closing argument that Shiel had not been truthful and that the dose of asbestos to which Shiel had been exposed was to amphibole asbestos that caused his disease. After only two hours of deliberation, the jury returned a defense verdict for Bendix on the issue of product liability and erased their earlier monetary award.
Kevin E. Hexstall is a partner in Rawle & Henderson’s Philadelphia office and Chairman of the Firm’s Criminal Defense section. In addition to handling the Firm’s criminal matters, Mr. Hexstall is also very involved in the litigation of trials involving environmental, toxic and mass torts. Kevin has successfully defended corporations in multi-million dollar wrongful death cases involving premises claims of exposure to asbestos and other chemicals.
Kevin is very experienced and active in the defense of universities, colleges, convenience stores and other establishments in claims involving premises liability, product liability, negligent hiring/supervision and general tort claims of negligence.
Kevin represents NBA and NFL athletes, as well as entertainers in civil and criminal matters.
Kevin can be reached at: 215-575-4415 • fax: 215-563-2583 • email: khexstall@rawle.com
Scott F. Griffith is Of Counsel in Rawle & Henderson’s Philadelphia office and concentrates his law practice in the areas of general litigation matters, including products liability, white collar crime and environmental, toxic and mass tort law.
He received his Juris Doctor from Temple University School of Law in 1993 and received his Bachelor of Arts degree from Hofstra University in 1987. He is admitted to practice in Pennsylvania, New Jersey and New York as well as the U.S. Court of Appeals for the Third Circuit; U.S. District Court for the Eastern and Middle Districts of Pennsylvania and the U.S. District Court of New Jersey.
Scott can be reached at: 215-575-4323 • fax: 215-563-2583 • email: sgriffith@rawle.com
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