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ARTICLE ID 41285

$________ TO INITIAL PLAINTIFF - MINIMALASBESTOSIS - $________ FOR FEAR OF CANCER TO DECEDENT DYING FROM UNRELATED CAUSES THREE YEARS AFTER ADVISEMENTS OF ASBESTOS RELATED PLEURAL PLAQUE - CONSOLIDATED CASE.

Phila. County

This was a consolidated asbestos exposure case involving two plaintiffs which was tried on a reverse bifurcation basis. The initial plaintiff, currently 60, contended that he sustained minimal asbestosis and pleural thickening, both of which are asymptomatic, an increased risk of lung cancer and fear of future cancer. The second case involved a decedent who died from unrelated causes three years after he was advised that he had asbestos related pleural plaque, and the plaintiff in this aspect made a claim for fear of cancer during this period. The plaintiff had initially named 12 asbestos defendants and the cases against nine of these defendants settled prior to trial. Following the damages phase, all but one of the three remaining defendants settled.

The initial plaintiff who contended he sustained minimal asbestosis, maintained that he had been exposed to asbestos from the mid-________’s through the early ________’s while working in naval ship yards. This plaintiff, who worked as a pneumatic tool operator, generally worked indirectly with asbestos and contended that he was frequently exposed as a bystander to other employees working directly with the product in close proximity to him. This plaintiff also contended that occasionally, he would be required to work directly with the asbestos. The plaintiff’s pulmonary expert and radiologist contended that based upon the x-rays, this plaintiff sustained pleural thickening and minimal asbestosis.

The plaintiff conceded that the alleged asbestosis is not currently symptomatic and it was also undisputed that the pleural thickening was asymptomatic. This plaintiff’s experts contended that the asbestosis could well become symptomatic in the future and that the plaintiff will be subject to progressively deteriorating shortness of breath. The plaintiff’s experts further contended that the asbestos exposure placed the plaintiff at heightened risk of developing lung cancer in the future and this plaintiff also testified as to some fear regarding future cancer. This plaintiff is a cigarette smoker who continues to smoke approximately one pack of unfiltered cigarettes per day.

The plaintiff’s experts contended that the cigarettes and asbestos exposure create a synergistic affect, rendering the chances of future cancer significantly greater than that stemming from either risk factor itself. The plaintiff argued that he has tried to quit, but has found it impossible to do so and further contended that he has been subjected to such synergistic affect partially as a result of the involuntary exposure caused by the defendants’ products.

The defendant’s pulmonary expert denied that the x-rays revealed asbestosis and contended that in the absence of asbestosis, there was no increased risk of future cancer. The plaintiff’s expert had contended that irrespective of the presence or absence of asbestosis, the exposure in-and-of itself would place the plaintiff at a heightened risk. The defendants further contended that even if a worker had asbestosis, the statistics regarding increased risk discussed by the plaintiff’s expert would not apply to such bystander exposure. The plaintiff’s experts countered that the employees of a naval ship yard work in very close proximity to each other and that even workers who are not working directly with the product are exposed to extensive amounts of asbestos. The experts contended that although no specific studies relating to bystanders have been conducted, it was highly likely that such bystanders would remain at a substantially increased risk. The defendants contended that in view of the fact that the plaintiff continues to smoke cigarettes, any claim of a fear of future cancer should be rejected. The plaintiff countered that in view of his difficulties in giving up cigarettes, his continuation of the habit did not reflect an absence of fear of future cancer.

The plaintiff also contended that the jury should consider that he was not provided a choice regarding the unwitting asbestos exposure. This plaintiff continues to work and no economic claims were made.

The co-plaintiff contended that the x-rays of the decedent revealed an area of pleural scarring which the plaintiff’s pulmonary expert contended was caused by asbestos exposure. The decedent was a rigger who primarily moved equipment. The plaintiff contended that he was regularly exposed as a bystander and also maintained that he would occasionally come in direct contact with asbestos when moving items. The plaintiff’s experts conceded that the alleged pleural thickening was asymptomatic.

The plaintiff contended, however, that when the decedent was advised of an asbestos related finding and that he was subjected to an increased risk of cancer, he suffered anxiety and the claim of this plaintiff was limited to such fear of cancer. The defendants expert radiologist denied that the x-rays revealed any asbestos related scarring and the defendants contended that in the absence of any asbestos related findings, there was no compensable basis for a claim of fear of cancer. The defendant also contended that the decedent had other extensive health difficulties, including advanced emphysema caused by smoking and maintained that any fear of health difficulties were unrelated to the asbestos exposure. The evidence revealed that the decedent died from acute cardiovascular collapse.

At the subsequent liability trial, the one non-settling remaining defendant denied that the plaintiffs were exposed to its product, contending that it would be cost prohibitive for it to ship its asbestos insulation from the west coast to the east coast and that as a result, very little of its product would ultimately be found in the east. The plaintiff presented two product identification witnesses who maintained that they observed this defendant’s products in areas in which the decedent contended he worked. The jury assessed 1/12th liability against this non-settling defendant.

The jury in the previous damages and causal relationship phase awarded $________ to the plaintiff suffering minimal asbestos and $________ to the co-plaintiff decedent. Plaintiff’s expert pulmonologist: William Fineman from Phila. Plaintiff’s expert radiologist: Richard Levine from Elkins Park. Defendants’ expert radiologist: Wallace Miller from Phila. Defendants’ expert pulmonologist: Theodore Rodman from Phila. Roane and Juliano, et al. vs. Celotex, et al., Case nos. July ________ no. ________ and July ________ no. ________; Judge Sandra Mazer Moss, 4-12-90. Attorneys for plaintiff: David Winkler and Robert Mareno; Attorney for defendant settling after damages case: William Banton; Attorney for co-defendant: Richard Wentley of Pittsburgh.

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