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ARTICLE ID 41343

$________ - PRODUCTS LIABILITY - ASBESTOS ACTION - REVERSE BIFURCATION - DAMAGES ONLY - NEGLIGENT DISTRIBUTION OF PRODUCT - FAILURE TO WARN - THREE PLAINTIFFS - BI-LATERAL PLEURAL THICKENING AND ASBESTOSIS.

Philadelphia County

This consolidated asbestos action was brought by three plaintiffs who claimed that they sustained asbestos related injuries as a result of exposure to asbestos products during the course of their employment. These plaintiffs claimed that the defendant asbestos manufacturers were negligent in the distribution of asbestos products and failed to warn of dangers of asbestos exposure. The first plaintiff, a 63-year-old male, claimed pleural thickening and asserted that from ________ through ________, he was employed at the Philadelphia Naval Shipyard as a shipwright building platforms and staging for other trades. The second plaintiff, a 65-year old male, claimed pleural thickening and asbestosis and asserted that he was also employed at the Philadelphia Naval Shipyard from ________ through ________ and had worked as a service electrician providing service and ventilation to different trades working on the ship. The third plaintiff, a 45- year-old male, also claimed pleural thickening and asbestosis and asserted that he was an assembly line worker and tank cleaner from ________ through ________ during which time he was involved with the manufacturing of ovens coated with asbestos.

The first plaintiff’s expert pulmonologist testified that a series of x-rays taken during this plaintiff’s employment from the ________’s until ________, as well as x-rays that he took during his evaluation of the plaintiff, demonstrated bi-lateral pleural thickening. This expert asserted that there was no progression, but that the plaintiff was at an increased risk of developing lung cancer or mesothelioma. This plaintiff’s expert radiologist also reviewed the series of x-rays taken throughout the ________’s and ________’s and also concluded that these x-rays evidenced bi- lateral pleural thickening. Both experts distinguished bi-lateral pleural thickening as not resulting from trauma or infection. It was also asserted that bi-lateral pleural thickening can cause shortness of breath and in rare instances can cause death if the lung becomes entrapped. This plaintiff did not retire due to disability and did not allege a physical impairment. This plaintiff testified that he had a fear of developing lung cancer due to his observation of co-workers with more than 30-years of asbestos exposure succumbing to the disease and by his discussions with physicians who indicated that there was a possibility of him developing lung cancer. There was also testimony from this plaintiff’s wife concerning his fear of developing cancer and his preoccupation of what would happen to her in the event of him becoming seriously ill.

The expert pulmonologist who testified for the three plaintiffs utilized a videotape describing the general medical conditions associated with asbestos exposure. He described the process of inhaling fibers which penetrate the lung and lodge in the pleura causing pleural thickening. It was explained to the jury that when asbestos fibers lodge in the lung itself it can cause the individual to develop asbestosis. This expert asserted that the body’s defense mechanism will give off a chemical that will rid the body of many of these fibers, but that many will remain. This expert further explained that asbestos related diseases are progressive, that there is no treatment or cure, and that there is no way to arrest the progression. He further asserted that the extent of progression in an individual was unpredictable.

The defendant asbestos manufacturer’s expert pulmonologist testified that he reviewed the same set of x-rays taken of the first plaintiff throughout the ________’s and ________’s as well as a CT scan taken in ________. This expert asserted that if one were to look only at the x-rays, it would appear that this plaintiff sustained bi-lateral pleural thickening related to asbestos exposure.

However, he contended that the CT scan indicated that there were no asbestos related abnormalities, but rather that the CT scan showed rib shadows that could be misinterpreted as pleural thickening.

In the case of the second plaintiff, the expert pulmonologist testified that he had been this plaintiff’s treating physician for 12 years and asserted that this plaintiff sustained pleural thickening and asbestosis. This expert asserted that breathing tests taken between ________ to the present evidence a restrictive pattern indicative of asbestosis. This expert and treating pulmonologist attributed this plaintiff’s breathing problems to asbestosis and an asthma condition. The expert also asserted that this plaintiff was at an increased risk of developing lung cancer due to his subject condition. The second plaintiff testified that he was restricted in his activities and that he could no longer enjoy his life as his condition worsened. He testified that he no longer engaged in marital relations with his wife due to the nature of his breathing problems and that he was preoccupied with dying and developing cancer. This plaintiff’s wife testified that her husband no longer helped around the house and that he withdrew from her both emotionally and physically.

In respond to the second plaintiff’s contentions, the defendant asbestos manufacturer’s expert pulmonologist testified that this plaintiff did, in fact, evidence asbestos related pleural thickening, but that he did not suffer from asbestosis. This expert asserted that he performed breathing tests, reviewed breathing tests performed by plaintiff’s pulmonologist, and reviewed x-rays. The expert further asserted that since this plaintiff did not suffer from asbestosis, he was not at an increased risk for developing lung cancer. He further attributed this plaintiff’s breathing problems to his previous smoking habits and that his breathing problems were due to an obstructive disease process. The second plaintiff countered that he had been a moderate smoker and had quit smoking ten years prior to trial.

The third plaintiff, in whose case New Jersey law applied, asserted that he sustained pleural thickening and asbestosis as a result of his exposure. This plaintiff left his subject job as an assembly line worker and tank cleaner and became a school bus driver due to his illness. The plaintiffs’ expert pulmonologist testified that breathing test revealed a restrictive pattern and that the plaintiff’s breathing problems were a result of occupational asthma and asbestosis. This plaintiff was permitted only to allege a fear of developing cancer. The third plaintiff testified as to the limitation in his activities which included participating in activities with his sons and being unable to continue as a volunteer fire fighter due to his breathing problems. This plaintiff further testified that his wife had to become the primary source of income, that they had to sell their house and move into an apartment, and that this situation diminished his self-esteem. His wife testified as to the restrictions her husband experiences as a result of the disease.

The defendant asbestos manufacturer’s expert pulmonologist testified that he reviewed x-rays, breathing tests, and performed a physical examination on the third plaintiff and concluded that this plaintiff did not suffer from any asbestos related conditions or disease process. This expert also believed that there was no basis for this plaintiff to experience a fear of developing cancer. The jury found for all plaintiffs. The first plaintiff was awarded $________, the second plaintiff was awarded $________ and his wife was awarded $________ for loss of consortium, and the third plaintiff was awarded $________ and his wife was awarded $________. Liability as to product identification, product exposure and product contribution to the claimed conditions, and lack of warning was stipulated subsequent to the jury verdict. Each of the defendants was found liable for 10% of the award. Other defendants settled prior to trial.

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