Nelson, D. v. Airco Welders Supply , 107 A.3d 146 ( 2014 )

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2014 PA Super 286DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON PENNSYLVANIA
v.
AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
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INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
APPEAL OF: CRANE CO. No. 865 EDA 2011
Appeal from the Judgment Entered February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1335 Dec. Term 2008
DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON PENNSYLVANIA
v.
AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
2
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CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
APPEAL OF: HOBART BROTHERS CO. No. 866 EDA 2011
Appeal from the Judgment Entered February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1335 Dec. Term 2008
DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON PENNSYLVANIA
v.
AIRCO WELDERS SUPPLY, ALLIED
3
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SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
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CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
APPEAL OF: LINCOLN ELECTRIC CO. No. 867 EDA 2011
Appeal from the Judgment Entered February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1335 Dec. Term 2008
DARLENE NELSON, EXECUTRIX OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES NELSON, AND IN HER PENNSYLVANIA
OWN RIGHT,
APPELLANT
v.
AIRCO WELDERS SUPPLY, ALLIED
SIGNAL (A/K/A ALLIED CORP.),
AMERICAN STANDARD, A.W.
CHESTERTON, INC., BASIC, INC., BAYER
CROPSCIENCE, INC., (F/K/A AVENTIS
CROPSCIENCE, USA, INC.), ACHEM
PRODUCTS, INC., RHONE POULENC, AG
CO. AND BENJAMIN FOSTER COMPANY,
BEAZER EAST (A/K/A KOOPERS CO.,
INC. AND KOOPER), BIRD, INC., BOC
GROUP, BORG-WARNER CORP., BRAND
INSULATIONS, INC., CBS CORPORATION
(F/K/A VIACOM, INC. AND
WESTINGHOUSE ELECTRIC
CORPORATION), CERTAINTEED
CORPORATION, CHRYSLER CORP. (A/K/A
AMC, NORTHWEST AUTO RENTAL CO.
AND CHRYSLER SERVICE CONTRACT
CO.), CRANE CO., DEMMING DIVISION,
CRANE PACKING, ESAB WELDING AND
CUTTING EQUIPMENT, EJ LAVINO & CO.,
EUTECTIC CORP., FERRO ENGINEERING,
FORD MOTOR CO., FOSECO, INC.,
FOSTER WHEELER CORPORATION,
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GARLOCK, INC., GENERAL ELECTRIC
COMPANY, GENERAL MOTORS CORP.,
GEORGE V. HAMILTON, INC., GEORGIA-
PACIFIC CORPORATION, GOULD PUMPS,
INC., GREEN, TWEED & COMPANY, INC.,
HAJOCA PLUMBING SUPPLY COMPANY,
HARNISCHFEGER CORP., HEDMAN
RESOURCES LIMITED (F/K/A HEDMAN
MINES LTD.), HOBART BROTHERS CO.,
HONEYWELL INTERNATIONAL, INC.,
INGERSOLL RAND CO., JOY GLOBAL
INC., LINCOLN ELECTRIC CO., LUKENS
STEEL CO., MALLINCKRODT GROUP,
INC. (F/K/A INTERNATIONAL MINERALS
& CHEMICALS CORP.), MELRATH
GASKET, INC., MINE SAFETY APPLIANCE
(MSA), METROPOLITAN LIFE INSURANCE
COMPANY, NOSROCK CORPORATION,
OWENS-ILLINOIS, INC., PEP BOYS
(A/K/A MANNY, MOE AND JACK), UNION
CARBIDE CORP., UNIVERSAL
REFRACTORIES DIVISION OF THIEM
CORPORATION
No. 889 EDA 2011
Appeal from the Judgment Entered February 23, 2011
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 1335 Dec. Term 2008
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
ALLEN, J., OTT, J., WECHT, J., STABILE, J., AND JENKINS, J.
OPINION BY BENDER, P.J.E.: FILED DECEMBER 23, 2014
In this asbestos action, the parties appeal from the judgment entered
in Philadelphia County Court of Common Pleas in favor of Darlene Nelson,
both individually and as Executrix of the Estate of James Nelson, in the
amount of $14.5 million. Appellants/Cross Appellees consist of Crane Co.,
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Hobart Brothers Company, and Lincoln Electric Company (hereinafter, the
latter two will be referred to as “the Welding Companies”). Darlene Nelson
cross-appeals solely in her capacity as executrix. We vacate and remand for
a new trial consistent with the following opinion.
James Nelson developed mesothelioma, allegedly the result of
occupational exposures to various asbestos products during his career at
Lukens Steel Plant in Coatesville, Pennsylvania.1 He worked in several
capacities while employed at Lukens Steel. From 1973 until approximately
the end of 1978, James Nelson worked as a pitman, machinist’s helper, and
laborer. Thereafter, he worked as a welder from early 1979 until he left
Lukens Steel in 2006. After leaving Lukens Steel, he worked at Claymont
Steel as a maintenance mechanic until he was diagnosed with mesothelioma
in November 2008. James Nelson died in October 2009.
James Nelson and Darlene Nelson commenced this product liability
action in December 2008. Following James Nelson’s death, Darlene Nelson
was substituted as executrix. The Nelson case was consolidated with four
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1
The record in this case is voluminous, consisting of thousands of pages of
testimony and argument, and hundreds of pages of briefs submitted to this
Court. We have reviewed it thoroughly. In light of our disposition, however,
we will limit our discussion of the facts and procedure in a manner sufficient
to address the issues before us. As is readily apparent from the caption of
this case, Nelson initiated this suit against dozens of named defendants.
However, for various reasons not relevant to this appeal, only Appellants
remained at the close of trial.
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other actions in which plaintiffs had contracted mesothelioma, and trial
commenced in March 2010.2 As was common practice in Philadelphia
County at the time, the Court of Common Pleas determined to proceed with
a reverse bifurcated trial, over the objections of the Appellants.3
It was undisputed that Nelson was exposed to respirable asbestos
fibers during his career at Lukens Steel. During the first several years of his
employment, Nelson worked with and around significant quantities of
asbestos insulation. See, e.g., Nelson Video Deposition, 03/06/2009, at 21-
25 (describing the general work environment in the open hearth and electric
furnace areas of the steel plant and testifying that asbestos insulation dust
fell constantly from thousands of feet of steam piping with such intensity
that “[y]ou could hardly see in them buildings”).
Nelson also described his exposure to Appellants’ products. According
to Nelson, the “flux,” or outer coating, of welding rods used by him on a
daily basis would release dust when he removed them from a box or
otherwise manipulated them. Nelson used many different types of rods,
depending on availability and the type of job performed. It was
____________________________________________
2
Hereinafter, for convenience, we will refer to James Nelson and Darlene
Nelson, individually and as executrix of her husband’s estate, as “Nelson,”
unless it is necessary to distinguish between them.
3
Our review will proceed in a more traditional manner, discussing first
liability and then damages.
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acknowledged by the Welding Companies that certain rods manufactured by
Hobart and Lincoln contained encapsulated asbestos fibers until
approximately 1981. Nelson testified that airborne dust was visible, that it
would get on his work gloves, and that he inhaled the dust. Id. at 76-80.
While welding, Nelson also used a Crane Co. product known as
“Cranite,” a sheet gasket made of chrysotile asbestos. See, e.g., Notes of
Testimony, 03/17/2010, at 65-66. Nelson used Cranite for two “shielding”
purposes, either to protect plant equipment from overspray during spray
welding or to protect other workers from the flash of the welding arc. See
Nelson Video Deposition, 03/13/2009, at 187-89, 197-98. As needed,
Nelson used a utility knife to cut the Cranite sheet into a size useful for his
purposes, releasing visible dust into his work environment. Id. at 198-99.
In order to establish that Appellants’ products were a substantial factor
in causing Nelson’s mesothelioma, Nelson introduced the expert testimony of
pulmonologist, Dr. Daniel DuPont. Dr. DuPont was Nelson’s sole causation
witness during the liability phase of the trial. According to Dr. DuPont,
“[m]alignant mesothelioma occurs with significant asbestos exposure,”
which he defined as “[t]he inhalation of fibers above the negligible amount
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already contained in the environment.” DuPont Video Deposition,
03/11/2010, at 32, 50.4
Dr. DuPont acknowledged that he was not an expert in Appellants’
products and could not opine whether the products actually released
respirable asbestos fibers. See, e.g., id. at 23, 25, 81-82, 88-89, 121-122,
and 164. No evidence was introduced by Nelson to establish such release.
Nevertheless, in response to hypothetical questions crafted by counsel, in
which Dr. DuPont was asked to assume that any visible dust released by
Appellants’ products contained respirable asbestos fibers, Dr. DuPont
concluded that Nelson’s exposure to these products constituted a
substantial, contributing factor in causing his disease. See id. at 58-62.
In response, Appellants challenged Nelson’s contention that use of
their products resulted in significant exposure to asbestos. For example,
among the several expert witnesses to testify on behalf of the Welding
____________________________________________
4
Appellants filed motions seeking to preclude Dr. DuPont from testifying.
According to Appellants, Dr. DuPont premised his opinions on the so-called
“any-exposure” theory of causation. Appellants asserted that such
testimony was devoid of scientific support and impermissible under
Pennsylvania law, citing in support Gregg v. V-J Auto Parts, Co., 943 A.2d
216 (Pa. 2007). In the alternative, Appellants requested a Frye hearing,
asserting Dr. DuPont’s methodology was novel. See Frye v. U.S., 293 F.
1013 (D.C. Cir. 1923). After substantial argument, the trial court denied
Appellants’ motions. See N.T., 3/1/2010, at 28-57; N.T., 3/9/2010 a.m., at
109-17; N.T., 3/9/2010 p.m., at 36-79.
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Companies, Dr. John DuPont,5 a professor of materials science, explained
how asbestos-containing welding rods were manufactured and consumed by
the welding process. See N.T., 03/15/2010, at 66-75 (describing how
asbestos was encapsulated in “wet” sodium silicate and baked to produce a
ceramic-like material incapable of releasing asbestos fibers), 80-83
(explaining that the temperature of the welding arc is above 10,000 degrees
Fahrenheit, whereas steel melts at 2,700 degrees, sodium silicate melts at
about 1,650 degrees, and chrysotile asbestos fibers are destroyed at 1,500
degrees). Prof. DuPont concluded that it was scientifically impossible for
asbestos fibers to be released from an encapsulated flux and that the
temperatures involved in the welding process destroyed the encapsulated
fibers. Id. at 93.
The Welding Companies also presented expert testimony from Dr.
Mary Finn and Dr. Louis Burgher, who each testified, in part, to the absence
of an epidemiological association between the use of welding sticks and
mesothelioma. See N.T., 03/15/2010, at 59; N.T., 03/16/2010, at 27-31.
Nelson presented no testimony disputing this evidence. See, e.g., DuPont
Video Deposition, at 82, 88-89.
____________________________________________
5
John DuPont is the brother of plaintiff’s expert, Daniel DuPont. We will refer
to John DuPont as “Prof. DuPont.”
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For its part, Crane Co. focused on the form of asbestos fibers
contained in its product and the extent of Nelson’s exposure to it,
particularly in light of his cumulative exposure to numerous products over
his career at Lukens Steel. For example, forensic pathologist Dr. Michael
Graham distinguished several different types of asbestos fibers, including
crocidolite, amosite, and chrysotile fibers, suggesting that the latter
represented the least toxic form of asbestos. See N.T., 03/11/2010, at 92-
98.6 Dr. Graham concluded that Nelson’s disease was caused by his
substantial exposure to highly toxic, asbestos insulation products and not
exposure to Cranite sheet gasket. Id. at 142.
In addition, Mr. Charles Blake, an industrial hygienist, testified on
behalf of Crane Co. Mr. Blake testified that Cranite sheets contained
compressed chrysotile fibers that could not be released merely by handling
the product or using it as a free-standing shield and that Nelson’s infrequent
cutting of the sheets would not release asbestos fibers in quantities sufficient
to create any significant risk. N.T., 03/17/2010, at 70-72. Mr. Blake
similarly concluded that Nelson’s mesothelioma was the result of significant
exposure to amosite asbestos insulation and that his exposure to Cranite
was “not at all” a significant source of exposure. N.T., 03/17/2010, at 74.
____________________________________________
6
Cranite sheet gasket contained chrysotile asbestos. See supra.
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Crane Co. also sought to challenge the manner in which Nelson used
its product, soliciting testimony that the intended use of Cranite sheet
gaskets was to “produce gaskets for sealing [] fluid systems,” and not as a
welding shield. N.T., 03/17/2010, at 66. Nevertheless, Crane Co.’s proffer
of additional testimony to establish that Nelson’s use of Cranite was
improper was denied by the trial court. See N.T., 03/18/2010, 8-10; see
also N.T., 03/09/2010, at 95 (denying Crane Co.’s motion in limine
regarding unintended use of Cranite).7
At the close of the liability phase of the trial, the jury found Appellants’
products defective and that the products lacked any warning sufficient to
make them safe for use, thus imposing strict liability. During closing
arguments in the damages phase of the trial, Appellants objected to certain
remarks made by Nelson’s counsel on the ground that counsel had
improperly suggested to the jury a specific dollar amount for non-economic
damages. See N.T., 03/08/2010, 80-83. Appellants sought a mistrial,
which was denied by the trial court. See id. at 97. Thereafter, the jury
returned a verdict in favor of Nelson, awarding $1 million in stipulated,
economic damages to the estate, $1.5 million to Darlene Nelson for loss of
consortium, $7 million in non-economic damages pursuant to the Survival
____________________________________________
7
The trial court also declined Crane Co.’s motions for nonsuit and directed
verdict, denied Crane Co.’s request for jury instruction, and declined their
motions for JNOV or a new trial based on the intended use doctrine.
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Act and $5 million in non-economic damages pursuant to the Wrongful
Death Act. See 42 Pa.C.S. §§ 8301 (defining wrongful death action), 8302
(defining survival action).
All parties filed post-trial motions, which were denied by the trial
court. The Welding Companies and Crane Co. appealed; Nelson cross-
appealed. The parties submitted court-ordered Pa.R.A.P. 1925(b)
statements, and the trial court issued a responsive opinion.
The Welding Companies present the following issues for our review,
concisely restated as follows:
1. Whether the trial court erred in permitting Nelson’s expert,
Dr. Daniel DuPont, to testify premised upon the “any-exposure”
theory of causation;
2. Whether the court erred in holding that Nelson proffered
sufficient evidence to prove exposure to respirable asbestos
fibers released from their products;
3. Whether the court erred in denying a mistrial or not granting
a new trial where counsel for Nelson (1) improperly suggested a
specific amount of non-economic damages; (2) injected alleged
settlement discussions in his closing argument; (3) attributed
bad motives to the Welding Companies; and (4) further injected
conduct and punitive elements into a strict liability case; and
4. Whether the court erred in permitting reverse bifurcation and
consolidation of four unrelated mesothelioma cases.
See Welding Companies’ Substitute En Banc Brief, at 7-8.
Crane Co. presents the following issues:
1. Whether the court erred in holding that Crane Co. could be
held strictly liable where Nelson was neither an intended user of
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its product nor did Nelson use its product in an intended
manner;
2. Whether Nelson’s expert witness offered legally sufficient
causation testimony, in that it was premised upon an “any-
exposure” theory of causation;
3. Whether Nelson’s evidence was sufficient to meet the
requirements of the “frequency, regularity, and proximity” test;
4. Whether the court erred in conducting a consolidated and
reverse bifurcated trial;
5. Whether the court erred in permitting counsel for Nelson to
suggest a specific amount of non-economic damages or to
discuss the conduct of a defendant in a claim for strict liability;
6. Whether a plaintiff may recover all of the jury-awarded
damages from solvent defendants, and then recover additional
amounts, based upon the same injury, from “asbestos
bankruptcy trusts.”
See Crane Co. Refiled Original Brief, at 4-5.
Finally, Nelson presents the following issue:
1. Whether the court erred “in assigning a share of the judgment
to a defendant who, although adjudged a joint tortfeasor by the
jury, filed a bankruptcy petition before paying plaintiff any of the
agreed-upon settlement amount and before the court entered a
judgment.”
Nelson’s Substituted Brief (filed in response to Welding Companies’ appeal),
at 4; see also Nelson’s Substituted Brief (filed in response to Crane Co.’s
appeal), at 5.8
____________________________________________
8
In light of our disposition, the parties’ claims regarding recovery of
damages are moot. We will not address them.
(Footnote Continued Next Page)
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Appellants raise several challenges to the sufficiency of Nelson’s
liability evidence. We will first address Appellants’ assertions regarding
Nelson’s expert testimony.9 As noted previously, Nelson introduced
testimony from Dr. Daniel DuPont in order to establish that Appellants’
products were a substantial cause of Nelson’s mesothelioma. According to
Appellants, Dr. DuPont proffered an “any-exposure” theory of causation.
Appellants assert that the Pennsylvania Supreme Court has found such
causation testimony inadmissible in an asbestos action, citing in support
Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012),10 and Gregg v. V-J
Auto Parts, Co., 943 A.2d 216 (Pa. 2007).11
_______________________
(Footnote Continued)
9
Collectively, Appellants present similar arguments. Thus, we will not
distinguish between the Welding Companies and Crane Co. unless
warranted.
10
Betz was decided during the pendency of this appeal. “[A] party whose
case is pending on direct appeal is entitled to the benefit of changes in law[,]
which occur[] before the judgment becomes final.” Passarello v.
Grumbine, 29 A.3d 1158, 1164 (Pa. Super. 2011) (citations omitted),
affirmed, 87 A.3d 285 (Pa. 2014).
11
Appellants also cite Howard v. A.W. Chesterton Co., 78 A.3d 605 (Pa.
2013) (per curiam). Although Howard succinctly summarizes the law, its
precedential value is questionable. See Howard, 78 A.3d at 610 (Todd, J.,
concurring) (suggesting that the clarification of legal principles espoused by
the per curiam order was merely dictum). Accordingly, we will not rely upon
it.
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In relief, Appellants seek judgment notwithstanding the verdict (JNOV)
or, in the alternative, a new trial. The following standards apply.
In reviewing a motion for [JNOV], the evidence must be
considered in the light most favorable to the verdict winner, and
he must be given the benefit of every reasonable inference of
fact arising therefrom, and any conflict in the evidence must be
resolved in his favor. Moreover, a [JNOV] should only be
entered in a clear case and any doubts must be resolved in favor
of the verdict winner. Further, a judge's appraisement of
evidence is not to be based on how he would have voted had he
been a member of the jury, but on the facts as they come
through the sieve of the jury's deliberations.
There are two bases upon which a [JNOV] can be entered: one,
the movant is entitled to judgment as a matter of law, and/or
two, the evidence was such that no two reasonable minds could
disagree that the outcome should have been rendered in favor of
the movant. With the first a court reviews the record and
concludes that even with all factual inferences decided adverse
to the movant the law nonetheless requires a verdict in his
favor, whereas with the second the court reviews the evidentiary
record and concludes that the evidence was such that a verdict
for the movant was beyond peradventure.
Estate of Hicks v. Dana Cos., LLC, 984 A.2d 943, 950-51 (Pa. Super.
2009) (en banc) (quoting Fletcher-Harlee v. Szymanski, 936 A.2d 87, 93
(Pa. Super. 2007), appeal denied, 956 A.2d 435 (Pa. 2008), cert. denied,
129 S.Ct. 1581 (2009)).
Similarly, when reviewing the denial of a motion for a new trial,
we must determine if the trial court committed an abuse of
discretion or error of law that controlled the outcome of the
case.
Id. “When improperly admitted testimony may have affected a verdict, the
only correct remedy is the grant of a new trial.” Collins v. Cooper, 746
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A.2d 615, 620 (Pa. Super. 2000) (quoting Bucchianeri v. Equitable Gas
Co., 491 A.2d 835, 838-39 (1985)).
The guidance recently provided by the Pennsylvania Supreme Court in
Betz is clear and proves to be dispositive. In that case, the Supreme Court
considered the “admissibility of expert opinion evidence to the effect that
each and every fiber of inhaled asbestos is a substantial contributing factor
to any asbestos-related disease.” Betz, 44 A.3d at 30.12 The expert opinion
challenged was summarized in the following manner:
Asbestos-related mesothelioma, like other diseases induced by
toxic exposures, is a dose response disease: each inhalation of
asbestos-containing dust from the use of products has been
shown to contribute to cause asbestos-related diseases,
including mesothelioma. Each of the exposures to asbestos
contributes to the total dose that causes mesothelioma and, in
so doing, shortens the period necessary for the mesothelioma to
develop … [E]ach exposure to asbestos is therefore a substantial
contributing factor in the development of the disease that
actually occurs, when it occurs.
Id. at 31 (quoting Affidavit of John C. Maddox, M.D., 8/4/2005, at 12)
(emphasis supplied by the Betz Court).
The Supreme Court reviewed both the scientific support for the any-
exposure theory and the legal requirements of specific causation. Following
____________________________________________
12
Such opinion evidence is commonly referred to as the “any-exposure,”
“any-breath,” or “any-fiber” theory of legal causation. Id. at 30. As the
Supreme Court appears to have settled upon the “any-exposure”
terminology, we adopt it for our purposes. See id. at 52-58.
18
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a comprehensive analysis, the Supreme Court reiterated its observations set
forth in Gregg:
We appreciate the difficulties facing plaintiffs in this and similar
settings, where they have unquestionably suffered harm on
account of a disease having a long latency period and must bear
a burden of proving specific causation under prevailing
Pennsylvania law which may be insurmountable. Other
jurisdictions have considered alternate theories of liability to
alleviate the burden. Such theories are not at issue in this case,
however, and we do not believe that it is a viable solution to
indulge in a fiction that each and every exposure to asbestos, no
matter how minimal in relation to other exposures, implicates a
fact issue concerning substantial-factor causation in every
“direct-evidence” case. The result, in our view, is to subject
defendants to full joint-and-several liability for injuries and
fatalities in the absence of any reasonably developed scientific
reasoning that would support the conclusion that the product
sold by the defendant was a substantial factor in causing the
harm.
Id. at 56-57 (quoting Gregg, 943 A.2d at 226-27) (citations omitted). The
Court concluded that the any-exposure theory was “fundamentally
inconsistent with both science and the governing standard for legal
causation.” Id. at 57 (emphasis added).
In his attempt to dissuade this Court from rejecting Dr. DuPont’s
testimony, Nelson submits that his expert did not rely upon the any-
exposure theory. Rather, according to Nelson, “Dr. DuPont found as
causative only significant exposures, such as when a person inhales visible
dust from an asbestos-containing product. Thus, as Dr. DuPont’s testimony
was not dependent on an ‘each and every breath’ analysis, [Appellants’]
19
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argument … must be rejected out of hand.” Nelson’s Substituted Brief (filed
in response to Welding Companies’ appeal), at 18.13
Accordingly, we review Dr. DuPont’s testimony. As set forth above,
Dr. DuPont opined that mesothelioma occurs with “significant asbestos
exposure.” DuPont Video Deposition, at 32. In this context, he
acknowledged that asbestos is present in the ambient air but suggested that
the impact of such exposure is negligible. Id. at 33. In response to
counsel’s question, asking him to define “non-negligible exposure,” Dr.
DuPont replied, “Anything above ambient air in the opinion of many
publications.” Id. at 34. Thereafter, Nelson solicited the following
testimony from Dr. DuPont:
Q. All right. So now how do you make a determination?
What these folks have to do is they have to decide, did one
asbestos product cause these men to get the disease? Did two?
Did three? Did five? Did ten? Did all of them? What kind of
help can you provide in that area?
…
____________________________________________
13
The candor with which Nelson argues that his causation evidence does not
rely on the any-exposure theory is questionable, as it is at odds with the
position taken before the trial court. See, e.g., N.T., 3/9/2010 p.m., at 66
(joining in argument suggesting to the trial court that “the opinions having
to do with each and every exposure have been allowed in courts far more
exponentially more than the few cases … where it’s been excluded”); see
also Nelson’s Answer to the Welding Companies’ Miscellaneous Motion
(seeking to preclude Dr. DuPont from testifying), at 2 (“Where there is
competent evidence that one or a de minimus number of asbestos fibers can
cause injury, a jury may conclude the fibers were a substantial factor in
causing a plaintiff’s injury.”) (citation omitted in original).
20
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[A.] The help that I can provide is to say the following, it is
accepted or believed that there are no innocent respirable
asbestos fibers.
Id. at 43 (emphasis added). Dr. DuPont concluded, then, in the following
manner:
Q. … If I ask you now specifically, to a reasonable degree of
medical certainty what caused … Mr. Nelson to develop …
mesothelioma, please tell me your answer[.]
…
[A.] The inhalation of fibers above the negligible amount
already contained in the environment is the type of exposure
that causes this disease, and that all of the fibers involved in
that above the negligible amount, should be considered
substantial in their causation. And furthermore, no fibers can be
considered innocent or not involved with the understanding that
we’ve already talked about.
Id. at 49-50. And, finally;
Q. Did each individual exposure that [Nelson] had above a
non-negligible level, were [sic] [he] inhaled airborne asbestos
dust constitute a substantial and contributing factor to the
disease that they developed?
…
[A.] Yes.
Id. at 53.
Thus, according to Dr. DuPont, (1) mesothelioma occurs as a result of
significant exposure to asbestos, defined as (2) any exposure above the
negligible amount present in ambient air, and (3) such exposure constitutes
a substantial factor in developing mesothelioma. In this context, we cannot
21
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ignore Dr. DuPont’s admonition that no fibers are innocent and his
conclusion that each individual exposure is substantially causative. In our
view, this testimony is congruous with the expert opinion proffered in Betz.
Dr. DuPont’s reference to the presence of asbestos in ambient air also
reveals a paradox in his theory of causation. According to Dr. DuPont,
[A]sbestos is present in the ambient air, and that is the air that
we breathe.
And in an urban area or like where I’ve practiced in an industrial
area, there is a certain amount of asbestos in the air.
…
Right. And the point of what I was saying was that that is
considered the ambient area. And the impact of that is felt to be
negligible.
Id. at 33. Moreover, Dr. DuPont acknowledged that ambient levels of
asbestos differ, depending on location:
Q. Ambient exposures can range in exposure levels, correct?
A. Correct.
Q. Okay. So if we’re in [] rural Kansas without a factory
nearby, it might be very low, but if you’re in an industrial urban
setting, it might be much higher, correct?
A. Correct.
Q. And we would lump all of those into the category of
ambient?
A. We would[.]
22
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Id. at 104. According to Dr. DuPont, different levels of ambient exposure
are non-causative, yet Dr. DuPont finds causative each incremental exposure
of an individual product, however small. Id. at 53.14
Dr. DuPont seemingly has no answer to this paradox, as he declined to
offer testimony sufficient to establish the impact of incremental exposure
posed by the products to which Nelson was exposed over his career at
Lukens Steel. To the contrary, Dr. DuPont effectively conceded that he
could not establish specific causation for any of the products. Consider the
following testimony:
Q. All right. [] The jury has heard exposures to a number of
different asbestos-containing products over whatever frequency
the jury heard it, and they’ll rely on their memory. Do you
____________________________________________
14
Notably, Dr. DuPont does not quantify the amount of asbestos found in
different areas - a troubling omission in light of his reticence to testify to the
impact of incremental exposure to asbestos contained in products in any but
hypothetical terms. See id. at 58-62. We are not the first appellate court to
voice this concern:
Simply stated, plaintiff’s experts in this case, as well as in other
asbestos cases, have never been able to explain the scientific and
logical implausibility of agreeing to the premise that a lifetime of
breathing asbestos in the ambient air will not harm a person, while on
the other hand arguing that every breath of asbestos from a
defendant’s product, no matter how inconsequential, will.
Betz, 44 A.3d at 56 n.36 (quoting favorably from an appellant’s brief); see
also Bostic v. Georgia-Pacific Corp., --- S.W.3d ---, *5 (Tex. 2014)
(“Under the any exposure theory a background dose of 20 does not cause
cancer, but a defendant’s dose of 2 plus a background dose of 5 does.”).
23
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separate those exposures out for each individual product,
assuming every exposure was above a non-negligible level?
A. You don’t.
Q. Why?
A. You can’t.
Id. at 39 (emphasis added). And the following:
Q. … A lot of mention have [sic] been made that these men
worked at job sites where there was a lot of pipe covering
around, with a lot of amphiboles in it, as well as other products
that contained only chrysotile. Even in that situation, do you as
a scientist, as a medical expert, get to say, “Oh, it must have
been the pipe covering that did it?”
A. I cannot.
Q. Again, why?
A. There is no literature that I could go back to and quote to
say that this product did it and this product didn’t. And you can
say that one type of asbestos has a higher risk, but we’re not
talking about risk here. Risk is the potential of getting a
condition. There is no risk here about potentially getting a
condition. The condition was there.
Id. at 51 (emphasis added).
However, these are precisely the questions an expert must answer in
order to establish that Appellants’ products were a substantial factor in
causing Nelson’s disease. See Fisher v. Sexauer, 53 A.3d 771, 775 (Pa.
Super. 2012) (“[C]ausation of asbestos-related injuries is shown upon proof
that the plaintiff inhaled some fibers from the products of the defendant
manufacturer.”) (quoting Andaloro v. Armstrong World Indus., Inc., 799
24
J-E02002-14
A.2d 71, 86 (Pa. Super. 2002)); see generally Summers v. Certainteed
Corp., 997 A.2d 1152, 1164-65 (Pa. 2010) (discussing requirement that
plaintiff prove a defendant’s product was a substantial factor in causing
disease).
For the above reasons, we conclude that Dr. DuPont’s testimony was
inadmissible. Moreover, as this expert testimony was necessary to establish
legal, or substantial-factor, causation, its improper admission controlled the
outcome of the case. Accordingly, we vacate the judgment entered and
remand for a new trial on liability.15
Appellants also assert that Nelson introduced insufficient evidence of
exposure to respirable asbestos, citing in support Gregg, 943 A.2d at 226
(requiring asbestos plaintiffs to prove specific causation), and Eckenrod v.
GAF Corp., 544 A.2d 50, 52-53 (Pa. Super. 1988) (requiring proof that a
plaintiff “inhaled asbestos fibers shed by the specific manufacturer’s
product); et al. On remand, the parties will adduce a record substantially
different from the one currently before us. Accordingly, we decline to
examine Appellants’ assertion in detail.16
____________________________________________
15
Considering the impact Betz has on asbestos product liability law in
Pennsylvania, and the fact that the Supreme Court delivered its holding
during the pendency of this appeal, we decline to grant Appellants JNOV.
16
Crane Co. asserts that Nelson failed to establish exposure with sufficient
frequency, regularity and proximity. See Eckenrod, 544 A.2d at 53.
(Footnote Continued Next Page)
25
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Separately, Crane Co. asserts that it is entitled to relief on the ground
that Nelson failed to use Cranite in an intended manner. In Pennsylvania,
strict liability does not extend beyond the use of a product in its intended
manner.
[A] manufacturer can be deemed liable only for harm that occurs
in connection with a product's intended use by an intended user;
the general rule is that there is no strict liability in Pennsylvania
relative to non-intended uses even where foreseeable by a
_______________________
(Footnote Continued)
The Welding Companies challenge Nelson’s failure to proffer expert
testimony to establish exposure to respirable asbestos fibers emitted from
their products. To date, the courts of this Commonwealth have not imposed
a requirement to establish exposure with expert testimony. See Fisher, 53
A.3d at 775-76 (citing Junge v. Garlock, 629 A.2d 1027, 1029 (Pa. Super.
1993); Lilley v. Johns-Manville Corp., 596 A.2d 203 (Pa. Super. 1991));
Donoghue v. Lincoln Elec. Co., 936 A.2d 52 (Pa. Super. 2007) (rejecting
arguments similar to those raised by the Welding Companies here); but see
also, e.g., Grossman v. Barke, 868 A.2d 561, 567 (Pa. Super. 2005)
(indicating that the requirement for expert testimony “stems from judicial
concern that, absent the guidance of an expert, jurors are unable to
determine relationships among scientific factual circumstances”) (quoting
Brannan v. Lankenau Hosp., 417 A.2d 196, 199-200 (Pa. 1980));
Ovitsky v. Capital City Econ. Dev. Corp., 846 A.2d 124, 126 (Pa. Super.
2004) (“It is well-established that ‘expert opinion testimony is proper only
where formation of an opinion on a subject requires knowledge, information,
or skill beyond what is possessed by the ordinary juror.’”) (quoting
Commonwealth v. Carter, 589 A.2d 1133, 1134 (Pa. Super. 1991)).
The Welding Companies specifically contend Donoghue was wrongly
decided and encourage this Court en banc to overrule that panel decision.
We decline to do so, except to the extent it treats favorably a plaintiff’s
expert causation testimony based upon the any-exposure theory.
Donoghue, 936 A.2d at 57, 64. Moving forward, Donoghue shall not be
cited with approval to the extent that it provides or implies that the any-
exposure theory of specific causation is admissible in an asbestos action.
26
J-E02002-14
manufacturer. The Court has also construed the intended use
criterion strictly, holding that foreseeable misuse of a product
will not support a strict liability claim.
Pa. Dep’t of Gen. Servs. v. U.S. Mineral Prods. Co., 898 A.2d 590, 600-
01 (Pa. 2006) (DGS) (citing Phillips v. Cricket Lighters, 841 A.2d 1000,
1007 (Pa. 2003) (plurality opinion authored by Cappy, C.J., with Castille, J.,
Newman, J., Saylor, J., and Eakin, J. concurring on this point)).17
Here, Crane Co. solicited testimony to establish that Cranite was
intended for use as a gasket to seal fluid systems, and not as a welding
shield. Crane Co. proffered further testimony in this regard, but was
precluded from doing so. Moreover, at various stages of the litigation, Crane
Co. argued that Nelson failed to meet its evidentiary burden to establish that
Cranite was unsafe for its intended use.
The trial court rejected Crane Co.’s arguments, suggesting in its Rule
1925(a) opinion that the intended use doctrine was inapplicable to a failure
to warn case. See Trial Court Opinion (TCO), 06/13/2011, at 13. We
disagree.
____________________________________________
17
The doctrine is not without exception. See, e.g., DGS, 898 A.2d at 601
n.10 (recognizing that a manufacturer may be held strictly liable for
“subsequent changes to an otherwise safe product, where such alterations
are reasonably foreseeable”) (citing Davis v. Berwind Corp., 690 A.2d
186, 190 (Pa. 1997)). Moreover, there is little doubt that our product
liability law engenders controversy. See, e.g., Schmidt v. Boardman Co.,
11 A.3d 924, 940 (Pa. 2011) (acknowledging “material ambiguities and
inconsistencies” in Pennsylvania's strict liability law); Berrier v. Simplicity
Mfg., Inc., 563 F.3d 38, 56-57 (3d Cir. 2009) (reviewing cases).
27
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It is well settled a dangerous product can be considered
“defective” for strict liability purposes if it is distributed without
sufficient warnings to notify the ultimate user of the dangers
inherent in the product. Such warnings must be directed to the
understanding of the intended user. The duty to adequately
warn does not require the manufacturer to educate a neophyte
in the principles of the product. A warning of inherent dangers is
sufficient if it adequately notifies the intended user of the
unobvious dangers inherent in the product.
Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990)
(citations omitted); see also Phillips, 841 A.2d at 1005 (citing Mackowick
favorably). Thus, the doctrine is applicable here.
The trial court further suggested that Nelson established that Crane
Co. “failed to provide a warning of the health risk inherent in exposure to its
product[] for its intended user.” TCO at 13. However, this conclusion finds
no evidentiary support. Indeed, Nelson failed to introduce any evidence that
he, or anyone else, was an intended user of Cranite, and the court expressly
and repeatedly declined Crane Co.’s attempts to introduce evidence relevant
to the intended use doctrine.
The trial court’s position is untenable, but that does not end our
inquiry. As noted by Nelson, this Court has stated previously that the
feature that renders an asbestos product unsafe for its intended use derives
from the presence of asbestos in the product, and specifically, “the dangers
from inhalation of asbestos fibers that can be emitted from the product.”
Estate of Hicks, 984 A.2d at 968. Responding directly to Crane Co.’s
arguments, Nelson asserts that Cranite was unsafe for anyone who cut the
28
J-E02002-14
material, as would an intended user, because this would release asbestos
fibers. Nelson posits that there was sufficient evidence for the jury to find
that he used Cranite in a manner consistent with its intended use and that
his use of Cranite resulted in exposure to asbestos. Thus, according to
Nelson, the intended use doctrine does not insulate Crane Co. from liability.
Nelson’s concise argument is persuasive but asks too much from this
Court. We infer from Nelson’s argument that “intended use” of a product is
more than simply its “purpose,” a proposition with which we agree.
Intended use necessarily includes those intermediate steps required to fulfill
a product’s purpose. For example, Crane Co. asserts that Cranite was a fluid
systems sealant. This describes the purpose of Cranite. However, Cranite
was produced and distributed in a sheet form requiring user modification. It
is readily apparent that its purpose could be fulfilled only after certain
intermediate steps were taken by the user, including, e.g., cutting sheets of
Cranite into a useful form or size, or otherwise manipulating the product by
hand – precisely the manner in which Nelson suggested he used Cranite.
Thus, it may well be that Nelson presented sufficient evidence for a
jury to find that he used Cranite in a manner consistent with its intended
use, a finding that would negate Crane Co.’s argument. It will be for the
trial court to define what precisely constitutes an intended use of Cranite.
However, the jury must be afforded an opportunity to make a finding, and
we will not presume which facts will be accepted by the jury. See DGS, 898
29
J-E02002-14
A.2d at 604 (remanding for a new trial because it was unclear whether the
jury accepted facts relevant to the intended use doctrine); see also Collins
v. Cooper, 746 A.2d 615, 620 (Pa. Super. 2000) (noting the court’s
discretion in evidentiary matters but observing that where evidentiary errors
“may have affected a verdict, the only correct remedy is the grant of a new
trial”) (quoting Bucchianeri v. Equitable Gas Co., 491 A.2d 835, 838-39)
(Pa. Super. 1985)). Therefore, on remand, Nelson may endeavor to
establish that he used Cranite in a manner consistent with its intended use,
as defined by the trial court, and, further, Crane Co. shall be permitted to
challenge Nelson’s evidence, adducing evidence of its own that Nelson’s use
was inappropriate.
Crane Co. also suggests that Nelson’s employment as a welder is
relevant to the doctrine. According to Crane Co., because Nelson was not an
intended user, such as, e.g., a plumber, strict liability must not attach. We
disagree.
The “intended user” formulation is merely a derivative of the intended
use doctrine. As we have previously observed, “a plaintiff must establish
that the product was unsafe for its intended user.” Estate of Hicks, 984
A.2d at 977 n.21 (quoting Phillips, 841 A.2d at 1007). Implicitly, though,
the intended user will be sufficiently familiar with the appropriate manner in
which to use a product, as well as any overt safety considerations. Thus, it
is only necessary for the manufacturer to address adequately dangers
30
J-E02002-14
inherent in a product that are “unobvious” to an intended user.
Mackowick, 575 A.2d at 102.
Absent evidence suggesting that Nelson’s employment as a welder was
material to an unintended use of Cranite, his job title is of little
consequence. On remand, the relevant questions will remain whether
Nelson used Cranite in a manner consistent with its intended use; and,
ultimately, whether Crane Co. provided warnings sufficient to insure the
safety of those who used it accordingly.
We now turn to Appellants’ claims regarding the damages phase.
Collectively, Appellants also contend that improper remarks by Nelson’s
counsel during closing arguments in the damages phase warrant a new
trial.18 The law in this regard is well settled.
[W]hether to declare a mistrial is yet another decision within the
discretion of the trial court, whose vantage point enables it to
evaluate the climate of the courtroom and the effect on the jury
of closing arguments.
Clark v. Phila. Coll. Of Osteopathic Med., 693 A.2d 202, 206 (Pa. Super.
1997). Though not every prejudicial comment by counsel warrants a new
trial, “there are certain instances where the comments of counsel are so
offensive or egregious that no curative instruction can adequately obliterate
____________________________________________
18
In light of our disposition of the other issues presented, we decline to
address Appellants’ arguments directed toward counsel’s closing argument in
the liability phase of the trial.
31
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the taint.” Poust v. Hylton, 940 A.2d 380, 386 (Pa. Super. 2007)
(emphasis omitted) (quoting Siegal v. Stefanyszyn, 718 A.2d 1274, 1277
(Pa. Super. 1998)); see also Young v. Washington Hosp., 761 A.2d 559,
562-63 (Pa. Super. 2000).
According to Appellants, Nelson’s counsel urged the jury to award a
specific dollar amount for non-economic damages.19 It is well established in
Pennsylvania that a plaintiff’s counsel may not suggest an amount of
damages claimed or expected but not supported by the evidence. See
Wilson v. Nelson, 258 A.2d 657, 660 (Pa. 1969) (“In an action where
damages are sought, any statement to the jury by counsel that calls the
juror's attention to claims or amounts not supported by the evidence is
error.”); Stassun v. Chapin, 188 A. 111, 127-28 (Pa. 1936) (stating that
counsel may not suggest an amount for damages “incapable of
measurement by a mathematical standard); Bullock v. Chester & Darby
Telford Rd. Co., 113 A. 379, 380 (Pa. 1921) (“The verdict in an action of
tort should be a deduction drawn by the jury from the evidence, and not a
mere formal adoption of calculations submitted by counsel.”); Joyce v.
Smith, 112 A. 549, 551 (Pa. 1921).
____________________________________________
19
The Welding Companies contend that counsel suggested the jury award
$12 million in pain and suffering. Crane Co. submits that counsel requested
at least $1 million for each of twelve elements of damages. Appellants
further contend that the trial court’s subsequent instruction on damages
provided no curative effect.
32
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In Joyce, the plaintiff was struck and injured by the defendant’s
automobile. Joyce, 112 A. at 550. Defendant objected to remarks made by
plaintiff’s counsel during closing arguments to the jury. Id. The precise
content of the remarks was unclear from the record, but the parties
submitted affidavits to the court, setting forth their recollections of counsel’s
argument. Id. While defendant asserted that counsel had asked for
“thousands of dollars for pain and suffering,” plaintiff attested that counsel
said, “I shall not ask you for thousands of dollars for his injuries.” Id. The
Court found both versions improper. Id. Accepting plaintiff’s version as
true, the court reasoned:
While it is true in the present case, no definite amount was
mentioned, yet, if plaintiff's version be accepted, the language
contained a suggestion to the jury that ‘thousands of dollars'
were claimed for pain and suffering. This expression suggested
the amount to the minds of the jury almost as clearly as if
counsel had stated a definite number of thousands.
Id.
Nelson counters that there is no prohibition against arguing that a
plaintiff’s non-economic damages are worth substantially more than an
amount of proven economic loss, echoing the analysis of the trial court
below and citing in support Clark, supra. In Clark, the appellants similarly
claimed that the plaintiff’s counsel had improperly suggested a formula for
pain and suffering during closing argument. Clark, 693 A.2d at 206. The
plaintiff’s counsel displayed the drawing of a triangle, crossed near the peak
33
J-E02002-14
by a line. Id. Referencing the drawing, counsel suggested that the
plaintiff’s economic damages of approximately $2 million represented only
the “tip of the iceberg,” and that damages for pain and suffering were what
remained below the “water” line. Id. The trial court denied the appellants’
motion for a mistrial, concluding that “[w]hether the tip of the iceberg
argument is called rhetoric, analogy or metaphor, it was not a direct
statement suggesting any specific sum or arbitrary amount,” and a panel of
this Court agreed. Id. (quoting the trial court opinion).
However, based upon the record before us, Clark is distinguishable.
Here, during closing argument, counsel displayed the verdict sheet to the
jury. On the verdict sheet, twelve elements of non-economic damages were
listed, seven under the Survival Act and another five under the Wrongful
Death Act.20 Highlighting these elements, counsel queried:
How [do you decide on a number?] Think of these, if you would,
as different awards. Even though it’s all going to go on one line,
I think it will be easier for you if you think of these as different
elements of damages.
____________________________________________
20
The verdict sheet listed seven elements under the Survival Act: physical
pain, mental anguish, embarrassment, humiliation, disfigurement,
discomfort and inconvenience; and five under the Wrongful Death Act: loss
of society, comfort, support, assistance, and companionship. See Jury
Verdict Slip, 3/9/2010, at 1-2.
34
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N.T., 3/8/2010, at 78. In this context, counsel referred to the economic
damages agreed to by the parties and, thereafter, addressed the elements
of non-economic damages under the Survival Act in the following manner:
Economic loss … We have agreed. We have stipulated … we
have agreed that the economic losses that you can accept as
true equal $1 million. I repeat, $1 million, and that’s where you
start at. You start there.
You haven’t even gotten to the physical pain yet. You haven’t
gotten to that anguish yet. You haven’t gotten to the
embarrassment and humiliation, the disfigurement, discomfort
and inconvenience. Again, I need somebody to remember you
must start at $1 million.
…
It’s so important it bears repeating. You start at $1 million, and I
believe each of those elements of damages starting at physical
pain are worth infinitely more than that $1 million figure.[21]
Now, you add a million plus whatever other numbers you assign
for these and you write that number there.
Id. at 79-81. After discussing Darlene Nelson’s claim for loss of consortium,
counsel addressed the elements of non-economic damages under the
Wrongful Death Act:
You now move. You may think this is somewhat similar but
the measuring periods are different now. This is the loss of
society, comfort, support, assistance and companionship to
Darlene Nelson because her husband died.
Again, what you might say is those things are the same. I
told you, this number should be significant and substantial. This
should be more so. Much more than this.
____________________________________________
21
Referencing the stipulated economic damages.
35
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Id. at 82.
Effectively, counsel (1) identified twelve individual elements of non-
economic damages; (2) suggested to the jury that it consider a different
award for each element but then add the individual amounts onto a single
line, and (3) in rather express language, suggested that the jury award
Nelson at least $1 million for each. Thus, unlike the closing remarks in
Clark, where the plaintiff’s counsel metaphorically referred to economic
damages as the “tip of the iceberg,” here counsel for Nelson provided the
jury with a formula to calculate damages and an amount to plug into that
formula. Here, counsel’s express reference to the stipulated economic
damages was not evocative, but declarative and algebraic. It is no
coincidence, therefore, that the jury’s award to Nelson comprised $7 million
in non-economic damages pursuant to the Survival Act and $5 million in
non-economic damages under the Wrongful Death Act. Clearly, counsel’s
remarks were inappropriate.
Moreover, the trial court did not address the jury concerning counsel’s
inappropriate remarks. It administered no curative instruction and denied
Appellants’ immediate request for a mistrial. We have also reviewed the
court’s instructions on damages, and while we discern no error in their
substance, they provided no curative effect to counsel’s inappropriate
remarks. We deem the court’s failure to cure an abuse of its discretion.
36
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We reach this decision mindful of Appellants’ other complaints
regarding counsel’s closing arguments in the damages phase. For example,
Appellants contend that counsel inserted an inappropriate reference to
settlement discussions, citing in support Pennsylvania Rule of Evidence 408
(precluding evidence of conduct or statements made during settlement
negotiations). Counsel stated:
Has it dawned on any of you yet that the reason we’re here, and
the only reason we’re here, is because I can’t agree with these
people [on] the value of my client’s life?
I can’t agree with any of these people on how much money
should be awarded to these families for what has been done in
this case, for taking Jim Nelson’s life, … for having the tumor eat
through [his] chest, sucking the life [out of him.]
We can’t agree. That’s why we need you.
N.T., 3/8/2010, at 48. Appellants also complain that counsel inserted a
punitive element into his discussion of damages:
[A]t the end of the day, ladies and gentlemen, you represent the
conscience of the community, and I’m asking you to award an
amount of money that is so significant and substantial that it will
do justice that everyone will know that justice is done, not just
the Nelson family, … but everybody that’s in this community. Do
not let [this man] die in [vain].
Id. at 83-84.
Such language is inflammatory, particularly to the extent that it
attributes improper motives to Appellants. Thus, we admonish counsel to
refrain from needlessly inflaming the passions of the jury. See Young, 761
A.2d at 563 (noting that “an appeal to passion or prejudice is improper and
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J-E02002-14
will not be countenanced” and equating a verdict obtained by such
arguments to “one obtained by false testimony”); see also Schmidt, 11
A.3d at 939 (recognizing a “central premise that negligence concepts have
no place in Pennsylvania's strict liability law”); Phillips, 841 A.2d at 1007
(“Strict liability focuses solely on the product … and is divorced from the
conduct of the manufacturer.”). Nevertheless, we express no further opinion
regarding these latter complaints and limit our decision to grant a new trial
on damages based upon counsel’s improperly suggesting to the jury a
formula for calculating non-economic damages.
Finally, Appellants contend that the trial court erred in consolidating
this case with four other, unrelated cases, and in ordering the case to
proceed in a reverse-bifurcated manner. Following an examination of its
Mass Tort Program, the Philadelphia Court of Common Pleas directed the
implementation of certain revisions affecting the conduct of asbestos trials in
the county. See Order of Court, 02/15/2012 (implementing General Court
Regulation No. 2012-01). In particular, we observe that (1) reverse
bifurcation will not occur, absent agreement by all counsel involved, and (2)
consolidation is now subject to several express criteria. Id. Accordingly, we
deem Appellants’ contention moot.
In conclusion, we vacate the judgment entered February 23, 2011,
and remand for a new trial, both on liability and damages. Regarding
liability, Appellants are entitled to a new trial, as Nelson introduced
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J-E02002-14
causation evidence premised upon the any-exposure theory. See Betz, 44
A.3d at 57. On remand, Crane Co. shall be permitted to introduce evidence
relevant to the intended use doctrine. See, e.g., DGS, 898 A.2d at 600-01.
Regarding damages, trial counsel shall refrain from inappropriately
suggesting to the jury an amount suitable for non-economic damages. See
Joyce, 112 A. at 551.
Judgment vacated. Case remanded. Jurisdiction relinquished.
Judge Bowes, Judge Shogan, Judge Allen, Judge Stabile, and Judge
Jenkins join this opinion.
Judge Wecht files a dissenting opinion in which President Judge
Emeritus Ford Elliott joins and Judge Ott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
39