Court Upholds $1 Million Judgment in Asbestos-Containing Wire and Cable Case

October 1, 2010 – Media Coverage
HarrisMartin

PHILADELPHIA -- A Pennsylvania appellate court has affirmed a more than $1 million judgment entered against a wire and cable asbestos defendant, finding that the plaintiff had satisfied her burden of proving exposure occurred with regularity, frequency and proximity. Moore, et al. v. Ericsson Inc., et al., No. 2010 PA Super 173 (Pa. Super. Ct.).

In the Sept. 17 opinion, the Pennsylvania Superior Court said that there was sufficient evidence to establish that exposure to the defendant's asbestos-containing products was a substantial contributing factor in the development of the decedent's mesothelioma.

The underlying lawsuit, filed by Donnie and Judith Moore, contends that Donnie Moore's mesothelioma was caused by exposure to asbestos dust while he worked as a laborer and electrician at a printing company in Tennessee for more than 40 years.

A jury sided with the plaintiffs awarding $2 million. The court subsequently entered a judgment holding Anaconda, a successor-in-interest to Ericsson Inc., the manufacturer of the asbestos-containing wire and cables, for $1,190,654. For more on this verdict, please see "Pa. Jury Awards $5.5 Million Total in 3 Mesothelioma Cases" in the March 2009 issue of COLUMNS-Asbestos.

Ericsson appealed the verdict, however, asserting a variety of issues on appeal, including ones relating to causation.

The court appellate court noted that in order to establish causation, the plaintiffs must prove that Donnie Moore was exposed to asbestos in the defendant's product with regularity, frequency and proximity.

After taking into consideration Moore's own testimony and the testimony of a plaintiff experts relating to environmental engineering, epidemiology and pathology, the court rejected Ericsson's argument that conflicts in the aforementioned testimony render it inadmissible.

"We agree with Plaintiffs that conflicts in the weight of the evidence and a 'battle of the experts' do not warrant a directed verdict," the court said. "That is for the jury to resolve."

The court also concluded that the evidence did indeed establish that Moore was exposed to Ericsson asbestos-containing products on a basis that satisfied the regularity, frequency and proximity test.

"The evidence was sufficient for the jury to find that Donnie Moore was regularly exposed to wire and cable manufactured, supplied or distributed by Ericsson, that these products contained asbestos, and that this exposure was a substantially contributing factor in the development of his mesothelioma and death," the court said.

The court similarly rejected Ericsson's challenges to the court's decision to inform the jury that the products were defective and its allowance of the testimony of Dr. Eugene J. Mark, a pathologist who testified on behalf of the plaintiff.

"Contrary to Ericsson's claim, Dr. Mark was not testifying with respect to product identification or what occurred when the wire or cable was cut," the court said. "Rather, he was relying upon medical reports and Moore's video deposition, which was proper under the rules of evidence, and basing his opinion on hypotheticals from facts in evidence. We find no error or abuse of discretion."

The court additionally found no fault with the trial court's decision to prohibit defense counsel for commenting on governmental asbestos standards and insurance or with the consolidation of the instant case with four other asbestos cases.

The appellate court concluded its opinion by rejecting Ericsson's contention that the court improperly calculated its share of the verdict.

Counsel for the plaintiffs during trial were John Langdoc and Eric Brown of Baron & Budd in Dallas.

Counsel for Ericsson during trial was Ollie Harton of Hawkins Parnell & Young in Atlanta.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-1010-03

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