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Pennsylvania Superior Court Vacates Asbestos Verdict, Orders Retrial

The widow of a mesothelioma victim will be forced to endure a new trial for damages and liability in his death following a ruling by the Pennsylvania Superior Court. Darlene Nelson had sued her late husband’s former employers seeking damages for his exposure to asbestos and had been awarded a $14.5 million verdict in 2011. But the defendants, Crane Co., Hobart Brothers and The Lincoln Electric Company, appealed the judgement in her favor and argued that the trial court should not have allowed the expert witness testimony about asbestos exposure to be admitted, and that her attorney had made improper comments during closing arguments.

Darlene Nelson had sued several companies following the loss of her husband, James Nelson. He had worked as a pitman, laborer, welder and mechanic at the Lukens Steel Plant in Coatesville, Chester County, Pennsylvania from 1973 to 2006. Nelson was diagnosed with mesothelioma in the winter of 2008 and died several months later in October of 2009. The lawsuit claimed that he was exposed to asbestos while working with a variety of sources, including pipe coverings, gaskets, packing, furnace cement and an asbestos-containing board referred to as a “hot top.” During the trial, expert witness Daniel DuPont testified that mesothelioma’s long latency period necessitated that “every asbestos exposure must be considered a cause of disease.” On appeal, the defense argued that this testimony was similar to testimony that had previously been presented in another asbestos mass tort case and was found to be inadmissible, and that therefore it should also be inadmissible in the Nelson case. The defense also argued that a mistrial should have been declared during the first trial following post-trial motions. That argument had concentrated on the closing argument given by the lawyer for the plaintiff, who “repeatedly wrongfully appealed to emotion and interjected [their] conduct into his closing argument.” The defendants pointedly objected to the attorney having urged a specific damage amount and providing information about settlement discussions into his closing argument.

The Superior Court agreed with the defense counsel’s appeal, saying, “Clearly counsel’s remarks were inappropriate.” There were two dissenting voices to this opinion, Judge David N. Wecht wrote, “In light of Nelson’s relative youth at the time of his death, and the degree of his suffering in the last year of his life, it is not at all surprising that appellee’s counsel implored the jury to award substantial noneconomic damages, and the particulars of his manner of doing so in this case did not so patently exceed the bounds of permissible argument as to warrant this court’s interference with the trial court’s discretion.”

Terri Oppenheimer

Terri Oppenheimer is an independent writer, editor and proofreader. She graduated from the College of William and Mary with a degree in English. Her dreams of a writing career were diverted by a need to pay her bills. She spent a few years providing copy for a major retailer, then landed a lucrative career in advertising sales. With college bills for all three of her kids paid, she left corporate America for a return to her original goal of writing. She specializes in providing content for websites and finds tremendous enjoyment in the things she learns while doing her research. Her specific areas of interest include health and fitness, medical research, and the law.

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