Understanding, Managing, and Living with the

Health Effects of Asbestos

$1 Million Asbestos Mesothelioma Award Upheld, While Tooey Opens the Door

June 4, 2014

Philadelphia, PA An asbestos lawsuit that was appealed by both sides in the case has concluded with an appellate court upholding findings of the original trial court and jury award.

The finding also serves to illustrate a recent uptick in filings in the state of Pennsylvania following a recent finding of the State Supreme Court of Pennsylvania that holds that the Workers’ Compensation Act has no jurisdiction on occupational diseases such as mesothelioma beyond 300 weeks, or 5.75 years following manifestation of the disease.

That ruling - Tooey v. AK Steel from November of last year - provides would-be plaintiffs with more options beyond attempting to pursue manufacturers of asbestos-laden products that might otherwise not be identified or may have gone bankrupt over time.

The asbestos lawsuit that saw a $1 million award for the plaintiffs centered on the health of Richard Rost, who originally filed the lawsuit through his asbestosis attorney in 2009 with his wife Joyce as a co-plaintiff. Rost has Mesothelioma, a disease triggered by exposure to airborne asbestos years and sometimes decades prior to the illness emerging. Defendants included Ford Motor Company (Ford), General Electric, Westinghouse and Ingersoll-Rand. However, the latter three defendants settled with the plaintiffs out of court, before the trial had an opportunity to begin.

The jury heard that Rost obtained employment with a Ford dealership upon graduating from high school. He worked in the auto shop and service bays, involved in maintenance activities that included the sanding of brakes and the repair of clutch mechanisms.

The asbestos mesothelioma plaintiff testified that brakes and clutch systems in Ford vehicles manufactured from 1945 through to 1950 were up to 60 percent asbestos by weight. Rost claimed that he was exposed to the known carcinogen in the shop when mechanics routinely removed brake drums and blew out asbestos dust with compressed air.

According to court records associated with Rost’s asbestos lawsuit, removing brake linings from brake shoes would result in visible dust generated into an area, which, according to Rost’s testimony, was poorly ventilated to begin with. He also testified that he was also responsible for cleaning the shop area at the end of the day, sweeping and scooping up what amounted to three large shovels full of debris and asbestos dust each day. Dumping said dust into large containers would allow asbestos dust to billow back up into the air, putting Rost into the unenviable position of having to inhale the asbestos dust without benefit of protection.

Part of Rost’s expert testimony came from Dr. Arthur Frank MD, who noted that risk of developing asbestos cancer increased with each exposure to the carcinogen, together with the observation that the only safe exposure is deemed as being “zero.” The doctor also noted that wearing work clothes home could foster a continuation of exposure and exacerbate the problem for some time - decades, in fact.

Further expert testimony from Dr. Arnold Brody PhD suggested that based upon the testimony of both Rost and Frank, it would be reasonable to expect that the plaintiff was directly exposed to roughly a million asbestos fibers while working at the automotive garage.

The plaintiff’s later tenure at Metropolitan-Edison related to that facility’s use of turbines, manufactured by General Electric and insulated with asbestos, as were pumps manufactured by Westinghouse and Ingersoll-Rand.

Rost testified that asbestos at the Metropolitan-Edison plant was “coming down like snow.”

Rost did not pursue Metropolitan-Edison in his litigation - his employer at the time, but rather the manufacturers of the products that allegedly contained asbestos. However, attorneys navigating their way through the changes triggered by Tooey v. AK Steel, note that it makes perfect sense to hold an employer accountable.

“If you have a guy who worked in a plant for 20 to 25 years, an employer is going to be a major player when providing a workplace that’s safe,” said Defense attorney Peter J. Neeson of Rawle & Henderson, in comments published in The Legal Intelligencer (6/2/14). “From a scientific, warning and exposure standpoint, if the employer is in the best situation to do something about working conditions, why wouldn’t the employer be in there answering the kind of accusations that come up in these cases?”

The appellate court in the Rost lawsuit concluded that expert testimony provided by experts for the plaintiff was both credible and consistent, but that expert testimony provided by defendant Ford was deemed to be inconsistent.

Judge Jack Panella of the Superior Court of Pennsylvania delivered the Court’s opinion on Rost on May 19, an opinion shared by Judges Judith Olson and James Fitzgerald.

The asbestos cancer victim was awarded $844,800 for his asbestos claims, while his wife was awarded $150,000 for loss of consortium in the original trial by jury. The appellate court upheld that decision.

Attorneys have noted an increase in cases in which plaintiffs join their former employers in ongoing litigation, as well as new actions in which the plaintiffs are suing employers directly, following the State Supreme Court decision on Tooey v. AK Steel.