The Superior Court of Pennsylvania recently reviewed on appeal a variety of post-trial issues in two mesothelioma cases that went to trial in the Philadelphia Court of Common Pleas. Of particular interest is the court’s refusal to permit defendants to offset payments received from settling non-party tort feasors, which included bankruptcy claim payments. The basis for the court’s decision is that the jury did not find that the other parties were joint tort feasors. The court described a defendants’ burden on this issue as follows: “Here, Crane failed to (1) join other settling tortfeasors into the action or (2) submit evidence to establish that the non-parties were joint tortfeasors. Therefore, Crane is not entitled to a reduction of the jury verdict for non-parties to the litigation who settled with the Plaintiffs prior to trial. Instead, the company is only entitled to a reduction of the jury verdict based on settlements made by parties found to be joint tortfeasors by the court.” What remains unclear is whether a court would permit bankruptcy claim documents to establish the joint responsibility of bankrupt companies in order to permit an offset. Without admissibility of those documents, a defendant is left with no ability to establish a right to an offset at trial.
The court also ruled that the Pennsylvania Supreme Court’s decision in Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) which applied a reasonableness standard in a strict liability case, also applied to a failure to warn claim. The defendant, Crane Co., argued that applying the standard the jury was improperly instructed: “Crane claims that, based on Tincher, it is entitled to a ‘state-of-the-art’ jury instruction, which would permit the jury to make a determination as to the reasonableness of Crane’s actions based upon whether or not the risk inherent to asbestos was known or knowable in light of the scientific knowledge available at the time the product was sold.” However, the court ultimately concluded that Crane’s defense at trial was not based on the reasonableness of its conduct: “Upon review of the record, we conclude that the requested instruction was not justified by Crane’s theory of the case and the evidence it presented at trial. Crane’s defense was not that Cranite was not ‘unreasonably dangerous.’ Rather, Crane asserted that Cranite was not dangerous at all.”
The court also upheld the exclusion of testimony of a memory expert, stating: “our Supreme Court has ‘clearly and repeatedly’ held that credibility questions may not be the subject of expert opinion testimony.”
Lastly, the court rejected Crane’s claim that one of the plaintiffs received a double recovery under the loss of consortium claim and Pennsylvania’s Wrongful Death Statute: “As the foregoing makes clear, damages awarded under the wrongful death act are intended to compensate the decedent’s enumerated family members for damages arising as a result of the death. Included in a wrongful death award may be a recovery for loss of post-death services, including society and comfort. Hatwood, supra. A loss of consortium claim, on the other hand, is intended to compensate a surviving spouse for her loss of services, society, and conjugal affection while her spouse was still living, yet suffering from the injury in question. Smalls, supra. Accordingly, contrary to Crane’s argument, there is no duplication of damages, as one award is for pre-death loss and the other for that sustained post-death. Thus, the trial court did not err in denying post-trial relief on this claim.”
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