.

Defense Digest

Asbestosis Takes the Stand: Raising Awareness of an Abnormally High Verdict for a Typically Low Value Case

Defense Digest, Vol. 30, No. 2, June 2024

June 1, 2024

by Renee D. Severino

Key Points:

  • Asbestosis claims are usually considered to be on the lower end of settlements for asbestos law cases. 
  • A verdict of $25 million was returned by a jury in Philadelphia, where the last asbestosis case verdict was $957,000. 
  • Plaintiff’s oxygen dependence likely factored into verdict amount—a factor that should be weighed in future asbestosis claims. 

It’s not a secret that many cases don’t go to trial. We have reached an era of practicing law where it’s easier to settle, to negotiate, to compromise, rather than go to trial. Pre-trial settlements and dismissals make life easier on both plaintiff and defense counsel, especially in the world of asbestos, where there can be dozens of defendants. 

There are some asbestos cases that go to trial, but those are few and far between, especially in Pennsylvania. While trial dates and conciliations are scheduled, the majority of asbestos cases simply resolve, with all defendants either being dismissed or paying a settlement. (For frame of reference, there have been two asbestos trials in Allegheny County and three asbestos trials in Philadelphia County within the last five years). 

Determining the value of a case depends on the disease process itself. For those not involved in asbestos law, there are three main diseases that usually crop up—mesothelioma, lung cancer, and asbestosis. The mesothelioma claims are valued the highest, then lung cancer, and then asbestosis cases. Whether someone was a heavy smoker or not can influence the value of a lung cancer claim. Obviously, there are nuances with every case. Some of these nuances for asbestos cases include the type of job the plaintiff performed, other comorbidities he or she may have had, age, and how long he or she worked at a facility. However, the important context to take away from this scale is that asbestosis claims are near the lower end of the settlement hierarchy. 

With that in mind, we turn to the case of Richard Daciw. Mr. Daciw filed suit in the Philadelphia County Court of Common Pleas on May 2, 2019. Fifty-five entities were sued in the initial complaint, with an additional defendant added in an amended complaint. Mr. Daciw was 76 years old. He alleged asbestos exposure from serving in the Navy as a fireman and shipfitter from 1965 to 1969; as a maintenance mechanic at Jeffries Processors in Philadelphia from 1969 to 1972; as a pipefitter and welder for Domino Sugar in Philadelphia from 1972 to 1983; as a welder at Allied Chemical for several months in 1983; and, in various maintenance roles at Smith Kline from 1983 to 2004. 

Mr. Daciw was diagnosed with asbestosis by a treating pulmonologist in January of 2019. He had shortness of breath and difficulty breathing with activity. He also had chronic obstructive pulmonary disease and diabetes. An important medical note for Mr. Daciw was that he had become oxygen dependent due to his breathing troubles. 

Mr. Daciw was deposed for several days and provided lengthy testimony about the products he worked with over his career. He identified various brands of gaskets, packing, pumps, valves, turbines, boilers, and cement as the products and equipment that allegedly exposed him to asbestos. Based upon Mr. Daciw’s deposition testimony and his identification of these products, the case proceeded in the usual fashion—dismissals and settlements. However, not all defendants reached one of those resolutions. 

John Crane, Inc., was the lone defendant in this instance who took this case to trial. As an asbestosis case, it was a likely thought that the risk should have been minimal. However, the results of trial would prove that the risk was anything but minimal. 

Trial began on December 12, 2022, before Judge Ann Butchart. It would end on December 22, 2022, when the jury handed down a $25 million verdict. Richard Daciw, et al. v. John Crane Inc., et al., 2022 WL 18232642 (C.P. Phila. Dec. 19, 2022). Richard Daciw was awarded $15 million in damages, and his wife, Winifred Daciw, was awarded $10 million in a loss of consortium claim. While John Crane, Inc., was the sole defendant trying the case, there were an additional 19 defendants on the verdict sheet. Twelve of these non-party entities were found to have no liability for Mr. Daciw’s disease. John Crane, Inc., was found to be liable for asbestos exposure to Mr. Daciw and his subsequent asbestosis. Seven non-party entities were also found to be liable. The verdict sheet did not include how the $25 million would be apportioned. 

The last asbestosis case that went to trial in Philadelphia County had a verdict of $957,000. In fact, the last mesothelioma case that went to trial there had a verdict of about $3.8 million. That is a difference of $21 million for a disease process that is considered by most asbestos attorneys to create higher-value settlements for plaintiffs. While it’s impossible to know the full thought process, it is extremely likely that Mr. Daciw’s physical state—oxygen dependence—induced sympathy from the jury. 

With this most recent verdict, the usual approach to asbestosis cases needs to be taken with a grain of salt in Pennsylvania. While yes, the majority of asbestosis cases will probably continue to settle within usual ranges, attorneys and carriers alike need to be aware of the possibility that a push to trial could create a huge payday for a plaintiff, especially one with a health situation similar to Richard Daciw. A complete approach overhaul isn’t necessary, but a little awareness will go a long way when it comes to asbestosis cases. 

*Renee works in our Pittsburgh, Pennsylvania, office. 

 

Defense Digest, Vol. 30, No. 2, June 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2024 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

business meeting photo

Result

Summary Judgment Obtained in Insurance Coverage Case

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Event

CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

News

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

Complete Victory Obtained in a Workers’ Compensation Matter

Result

Complete Victory Obtained in a Workers’ Compensation Matter

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

News

Marshall Dennehey Named a Standout in Litigation by BTI Consulting Group

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

graphic announcing our 6 2027 Super Lawyers & Rising Stars

News

Marshall Dennehey Announces 2027 New Jersey Super Lawyers And Rising Stars