Rabold v. Ericsson Inc.

69 Pa. D. & C.4th 486, 2004 Pa. Dist. & Cnty. Dec. LEXIS 298
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedNovember 24, 2004
Docketno. 3141
StatusPublished

This text of 69 Pa. D. & C.4th 486 (Rabold v. Ericsson Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rabold v. Ericsson Inc., 69 Pa. D. & C.4th 486, 2004 Pa. Dist. & Cnty. Dec. LEXIS 298 (Pa. Super. Ct. 2004).

Opinion

BERNSTEIN, J.,

Plaintiff filed this action against defendant Ericsson claiming plaintiff’s decedent Rabold had died as a result of exposure to asbestos contained in wire and cable manufactured and distributed by defendant Ericsson’s predecessor companies.

In accord with long-standing Philadelphia County procedure in asbestos litigation, the case was tried by jury in coordination with three other unrelated, unconsolidated asbestos lawsuits. Likewise, in accord with long-stand[488]*488ing Philadelphia County procedure in asbestos litigation, these cases were tried in a reverse bifurcated manner. Accordingly, the jury decided damages prior to determining which, if any, defendant was liable to any plaintiff.

Prior to trial, defendant Ericsson filed a motion in limine in opposition to the coordinated trial of four unrelated cases which had not been consolidated and a second motion in opposition to reverse bifurcation. These motions were denied on October 8,2003, by the Honorable Norman Ackerman. Thus, the trials in Paula Box and Jerry Box, Co-Executrix of the Estate of Larry Box and Paul Box in Her Own Right v. ACandS Inc., July term 2002, no. 3632; Guila Andrews, Executrix of the Estate of Luke Andrews, and in Her Own Right v. ACandS Inc., July term 2001, no. 482; June and Eugene Gerhart v. ACandS Inc., September term 2001, no. 1646; and David Rabold and Bobbi Joe Klick, Co-Executors of the Estate of Clarence Rabold v. Ericsson Inc., December term 2001, no. 3141, commenced on October 9, 2003. During trial, three of the four plaintiffs’ cases were settled. On October 20, 2003, the jury entered a damage award in favor of plaintiff Rabold’s decedent in the amount of $3.5 million.

The liability phase of trial commenced immediately after the damages verdict. On October 23, 2003, at the conclusion of plaintiff’s testimony, defendant Ericsson moved the court for a nonsuit. Defendant claims that plaintiff Rabold in his case failed to identify any asbestos-containing products manufactured or distributed by any Ericsson or Ericsson predecessor company which he had inhaled. The motion for nonsuit was denied. On [489]*489October 27, 2003, at the conclusion of all evidence, defendant Ericsson moved for a directed verdict on the same basis which was also denied. On October 23, 2003, the jury entered a liability verdict against defendant Ericsson.

Ericsson files post-verdict seeking judgment n.o.v. or a new trial. Defendant Ericsson asserts that it has been denied due process of law because of the coordination of this case at trial with three other unrelated asbestos cases and because of the reverse bifurcation procedure employed in Philadelphia County. Raising a closely related issue, defendant Ericsson claims that judgment n.o.v. should be granted because if reference to testimony presented to the same jury in the other non-consolidated but jointly tried cases is redacted, plaintiff Rabold himself failed to demonstrate that any asbestos products to which plaintiff’s decedent was exposed had been manufactured or distributed by any Ericsson predecessor company to Ericsson.

At trial plaintiff presented three different depositions of Mr. Rabold, who died during trial.1 Mr. Rabold himself did not identify any asbestos-containing wiring or cable as having been manufactured by either Anaconda or Continental, Ericsson’s predecessors. Specifically, Mr. Rabold testified that he never saw the word “asbestos” or “asbestos-containing” on any Anaconda or Continental wire. He could not testify whether there was any asbestos in the wire produced by Anaconda or Continental on the single wire machine he worked on.

[490]*490Obviously, product identity is a crucial element in proof that the defendant’s asbestos-containing produce caused injury. See Wilson v. A.P. Green Industries Inc., 807 A.2d 922 (Pa. Super. 2002), and Samarin v. GAF Corp., 391 Pa. Super. 340, 571 A.2d 398 (1989). Thus, plaintiff’s decedent, Rabold himself, did not meet this requirement and had this been the totality of evidence presented to the jury, a nonsuit would have been granted.

Plaintiff testified that he had been extensively exposed to substances from the wires he worked with on a flow coater machine. He was not able to testify, however, that the cable used in the flow coater machine was Anaconda nor Continental wire which contained asbestos. As held in the case of Samarin v. GAF Corp., testimony that a product contained asbestos based strictly on the fact that it was itself heat resistant is by itself insufficient to establish that a product contained asbestos. Thus, Mr. Rabold’s testimony, if taken in isolation, fails to establish the defendant’s predecessor produced any asbestos which plaintiff’s decedent inhaled and defendant’s motion for directed verdict would have been granted.

However, plaintiff’s decedent’s Rabold’s deposition testimony was not the only testimony the jury heard on the question of whether the Anaconda or Continental wire contained asbestos. Co-workers of Mr. Rabold, whose trial proceeded with Mr. Rabold’s, worked on the same wire machine as Mr. Rabold. This testimony filled the gap whether Anaconda or Continental wire did contain asbestos fiber. Accordingly, if all the testimony presented to the jury at the combined trials may be considered as part of Mr. Rabold’s case, the evidence was sufficient to raise a jury question as to defendant’s liability and the [491]*491motions for nonsuit and directed verdict were properly decided.

The question therefore becomes whether the jury, simultaneously hearing coordinated but not consolidated cases, is restricted in its consideration of each case from considering overlapping relevant testimony technically presented by another plaintiff.

Defendant points to the standard jury instruction which was given requiring that each of the coordinated cases must be considered on its own merits. In an effort to ensure that the jury was able to understand the testimony in four different coordinated cases with different multiple defendants in each, the court instructed the jury in opening instructions: “You have got four plaintiffs, and a slew of defendants ... each plaintiff, and each defendant deserves individual attention, and must be kept sorted out, as if that was the only case in front of you.” The defense further claims that because the court ordered counsel to identify witnesses by case, the jury was implicitly directed to consider evidence only in that case, even if relevant to a different plaintiff’s claim. The defense also claims that closing instructions in which the court said: “Each case has to be given its own attention and decided on its own evidence” and “there are three different cases that have to be separate and decided separately” also directed the jury to mentally compartmentalize the evidence.

The defense is incorrect in the import of these cautionary instructions. The court did not direct the jury that evidence relevant to a just verdict in one of these cases could not be considered if presented by a co-plaintiif. Indeed, it would be most unreasonable to expect a jury [492]

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Related

Samarin v. GAF Corp.
571 A.2d 398 (Supreme Court of Pennsylvania, 1989)
Commonwealth v. England
375 A.2d 1292 (Supreme Court of Pennsylvania, 1977)
Gunn v. Grossman
748 A.2d 1235 (Superior Court of Pennsylvania, 2000)
Wilson v. A.P. Green Industries, Inc.
807 A.2d 922 (Superior Court of Pennsylvania, 2002)

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Bluebook (online)
69 Pa. D. & C.4th 486, 2004 Pa. Dist. & Cnty. Dec. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rabold-v-ericsson-inc-pactcomplphilad-2004.