Asbestos defendant says Philly's reverse procedure is truly backwards

John O'Brien Nov. 23, 2010, 8:30am


PHILADELPHIA (Legal Newsline) - A frequent defendant in Philadelphia asbestos lawsuits says the process used by the city when trying claims is unfair.

Attorneys for Crane Co. wrote in July that the city should stop using a procedure known as reverse bifurcation when asbestos claims go to trial. Bifurcating a trial creates two separate trials on the issues of liability and damages, and in reverse bifurcation a jury determines damages first and liability second.

Judge Sandra Moss, of the Philadelphia Court of Common Pleas, has asked those involved in her court's asbestos litigation to move for evidentiary hearing that would determine if reverse bifurcation is still appropriate.

Crane's attorneys said it is not, in a statement filed over the summer.

"While the relevant issues and the profiles of the parties in the Philadelphia County asbestos litigation have changed significantly over the past 25 years, the procedures governing those proceedings have not," they wrote.

Crane says the causal link between asbestos and a particular disease has become a less significant issue than it was when the reverse bifurcation procedure was instituted.

Abestos lawsuits are handled in the court's Complex Litigation Center, which opened in 1992 and was designed, in part, to reduce the backlog of asbestos cases in the city.

"The existing procedures are designed to resolve issues relating to the general causal link between asbestos and a particular disease process in a large group setting," the statement says.

"Nevertheless, as the 'general' causal link between asbestos and certain disease processes has become a less significant issue, the asbestos litigation has evolved into a series of plaintiff-specific and defendant-specific inquires -- similar to many other types of complex product liability personal injury disputes.

"Against this backdrop, the Court's longstanding means of resolving asbestos claims has become outdated."

The process, Crane, argues, creates a greater likelihood that the company will be found liable for asbestos-related injuries after the jury hears expert testimony during the first phase of the trial.

It mentions the work of Dr. Allen McConnell of Miami University and Dr. Edie Greene of the University of Colorado. The two concluded that that there is a prejudice against defendants in a reverse bifurcation trial.

"The conclusions reached by these prominent behavioral scientists should come as no surprise to a Pennsylvania jurist, however, since the Superior Court has at least thrice expressed concern over jury sympathy occasioned by hearing evidence regarding the severity of a plaintiffs' injury before liability is assessed," the statement says.

"The Superior Court has noted that these concerns are amplified when the cause of the plaintiff's injuries is not disputed. Thus, there is nothing novel about Dr. McConnell's and Dr. Greene's conclusions."

"In a reverse-bifurcated trial, the jury begins its service by hearing a one-sided presentation ofthe injuries and suffering caused by a terminal cancer while the defendants are effectively silenced," it continues.

"By the time the 'liability' phase starts, when the defendants are entitled to present a true defense, the plaintiffs have already secured an award of damages, substantial sympathy, and a finding that some defendant's asbestos-containing product is to blame.

"All that remains is to 'pin' that blame on some or all of the trial defendants."

No decision has been made on the issue yet.

Philadelphia isn't the only jurisdiction in which Crane is trying to change asbestos litigation.

Crane is also involved in a lawsuit before the California Supreme Court. The court is to decide the question: "Can the manufacturer of valves and fittings installed on Navy ships, and designed to be used with asbestos packing, gaskets, and insulation, rely on the 'component parts' defense or related theories to preclude strict liability for asbestosis injuries years later suffered by seamen on those ships?"

A decision by the state's Second District Court of Appeals sided with the plaintiffs, saying the defendants should have known their products would be insulated with asbestos to protect them from heat.

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