National Verdicts

Plaintiff(s):

Doris Busbey (Female), 

John F. Busbey (Male, 72 Years)

Plaintiff Attorney(s):

Benjamin P. Shein;
Shein Law Center, Ltd.;
Philadelphia,
PA,
for
Doris Busbey, John F. Busbey ■ Bethann Schaffzin Kagan;
Shein Law Center, Ltd.;
Philadelphia,
PA,
for
Doris Busbey, John F. Busbey

Plaintiff Expert(s):

Daniel DuPont; D.O.; Asbestos-related Lung Disease; Springfield,
PA called by:
Benjamin P. Shein, Bethann Schaffzin Kagan ■ Gerald Markowitz; Ph.D.; Historian; New York,
NY called by:
Benjamin P. Shein, Bethann Schaffzin Kagan ■ Steven Markowitz; M.D.; Occupational Medicine; Flushing,
NY called by:
Benjamin P. Shein, Bethann Schaffzin Kagan

Defendant(s):

CBS Corp., 

Crane Co., 

Air Liquide, 

Sepco Corp., 

Pecora Corp., 

Yarway Corp., 

Bell & Gossett, 

Chemtron Corp., 

Goodrich Corp., 

IMO Industries, 

The Austin Co., 

Aurora Pump Co., 

ESAB Group Inc., 

Guard-Line Inc., 

J.D. Ross Corp., 

Ross Industries, 

Steel Grip Inc., 

A.O. Smith Corp., 

Warren Pumps LLC, 

Certainteed Corp., 

Copes-Vulcan Inc., 

DAP Products Inc., 

Goulds Pumps Inc., 

J.A. Sexauer Inc., 

Spirax Sarco Inc., 

Ingersoll Rand Co., 

Midland-Ross Corp., 

Taco Products Inc., 

Flack Brothers Inc., 

Union Carbide Corp., 

Armstrong Pumps Inc., 

Clark-Reliance Corp., 

General Electric Co., 

Goodyear Canada Inc., 

Hedman Resources Ltd., 

Parker-Hannifin Corp., 

SOS Products Co. Inc., 

American Optical Corp., 

The William Powell Co., 

Fort Kent Holdings Inc., 

Mueller Steam Specialty, 

Baltimore Ennis Land Co., 

Greene, Tweed & Co. Inc., 

Ross Engineering Division, 

Air & Liquid Systems Corp., 

Mine Safety Appliances Co., 

J.D. Ross Engineering Corp., 

Armstrong International Inc., 

Safety First Industries Inc., 

Electrolux Home Products Inc., 

Durametallic Manufacturing Co., 

The Goodyear Tire & Rubber Co., 

Metropolitan Life Insurance Co., 

Weir Valves & Controls, USA Inc., 

Wheeler Protective Apparel Corp., 

Susquehanna Valley Insulators Inc., 

C.A.R.S. – Couche Asbestos Removal Services Inc.

Defense Attorney(s):

None reported;

for
CBS Corp., Crane Co., Air Liquide, Sepco Corp., Pecora Corp., Yarway Corp., Bell & Gossett, Chemtron Corp., Goodrich Corp., IMO Industries, The Austin Co., Aurora Pump Co., Guard-Line Inc., J.D. Ross Corp., Ross Industries, Steel Grip Inc., A.O. Smith Corp., Warren Pumps LLC, Certainteed Corp., Copes-Vulcan Inc., DAP Products Inc., Goulds Pumps Inc., J.A. Sexauer Inc., Spirax Sarco Inc., Ingersoll Rand Co., Midland-Ross Corp., Taco Products Inc., Flack Brothers Inc., Union Carbide Corp., Armstrong Pumps Inc., Clark-Reliance Corp., General Electric Co., Goodyear Canada Inc., Hedman Resources Ltd., Parker-Hannifin Corp., SOS Products Co. Inc., American Optical Corp., The William Powell Co., Fort Kent Holdings Inc., Mueller Steam Specialty, Baltimore Ennis Land Co., Greene, Tweed & Co. Inc., Ross Engineering Division, Air & Liquid Systems Corp., Mine Safety Appliances Co., J.D. Ross Engineering Corp., Armstrong International Inc., Safety First Industries Inc., Electrolux Home Products Inc., Durametallic Manufacturing Co., The Goodyear Tire & Rubber Co., Metropolitan Life Insurance Co., Weir Valves & Controls, USA Inc., Wheeler Protective Apparel Corp., Susquehanna Valley Insulators Inc., C.A.R.S. – Couche Asbestos Removal Services Inc. ■ Bobbie R. Bailey;
Leader & Berkon LLP;
Los Angeles,
CA,
for
ESAB Group Inc. ■ Joseph G. Colao;
Leader & Berkon LLP;
New York,
NY,
for
ESAB Group Inc. ■ Joseph I. Fontak;
Leader & Berkon LLP;
Philadelphia,
PA,
for
ESAB Group Inc.

Defendant Expert(s):

Delno Malzahn;
Industrial Hygiene;
Farmington Hills,
MI called by:
Bobbie R. Bailey, Joseph G. Colao, Joseph I. Fontak

In July 2012, plaintiff’s decedent John , 72, died from mesothelioma, having been diagnosed with the condition the previous January. In 2001, retired from ESAB Group Inc., where he had worked as a laborer for 39 years at its Alloy Rods welding-rod plant, in Hanover. alleged that he was exposed to chrysotile (and some amosite) asbestos during his years at the plant. His primary exposure allegedly came from using a sweeper (a golf-cart-size street-sweeper with an open cab), which cleaned the plant’s approximately 300,000 square feet. claimed that the machine kicked up debris which caused him to ingest airborne-asbestos particles. When the sweeper was unable to reach enclosed areas, would use a push-broom and shovel to collect debris. He claimed that further exposure came from his duties as a front-end inspector, in which he sat in front of a welding rod oven and observed 18-inch steel rods travel on a conveyor belt and into the oven. Frequently, he was required to clear internal oven jams which allegedly caused him to be exposed to asbestos insulation in the interior of the ovens. , prior to his death, sued his former employer, ESAB Group Inc., on a tort-based claim of negligence. (He also sued a number of other companies on claims based on products liability. The claims against those parties were concluded prior to trial through dispositions of undisclosed natures; Air Liquide, which manufactured one of the ovens for the ESAB plant, remained at trial and was dismissed via non-suit, at the close of ‘s case.) ‘s suit proceeded on a theory that the employer (ESAB) had negligently failed to protect its employees from dangers associated with asbestos-containing products present at the workplace. ‘s counsel brought the case under a tort theory following the Pennsylvania Supreme Court’s determination in Tooey v. A.K. Steel Corp. and Landis v. A.W. Chesterton Co. that workers’ compensation laws did not bar a plaintiff from pursuing third-party tort damages against an employer in latent-disease cases such as those arising from exposure to asbestos. ‘s counsel produced ESAB internal documents that showed significant amounts of asbestos had been in place for decades throughout the Alloy Rods plant and that had worked with and around those asbestos products and was exposed to dust and debris in his various positions, during his 39-year career at the plant. In the 1980s and 1990s, Alloy Rods remediated and abated some of the asbestos in the plant, but never told the workers of the potential health risks posed by asbestos and never took steps to protect the employees against the dangers. The removals continued into the 2000s, but Alloy Rods remained silent, asserted ‘s counsel. Counsel asserted the evidence showed that, although OSHA passed regulations to control workers’ exposure to asbestos in 1971, the release of asbestos-laden dust at the Alloy Rods plant continued through the ’70s, ’80s, ’90s, and even after 2001, when retired. According to ‘s expert in occupational medicine, the plant’s asbestos originated from its ovens and duct work, which were insulated with chrysotile and amosite asbestos. An abatement report from the 2000s indicated that the rope-gasketing in the oven contained 94 percent asbestos. The expert, whose opinion further relied on the testimonies of three of ‘s former co-workers, concluded that his asbestos exposure at ESAB caused his mesothelioma. ‘s expert in pulmonology, who reviewed ‘s medical records and radiological studies, attributed his mesothelioma to asbestos exposure. ‘s state-of-the-art expert outlined the public knowledge of asbestos decade by decade, starting in England, in 1898, and continuing through OSHA and NIOSH (National Institute for Occupational Safety and Health) in the 1970s. ESAB’s counsel argued that the company did not use asbestos in its manufacturing process, and asbestos was only present as insulation in certain areas of the plant. ESAB began using outside professionals to monitor asbestos insulation in its facility in the 1970s, after OSHA issued asbestos regulations. From that point on, ESAB used those outside professionals to advise it on whether to abate, encapsulate, or monitor the remaining asbestos. The company’s counsel maintained that ESAB was not negligent, having used the outside professionals and having provided its workers, including , with personal protective equipment, such as dust masks. Counsel also argued that had other industrial exposure, at his prior employment (although the court excluded any testimony regarding the presence of asbestos there, on foundational grounds). The defense counsel’s expert in industrial hygiene testified that would not have sustained occupational exposure to asbestos above permissible exposure levels during his career at ESAB, and that asbestos levels at ESAB were comparable to levels found in urban environments. Counsel alternatively maintained that, if it was believed that contracted mesothelioma from asbestos exposure at ESAB, then he was comparatively negligent. The defense explained that other sweepers wore dust masks, and argued that should share a portion of the fault for failing to protect himself by not wearing a mask or a respirator while performing his job duties. ESAB had a cross-claim based on strict liability against Midland-Ross Corp., another oven manufacturer. ESAB maintained that the Midland-Ross ovens were defective, because they were delivered with asbestos but without warnings. The defense claimed that, if asbestos from the ovens caused ‘s asbestos exposure and mesothelioma, the jury should find Midland-Ross responsible under Pennsylvania products liability law, which holds manufacturers strictly liable. ‘s counsel contended that it was ESAB’s responsibility to maintain, insulate, and repair the Midland-Ross oven, which the company delivered to the ESAB plant in 1968.

Busbey‘s mesothelioma diagnosis came after he began experiencing shortness of breath, in 2011. During the six months leading up to his death, he treated with chemotherapy and narcotic medication. Three weeks prior to his death, he received hospice care at his home, where he remained on a hospital bed and relied on a feeding tube. His wife was his round-the-clock caretaker. Busbey is survived by three daughters and a son. His estate sought to recover damages under the Wrongful Death and Survival Acts, and his wife sought damages for loss of consortium.

The jury found ESAB was 100 percent liable. No comparative negligence was found against Busbey, and no liability was found against Midland-Ross. The Busbeys were determined to receive $1.7 million.

Doris Busbey: $1,000,000 Wrongful Death: loss of consortium; John F. Busbey: $200,000 Wrongful Death: Survival; $500,000 Wrongful Death: Wrongful Death Act

Judge:

Lisette Shirdan-Harris

Trial Length:

3
 weeks

Trial Deliberations:

6
 hours

Jury Vote:

8-0

This report is based on information that was provided by plaintiffs’ and defense counsel. The other defendants were not asked to contribute.