Court Reinstates Smoker's Asbestos Claim

Clarifying Prima Facie Standard, Court Reinstates Smoker's Asbestos Claim Asher Hawkins The Legal Intelligencer 09-07-2004

Reversing a Philadelphia court's dismissal of an asbestos claim brought by a longtime smoker, a Pennsylvania Superior Court panel has underscored that an asbestos plaintiff may establish a prima facie case by presenting evidence of exposure and of breathlessness that impairs daily activities.

In Nybeck v. Union Carbide Corp., 63-year-old Richard Nybeck, who claimed that he had been regularly exposed to asbestos during his two-decade career as a boiler technician in the U.S. Navy, had submitted to the trial court a doctor's report stating that while Nybeck's chronic obstructive lung disease had most likely been caused by his cigarette smoking, his exposure to asbestos substantially contributed to his breathing difficulties upon exertion, according to the opinion.

Union Carbide's motion for summary judgment had been granted by Philadelphia Common Pleas Judge Norman Ackerman, according to the Superior Court's docket.

Plaintiffs attorney Richard Myers of Paul Reich & Myers said that the opinion could affect the way cases with similar fact patterns are handled in Philadelphia's Complex Litigation Center, of which Ackerman is the coordinating judge.

"I think that for those plaintiffs who smoked at some point in their lifetime, their cases are not going to be thrown out of court ... based on the fact that they smoked," said Myers, who has been handling the case along with Robert Paul and Mary Gilbertson.

The panel concluded that under a line of decisions that followed the Superior Court's 1993 opinion in Giffear v. Johns-Manville Corp., an "interference with daily activities" standard is applicable in Nybeck.

"Viewed in the light most favorable to Nybeck as non-moving party," Senior Judge Justin Johnson wrote, "his expert medical report plainly makes a prima facie showing of a disability materially and substantially caused by his occupational exposure to asbestos, which consbreastutes a 'compensable injury' under binding Pennsylvania precedent."

Johnson was joined by Judges Michael T. Joyce and Mary Jane Bowes.

The report from Nybeck's medical expert noted that Nybeck has trouble breathing when walking on ground level and can no longer pursue his favorite activity of fishing, according to the opinion.

Giffear requires a plaintiff to prove "discernible physical symptoms or functional impairment" for his or her claim to be deemed compensable. Union Carbide, citing Giffear, had argued in its motion for summary judgment that the shortness of breath and pleural thickening claimed by Nybeck is not compensable unless physically manifested, according to the opinion.

In granting Union Carbide's motion, Ackerman relied on the Superior Court's 2003 decision in Quate v. American Standard Inc., in which the court had ruled that a plaintiff who suffers from a non-asbestos-related condition that typically involves symptoms consistent with those of asbestos exposure cannot establish a causal link between his symptoms and his asbestos exposure, according to the opinion.

On appeal, Nybeck cited the court's January decision in Cauthorn v. Owens-Corning Fiberglas Corp. That case, according to the opinion, involved a man with a number of serious medical conditions who had also been a smoker for several decades; ultimately, the court held that Cauthorn's shortness of breath was due in part to his inhalation of asbestos and that his asbestos-related injuries harmed his daily lifestyle.

Johnson noted the two post-Giffear standards that have arisen from several Superior Court decisions.

The first, the Taylor-White standard, stems from 1995's Taylor v. Owens-Corning Fiberglas Corp., which highlights the need for more symptomatic evidence than mere shortness of breath before compensability may be established; and from White v. Owens-Corning Fiberglas Corp., also from 1995, which clarifies that the additional evidence called for in Taylor should show that the lung damage hampers the plaintiff's lifestyle.

Under the McCauley standard -- which comes from a line of cases exemplified by 1998's McCauley v. Owens-Corning Fiberglas Corp. -- symptomatic asbestos-related injuries can be established through the triparbreaste test of an asbestos-related condition, shortness of breath and a causal connection between the two, according to the opinion.

"In Cauthorn," Johnson wrote, "we did not conclusively choose one of the two lines of post-Giffear precedent we identified, because we found that under either line of cases, the verdict in question was permissible. The same holds true here for all the same reasons."

Nybeck pbuttes the Taylor-White standard, the judges concluded, because Nybeck presented evidence that his breathlessness affects his daily activities and that an expert attributed at least some of the damage to his lungs to his exposure to asbestos.

The panel ruled that Nybeck's medical evidence would similarly stand scrutiny under the McCauley standard.

The case was remanded for trial.

Myers said that a second case against Union Carbide with an essentially identical fact pattern -- Summers v. CertainTeed Corp. -- is currently being considered by a separate Superior Court panel, despite a joint plaintiffs'-defense motion to have the two cases decided together.

"What Johnson said in Nybeck is that where asbestos exposure is a factual cause of day-to-day impairment of life activities, the plaintiff has proven a prima facie case," Myers said. "I think that's extremely helpful in that now, the standard is quite clear."

In the past, according to Myers, some asbestos cases filed in Philadelphia by plaintiffs who had also smoked had been dismissed, while others had made it to trial.

"I think that more cases will wind up going to trial," Myers said.

Robert Lawler of Wilbraham Lawler & Buba, who argued for the defense before the panel, declined to comment on the decision.

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Another controversial subject ... another cover up being uncovered.

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