215-987-2019

Pennsylvania Upholds Asbestos Lung Cancer Verdict Against Lincoln Electric for Asbestos Containing Welding Rods

 

Here is the Court opinion finding that 

An article written by a Lincoln employee introduced into evidence showed that all Lincoln 6011 welding rods contained asbestos.[fn13]  The significant substance of this article was corroborated by a Lincoln employee, who also admitted that Lincoln made asbestos-containing 6011 welding rods until 1981

 

J.A01021/07

2007 PA Super 309

JOHN E. DONOUGHE AND HELEN M.

DONOUGHE,

Appellants

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

LINCOLN ELECTRIC CO., AND HOBART

BROTHERS,

Appellees

:

:

:

No. 357 EDA 2006

Appeal from the Judgment Entered January 25, 2006

In the Court of Common Pleas of PHILADELPHIA County

Civil Division at No. 5275 September Term, 2003

JOHN E. DONOUGHE AND HELEN M.

DONOUGHE, H/W,

Appellees

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

HOBART BROTHERS COMPANY AND

LINCOLN ELECTRIC COMPANY,

Appellants

:

:

:

No. 488 EDA 2006

Appeal from the Judgment Entered January 25, 2006

In the Court of Common Pleas of PHILADELPHIA County

Civil Division at No. 5275 September Term, 2003

BEFORE: STEVENS, McCAFFERY, and KELLY, JJ.

OPINION BY McCAFFERY, J.: Filed: October 12, 2007

¶ 1 Before the Court are cross-appeals from a judgment entered against

Hobart Brothers Company (“Hobart”); the Lincoln Electric Company (“Lincoln”);

and nine other manufacturers of asbestos products, in favor of John E. and

Helen Donoughe, husband and wife (collectively, “Donoughe”), in the total

amount of $396,000, plus post-verdict interest. After careful review, we affirm

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as to Lincoln’s and Hobart’s claims, and vacate and remand as to Donoughe’s

claim.

¶ 2 The factual and procedural history of this case, as set forth by the trial

court, is as follows:

[This] asbestos case was tried before the Honorable James

Murray Lynn and a jury as a reverse bifurcated trial. In the

first phase, the jury found that Plaintiff[,] John E. Donoughe

was exposed to asbestos that resulted in his development of

lung cancer and awarded him $360,000.00, and his wife,

Helen Donoughe[,] $36,000.00, for loss of consortium. In

Phase II, the jury found Defendants, Lincoln [] and Hobart,

liable for the injury sustained by [Donoughe].

* * * *

The evidence at trial established that the Plaintiff, John E.

Donoughe, worked with the Penn Central Railroad, which

later became Conrail and Norfolk Southern, [from] 1974

through 2000. Mr. Donoughe worked as a welder at the

railroad shop, and [approximately one-quarter] of [his] time

from 1974 through 1977, repair[ed] air brakes. He stated

that numerous products in the railroad shop were labeled as

containing asbestos. Mr. Donoughe testified that he was

exposed to asbestos dust and inhaled this dust from

[Lincoln’s and Hobart’s] welding rods when they were

removed from containers…. Mr. Donoughe was diagnosed

with lung cancer in 2001.

[Donoughe’s] medical expert, Dr. Harvey Spector, testified

that all exposures to asbestos [are] a substantial factor in

causing lung cancer[,] such as that suffered by Mr.

Donoughe. Dr. Paul E. Epstein also testified on [Donoughe’s]

behalf. Dr. Epstein testified that each and every breath of

asbestos was a substantial contributing factor to cancer. He

also opined that the dust [to which] Mr. Donoughe was

exposed [] would have been a factual cause of the lung

cancer that he developed.

On May 6, 2005, the jury awarded [Donoughe] $396,000.00

in damages. On May 13, 2005, [Donoughe] filed a Motion to

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Mold the Verdict. On May 20, 2005, [Lincoln and Hobart]

filed a Motion for Post-Trial Relief.

(Trial Court Opinion, dated June 13, 2006, at 1-3; citations to the record

omitted; footnote omitted).1 Also at the same trial, Donoughe obtained a

verdict against nine other asbestos manufacturers, including Johns-Manville

Corporation, which settled with Donoughe. None of these other defendants are

parties to this appeal.

¶ 3 The trial court denied the post-trial relief sought by Donoughe and that

sought by Lincoln and Hobart. The parties filed timely cross-appeals, with

Lincoln and Hobart raising their joint issues in a single brief. The issues

presented by Lincoln and Hobart are as follows:

1. May a trial court refuse to address the points of error

outlined in an appropriate [Rule] 1925(b) statement of

issues on appeal and deem those issues waived, when

the statement was organized, clearly articulated, and did

not raise an “outrageous” number of issues?

2. Can a plaintiff prove a product caused an asbestos injury

(a) by testifying that he saw “dust” while handling it,

when plaintiff’s testimony lacked any foundation that the

“dust” contained asbestos and, (b) without presenting

any expert testimony to establish actual release of

respirable asbestos from products allegedly containing

encapsulated asbestos?

3. May a trial court refuse to conduct a risk-utility analysis

under Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa.

1 The trial court wrote two opinions, each dated June 13, 2006, pursuant to

Pa.R.A.P. 1925(a). One opinion addressed the issues raised on appeal by

Lincoln and Hobart, and the other addressed the issues raised on appeal by

Donoughe. The factual and procedural history quoted above is from the first

opinion; however, the recitation of the factual and procedural history in the

second opinion is nearly identical to that of the first opinion.

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1978) when the product has substantial utility and there

is no competent evidence that the product posed any risk

of an asbestos-related injury?

4. Can a manufacturer of welding rods be held liable under §

402A for exposure to welding slag, which is not a product

but a byproduct of the welding process?

5. May a trial court refuse to provide any relief for [Lincoln

and Hobart], such as the granting of a continuance, the

striking of testimony or the preclusion of witnesses, when

[Donoughe’s] failure to comply with the rules of discovery

and a court order resulted in a trial by ambush that

deprived [Lincoln and Hobart] of their due process right

to a fair trial?

6. May a trial court impose reverse bifurcation over

[Lincoln’s and Hobart’s] objections when [Donoughe’s]

Phase I damage evidence necessarily taints jury

deliberations on Phase II issues?

7. May a medical expert who has provided no expert report

offer opinions on non-medical issues on which he has no

expert qualifications?

(Lincoln’s and Hobart’s Brief at 5).2

¶ 4 Donoughe raises the following single issue for our review:

Did the lower court err when it refused to mold the verdict to

address the shortfall between the amount paid by Johns-

Manville Corporation pursuant to its pro tanto release with

[Donoughe] and the pro rata share allocated Manville by the

verdict?

(Donoughe’s Cross-Appellants’ Brief at 2).3

2 We have reordered the sequence of Lincoln’s and Hobart’s issues to comport

with the sequence of our disposition.

3 Donoughe filed an Appellee’s Brief and a Cross-Appellant’s Brief, the two

bound, one following the other, as a single document.

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Lincoln’s and Hobart’s Issues

(1) Rule 1925(b) Waiver

¶ 5 Following receipt of Lincoln’s and Hobart’s Pa.R.A.P. 1925(b) “Concise

Statement of Matters Complained of on Appeal,” the trial court wrote an

opinion in which it determined that all of Lincoln’s and Hobart’s appellate issues

had been waived. The court concluded that because Lincoln and Hobart had

“attempted to overwhelm” the court “by filing a Rule 1925(b) Statement that

contained a multitude of issues that they cannot possibly intend to raise and/or

could raise before” this Court, Lincoln and Hobart had violated the dictates of

Rule 1925(b) as interpreted by case law. (Trial Court Opinion, reviewing

Lincoln’s and Hobart’s issues, at 10). Lincoln’s and Hobart’s Rule 1925(b)

Statement is slightly over four pages long4 and set forth, according to the trial

court, twelve issues that the trial court had difficulty understanding.5

Determining that meaningful review of Lincoln’s and Hobart’s appellate issues

was not possible because (1) it was required to guess what those issues were,

and (2) the sheer volume of issues evidenced Lincoln’s and Hobart’s

4 The trial court stated that it was six pages long.

5 The court queried: “Are [Lincoln and Hobart] claiming [that] this [c]ourt

abused its discretion, entered a verdict against the weight of the evidence, that

the evidence was insufficient to sustain the verdict, or a combination of all

three (3)?” (Id. at 8-9).

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“misconduct” and lack of “good faith,” the trial court concluded that all of

Lincoln’s and Hobart’s issues were waived. (Id. at 10).6

¶ 6 In reaching its determination, the trial court relied principally on Kanter

v. Epstein, 866 A.2d 394 (Pa.Super. 2004), appeal denied, 584 Pa. 678, 880

A.2d 1239 (2005), cert. denied sub nom. Spector, Gaden & Rosen, P.C. v.

Kanter, ___ U.S. ___, 126 S.Ct. 1048 (2006), and its progeny. In Kanter,

this Court held that when an appellant raises an “outrageous” number of issues

in a Rule 1925(b) statement, the appellant has deliberately violated both the

letter and spirit of Rule 1925(b) and has rendered appellate review of any

issues meaningless. Id. at 401. In Kanter, one appellant filed a fifteen-page

Rule 1925(b) statement setting forth fifty-five issues, and the other appellant

filed a fifteen-page Rule 1925(b) statement setting forth forty-nine issues. We

determined that the excessive listing of issues required that the trial court

“guess” as to the actual issues the appellants intended to argue on appeal,

effectively precluding meaningful review. Id. As we observed in Kanter,

Pa.R.A.P. 2116(a) requires that the statement of questions set forth in an

appellate brief should not ordinarily exceed fifteen lines and must never exceed

one page. Therefore, when an appellant submits a Rule 1925(b) statement

that sets forth many more issues than could possibly be raised before the

appellate court within the restrictions of Rule 2116(a), a trial court is placed in

6 Because of its determination, the trial court did not address the substance of

Lincoln’s and Hobart’s issues, except to note generally that the evidence

supported the jury’s verdict.

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the inappropriate position of having to “guess” as to the actual issues the

appellant will eventually raise in his or her appellate brief. Id.

¶ 7 However, where a Rule 1925(b) statement, although several pages in

length, plainly describes the issues on appeal, and, when stripped of subarguments

or other extraneous verbiage, would appear to be able to fit upon a

single page, then a determination that the issues were waived is inappropriate.

See Pennsy Supply, Inc. v. Mumma, 921 A.2d 1184, 1197 (Pa.Super. 2007)

(holding that a seven-page Rule 1925(b) statement, although containing

unnecessary and superfluous language largely directed at answering the

questions on appeal, was not so vague as to preclude a clear understanding of

the issues raised); McGavitt v. Guttman Realty Co., 909 A.2d 1, 3-4

(Pa.Super. 2006) (holding that a six-page Rule 1925(b) statement, although

containing superfluous discussion, sufficiently set forth the appellant’s four

issues, all of which would have fit on a single page, and thus did not preclude

the trial court from conducting a comprehensive analysis of the issues).7

¶ 8 Here, Lincoln’s and Hobart’s Rule 1925(b) statement essentially mirrors

their Rule 2116(a) statement of questions involved, absent the issue regarding

whether the trial court erred by finding a waiver of all issues under Rule

7 We also note that our Supreme Court has recently amended Pa.R.A.P.

1925(b) in many significant respects, effective July 25, 2007. In particular, we

observe that the amended Rule provides in relevant part: “Where nonredundant,

non-frivolous issues are set forth in an appropriately concise

manner, the number of errors raised will not alone be grounds for finding

waiver.” Pa.R.A.P. 1925(b)(4)(iv). However, the amendment to Rule 1925(b)

does not apply to the case sub judice because the notice of appeal was filed

prior to the effective date of the Rule’s amendment.

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1925(b). The essential differences between the statement of questions

involved and the longer Rule 1925(b) statement are (1) the extra degree of

detail set forth in the Rule 1925(b) statement; (2) the separate framing of

related issues in the Rule 1925(b) statement that were consolidated more

generally in the statement of questions involved; and (3) the fact that the Rule

1925(b) statement had been typed in double space as opposed to the singlespaced

typing of the statement of questions involved.8 Moreover, as is readily

apparent from the issues raised by Lincoln and Hobart in their Rule 2116(a)

statement of questions involved, quoted above, the allegations of error are

fairly straightforward and are not vague. Therefore, under these

circumstances, we disagree with the trial court’s determination that Lincoln and

Hobart have waived all issues on appeal.9

(2) Denial of motion for JNOV

¶ 9 Lincoln’s and Hobart’s first three substantive issues relate to its

contention that the trial court erred by denying their motion for judgment

notwithstanding the verdict (“JNOV”). Our review is therefore informed by the

following principles:

8 The Rule 1925(b) statement also contained approximately two additional

allegations of errors on evidentiary rulings not raised in the statement of

questions involved.

9 Although the trial court did not specifically address Lincoln’s and Hobart’s

issues in its Rule 1925(a) opinion, in the interests of judicial economy, we shall

proceed to address Lincoln’s and Hobart’s issues without remanding to the trial

court for its analysis.

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Our scope of review with respect to whether JNOV is

appropriate is plenary, as with any review of questions of

law. It is axiomatic that[] there are two bases upon which a

judgment n.o.v. can be entered: one, the movant is entitled

to judgment as a matter of law, and/or two, the evidence

was such that no two reasonable minds could disagree that

the outcome should have been rendered in favor of the

movant. To uphold JNOV on the first basis, we must review

the record and conclude that even with all the factual

inferences decided adverse to the movant the law

nonetheless requires a verdict in his favor, whereas with the

second we review the evidentiary record and conclude that

the evidence was such that a verdict for the movant was

beyond peradventure.

When we review a motion for JNOV, we must consider the

evidence in the light most favorable to the verdict winner,

who must receive the benefit of every reasonable inference

of fact arising therefrom, and any conflict in the evidence

must be resolved in his favor. Any doubts must be resolved

in favor of the verdict winner, and JNOV should only be

entered in a clear case. Finally, a judge’s appraisement of

evidence is not to be based on how he would have voted had

he been a member of the jury, but on the facts as they come

through the sieve of the jury’s deliberations.

Rohm and Haas Co. v. Continental Casualty Co., 566 Pa. 464, 471-72, 781

A.2d 1172, 1176 (2001) (citations and quotation marks omitted). We further

note, and emphasize, that the entry of a JNOV “is a drastic remedy. A court

cannot lightly ignore the findings of a duly selected jury.” Bugosh v. Allen

Refractories Co., ___ A.2d ___, ___, 2007 PA Super 215, ¶ 11 (filed July 18,

2007) (citation omitted).

(a) Sufficiency of Donoughe’s Evidence

¶ 10 Lincoln and Hobart first argue that Donoughe failed to present competent

evidence that Lincoln’s and Hobart’s welding rods either contained asbestos or

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released asbestos fibers, or that Donoughe inhaled respirable asbestos fibers

from Lincoln’s and Hobart’s welding rods that caused his asbestos-related

disease.10 Our review of this argument necessitates an understanding and

explanation of what is necessary to successfully establish a products liability

asbestos claim.

¶ 11 In all products liability cases, the plaintiff must prove (1) the existence of

a defect in the product that was present at the time the product left the control

of the manufacturer; and (2) that the defect caused the plaintiff’s injuries.

Hadar v. AVCO Corporation, 886 A.2d 225, 228 (Pa.Super. 2005), appeal

denied, 586 Pa. 758, 895 A.2d 550 (2006); Schindler v. Sofamor, Inc., 774

A.2d 765, 771 (Pa.Super. 2001). “The threshold question of whether the

product is defective may be shown in two ways: proof of a manufacturing

defect or proof of a design defect. A subcategory of design defect includes

inadequate warning, to the user or consumer, of the defect or dangerous

10 More specifically, Lincoln and Hobart argue that Donoughe offered no

competent expert evidence that the welding rod dust he observed consisted of

asbestos fibers and that his lay testimony was inadequate to satisfy his burden

of proof. Further, Lincoln and Hobart argue that Donoughe failed to offer any

competent expert opinion as to whether the dust Donoughe saw and inhaled

was “respirable” asbestos (i.e., asbestos fibers small enough to enter the

lungs), in consideration of Lincoln’s and Hobart’s “unrebutted” testimony from

an expert witness that welding rods could not release “respirable” asbestos.

Lincoln and Hobart also note that their expert witness had testified that the

welding process destroys asbestos fibers, thus preventing a release of harmful

dust. In sum, Lincoln and Hobart contend that the trial court erred by allowing

the jury to consider whether Lincoln and Hobart were liable for Donoughe’s

injuries when there was, purportedly, no competent evidence that their

products contained or released asbestos fibers capable of entering Donoughe’s

lungs. (See, generally, Lincoln’s and Hobart’s Brief at 23-36).

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propensity of the product.” Hadar, supra at 228 (citations and quotation

marks omitted). In the case sub judice, Donoughe alleges that Lincoln’s and

Hobart’s welding rods were defective because of a failure to warn users,

including Donoughe, of their dangerous propensities. “A product is defective

due to a failure-to-warn where the product was distributed without sufficient

warnings to notify the ultimate user of the dangers inherent in the product.”

Phillips v. A-Best Products Co., 542 Pa. 124, 131, 665 A.2d 1167, 1171

(1995) (quoting Mackowick v. Westinghouse Electric Corp., 525 Pa. 52,

56, 575 A.2d 100, 102 (1990)).

¶ 12 In a products liability case involving asbestos exposure, a plaintiff must

present evidence that he or she inhaled asbestos fibers shed by the

defendant’s product. Bugosh, supra at ¶ 8. “[I]deally, a plaintiff will be able

to directly testify that [he or she] breathed in asbestos fibers and that those

fibers came from the defendant’s product.” Id. (quoting Gilbert v. Monsey

Products Co., 861 A.2d 275, 276 (Pa.Super. 2004)). However, absent such

direct evidence, a plaintiff may rely on circumstantial evidence of exposure,

namely, “the frequency of the use of the product and the regularity of [his or

her] employment in proximity thereto.” Id.; see also Eckenrod v. GAF

Corp., 544 A.2d 50, 53 (Pa.Super. 1988).

¶ 13 There is guidance from our case law regarding the quantum and nature

of proof required to establish a plaintiff’s claim that he or she contracted an

asbestos-related disease as a result of exposure to a defendant’s product. In

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Gibson v. Workers’ Compensation Appeal Board (Armco Stainless &

Alloy Products), 580 Pa. 470, 861 A.2d 938 (2004),11 our Supreme Court

determined that the evidence adduced by the claimant was insufficient to

establish that the claimant’s decedent had been exposed to asbestos at the

worksite, for the following reasons: (1) no witness with first-hand knowledge

testified that there was asbestos in the workplace; (2) a workplace witness

testified that the decedent had worked near dusty “cottony” material that he

was personally not able to identify but he believed to be asbestos based on

“what people said;” (3) no witness with first-hand knowledge testified that the

decedent had asbestos-related disease; and (4) no medical record indicated

that the decedent had spoken to any physician about an exposure to asbestos.

Id. at 483-84, 861 A.2d at 946.12

¶ 14 However, the Gibson Court cited with approval this Court’s disposition of

an appeal of a products liability asbestos case, Harahan v. AC & S, Inc., 816

A.2d 296 (Pa.Super. 2003), where, by contrast, this Court determined that the

evidence was sufficient to establish that a worker had been injured from

exposure to asbestos emanating from the defendant’s product. In Harahan,

11 Although Gibson involved a claim brought under the Workers’ Compensation

Act, and thus was an appeal from an administrative agency adjudication, our

Supreme Court nevertheless centered its analysis on the Rules of Evidence

deemed fundamental to any adjudication.

12 The Gibson Court concluded that it was error for the workers’ compensation

judge to admit testimony from a lay witness concerning the decedent’s

exposure to asbestos when that witness had no actual knowledge that the

decedent had been exposed to asbestos. Id. at 947-48.

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the evidence showed that the decedent died from an asbestos-related disease

and that a pipe sealant and roofing cement, to which the decedent had been

exposed at the workplace, contained asbestos and shed asbestos dust which

the decedent had inhaled. Our Supreme Court observed that in Harahan,

[t]he presence of asbestos in the workplace was established

by the lay opinion testimony of two co-workers. One worker

testified that the sealant containing asbestos went on as a

clear liquid but created dust when it dried. Dust came from

around the pipes, from their clothes, from the air, and from

their tools. He indicated that he knew that the product

contained asbestos because “it said asbestos on the

cans.” … He further testified as to the product’s regularity

of use, the frequency of inhalation, the lack of respiratory

protection, and [thus] credibly established the presence of

asbestos in the workplace through personal knowledge.

Gibson, supra at 484-85, 861 A.2d at 947 (emphasis added; citations to

Harahan omitted).

¶ 15 In Bugosh, supra, this Court rejected challenges to the sufficiency of

the evidence which established that plaintiff’s decedent had contracted a fatal

asbestos-related disease following his exposure to the defendants’ asbestoscontaining

products during the course of his working career. The first

defendant argued that it was entitled to JNOV because the evidence against it

consisted only of lay testimony given by a co-worker of the decedent regarding

the latter’s exposure to asbestos. The co-worker testified that as a storeroom

attendant he handed out to employees, including the decedent, various

asbestos-containing products, including a mill board manufactured by the

defendant. However, because the co-worker could not recall whether he had

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distributed the defendant’s products to the decedent during a specific one-year

period when the defendant owned the franchise rights to the mill board, the

defendant argued that the plaintiff’s evidence lacked direct proof of exposure

to dust from the defendant’s product. Our Court disagreed, determining that

the trial court correctly concluded that the issue of whether the decedent had

been exposed to dust from the defendant’s asbestos-containing product was

one properly decided by the jury, which was free to evaluate the credibility and

weight of the evidence presented. Id. at ¶¶ 12-13.

¶ 16 Another defendant in Bugosh argued that the trial court erred by not

granting its motion for a compulsory non-suit or a directed verdict based on

allegations that no evidence established that the decedent had worked in

frequent, regular, or close proximity to asbestos products, particularly in light

of the defendant’s contention that its evidence showed that no asbestos dust

was released from the defendant’s glass-tempering oven during its normal

operation. However, this Court noted that lay testimony showed that the

decedent had been exposed to asbestos dust while sweeping the floor in

conjunction with repair work conducted by the defendant’s employees, where

the oven had been torn down for modifications and where during the repairs,

the defendant’s employees used cement from bags that were labeled with the

word “asbestos.” Based upon this evidence, this Court found no basis upon

which to grant the defendant relief.

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¶ 17 Similarly, in Juliano v. Johns-Manville Corporation, 611 A.2d 238,

240 (Pa.Super. 1992), this Court determined that it was the within the

province of the jury to evaluate whether the plaintiff’s lay testimony that he

had been exposed to dust from a product marked as containing asbestos was

rebutted by the defendant’s evidence that its product did not contain asbestos

during the time the plaintiff worked with the product. Also, in Gilbert, supra,

861 A.2d at 276-77, the plaintiff was able to defeat the defendants’ summary

judgment motion because he established that he had been exposed to

asbestos from the defendants’ products based on his lay testimony that he had

worked with these products and inhaled fibers emanating from them. See

also Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 652-53

(Pa.Super. 2002) (“The testimony of any witness with knowledge regarding the

plaintiff’s workplace and his or her exposure to a defendant’s asbestoscontaining

products is admissible when probative.”).

¶ 18 Guided by the above authority, we have no hesitation in concluding that

the evidence presented in the case sub judice, when viewed in the light most

favorable to Donoughe as the verdict-winner, supports the jury’s determination

that Donoughe inhaled asbestos fibers from Lincoln’s and Hobart’s products,

substantially contributing to Donoughe’s lung cancer. During Phase I of the

trial, Dr. Spector, a board-certified pathologist, testified that Donoughe’s lung

cancer was caused by his inhalation of asbestos fibers, and that each asbestos

exposure was a substantial contributing factor in the development of

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Donoughe’s cancer. During Phase II of the trial, Donoughe testified that he

worked as a welder from 1974 to 2000, and during that time used Number

6011 welding rods, some of which were manufactured by Lincoln, and some of

which were manufactured by Hobart. Donoughe knew that he had used 6011

welding rods manufactured by Lincoln and Hobart because he saw the

respective manufacturer’s name on the boxes of rods and the number 6011 on

the rods themselves. Donoughe also testified that he inhaled dust emanating

from the welding rods when he removed them from their containers and when

he chipped, wire-brushed, or chiseled off a residue coating, known as slag, that

was formed after the weld. He further testified that there were no warnings on

the containers or rods concerning the dangers of inhaling asbestos dust. Dr.

Epstein then testified that each and every inhalation of asbestos from any

asbestos product, including welding rods, substantially contributes to asbestosrelated

diseases, such as Donoughe’s lung cancer.

¶ 19 Also during Phase II of the trial, Donoughe introduced evidence that the

Lincoln and Hobart 6011 welding rods, which Donoughe had worked with and

which emanated dust that he breathed, contained and were manufactured with

asbestos. A Hobart document introduced into evidence indicated that all

Hobart 6011 welding rods were manufactured with asbestos until November

1975. An article written by a Lincoln employee introduced into evidence

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showed that all Lincoln 6011 welding rods contained asbestos.13 The

significant substance of this article was corroborated by a Lincoln employee,

who also admitted that Lincoln made asbestos-containing 6011 welding rods

until 1981.

¶ 20 Based upon the above evidence, and in light of the ample guidance

provided by relevant case law, there is no question that Donoughe presented

sufficient evidence for the jury to find that he had inhaled asbestos fibers shed

by Lincoln’s and Hobart’s products. Bugosh, supra at ¶ 8. Donoughe

introduced evidence that he suffered from an asbestos-related disease, that

Lincoln’s and Hobart’s welding rods contained asbestos, and that Donoughe

inhaled dust emanating from the asbestos-containing rods both when they

were removed from their containers and when he chipped or degraded

substances that accumulated on the rods during their use. Donoughe’s

evidence was comparable to that introduced in the cases cited above and

which was determined to be sufficient to proceed to a jury determination or to

support the jury’s verdict for the plaintiff. Therefore, Lincoln’s and Hobart’s

contention that Donoughe’s lay testimony was insufficient to establish that he

had inhaled asbestos dust emanating from their welding rods is without merit.

¶ 21 Also without merit is Lincoln’s and Hobart’s argument that Donoughe

failed to prove that any asbestos dust that he had inhaled from their welding

13 The documents referring to the asbestos content of the Hobart and Lincoln

6011 welding rods were admitted into evidence without objection. (Notes of

Testimony Trial (“N.T.”), 5/3/05, at 20).

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rods was “respirable.” This argument is based on select portions of testimony

given by two experts who testified for Lincoln and Hobart. Thomas Eager, a

metallurgist, opined that fibers released from welding rods, being larger than

10 microns, were too large to be aspirated, and further opined that during the

welding process, asbestos particles would be turned into slag and thus would

not be capable of being inhaled. William Hughson, M.D., a pulmonologist and

epidemiologist, opined that particles larger than 10 microns cannot enter the

lungs. Based upon this evidence, Lincoln and Hobart contend that Donoughe

failed to establish that the purportedly unidentified dust that he had observed

coming from the welding rods had contributed to his asbestos-related disease.

¶ 22 However, Lincoln and Hobart fail to consider that the testimony of their

experts, who were subject to cross-examination, was a matter for the jury to

accept in full, accept in part, or reject completely. Martin v. Evans, 551 Pa.

496, 505, 711 A.2d 458, 463 (1998) (citation omitted) (“A jury is entitled to

believe all, part or none of the evidence presented…. A jury can believe any

part of a witness’ testimony that they choose, and may disregard any portion

of the testimony that they disbelieve”). Indeed, this Court has rejected

arguments similar to the instant one made by Lincoln and Hobart on the basis

that the jury was free to reject purportedly “unrebutted” evidence showing that

the plaintiff could not have been injured by any asbestos exposure from the

defendant’s product. See Cauthorn v. Owens Corning Fiberglas Corp.,

840 A.2d 1028, 1033, 1038-39 (Pa.Super. 2004) (holding jury was free to

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disregard defendant’s expert testimony that the product emitted levels of

respirable asbestos too low to be harmful); Junge v. Garlock, Inc., 629 A.2d

1027, 1029-30 (Pa.Super. 1993) (holding plaintiff establishes a prima facie

case by showing that he or she inhaled asbestos fibers shed by the defendant’s

product even where the defendant presents “unrebutted” expert reports

contending that the defendant’s “encapsulated” product could only emit a level

of asbestos too low to have been a substantial factor in causing the plaintiff’s

asbestos-related disease).

¶ 23 Moreover, when considering the propriety of entering JNOV, the trial

court must be mindful that the evidence must be considered in the light most

favorable to the verdict-winner, who receives the benefit of every reasonable

inference of fact arising from the evidence, and that any conflict in the

evidence must be resolved in the verdict-winner’s favor. Rohm and Haas,

supra at 472, 781 A.2d at 1176. Here, Donoughe presented evidence that he

inhaled dust shed by Lincoln’s and Hobart’s asbestos-containing welding rods.

He further presented evidence that each asbestos exposure was a substantial

contributing factor in his development of lung cancer. Thus, no basis for

entering JNOV exists, and Lincoln’s and Hobart’s many-tiered argument

attacking the sufficiency of Donoughe’s evidence, which in sum is simply a

contention that judgment should have been entered based on the evidence

favorable to them, is completely without merit.

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(b) Azzarello Risk-Utility Analysis

¶ 24 Next, Lincoln and Hobart argue that the trial court erred by refusing their

motion for JNOV based on their contention that the risk/utility analysis,

required for products liability cases under Azzarello v. Black Brothers Co.,

Inc., 480 Pa. 547, 558, 391 A.2d 1020, 1026 (1978), compels the conclusion

that the welding rods at issue were not unreasonably dangerous.14 However,

Lincoln’s and Hobart’s assignment of error, as with their previous argument, is

founded on their select version of the evidence viewed in a light most favorable

to themselves. As previously noted, we may not review a denial of JNOV

based upon the evidence viewed in the light most favorable to the verdict

loser. See Rohm and Haas, supra at 472, 781 A.2d at 1176.

¶ 25 The question of whether an alleged defect renders a product

“unreasonably dangerous” is one of law. Accordingly, the trial judge is

required, prior to submitting the case to the jury, to “decide whether, under

[the] plaintiff’s averments of facts, recovery would be justified.” Phillips,

supra at 132 n.5, 665 A.2d at 1171 n.5 (quoting Azzarello, supra at 558,

391 A.2d at 1026). When arriving at its decision, the court acts “as both a

social philosopher and a risk-utility economic analyst.” Riley v. Warren

14 The trial court did not explain the basis for its resolution of the Azzarello

risk/utility analysis. Apparently for this reason, Lincoln and Hobart also argue

that the trial court “disregarded” its duty to conduct the analysis. (Lincoln’s

and Hobart’s Brief at 36). However, there is no basis in the record to support

the rash allegation that the trial court disregarded its charge to conduct the

Azzarello risk/utility analysis. Rather, the correct conclusion is that the trial

court simply determined that the result of its analysis was contrary to Lincoln’s

and Hobart’s position.

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Manufacturing, Inc., 688 A.2d 221, 224 (Pa.Super. 1997). A great many

factors may be taken into account by the court in conducting its analysis,

including,

the gravity of the danger posed by the challenged design;

the likelihood that such danger would occur; the mechanical

feasibility of a safer design; and the adverse consequences to

the product and to the consumer that would result from a

safer design.

Id. at 225 (quoting Dambacher by Dambacher v. Mallis, 485 A.2d 408, 423

n.5 (Pa.Super. 1984), abrogated on unrelated grounds as recognized by

Moroney v. General Motors Corp., 850 A.2d 629, 634-35 (Pa.Super. 2004)).

However, as this Court noted in Dambacher, supra,

[a] risk/utility analysis is not well[-]suited to an inadequate

warnings case, for in a warnings case, as distinguished from

a defective design case, the utility of a product will remain

constant whether or not a warning is added, but the risk will

not.

Id. at 427 n.7.

¶ 26 In their argument, Lincoln and Hobart fail to address the fact that the

case sub judice is an inadequate warnings case. Rather, Lincoln and Hobart

argue, on one side of the ledger, that welding rods (those containing asbestos

and those not) have an indisputably tremendously high degree of utility, and

on the other side of the ledger, that Lincoln’s and Hobart’s expert witnesses

had proven that workers faced essentially no danger from working with the

asbestos-containing welding rods. However, the jury clearly rejected the

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testimony of these witnesses, and thus Lincoln’s and Hobart’s experts did not

prove that the welding rods were safe to use without adequate warning.

¶ 27 Lincoln and Hobart have failed to advance an argument that takes into

consideration this Court’s proper standard of review or the fact that

Donoughe’s action is based upon a failure to give adequate warnings rather

than an allegedly defective design. Our independent review further shows that

the record does not compel the conclusion that the trial court erred by denying

Lincoln’s and Hobart’s motion for JNOV based on an Azzarello analysis.

Accordingly, Lincoln’s and Hobart’s third issue is without merit.

(c) Welding Slag

¶ 28 Lincoln’s and Hobart’s next assignment of error in the trial court’s refusal

to grant their motion for JNOV is that the trial court should not have allowed

the jury to consider whether the generation of breathable dust from the

scraping and brushing of slag from finished welds established or helped to

establish the existence of a defective welding-rod “product.” Lincoln and

Hobart contend that while their welding rods are “products” for purposes of

products liability litigation, slag, as a by-product from the use of the rods, was

itself not a “product” for purposes of such litigation. In support of their

argument, Lincoln and Hobart cite cases where a commercial oven not yet built

on-site was determined not to be a “product;” where items whose useful life

had ended and which were being demolished were determined not to be

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“products;” and where electricity is considered a “product” when it has been

placed into the stream of commerce.15

¶ 29 However, while slag is not the “product” that Lincoln and Hobart initially

manufactured, it is the expected and inevitable partial metamorphosis of the

product that they did manufacture.16 In this respect, the slag created following

a weld is not appreciably different from the dried residue of liquid products,

which, when the residue is brushed from clothes or tools, creates asbestos dust

inhalable by the user. We have held that where a plaintiff produces evidence

that the contracting of mesothelioma followed the breathing of dust containing

asbestos, which in turn was caused by the brushing or abrasion of the dried

residue of liquid pipe sealants applied in their liquid form, the plaintiff has

created an issue of fact as to whether the inhalation of such dust caused the

lung disease. Harahan, supra, 816 A.2d at 298, 300-01.

¶ 30 This Court’s holding in Harahan is far more pertinent to the instant issue

than any of the holdings in the cases cited by Lincoln and Hobart.17 This is so

because the factual relationship between welding rods and slag is similar to

that of the substances involved in Harahan. Conversely, the cases cited by

15 Respectively, Ettinger v. Triangle-Pacific Corp., 799 A.2d 95 (Pa.Super.

2002); Kalik v. Allis-Chalmers Corp., 658 F.Supp. 631 (W.D. Pa. 1987); and

Schriner v. Pennsylvania Power & Light Co., 501 A.2d 1128 (Pa.Super.

1985).

16 (See, e.g., N.T. Trial, 4/27/05, at 17-21).

17 We also note that Schriner, which held that electricity is a product once it

enters the stream of commerce and passes through the user’s meter, does not

appear to aid Lincoln’s and Hobart’s argument at all.

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Lincoln and Hobart present factual scenarios completely dissimilar to the

scenario in the case sub judice. Therefore, we conclude that Lincoln and

Hobart are not entitled to judgment as a matter of law because the jury was

allowed to consider evidence concerning the creation of breathable dust caused

by the chipping or wire-brushing of slag, as slag is an intended metamorphosis

of the product manufactured by Lincoln and Hobart. Accordingly, Lincoln’s and

Hobart’s fourth issue is without merit.

(3) Denial of Motion for New Trial

¶ 31 Lincoln’s and Hobart’s remaining three issues challenge the trial court’s

refusal to grant their motion for a new trial. Accordingly, we review these

issues in light of the following principles:

Trial courts have broad discretion to grant or deny a new

trial. The grant of a new trial is an effective instrumentality

for seeking and achieving justice in those instances where

the original trial, because of taint, unfairness or error,

produces something other than a just and fair result, which,

after all, is the primary goal of all legal proceedings.

Although all new trial orders are subject to appellate review,

it is well-established law that, absent a clear abuse of

discretion by the trial court, appellate courts must not

interfere with the trial court’s authority to grant or deny a

new trial.

* * * *

Each review of a challenge to a new trial order must begin

with an analysis of the underlying conduct or omission by the

trial court that formed the basis for the motion. There is a

two-step process that a trial court must follow when

responding to a request for new trial. First, the trial court

must decide whether one or more mistakes occurred at trial.

These mistakes might involve factual, legal, or discretionary

matters. Second, if the trial court concludes that a mistake

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(or mistakes) occurred, it must determine whether the

mistake was a sufficient basis for granting a new trial. The

harmless error doctrine underlies every decision to grant or

deny a new trial. A new trial is not warranted merely

because some irregularity occurred during the trial or

another trial judge would have ruled differently; the moving

party must demonstrate to the trial court that he or she has

suffered prejudice from the mistake.

To review the two-step process of the trial court for granting

or denying a new trial, the appellate court must also

undertake a dual-pronged analysis. A review of a denial of a

new trial requires the same analysis as a review of a grant.

* * * *

The appropriate standard of review [] controls [the appellate

court’s] initial layer of analysis. If the [alleged trial court]

mistake involved a discretionary act, the appellate court will

review for an abuse of discretion. …([e.g.,] decision whether

verdict is against weight of evidence is discretionary). If the

mistake concerned an error of law, the court will scrutinize

for legal error. …([e.g.,] propriety of jury instructions

entails question of law).

* * * *

[If the appellate court determines that the trial court abused

its discretion or committed an error of law, it proceeds to the

second layer of analysis.] The appellate court must then

determine whether the trial court abused its discretion in

ruling on the request for a new trial. Discretion must be

exercised on the foundation of reason. An abuse of

discretion exists when the trial court has rendered a

judgment that is manifestly unreasonable, arbitrary, or

capricious, has failed to apply the law, or was motivated by

partiality, prejudice, bias, or ill will. A finding by an appellate

court that it would have reached a different result than the

trial court does not constitute a finding of an abuse of

discretion. Where the record adequately supports the trial

court’s reasons and factual basis, the court did not abuse its

discretion.

* * * *

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[Where, as here, the trial court does not set forth its reasons

for denying a motion for a new trial, or] where the trial court

leaves open the possibility that there were reasons to grant

or deny a new trial other than those it expressly offered, …

an appellate court must apply a broad scope of review and

affirm if it can glean any valid reason from the record.

Harmon ex rel. Harmon v. Borah, 562 Pa. 455, 465-69, 756 A.2d 1116,

1121-24 (2000) (citations and quotation marks omitted).

(a) “Trial by Ambush”

¶ 32 Lincoln and Hobart first argue that because of Donoughe’s alleged

violations of the Rules of Civil Procedure and of the trial court’s case

management order during the discovery phase of trial and the trial court’s

subsequent erroneous evidentiary rulings, Lincoln and Hobart were unprepared

to mount an effective defense and were required to endure, in their parlance, a

“trial by ambush.” (Lincoln’s and Hobart’s Brief at 49). More specifically,

Lincoln and Hobart contend that Donoughe failed to timely provide to them

information concerning the factual basis of his claim against them and the

evidence to be brought at trial. They allege that Donoughe first offered this

information “weeks” prior to trial in an answer to Lincoln’s and Hobart’s motion

for summary judgment. (Id. at 44). Moreover, they contend that Donoughe

never supplied an expert report prepared by Dr. Epstein. For these reasons,

Lincoln and Hobart argue that the trial court erred by denying their motion for

a new trial.

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¶ 33 Lincoln and Hobart were not originally named in Donoughe’s complaint.

At his May 19-20, 2004 deposition, Donoughe testified that he had worked with

asbestos-containing welding rods manufactured by Lincoln. Subsequently,

Donoughe asserted that he had also worked with asbestos-containing welding

rods manufactured by Hobart; and thereafter he obtained the trial court’s

permission to amend the complaint to add Lincoln and Hobart as defendants.

The amended complaint was filed and served upon Lincoln and Hobart on or

about July 6, 2004. Trial in this matter commenced in early April 2005,

approximately nine months after the service of the complaint upon Lincoln and

Hobart.

¶ 34 In their argument, Lincoln and Hobart allege that they had only two

weeks to prepare for trial, while Donoughe “had the luxury of eight full months

in which to prepare….” (Id. at 48). This allegation is based upon the fact that

their motion for summary judgment was denied two weeks prior to trial, and

that they had expected the trial court to grant their motion and dismiss the

allegations against them. In the face of the denial of their motion for summary

judgment, Lincoln and Hobart then elected to depose Donoughe and then

elected to secure the services of Dr. Hughson as an expert witness, who

happened to be unavailable.18 (See Id. at 47-49).

18 Because Dr. Hughson was unavailable, Lincoln and Hobart, over Donoughe’s

objection, read into evidence the trial testimony of Dr. Hughson from an earlier

welding-rod asbestos case involving a different plaintiff.

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¶ 35 Quite simply, Lincoln’s and Hobart’s trial strategy of doing nothing in

preparation for trial for nearly eight months, based upon an anticipated victory

on their summary judgment motion, does not lend support to their claim that

they had been “ambushed” in this litigation. Thus, we are not persuaded that

the trial court abused its discretion by admitting Donoughe’s evidence against

Lincoln and Hobart. Further, even if we were to conclude that the trial court

had abused its discretion by admitting the challenged evidence, we could not

conclude that the trial court abused its discretion by refusing Lincoln’s and

Hobart’s motion for a new trial, as these parties failed to credibly show how

they had been prejudiced by the trial court’s evidentiary rulings. See

Harmon, supra at 467, 756 A.2d at 1122 (“A new trial is not warranted

merely because some irregularity occurred during the trial or another trial

judge would have ruled differently; the moving party must demonstrate to the

trial court that he or she has suffered prejudice from the mistake.”).

¶ 36 The only specific assertion that Lincoln and Hobart provide regarding

their alleged prejudice is that Dr. Hughson was unavailable to testify at trial,

and that the reading of Dr. Hughson’s previous testimony to the jury lacked

the impact of a live presentation. (Lincoln’s and Hobart’s Brief at 47-48).

However, Lincoln and Hobart only acted to secure Dr. Hughson’s services after

their motion for summary judgment had been denied. (Id.) Therefore,

Lincoln’s and Hobart’s failure to timely obtain this witness is attributable to

them, not to Donoughe or the trial court. Further, Lincoln and Hobart had

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obtained a “substitute” expert witness for Dr. Hughson, who then became

unavailable because of a sudden family emergency. (See Lincoln’s and

Hobart’s Brief at 48). Clearly, this witness’s unavailability could not be charged

to Donoughe or the trial court either. Thus, Lincoln’s and Hobart’s contention

that they were prejudiced with respect to their presentation of expert

testimony is without merit.

¶ 37 With respect to Donoughe’s evidence that he had inhaled asbestos fibers

from Lincoln’s and Hobart’s products, we note that Lincoln and Hobart fail to

allege that they did not possess Donoughe’s original deposition in which he

testified that he had worked with No. 6011 welding rods, particularly Lincoln’s,

and had inhaled the dust that was shed by them. Second, the evidence that

these rods were coated with asbestos came from Lincoln’s and Hobart’s

own documents and witnesses. Therefore, Lincoln and Hobart have failed

to establish any prejudice regarding this evidence.

¶ 38 Turning to Lincoln’s and Hobart’s allegation that they never received an

expert report prepared by Dr. Epstein, we observe first that Lincoln and Hobart

fail to assert how exactly they were prejudiced as a result of this omission.

Second, we note that the record thoroughly establishes that Lincoln and Hobart

suffered absolutely no prejudice whatsoever. As the trial court noted on the

record, Lincoln and Hobart, their counsel, and Donoughe’s counsel were not

unfamiliar with the expert evidence supporting claims involving the dangers of

breathing in asbestos fibers shed by welding rods, as these parties and

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individuals had been involved in previous welding-rod asbestos litigation.19

Indeed, Dr. Epstein’s testimony as to the effect of each exposure to asbestos

fibers is well-known from asbestos litigation dating back many years. See,

e.g., Lonasco v. A-Best Products Co., 757 A.2d 367, 375 (Pa.Super. 2000)

(discussing Dr. Epstein’s testimony in a 1995-1996 asbestos trial before a

Philadelphia common pleas court).

¶ 39 Undoubtedly for this reason, the record in the case sub judice shows that

Lincoln and Hobart were fully prepared to cross-examine Dr. Epstein on his

Phase II testimony and did so in an expert manner. In one significant example

from Lincoln’s and Hobart’s expert and well-prepared cross-examination,

Lincoln and Hobart were able to challenge Dr. Epstein with the transcribed

testimony he delivered in another asbestos case. (See Dr. Epstein’s Trial

Deposition, 4/25/05, at 26-27). Further, Lincoln’s and Hobart’s crossexamination

of Dr. Epstein yielded evidence that the doctor is not an expert on

welding, metallurgy, or industrial hygiene, all facts which formed the basis of

several of Lincoln’s and Hobart’s arguments in this appeal. Finally, the

significant substance of Dr. Epstein’s testimony was not different from that

given by Dr. Spector in Phase I of the trial, and there is no dispute that Lincoln

19 (See N.T. Trial, 5/2/05, at 48-49, wherein the trial court relevantly stated,

as the basis for its denial of Lincoln’s and Hobart’s motion to exclude the

testimony of Dr. Epstein from Phase II of the trial: “I don’t think anybody is

really surprised [by] what [Dr. Epstein] is going to say [or] caught off guard

[by the doctor’s testimony].”).

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and Hobart had been provided with Dr. Spector’s expert report. Accordingly,

Lincoln’s and Hobart’s argument that they had been prejudiced with respect to

Dr. Epstein’s testimony during Phase II of the trial is wholly without merit.20

¶ 40 For all of the above reasons, we have no hesitation concluding that the

trial court did not abuse its discretion by denying Lincoln’s and Hobart’s motion

for a new trial based on the argument that they were “ambushed” and illprepared

to go to trial as a result of Donoughe’s alleged pre-trial behavior.

(b) Reverse-Bifurcated Trial

¶ 41 Lincoln and Hobart next argue that the trial court abused its discretion by

failing to sustain their objection to the court’s trying the matter by reverse

bifurcation. Reverse bifurcation is “the practice for most asbestos cases”

where “issues of medical causation and damages [Phase I] are tried before

issues involving theories of liability and product identification [Phase II].”

Fritz v. Wright, 589 Pa. 219, 239 n.10, 907 A.2d 1083, 1095 n.10 (2006).

Lincoln and Hobart contend that this long-standing practice, noted with

equanimity by our Supreme Court in Fritz, “is an innately prejudicial procedure

because it forces a jury to form preconceptions about liability before hearing

key evidence. It is especially prejudicial for defendants such as Lincoln and

Hobart, whose products, because of their chemical composition, could not

release asbestos in respirable form.” (Lincoln’s and Hobart’s Brief at 50).

20 Dr. Epstein had testified during Phase I of the trial for another plaintiff who

was asserting claims similar to those of Donoughe’s. The two cases were tried

together, and Dr. Epstein’s Phase II testimony was on behalf of this other

plaintiff as well as Donoughe.

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¶ 42 Despite devoting seven pages of their brief to this issue, Lincoln and

Hobart fail to present a persuasive, supported analysis establishing their

hyperbolic contentions. Lincoln’s and Hobart’s main argument is that during

Phase I, the jury received evidence that Lincoln’s and Hobart’s products shed

asbestos fibers that Donoughe inhaled, but that Lincoln and Hobart could not

present rebuttal evidence at that time. (Id.) They assert that because of this

circumstance, the jury had already reached its conclusion as to Lincoln’s and

Hobart’s liability by the conclusion of Phase I. However, this is a wholly

unsubstantiated allegation that is not deducible from anything of record.

Moreover, Lincoln and Hobart were fully able to present their evidence during

Phase II, following Donoughe’s more detailed evidence of exposure to asbestos

shed from their products. Phase II was when the jury was asked to determine

which, if any, of the many defendants were liable for Donoughe’s asbestosrelated

injuries established during Phase I. Thus, there is simply no basis to

conclude that Lincoln’s and Hobart’s defense was hampered or prejudiced by

being raised at the liability stage of the proceedings any more than if the trial

had not been bifurcated. The parties participated in a single bifurcated trial,

not two trials where Lincoln and Hobart were found liable each time.21

21 Lincoln and Hobart also argue that the reverse bifurcated trial violated their

constitutional rights to due process and a fair jury trial. (Lincoln’s and Hobart’s

Brief at 51-52). This argument is based on the allegation that they were

deprived of an “opportunity to be heard.” (Id. at 52). This argument is

plainly, wholly, and indisputably without merit. We note further that a part of

Lincoln’s and Hobart’s argument is based upon evidence that the jury had

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¶ 43 A trial court’s decision to bifurcate a trial is made in its discretion.

Santarlas v. Leaseway Motorcar Transport Co., 689 A.2d 311, 314

(Pa.Super. 1997). Having concluded that the trial court did not abuse its

discretion when it overruled Lincoln’s and Hobart’s objection to a reverse

bifurcated trial, we determine that Lincoln’s and Hobart’s argument is without

merit.

(c) Dr. Epstein’s Testimony

¶ 44 Finally, Lincoln and Hobart argue that the trial court abused its discretion

by permitting Dr. Epstein to testify regarding the effect of Donoughe’s

inhalation of asbestos dust shed by welding rods.22 Lincoln and Hobart renew

their argument that Dr. Epstein should not have been permitted to testify at all

because of Donoughe’s failure to supply an expert report (an argument that we

have already rejected), but devote the bulk of their argument to the contention

that Dr. Epstein was not qualified to testify as an expert because, by his own

rejected, i.e., that Lincoln’s and Hobart’s welding rods were completely

harmless. (See id. at 50).

22 Lincoln and Hobart also devote approximately six pages of their brief to an

argument that the trial court abused its discretion by allowing Donoughe to

testify that he had observed dust when handling and working with the welding

rods when Donoughe lacked the expertise to conclude that the dust contained

asbestos. (See Lincoln’s and Hobart’s Brief at 56-61). However, Lincoln and

Hobart never set forth this argument in their Statement of Questions Involved.

Accordingly, we deem it waived. See Pa.R.A.P. 2116(a); Lackner v. Glosser,

892 A.2d 21, 29 (Pa.Super. 2006). Moreover, this issue essentially mirrors

arguments contained in Lincoln’s and Hobart’s first substantive issue, which we

have already determined to be meritless.

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admission, he lacked expertise in the chemical composition of welding rods and

flux and was not an expert in welding.

¶ 45 Lincoln’s and Hobart’s argument is a red herring. Dr. Epstein is a

pulmonologist and an expert on the effects of the inhalation of asbestos fibers

into the lungs. He testified to the effects of Donoughe’s inhalation of asbestos

fibers shed from Lincoln’s and Hobart’s products. This was a matter within his

expertise. Accordingly, we unhesitatingly conclude that the trial court did not

abuse its discretion in certifying Dr. Epstein as an expert on the matters about

which he testified.23

¶ 46 For all of the above reasons, we conclude that the trial court neither

erred nor abused its discretion when it denied Lincoln’s and Hobart’s motions

for JNOV and for a new trial.

Donoughe’s Issue

¶ 47 Donoughe presents a single issue on appeal: whether the trial court

erred when it denied Donoughe’s motion to mold the verdict “to address the

shortfall between the amount paid by Johns-Manville Corporation [“Manville”]

pursuant to its pro tanto release with [Donoughe] and the pro rata share

allocated Manville by the verdict.” (Donoughe’s Cross-Appellants’ Brief at 2).

¶ 48 The background for this argument is as follows. Donoughe obtained a

verdict against eleven asbestos defendants in the amount of $360,000 for John

23 Moreover, we note that Lincoln’s and Hobart’s cross-examination of Dr.

Epstein established to the jury that the doctor was not an expert on welding,

metallurgy, or the chemical composition of welding rods or flux.

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Donoughe and $36,000 for Helen Donoughe, for a total of $396,000, plus postverdict

interest. Thus, the pro rata share of each defendant is approximately

$36,000, plus post-verdict interest. Donoughe asserts that at some

unspecified date he had settled with the Manville Trust, established to address

claims brought against the bankrupt Manville, for $4,500, obtaining a pro tanto

release. Because the Manville settlement left a shortfall of approximately

$31,500 for Manville’s pro rata share of the verdict, Donoughe contends that

this shortfall must be satisfied by the non-settling defendants, namely Lincoln

and Hobart, pursuant to the pro tanto release.24 Donoughe contends that this

result is mandated by Baker v. ACandS, 562 Pa. 290, 755 A.2d 664 (2000),

and that the trial court erred by refusing to follow the Supreme Court’s Baker

analysis.

¶ 49 The trial court’s rationale for denying Donoughe’s motion to mold the

verdict was that Donoughe had failed to submit to the court documents

regarding the terms of the settlement with the Manville Trust. The trial court

24 As our Supreme Court explained:

Where a plaintiff and settling defendant sign a pro tanto

release, then the plaintiff’s ultimate recovery against the

nonsettling joint tortfeasors is the total award of damages

reduced by the amount of consideration paid for the release.

In contrast, if the parties sign a pro rata release (which is

also known as an “apportioned share set-off” release), then

the plaintiff’s ultimate recovery against the nonsettling

tortfeasors is the total award of damages reduced by the

settling party’s allocated share of liability.

Baker v. ACandS, 562 Pa. 290, 293 n.1, 755 A.2d 664, 666 n.1 (2000).

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noted that Donoughe “failed to provide the Court with the necessary tools to

effectuate meaningful review,” and for this reason the court deemed it

improper to grant Donoughe’s motion. (Trial Court Opinion, reviewing

Donoughe’s issue, at 8-9). Ordinarily, when a party fails to submit to the court

the documentation supporting a prayer for relief, we are inclined to affirm the

court’s decision to deny relief. However, we have quite plainly held that

because the terms of settlement with the Manville Trust are fixed by a Trust

Distribution Process, a trial court is required to apply these terms to a motion

to mold the verdict, despite the absence of evidence regarding the final terms

of settlement. Andaloro v. Armstrong World Industries, Inc., 799 A.2d

71, 79-82 (Pa.Super. 2002). Further, any manner of set-off against the nonsettling

tortfeasors must conform to the provisions of the Uniform Contribution

Among Tort-feasors Act, 42 Pa.C.S.A. §§ 8321-27 (“UCATA”), which did not

occur in the case sub judice. See Baker, supra at 296-98, 755 A.2d at 667-

68. Therefore, we conclude that Donoughe’s argument has merit.

¶ 50 Preliminarily, we note that questions regarding the apportionment of

liability between or among joint tortfeasors are ones of law. For this reason,

our scope of review is plenary, and our standard of review is limited to whether

the trial court committed an error of law or an abuse of discretion. Andaloro,

supra at 78.

¶ 51 In Andaloro, this Court addressed the question of whether the trial court

erred by assigning a pro rata verdict share to Manville (which was the practical

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result of the trial court’s ruling in the case sub judice) where the plaintiff’s

claim against the Manville Trust had not yet been resolved as to dollar amount

and where the trial court concluded that it had to guess as to whether the

release and settlement would be pro rata or pro tanto. See id. at 79. Thus,

the question presented in Andaloro, is applicable to that in the case sub

judice, where Donoughe had resolved his claims against the Manville Trust,

but simply neglected to attach the settlement terms to his motion to mold the

verdict.

¶ 52 Citing Baker, supra, we initially noted in Andaloro the general law of

settlement and set-off in this Commonwealth:

As a general matter, the law of Pennsylvania provides that

joint tortfeasors are jointly and severally liable to the plaintiff

to pay awards of damages arising out of the injury to which

their activity contributed. Our Supreme Court has

determined, however, that when a plaintiff settles his or her

claim with the Manville Trust, the terms of the settlement

release govern the allocation of liability between the

remaining defendants. Accordingly, the release also

determines the amount of the set-off against liability to

which the remaining defendants are entitled due to the

Trust’s participation. If a plaintiff’s agreement with the Trust

provides that the setoff shall be pro rata, then a full equal

share is deducted from the amount of the verdict for which

the remaining defendants may be held accountable. One full

share of equal value shall be assessed against each party,

including the Trust, and the full value of the Trust’s share

shall be deducted from the verdict. Even if, as is customary,

the amount paid by the Trust is markedly less than the value

of a full pro rata share, the remaining defendants are entitled

to offset the value of a full share against the verdict amount.

The defendants are thus accorded a reduction in their

respective contributions based on the share attributed to the

Trust regardless of whether the Trust paid the value of a full

share in settlement. The plaintiff may not recover the

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shortfall in the Trust’s payoff from the remaining defendants.

If, however, the release is designated pro tanto, any

subsequent verdict shall be reduced only by the actual

amount paid by the Trust and the remaining amount of the

verdict divided equally between the defendants held liable.

Apportionment of the verdict, pro tanto, thus enables the

plaintiff to collect the entire amount of the verdict,

notwithstanding the lesser value of the Trust’s contribution,

as the amount exceeding that contribution is apportioned

equally [among] the remaining defendants. In this manner,

a settling plaintiff is assured recovery of the full amount of

the verdict regardless of the lesser amount paid by the Trust.

The remaining defendants are then subject to a greater

proportionate share of liability, which they may not recover

from the Trust.

Andaloro, supra at 78-79 (citations omitted; emphasis in original).

¶ 53 We then noted that the Trust Distribution Process “provides a specific

formula to determine the amount of a set-off attributable to the participation of

the Manville Trust in the absence of a settlement agreement.”25 Id. at 79.

Reviewing the Trust Distribution Process further, together with applicable

provisions of the UCATA, we determined that the Trust’s “set-off amounts are

properly applied to the verdict pro tanto when factoring the contribution

amounts from the defendants found liable at trial.” Id. at 80. This latter

determination was based upon several factors.

¶ 54 First, the Trust Distribution Process provides, with respect to

Pennsylvania claims and those from a number of other states, that the law of

the state would determine whether the settlement release would be pro tanto

25 For this reason, we determined that the trial court erred when it failed to

calculate the value of the Manville Trust’s settlement contribution. Id. at 80,

82.

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or pro rata. Second, Pennsylvania law, pursuant to Section 8326 of the

UCATA, 42 Pa.C.S.A. § 8326, and as interpreted by our Supreme Court in

Baker, relevantly provides that a release to one tortfeasor reduces the claim

against other tortfeasors in the amount of the consideration paid for the

release (thus, a pro tanto release) or in any amount or proportion greater

than the consideration paid if provided for in the release. Thus, contrary to

the trial court’s disposition in the case sub judice, the default is to a pro tanto

not a pro rata disposition if the release is silent. Third, Pennsylvania law

reflects a “commitment, often reaffirmed in the decisions of our appellate

courts[,] that [a] plaintiff should be fully compensated for his injuries,” which

requires, absent an agreement to the contrary, that settlement releases be pro

tanto. Andaloro, supra at 81 (quotation marks and citation omitted); see

also Baker, supra at 296-302, 755 A.2d at 667-70. As we concluded in

Andaloro, relevant to the matter in the case sub judice:

Were we to affirm the trial court’s pro rata set-off of the

Manville Trust’s liability, we would effectively deprive the

injured [p]laintiffs of their right to compensation in the

interest of enforcing the rights of defendant tortfeasors to

limit their liability to a stated share of the verdict. The

plaintiffs would collect markedly less compensation while the

defendants would experience a windfall in the form of a

reduction in liability. Such a result is openly hostile to the

stated objectives of joint and several liability as a system of

compensation. A non-settling joint tortfeasor should not

receive a release of its joint and several liability to the

plaintiff simply because another joint tortfeasor settled for

less than his or her allocated share of liability. We

conclude[,] accordingly[,] that where the Manville Trust has

not settled a plaintiff’s claim prior to entry of a verdict

against other joint tortfeasors, the value of the set-off

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available to the joint tortfeasors based on the Trust’s

unliquidated contribution, shall be calculated under the []

provisions of the [Trust Distribution Process] and applied to

the verdict pro tanto. As the trial court in this matter

declined to calculate the value of the Trust’s unliquidated

contribution and applied a pro rata set-off, we conclude that

the court erred. Accordingly, we vacate the judgment and

remand the matter for redetermination of the appropriate

set-off.

Andaloro, supra at 82 (citations, quotation marks, and parentheses omitted).

¶ 55 Turning to the case sub judice, we apply the analysis and holding of

Andaloro to conclude that the trial court herein erred by effectively applying a

pro rata set-off for Donoughe’s settlement with the Manville Trust when it

denied Donoughe’s motion to mold the verdict to reflect a pro tanto release.

Baker and Andaloro plainly provide that absent a stated intention to the

contrary, a release of one joint tortfeasor is to be applied pro tanto to the

remaining tortfeasors. Andaloro establishes that the Manville Trust

Distribution Process treats Pennsylvania claim releases in accordance with

Pennsylvania law, and that a trial court may take cognizance of this fact, even

when the Trust has not yet settled the claim. Here, rather than

effectively treat Donoughe’s Manville Trust release as pro rata, and thus

subvert the basic legal principle in this Commonwealth that plaintiffs are to be

made whole, the trial court could have simply followed our holding in

Andaloro and/or requested for its review a copy of the release from the

Manville settlement, to ensure that the release comports with the recognized

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practice of providing for pro tanto treatment. It will now have that

opportunity.

¶ 56 Accordingly, because the trial court erred by not following the guidance

provided by Baker and Andaloro, we vacate the judgment and remand this

matter for a redetermination of the appropriate set-off with respect to the

Manville Trust settlement.

¶ 57 Having determined that none of Lincoln’s and Hobart’s claims on appeal

have any merit, we conclude that the trial court correctly denied their motions

for JNOV and for a new trial. However, having also determined that

Donoughe’s claim on appeal does have merit, we vacate the judgment of the

trial court and remand for a redetermination of the appropriate set-off with

respect to the Manville Trust settlement.

¶ 58 Judgment affirmed

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