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Appellate Court Affirms Finding of Liability against Talc Defendant; Vacates Apportionment of Liability

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Court: Superior Court of Pennsylvania

In this asbestos action, appellant American International Industries (AII) appealed from a judgment entered in December 2022 awarding damages to appellee, Holly Fisher, executrix of the Estate of Sandra Reichart (decedent), following a jury trial.

Decedent owned a beauty salon from 1960 through 1985. During that time, decedent allegedly used the following talcum powders on clients: Clubman, Jeris, Jean Nate, and Cashmere Bouquet. Following decedent’s passing from mesothelioma in 2019, Fisher field a lawsuit claiming that the aforementioned talcum powders were comprised of asbestos-containing talc from Italy and that decedent’s exposure to the same caused her to develop mesothelioma. AII was named in the lawsuit as a product-line successor to Clubman following its acquisition of the brand from Neslemur Company in 1987, and a product-line successor to Jeris following its acquisition of the brand from Ar. Winarick in 1991.

The matter proceeded to a jury trial in October 2022. During the trial, AII filed a motion for nonsuit, which was denied, arguing that Fisher failed to establish that decedent’s use of Clubman caused her mesothelioma. AII also moved for a directed verdict on the same grounds, which was also denied. Ultimately, the jury returned a verdict for Fisher, finding that decedent inhaled asbestos contained in Clubman, along with other talcum powders (excluding Jeris), with “sufficient frequency, regularity, and proximity to be a substantial factor in causing her disease.” Monetary damages in the amount of $400,000 was awarded.

AII subsequently filed a motion for post-trial relief seeking judgment notwithstanding the verdict. Fisher also filed a motion for delay damages totaling $38,710, to be distributed on a pro rata basis, along with a motion for post-trial relief, which asked the trial court to enter judgment “in conformity to the jury’s findings” and to allocate the award only to AII and defendant Whittaker Clark and Daniels, Inc. (WCD) in equal shares. The trial court ultimately denied AII’s motion and granted Fisher’s motion for delay damages. The trial court also entered an order stating that the verdict shall be split equally between four defendants, AII, WCD, Neslemur, and Colgate-Palmolive Company. The order further stated that AII, as successor to Neslemur, was responsible for Neslemur’s portion of the damages. In response, Fisher filed a praecipe for entry of judgment asking the trial court to enter judgment in conformity with its order. AII timely filed an appeal.

On appeal, AII first argued that the trial court erred in denying its motions for nonsuit, directed verdict, and judgment notwithstanding the verdict as Fisher presented “no evidence that Clubman actually contained asbestos during the period of Decedent’s use.” AII further argued that Fisher’s entire causation theory was based on the allegation that Clubman was made from asbestos-containing Italian talc, but that Fisher failed to prove that Clubman was blended with Italian talc. The Appellate Court disagreed, holding that, viewing the evidence in a light most favorable to Fisher, Fisher presented sufficient evidence that from at least 1960 to 1976, Clubman talcum powder was blended with asbestos-containing Italian talc from the Val Chisone region of Italy. Specifically, Fisher had presented expert evidence from Mark Krekeler, Ph.D, a geologist specializing in polysorical minerals, who opined after reviewing documentation from various companies, that talc mined from Val Chisone, Italy contained detectible level of asbestos. Fisher also presented testimony from Donald Ferry, a prior sales agent for an entity that purchased talc from the Val Chisone region, stating that he sold talc from the Val Chisone region to Neslemur. In addition, the court noted that AII’s corporate representative testified that certain formula cards from Neslemur from the 1970s listed “Italian talc” as an ingredient to Clubman, and that in 1976, testing of Clubman by the FDA detected trace levels of asbestos.

Next, AII argued that the trial court erred in granting Fisher’s motion for post-trial relief when Fisher had not previously filed a motion for a directed verdict, and that the result retroactively removed a defendant from the verdict form and assigned that share to AII, which doubled AII’s share of the verdict. Here, the Appellate Court noted that, in contrast to AII’s claims, Fisher’s counsel objected to the inclusion of a question regarding Neslemur’s liability during the charge conference at trial, thus preserving a claim for post-trial relief. However, the Appellate Court noted that, while the trial court correctly determined that judgment should not be entered against Neslemur, it erroneously assigned AII one-half of the total verdict. That finding erroneously implicitly recognized that AII’s acquisition of the Clubman brand destroyed Fisher’s remedies against Neslemur.

Instead, according the Appellate Court, the trial court should have removed Neslemur’s portion of liability and, in turn, apportioned liability on a per capita basis to the remaining three tortfeasors. As a result, the Appellate Court vacated the trial court’s judgment order and instructed the trial court to enter judgment on a per capita basis against AII, WCD, and Colgate consistent with the opinion.

Read the full decision here.