Pennsylvania Federal Court Denies Defendant’s Motion to Mold Verdict and Grants Plaintiff’s Motion to Apply Delay Damages to Compensatory Damages U.S. District Court for the Eastern District of Pennsylvania, June 15, 2016

The plaintiff-decedent, Valent Rabovsky, and his wife Ann Rabovsky filed suit in the Philadelphia County Court of Common Pleas, claiming that the plaintiff-decedent, who had worked as a millwright in the 1950s, developed malignant mesothelioma from work-related exposure to asbestos and asbestos containing products, which were produced, manufactured, and/or distributed by various defendants (Case was removed to Federal Court three months later).

On February 2, 2016, a jury trial was held on the issue of whether defendant Crane Co. was negligent in failing to warn the plaintiffs of the danger of exposure to asbestos. The jury found in favor of the plaintiffs and awarded $1,085,000 in damages, consisting of $835,000 in compensatory damages and $250,000 for Ann Rabovsky for loss of consortium. The jury apportioned liability against defendant Crane Co. and the settling defendants as follows:


Joint Tortfeasor Defendant

Apportioned Liability

Crane Co. 30%
CBS Corporation 25%
Foster Wheeler Energy Corp. 20%
Goulds Pumps, Inc. 13%
Doe Run Resources Corp. 5%
Duquesne Light Company 5%
Honeywell International 2%
AK Steel Corporation 0%
Beazer East, Inc. 0%
IMO Industries Inc. 0%
Ingersoll-Rand 0%
Pennsylvania Electric Company 0%
United States Steel Corporation 0%
 TOTAL 100%

After the trial, both Crane and the plaintiffs filed post-trial motions to mold the verdict and/or delay damages. Crane Co. filed a motion to mold the verdict and award, contending that the plaintiffs have already been made whole through compensation with the settling defendants prior to trial, and by present/future claims filed with asbestos bankruptcy trusts. Therefore, the defendant argues, the plaintiffs are not entitled to further monetary award since the doctrine of joint and several liability does not support the plaintiff’s recovery of more than one satisfaction for one injury. Additionally, Crane argues that, the proposition that a non-settling tort-feasor remains liable for his full proportionate share of the damage award regardless of the amount paid by a settling defendant, is inapplicable because the plaintiffs suffered no shortfall.

The plaintiffs filed a motion to mold the verdict and for delay damages, requesting that final judgment against Crane Co. be entered and the total verdict amount of $1,085,000 be molded to $325,500 to reflect the 30 percent amount of liability apportioned Crane Co. and to that amount, apply delay damages. In support of these requests, the plaintiffs argue that: (1) The defendant Crane Co. is jointly and severally liable for the plaintiffs’ damages; (2) Crane Co. is entitled to a set-off for any settlement amount agreed to with a settling defendant who the jury found was a joint tortfeasor; and (3) the verdict against Crane Co. cannot be less than the 30 percent share of liability apportioned to Crane Co. The plaintiffs further contend that there is no justification for any credit that would lower the judgment against Crane Co. below the jury’s verdict for Crane Co.’s apportioned liability which was amounted to $325,500.

In its decision to mold the verdict, the court noted a verdict is reduced only by the allocated proportionate share of the settling tortfeasor. In other words, the non-settling tortfeasor may not enjoy a set-off which would reduce or lower its out-of-pocket expense below its own allocated share of the liability. The fact that the plaintiff may receive a larger amount in damages than that determined by the jury does not militate against such an approach. This practice of holding the non-settling tortfeasor liable for his full proportionate share advances the policy in favor of settlement. In the current matter, the Court emphasized that Crane Co. failed to offer any information or evidence to support this claim and merely speculated that the total consideration paid by the settling defendants plus the amount received as a result compensation received or to be received from asbestos bankruptcy trusts exceeds the jury’s verdict of $1,085,000. Therefore, because the jury, after weighing the evidence, allocated liability amongst seven defendants whom it determined to be joint tortfeasors, Crane Co. is only entitled to a reduction of the total jury verdict based on the determination of Crane’s liability. In other words, the court denied Crane Co.’s motion and held Crane Co. is liable for its full 30 percent share of the verdict.

In its review of the plaintiffs motion for delay damages, the court outlined the Pennsylvania Rule of Civil Procedure provides for delay damages for bodily injury, death or property damages only, and (1) shall be awarded for the period of time from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision, and (2) shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded. Therefore, the court used this formula to apply delay damages pursuant to the compensatory damages only. The loss of consortium damages of $250,000 were not considered in this calculation. Delay damages were applied for the years 2011 through 2016 using the following calculation: $250,000 (30 percent of $835,000 Compensatory Damages) X (Interest Rate) X (Numbers of days delay damages rewardable). After totaling each year, the plaintiffs were entitled to $51,596.73 in delay damages. This amount, added to Crane Co.’s 30 percent apportioned liability amount of $325,500, results in a total molded verdict against Crane Co. in the amount of $377,096.73

Read the full decision here.

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