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Mesothelioma Court Room Battle Goes to Another Level- Are the Lawyers Going too Far?

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The following article appeared in today’s Legal Intelligencer. This demonstrates clearly the level of acrimony reached in  modern product liability cass when the individual takes on corporate America. You decide if the battle has gone too far.

“A Philadelphia senior judge said she declared a mistrial in a hotly contested asbestos case because the defendants sent a copy of their motion for her recusal to the administrative judge of the Philadelphia Court of Common Pleas’ trial division.

When Philadelphia Court of Common Pleas Senior Judge Esther R. Sylvester entered an order granting a mistrial June 28, her order did not give detailed reasons for granting a mistrial, only stating in a one-paragraph order that “based upon the serious appearance of impropriety that occurred during trial, and post-trial, which is a matter of the trial record and of public record, this court hereby declares a mistrial.”

Sylvester’s opinion, dated July 26, said one of the reasons she was granting a mistrial was because “the overreaching courtroom tactics of defense counsel reached their apogee in an attempt by defense counsel to intimidate the trial judge and improperly influence the outcome of the trial by writing to the administrative judge of the First Judicial District in the middle of the trial to complain that the trial judge was ‘biased against defendants,’ despite a number of rulings favorable to the defense.”

Sylvester said there was a “murky dispute” over whether the letter to Philadelphia Court of Common Pleas Judge John W. Herron, the administrative judge of the trial division, was ex parte, although it now appears that plaintiffs counsel Robert E. Paul, of Paul, Reich & Myers in Philadelphia, had received a copy of the letter in an email.

Herron wrote in a letter to the editor published March 12 in The Legal that he did not know if the motion was sent ex parte. But the administrative judge wrote that he did receive a copy of the defendants’ disqualification motion involving Sylvester, but he “promptly discarded it as I have nothing to do with such matters.”

Whether the letter was sent ex parte or not, it was improper, Sylvester said in her opinion.

While defendant Honeywell International said in its motion for recusal and mistrial that “‘Honeywell respectfully submits that the Honorable Judge Sylvester has improperly exhibited feelings of bias and prejudice toward defendants, and in favor of plaintiffs … such that her impartiality is now justifiably and reasonably eradicated,'” Sylvester wrote that the court “at all times conducted itself appropriately, indeed with restraint, during trial, especially given frequent intentional provocation bordering on contempt.”

While defendant Ford Motor Co. filed an appeal on behalf of itself, Honeywell International and Pneumo Abex LLC from Sylvester’s order granting a mistrial and Sylvester’s order quashing the final judgment docketed by the defendants’ praecipe, Sylvester said in her opinion that an order declaring a mistrial is interlocutory and non-appealable in nature.

The senior judge also said plaintiffs counsel were not provided notice of their attempt to enter judgment.

Paul said in amended post-trial motions filed March 22 that the defendants in Webber v. Ford Motor Co. sought to “intimidate” Sylvester by writing to Herron and Philadelphia Court of Common Pleas Judge Sandra Mazer Moss about their motion to recuse Sylvester and also by asking Sylvester to adopt a proposed verdict sheet used by Herron when he tried an asbestos case.

Earlier this year, Herron presided over an asbestos case as part of his review of asbestos and other mass tort protocols.

Paul’s post-trial motion was filed in the wake of a defense verdict in favor of Ford, Honeywell and Pneumo Abex, and in the wake of a motion by Honeywell, joined by the two co-defendants, seeking Sylvester’s recusal as well as a mistrial.

“Having sought to intimidate Judge Sylvester by writing to Judges Herron and Moss during the trial, defendants then sought to intimidate her again to adopt their proposed verdict sheet which had been used, they claimed, by Judge Herron in another case,” Paul said in the amended post-trial motion. “No court official or supervisor was involved except to receive, discard and disregard the letters transmitting the motion to recuse and to disregard the motion to recuse itself. Any other interpretation is not supported by the facts.”

Paul originally wrote Feb. 27 that “the adoption of this form of verdict sheet was the direct result of the intimidation of the court by defendants. Defendants communicated ex parte to Judges Herron, [Philadelphia Court of Common Pleas Judge Allan L.] Tereshko [supervising judge of the trial division’s civil section] and Moss falsely complaining about illusory favoritism toward plaintiffs in a letter never sent to plaintiffs counsel. Adoption of this verdict sheet was at direct ex parte instigation by defendants.”

In Paul’s original motion, he continued, stating that “the court made clear when it noted that the supervising judges had proposed the verdict sheet in response to the ex parte contact at a meeting convened by the supervising judges after the ex parte letter from defendants.”

Herron said in his March 12 letter to the editor: “There was no meeting of the supervising judges. There was no effort to influence Judge Sylvester nor would there be. I was not involved in the case. None of us were involved in the trial, the verdict sheet or the jury’s decision in favor of the defendants.”

Ford’s counsel, Sharon L. Caffrey of Duane Morris in Philadelphia, said in court papers that “defendants never attempted to intimidate the court regarding the verdict form, nor was the court intimidated. Rather, Honeywell, joined by the other defendants, presented the court with a verdict form recently used by Judge Herron in an asbestos case, just as plaintiffs proposed a verdict form recently used by [Philadelphia Court of Common Pleas Senior Judge Victor] DiNubile. Plaintiffs’ contention that Judge Sylvester allowed herself to be intimidated into adopting the verdict form because the form previously had been used by Judge Herron is both preposterous and insulting to Judge Sylvester. Further, the verdict form actually used in the Webber case differs from the verdict form that Honeywell had proposed, because changes were made as a result of the discussion of the issue before Judge Sylvester. Therefore, plaintiffs’ argument is not only preposterous, but also irrational.”

Honeywell’s counsel, Peter J. Neeson and Scott F. Griffith of Rawle & Henderson, wrote in response to Paul’s amended post-trial motion that the allegations that the defendants tried to intimidate Sylvester “are not supported by the trial record and are so outrageous, and without any evidentiary support whatsoever, as to warrant the imposition of sanctions against plaintiffs’ counsel. Honeywell admits that it joined with the other defendants in proposing to the trial court that it use certain portions of a jury verdict form that Judge Herron had recently used in another case.”

Robert N. Spinelli, Catherine N. Jasons and Thomas P. Hanna, of Kelley Jasons McGowan Spinelli Hanna & Reber, are counsel for defendant Pneumo Abex.

Paul, Hanna, Caffrey and Griffith did not respond to requests for comment.

The plaintiff, George Webber, and his wife said in court papers that his peritoneal mesothelioma was diagnosed in October 2010. The plaintiffs argued that Webber was exposed to asbestos from brake linings and clutches used in Ford vehicles, from Bendix brakes and brake linings, and from Abex brake linings. Honeywell is the successor to Bendix.

Peritoneal mesothelioma is a rare type of cancer that arises in the lining surrounding the abdominal cavity known as the peritoneum.

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