Judge Asks Appeals Court to Uphold $7 Mil. Asbestos Verdict Against No-Show Defendant

By Amaris Elliott-Engel
Of the Legal Staff

A Philadelphia judge has asked the state Superior Court to uphold a $7 million damage award for a plaintiff against a defendant that failed to appear at trial.

Philadelphia Common Pleas Court Senior Judge Sheldon C. Jelin, writing in a Sept. 30 opinion explaining his reasoning to the appellate court, said that Melrath Supply and Gasket Co. and Melrath Gasket Inc., of Philadelphia, did not defend themselves in a bench trial in Russell v. A.W. Chesterton Co.

The Legal reported Sept. 28 that Jelin upheld a $10 million award in another case, Schroeder v. Anchor Darling Valve Co., in which the Melrath defendants did not defend themselves.

Russell went to trial Feb. 9 on the heels of an order by Judge Sandra Mazer Moss, the coordinating judge of Philadelphia's mass torts Complex Litigation Center, that all defenses available to the Melrath defendants were stricken when they defied the discovery process. The Melrath defendants also did not appear to present a defense at trial.

"Defendant made a conscious decision not to provide discovery, not to attend personally or by counsel, and cannot now complain," Jelin reasoned. "Defendants cannot sit back and wait and then, if dissatisfied, come into court and claim surprise or other issues after having not participated. Without having met the requirements of preservation and specificity, defendants were ineligible for post-trial relief."

In Russell, Jelin awarded $1 million in Survival Act damages, $2 million in Wrongful Death Act damages, and $4 million for loss of consortium, the opinion said.

Plaintiffs Virginia L. Russell and Marlin E. Russell alleged that Marlin Russell's death in September 2008 was caused by exposure to asbestos-containing products, including products made by the Melrath defendants.

Russell served in the U.S. Navy for four years and was employed for 39 years with CH Masland and Sons in Carlisle, Pa., Jelin said. The judge said Russell was exposed to asbestos dust in both workplaces. Russell was diagnosed with malignant mesothelioma in December 2007 and died Sept. 20, 2008.

Mitchell S. Pinsly of Margolis Edelstein is representing the Melrath defendants on appeal. the plaintiffs' attorney is Aaron J. DeLuca, of DeLuca & Nemeroff in Spring, Texas.

Prior counsel had withdrawn in August 2009, Jelin said.

Comments

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