Top Defense Verdict: Schiszler v. Amcord Inc.

The wrongful death case involved the "take home" theory of secondary asbestos exposure. Virginia Schiszler, 68, developed pleural mesothelioma in 2011 and died of heart failure in 2012. The plaintiff's theory was that Schiszler's husband, who worked as a laborer and general contractor for a variety of employers, retained asbestos dust on his clothing that sickened his wife when she did his laundry in an enclosed household room. The defense employed the "substantial factor" requirement to persuade the jury that asbestos did not cause her death.

"The case workup was on the medical evidence," Craig R. Maki of Selman Breitman LLP said. "We knew there had been low levels of exposure, so we evaluated whether there had been other more likely causes of Mrs. Schiszler's disease."

The plaintiff focused on a simple case of cause and effect related to asbestos exposure, but Maki and co-counsel Paul E. Stephan presented a medically complex defense after learning through investigation that Schiszler had been treated with 4,400 rads of nodal radiation treatment decades earlier for Hodgkin's lymphoma. The defense team presented evidence that she died from a sudden cardiac event related to the radiation, and that her scant exposure to asbestos would not have affected her health.

"A lot of information came in through our radiation oncologist expert, who showed there would have been damage to her heart and lymph nodes from the lymphoma treatment," Maki said. "We also showed she had severe heart problems."

Stephan and Maki also obtained a rare "adverse inference" instruction by the judge based on spoliation of evidence after they demonstrated that the plaintiff's lawyers conducted a tissue removal of the heart, lungs and brain from the decedent, kept portions of the lung tissue, but destroyed, without examination, the heart and brain.

The defense team learned in jury debriefing interviews that the absence of the organs was concerning to the panel.

"Another point that may have swayed the jury," Stephan said, "was our rebuttal to Mr. Schiszler's testimony that his wife did laundry in a closed, windowless room. But a daughter in her deposition testified that the laundry machine was in fact in a big garage. The plaintiff's lawyers did not bring Mr. Schiszler back to the stand to explain the discrepancy or even argue confusion or mistake."

After the five-week trial, the jury was out only briefly. "You don't often get a jury verdict within an hour after all those weeks in trial," Stephan said.

? John Roemer