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Delaware Supreme Court Reverses $2.8 Million Verdict

Armand J. Della Porta
Marshall Dennehey Warner Coleman & Goggin, P.C. - Wilmington Office

Paul C. Johnson
Marshall Dennehey Warner Coleman & Goggin, P.C. - Cherry Hill Office

Timothy D. Rau
Marshall Dennehey Warner Coleman & Goggin, P.C. - Philadelphia Office

August 22, 2014

Previously published on August 1, 2014

The Delaware Supreme Court reversed a verdict in favor of the Plaintiff, the Estate of Michael Galliher, on the grounds that the trial court failed to instruct the jury as to the responsibility of the employer and because the Plaintiff's expert, Dr. Barry Castleman, gave inflammatory testimony. The Plaintiff was represented by Simmons Hanly Conroy out of Alton, Illinois.

The Decedent, who died of mesothelioma, was employed at a Borg Warner plant in Mansfield, Ohio, which manufactured bathroom fixtures. Borg Warner used industrial talc, which R.T. Vanderbilt mined, sold and distributed to Borg Warner, to dust molds for ceramics that were manufactured at the shop where the Decedent worked. A former employee of the plant testified that Borg Warner did not require its employees to wear masks in its cast shop until the mid to late 1980s.

The Simmons firm filed suit against several Defendants, including Vanderbilt, and proceeded solely against Vanderbilt, and the case was tried in 2012 before the Honorable John Parkins. The jury returned a verdict in favor of Galliher, awarding $2,864,583.33 in damages. Vanderbilt was found 100 percent liable for Galliher's injuries, and no liability was assessed to Borg Warner. Vanderbilt filed a motion for a new trial and then appealed to the Delaware Supreme Court.

On appeal, Vanderbilt raised two primary arguments. First, it argued that the trial court failed to adequately instruct the jury on the duties which Borg Warner owed to the Plaintiff. When Vanderbilt submitted a proposed instruction to the trial Judge regarding the duty of care owed by a premises owner, he ruled that the instruction was too long and never instructed the jury as to the standard. The Supreme Court agreed that the trial court committed reversible error by not providing that charge to the jury. The trial court only instructed the jury to determine if Borg Warner was at fault without giving the jury any guidance as to what acts or omissions would establish fault on the part of an employer as a matter of law.

The second basis on which the appeal was granted was the inflammatory testimony of Dr. Barry Castleman. Castleman testified that Vanderbilt spent millions of dollars "buying Senators and lobbying the government." Vanderbilt objected, and the trial court sustained the objection, telling the jury to disregard the statement about buying Senators and Governors. Vanderbilt then moved for a mistrial, which the trial court denied.

The Court ruled that Castleman's statement that Vanderbilt engaged in bribery was egregious and required a new trial. The trial Judge's curative instruction was insufficient to mitigate the prejudice caused by the impermissible testimony. On these two bases, the Supreme Court reversed the judgment of the Superior Court and remanded the case for a new trial.

Since 2005, when out-of-state plaintiffs' firms began filing cases in Delaware, only a handful of cases have gone to verdict. The verdict in this case was the highest in an asbestos case tried in Delaware since 2005. The Supreme Court's decision is significant also because it involves the Simmons firm, which was the original out-of-state plaintiffs' firm to file cases in Delaware in 2005. The number of cases filed in Delaware by the Simmons firm has drastically decreased since 2005, and this decision may further discourage future filings.


The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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