Mesothelioma widow entitled to delay damages in $2.3M award

A trial court judge erred in not awarding full delay damages to the widow of a mesothelioma victim in a case in which the woman won a $2.3 million judgment over her husband’s death from workplace asbestos exposure, a Pennsylvania appellate court ruled Tuesday.

The Pennsylvania Superior Court largely upheld the multimillion-dollar judgment awarded to Karen Constantine, who sued Lenox Instrument Co. Inc. and Esterline Technologies Corp. over her husband’s death in 2019, which occurred 2 1/2 years after his malignant mesothelioma diagnosis.

Ms. Constanine won her case following a February 2022 bench trial in Philadelphia.

Lenox appealed the trial court’s award, seeking a new trial, and arguing that certain delay damages should have been excluded from the final judgment because the delays occurred during the height of the COVID-19 pandemic, and courts were periodically closed.

The Superior Court, in dismissing this argument, noted it previously held that COVID-19-related administrative delays to scheduling a trial are not excludable from the calculation of delay damages.

The appeals court said delay damages could only be excluded from calculation if a plaintiff is responsible for causing a trial’s delay.

Meanwhile, the appellate court upheld most of the multimillion-dollar plaintiffs award, dismissing another argument by the defense that the case should never have been permitted because of workers compensation exclusivity.

The court wrote that in Pennsylvania, negligence suits over workplace injuries from asbestos – which can take a long time to develop – are permitted outside of workers comp.