IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
`PENNSYLVANIA
`
`KIMBERLY S. YOHO, Individually and as
`Executrix of the Estate of FRANK N. YOHO,
`JR., deceased,
`
`CIVIL DIVISION-ASBESTOS
`
`GD 21-013822
`
`Plaintiff,
`
`vs.
`
`PRETRIAL STATEMENT
`
`MS JACOBS & ASSOCIATES, INC., et al.
`
`Defendants.
`
`Filed on Behalf of Defendant,
`MS JACOBS & ASSOCIATES, INC.
`
`Counsel of Record for This Party:
`JONI M. MANGINO, ESQUIRE
`Pa. I.D. # 43586
`
`DANIEL J. CUDDY, ESQUIRE
`Pa. I.D. # 70392
`
`ZIMMER KUNZ, PLLC
`Firm #920
`310 Grant Street, Suite 3000
`Pittsburgh, PA 15219
`(412) 281-8000
`
`02380681.DOCX 7930-1010
`
`

`

`MS JACOBS & ASSOCIATES, INC.’S
`PRETRIAL STATEMENT
`
`AND NOW, comes the Defendant, MS JACOBS & ASSOCIATES, INC., (“MS Jacobs”),
`
`by and through its attorneys, JONI M. MANGINO, ESQUIRE, DANIEL J. CUDDY, ESQUIRE,
`
`and ZIMMER KUNZ, PLLC, and files the within Pretrial Statement:
`
`By the submission of this Pretrial Statement, this Defendant does not waive any defenses
`
`that it may have. This Defendant may call any and all witnesses listed in any witness disclosure
`
`filed on behalf of any party. This Defendant reserves the right to supplement this Pretrial
`
`Statement through trial.
`
`1.
`
`Narrative Statement of the Facts
`
`Plaintiffs commenced the within action by filing a Complaint seeking recovery for Plaintiff’s
`
`injuries allegedly resulting from his occupational exposure to asbestos-containing products allegedly
`
`supplied by this Defendant. Plaintiff’s Complaint alleges that Plaintiff, Frank Yoho, was exposed to
`
`such products while he was employed as follows. Plaintiff alleges that Mr. Yoho was exposed to
`
`products containing asbestos and/or silica during his employment at Babcock & Wilcox Koppel and
`
`Wallace Run Melt Shops as a laborer, pitman, and ladleman from 1964 to 1988.
`
` Plaintiffs further allege that Mr. Yoho was diagnosed with Lung Cancer in April of 2021
`
`and passed away on June 26, 2021, at the age of 81. Plaintiffs’ Complaint sets forth causes of action
`
`for negligence, breach of warranty, conspiracy, strict liability and wrongful death. This Defendant
`
`has denied any and all liability in this matter and discovery has revealed that there is no
`
`competent/credible evidence that MS Jacobs supplied any asbestos containing products to the
`
`worksite at issue.
`
`02380681.DOCX 7930-1010
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`

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`2.
`
`MS Jacobs’ Proposed Voir Dire
`
`1.
`
`Do you or any member of your family know Frank Yoho, or any of his
`
`family/relatives?
`
`2.
`
`Have you or any member of your family ever worked at any Babcock & Wilcox
`
`facility?
`
`3.
`
`Have you or any member of your family ever been a member of a labor union? If
`
`so, please identify the union and approximate years of membership.
`
`4.
`
`Have you or any member of your family ever filed a claim or a lawsuit due to
`
`personal injuries that you or they suffered?
`
`5.
`
`Do you believe that where someone has filed a claim or lawsuit such person should
`
`be entitled to recover simply because suit was filed?
`
`6.
`
`The Plaintiff in this case is an individual. The defendants are corporations. Would
`
`you have any feelings of sympathy and feel inclined to decide in one way or the other based solely
`
`on the identities of the parties?
`
`7.
`
`Do you believe that if a company made or sold asbestos-containing products in the
`
`past, it is liable if it has been named in a lawsuit?
`
`8.
`
`Do you have any opinions about companies that manufactured or sold products that
`
`contained asbestos? If so, please explain.
`
`9.
`
`Have you or any member of your family been diagnosed with a disease caused by
`
`asbestos exposure?
`
`10.
`
`Have you or any member of your family filed a claim for compensation or a lawsuit
`
`because of exposure to asbestos?
`
`02380681.DOCX 7930-1010
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`

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`11.
`
`Have you or any member of your family ever filed a claim for workers’
`
`compensation benefits? If so, please explain.
`
`12.
`
`Have you or any member of your family ever filed a claim for social security
`
`disability benefits? If so, please explain.
`
`13.
`
`Do you have opinions about people who file claims based upon allegations of
`
`asbestos exposure? If so, please explain.
`
`14.
`
`Do you have opinions about people who file personal injury claims? If so, please
`
`explain.
`
`15.
`
`Punitive damages are sometimes assessed, at discretion of the jury, to punish or set
`
`an example. Punitive damages may or may not become an issue in this case. Please raise your hand
`
`if you have particular opinions about punitive damages that you think you should share with the
`
`court and the attorneys?
`
`16. Have you read any articles, heard any radio broadcasts, seen any television
`
`programs or had access to any information on the internet that have discussed the health problems
`
`alleged to be associated with asbestos? If your answer to this question is “yes” will such articles,
`
`broadcasts, or programs influence you in reaching a verdict in this case?
`
`3.
`
`MS Jacobs’ Voir Dire Statement
`
`This Defendant requests that the following Voir Dire Statement be read to the jury:
`
`Plaintiffs filed suit against various defendants alleging that Frank Yoho, developed lung
`
`cancer as a result of his exposure to asbestos. If you are selected to be on the jury, you will be
`
`required to determine the cause of Mr. Yoho’s condition and if one or more of the defendants are
`
`liable for his condition. If you determine that one or more of the defendants are liable, you will
`
`need to determine the fair amount of damages that should be awarded to Plaintiffs.
`
`02380681.DOCX 7930-1010
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`

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`I represent MS Jacobs which is a local supplier of products. The defendants have various
`
`defenses unique to their own products, but each will contend that their products did not cause Mr.
`
`Yoho’s condition. On behalf of MS Jacobs, we will show that there is no evidence that will
`
`demonstrate that Mr. Yoho ever came into contact with a product supplied by MS Jacobs which
`
`exposed him to asbestos. We will demonstrate that any products allegedly supplied by MS Jacobs
`
`did not pose a health risk to even those who worked in close proximity to them.
`
`4.
`
`Damages
`
`Plaintiffs have not demonstrated that MS Jacobs engaged in any willful, wanton or
`
`malicious conduct sufficient for the imposition of punitive damages in this case. There is simply
`
`no evidence that would allow for an award of punitive damages against this Defendant based on
`
`the evidence presented in this matter, and this Defendant has denied any and all liability for
`
`punitive damages to Plaintiffs.
`
`Further, pursuant to the Fair Share Act, which is applicable in this matter, this Defendant
`
`may only be held liable for its own share of liability, if any, as the jury may determine. As such,
`
`this Defendant cannot be held liable for the damages of any other tortfeasors in this case, including
`
`settled, bankrupt or non-party entities.
`
`5.
`
`Motions in Limine
`
`This Defendant reserves its right to file Motions in Limine in this matter pursuant to the
`
`Case Management Order.
`
`6.
`
`Liability/Damage Witnesses
`
`This Defendant may call any and all of the following witnesses:
`
`a.
`
`Elmer J. Sigety, Jr.
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`
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`

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`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`Pittsburgh, PA 15205
`
`Christopher Kamzalow
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`Pittsburgh, PA 15205
`
`Elmer J. Sigety
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`Pittsburgh, PA 15205
`Depositions taken on November 25, 1997 and October 28, 2002, copies of
`which are available upon request.
`
`David Hardigan
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`Pittsburgh, PA 15205
`Deposition taken on January 21, 1998, copy of which is available upon
`request.
`
`Phillip Pastoria
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`Pittsburgh, PA 15205
`Deposition taken on January 21, 1998, copy of which is available upon
`request.
`
`Robert Vietmeier
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`Pittsburgh, PA 15205
`Deposition taken on January 21, 1998, copy of which is available upon
`request.
`
`Joanie Goebler
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`Pittsburgh, PA 15205
`Deposition taken on January 21, 1998, copy of which is available upon
`request.
`
`Patricia Charmers
`M.S. Jacobs & Associates, Inc.
`810 Noblestown Road
`
`02380681.DOCX 7930-1010
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`

`

`Pittsburgh, PA 15205
`Deposition taken on January 21, 1998, copy of which is available upon
`request.
`
`Corporate Representative(s) of ITT Fabri valve
`
`Corporate Representative(s) of Cashco
`
`Corporate Representative(s) of Dezurik
`
`Plaintiffs and/or family members of the Plaintiffs
`
`Any and all parties to this action, including their past or present employees
`who have knowledge of the within actions
`
`Any and all witnesses listed as liability witnesses in Pretrial Statements filed
`by the Plaintiffs and other defendants
`
`Any and all witnesses listed and/or identified as witnesses in Plaintiffs’
`responses to discovery requests and depositions
`
`Any and all parties to the within action, including but not limited to corporate
`representatives and Plaintiffs
`
`Any and all co-workers who have provided affidavits as to other defendants
`in this litigation
`
`Any and all representatives of contractors and/or purchasers of products
`allegedly sold, supplied or distributed by MS Jacobs
`
`Records custodian for any premises defendant
`
`Records custodian of any medical records produced by Plaintiffs
`
`Representative and/or records custodian of any bankruptcy trust to which
`Plaintiffs have submitted a claim
`
`Additional Corporate Representatives/Employees/Authorized
`Agents and/or other fact witnesses of any or all Defendants,
`including by prior deposition testimony.
`
`i.
`
`j.
`
`k.
`
`l.
`
`m.
`
`n.
`
`o.
`
`p.
`
`q.
`
`r.
`
`s.
`
`t.
`
`u.
`
`v.
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`02380681.DOCX 7930-1010
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`

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`7.
`
`Expert Witnesses
`
`Defendant reserves the right to call any or all of the following individuals as medical and
`
`expert witnesses at the time of trial:
`
`a.
`
`Defendant could potentially call the following:
`
`Sheldon H. Rabinovitz, Ph.D., C.I.H.
`14712 Botany Way N.
`Potomac, MD 20878
`(Report attached as Exhibit A)
`
`Dr. Rabinovitz is a Certified Industrial Hygienist. His opinions will be based on
`his education and over 45 years of experience as an industrial hygienist and
`toxicologist. Dr. Rabinovitz currently serves as Vice President, Sandler
`Occupational Medicine Associates. Dr. Rabinovitz is also a toxicologist, holding
`a Ph.D. in Physiology and Pharmacology from the College of Medicine, Wayne
`State University. In addition, he is a certified industrial hygienist. His experience
`includes evaluation of health hazards in power stations, vehicle repair facilities,
`foundries, hospitals, office buildings, apartment buildings, steel mills,
`manufacturing facilities and shipyards. It also includes evaluations of
`pneumoconiosis-producing dusts, such as asbestos. As a consultant and former
`manager of health and safety for the U.S. Environmental Protection Agency, he
`has evaluated asbestos hazards in buildings and industrial environments to
`determine asbestos health hazards from use of asbestos-containing materials
`(ACMs) used as decorative building materials, friction materials, cements and
`insulation materials. He has collected over 1,000 asbestos bulk and air samples in
`a variety of situations.
`
`He has specifically collected air samples while various ACMs were being
`handled, used and removed, which included floor tile, transite, and other
`encapsulated materials, refractory insulation materials and cement for furnaces
`and other equipment in foundries and steel mills, brake linings, as well as thermal
`insulation used in pipe covering.
`
`Dr. Rabinovitz will offer opinions based on his over 45 years of experience in the
`industrial hygiene field, and knowledge of the literature regarding the health
`hazards of asbestos, he is familiar with the findings and conclusions of
`researchers in the field of occupational health regarding asbestos health hazards
`and of the practices of occupational health professionals with respect to
`safeguarding workers from harmful asbestos products.
`
`Dr. Rabinovitz may testify regarding the development and use of threshold limit
`values and the promulgation of state and federal regulations concerning the use of
`
`02380681.DOCX 7930-1010
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`

`

`asbestos and exposure to asbestos in occupational settings. He may testify
`regarding technical state of the art and scientific knowledge regarding asbestos,
`asbestos exposure and related industrial hygiene practices. He may testify about
`the nature of the working environment in facilities such as those where plaintiffs
`worked. He may also testify about ability or inability of certain asbestos products
`identified by the plaintiffs to release asbestos fibers and about tests of such
`products, including gaskets and packing.
`He may also testify regarding any personal inspection of the facilities at issue
`and/or a review of any documents regarding the facility at issue herein. Dr.
`Rabinovitz will also testify regarding warnings related issues and the efficacy
`and/or necessity or feasibility of warnings pertaining to asbestos as regards to
`M.S. Jacobs & Associates, Inc.
`
`Each and every physician, nurse, medical technician, therapist or health care
`provider who was consulted or who treated or examined Plaintiff, or administered
`care or treatment of any kind relative to the alleged underlying diagnosis.
`
`This Defendant reserves the right to call any expert witness provided by any party
`who has offered or will offer expert opinions regarding valves and valve
`components including packing and gaskets, including but not limited to those
`expert witnesses designated by Cashco, Dezurik or ITT Fabri valve.
`
`This Defendant reserves the right to call any expert witness previously identified,
`or who will be identified, by any defendant in this litigation, which is not contrary
`to this Defendant’s case
`
`MS Jacobs also reserves the right to list supplemental expert witnesses or to call
`expert witnesses for rebuttal
`
`MS Jacobs further reserves the right to substitute other individuals for those
`designated in the event that schedule conflicts or other reasons preclude a
`designated expert from being deposed and/or testifying at trial
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g. MS Jacobs reserves the right to withdraw any of the expert witnesses listed herein
`at any time prior to their being called by MS Jacobs to testify at trial
`
`h.
`
`i.
`
`MS Jacobs may call medical expert physicians co-designated as joint medical
`expert witnesses and/or independent medical examiners on behalf of all
`defendants as designated by Defense Liaison Counsel
`
`Any attending physicians, screening physicians, treating physicians and
`pathologists of Plaintiff, as listed in the Pretrial Statement of Plaintiffs or other
`defendants which are now known or which later become known
`
`02380681.DOCX 7930-1010
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`

`

`j.
`
`Any expert medical witness listed in the Pretrial Statement of Plaintiffs, other
`defendants, or additional defendants
`
`8.
`
`Exhibits
`
`The Defendant may introduce at the time of trial the following exhibits
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`j.
`
`k.
`
`l.
`
`m.
`
`n
`
`o.
`
`p.
`
`Any and all documents attached to the deposition transcripts of MS
`Jacobs’ corporate representatives identified above.
`
`Any and all documents attached to the depositions of any witnesses
`deposed or any witness yet to be deposed
`
`Photographs, site drawings, blueprints of the facilities or sites at issue
`
`Diagrams or exhibits relative to products at issue
`
`Any and all medical records and x-rays of any type pertaining to
`Plaintiff
`
`Plaintiffs’ answers, supplemental answers, and amended answers in response to
`interrogatories, requests for production and/or admissions, and any other discovery
`requests, and all documents referenced in Plaintiffs’ responses to written discovery
`
`Plaintiffs’ Complaint and any Amended Complaints
`
`Any and all employment records of Plaintiffs
`
`Any and all exhibits listed by any other party
`
`Any and all expert reports listed by any other party
`
`Any and all relevant sales invoices, records, or purchase orders for relevant job
`locations
`
`Any and all medical and expert reports and records
`
`Any deposition taken by any party in this case.
`
`Plaintiffs’ Social Security records
`
`Plaintiffs’ W-2 records and income tax returns.
`
`Any and all judgments or tax liens applicable to Plaintiffs
`
`02380681.DOCX 7930-1010
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`

`

`q.
`
`r.
`
`s.
`
`t.
`
`u.
`
`v.
`
`w.
`
`x.
`
`y.
`
`z.
`
`aa.
`
`bb.
`
`cc.
`
`Any and all answers to interrogatories and responses to requests for production of
`documents issued by any defendant
`
`Any and all depositions and affidavits of any representative of any defendant in this
`case
`
`Purchase orders and/or invoices by any alleged purchaser of products sold, supplied
`and/or distributed by MS Jacobs relevant to the time when Plaintiff worked at the
`job site(s) in issue
`
`Any and all medical records referred to, produced and/or otherwise identified in
`discovery by Plaintiffs
`
`Any exhibits listed by any other defendants in their Pretrial Statements
`
`Any and all documents referred to, produced or otherwise identified in discovery by
`Plaintiffs
`
`Any and all affidavits prepared by co-workers
`
`Any documents in the possession of MS Jacobs responsive to Plaintiffs’ discovery
`requests
`
`Any depositions/affidavits prepared in this case
`
`All answers to interrogatories or request for admissions of Plaintiff and all other
`defendants.
`
`Transcripts of any depositions taken in this matter.
`
`All documents produced in response to a request for production of documents.
`
`Any document necessary for purposes of impeachment.
`
`9.
`
`Settlement Status
`
`Several defendants, including this Defendant, remain in this case. Plaintiff has made a
`
`demand to this Defendant. MS Jacobs views this matter as having limited value for purposes of
`
`settlement. While this Defendant is willing to consider a reasonable settlement demand, Plaintiff is
`
`unable to establish asbestos exposure to Mr. Yoho from any product sold, supplied or delivered by
`
`02380681.DOCX 7930-1010
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`

`

`this Defendant. In addition, Plaintiff is unable to establish that any de minimis exposure by this
`
`Defendant was a substantial factor in causing Mr. Yoho’s alleged injuries or damages.
`
`10.
`
`Claims for Indemnification & Contribution
`
`In accordance with Rule 1041.1 of the Pennsylvania Rules of Civil Procedure, the
`
`appearance of the undersigned on behalf of this Defendant constitutes and includes a claim for
`
`indemnification and contribution from all other parties.
`
`To the extent that Plaintiff demonstrates this Defendant’s liability on the basis of alleged
`
`sales of another manufacturer’s product(s), this Defendant intends to pursue claims for
`
`indemnification, contribution and restitution against those manufacturers.
`
`11.
`
`Reservations
`
`1.
`
`This Defendant reserves the right to call any witnesses to offer factual or opinion
`
`testimony for purpose of impeachment or rebuttal whether or not such witness has been identified
`
`on the witness disclosure of any party.
`
`2.
`
`This Defendant reserves the right to call undesignated rebuttal expert witnesses
`
`whose testimony cannot be foreseen at the presentation of evidence against MS Jacobs.
`
`3.
`
`This Defendant reserves its right to call upon cross-examination, any lay or expert
`
`witnesses which Plaintiffs may be permitted to call.
`
`4.
`
`This Defendant reserves the right to introduce into evidence any and all medical
`
`records pertaining to Plaintiff. In addition, this Defendant reserves the right to have any witnesses
`
`testify in accordance with the records, reports and letters pertaining to Plaintiff.
`
`5.
`
`This Defendant reserves the right to have any witness testify in accordance with the
`
`scope of any of the above items or as to conclusions reached as a result of the above items. In
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`02380681.DOCX 7930-1010
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`

`

`addition, this Defendant reserves the right to call as a witness any person necessary to authenticate
`
`the above items.
`
`6.
`
`This Defendant reserves the right to call any or all of the witnesses named in any
`
`pleading of record, including depositions, answers to interrogatories or responses to request for
`
`admissions.
`
`7.
`
`This Defendant reserves the right to call any or all of Plaintiff’s treating, consulting
`
`and examining physicians.
`
`8.
`
`This Defendant reserves the right to call expert witnesses of any type designated by
`
`any party in this matter.
`
`9.
`
`This Defendant reserves the right to supplement this Pretrial Statement upon review
`
`of any expert opinions, medical or otherwise, provided through Defense liaison counsel.
`
`10.
`
`This Defendant reserves the right to amend and/or supplement this witness list at
`
`any point through trial.
`
`Respectfully submitted,
`ZIMMER KUNZ, PLLC
`
`/s/ Joni M. Mangino
`BY:
` JONI M. MANGINO, ESQUIRE
` DANIEL J. CUDDY, ESQUIRE
` Attorneys for Defendant,
` MS Jacobs & Associates, Inc.
` 310 Grant Street, Suite 3000
` Pittsburgh, PA 15219
` (412) 281-8000
`
`
`02380681.DOCX 7930-1010
`
`

`

`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the within PRETRIAL STATEMENT was
`
`provided to Plaintiff’s counsel by electronic mail, this 11th day of October, 2022.
`
`Mark D. Troyan, Esquire
`D. Aaron Rihn, Esquire
`Robert Peirce & Associates, P.C.
`707 Grant Street, Suite 125
`Pittsburgh, PA 15219
`Troyan, Mark <mtroyan@peircelaw.com>
`Counsel for Plaintiff
`
`ZIMMER KUNZ, PLLC
`
`/s/ Joni M. Mangino ___
`BY:
` JONI M. MANGINO, ESQUIRE
`DANIEL J. CUDDY, ESQUIRE
`
`02380681.DOCX 7930-1010
`
`