Left to right: Messrs. Daley, Marshall and Rosenthal.

The Pound Civil Justice Institute announces 2016 Appellate Advocacy Award. According to its website, the Institute “is a national legal ‘think tank’ created by pioneering members of the trial bar and dedicated to ensuring access to justice for ordinary citizens. Through its activities, the Institute works to give lawyers, judges, legal educators and the public a balanced view of the issues affecting the U.S. civil justice system.” This year’s winners of the award have certainly accomplished the mission of the Pound Civil Justice Institute.

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Three distinguished attorneys will receive the 2016 Appellate Advocacy Award at the Pound Fellows reception on Saturday, July 23 in Los Angeles. The awardees, Robert Daley, R. Scott Marshall and Brent M. Rosenthal, worked to get a final decision in Tooey v. AK Steel Corp. The case was reviewed by the Pennsylvania Supreme Court and the result was a ruling allowing victims of asbestos-related cancers to “file claims past the 300-week limit.” This ruling permits families of seriously ill or deceased workers to seek justice where they were once forbidden to do so under workers’ compensation rules.

The case involved two former industrial workers, both diagnosed with mesothelioma. This asbestos-related cancer has a latency period (the time between exposure and onset of symptoms) of 30 – 50 years and is almost always terminal. The two workers were diagnosed past the 300-week (about 5.5 years) period allowed for filing claims under the state’s workers’ comp statute.

As a result, they could not receive any statutory compensation benefits and their surviving spouses filed wrongful death claims against the employers. The defendants argued that “workers’ compensation is the ‘exclusive remedy’” and that the plaintiffs were out of luck and left “without a remedy for their husbands’ deaths.” The employers moved for dismissal of the wrongful death suits.

Enter Messrs. Daley, Marshall and Rosenthal. They took the cases. Their argument was based on the terms of the workers’ comp act itself, which states that it doesn’t apply to “occupational diseases that manifest themselves more than 300 weeks after the last hazardous exposure.” Therefore, they argued, the “exclusive remedy” doctrine didn’t apply either and the surviving spouses should be allowed to pursue the wrongful death claims.

The Pennsylvania Supreme Court agreed, holding that if workers can’t get benefits under workers’ comp due to the latency period of their illnesses, that common-law tort actions (of which wrongful death is one) are permissible regardless of the workers’ comp statute’s “exclusive remedy” provision. Further, the court wrote in its opinion that it was “inconceivable that the legislature, in enacting a statute specifically designed to benefit employees, intended to leave a certain class of employees who have suffered the most serious of work-related injuries without any redress under the [workers’ compensation act] or at common law.”

This, of course, is good news for the plaintiffs and others similarly situated. According to judicial and academic commentators, Tooey is “a triumph over an unreasonable and impersonal statute.”

Mr. Robert F. Daley’s Pittsburgh, Pennsylvania practice specializes in personal injury, product liability, civil rights issues, medical malpractice and appeals. He graduated from the University of Dayton (B.S.) and Duquesne University School of Law (J.D.) and is an Adjunct Professor of Trial Advocacy there.

Mr. R. Scott Marshall is based in Dallas, Texas as a member of the Nemeroff Law Firm. He specializes in cases involving mesothelioma, working with individuals with the disease as well as the families of those who have died from it. He graduated from West Liberty State College (B.S.), Wheeling Jesuit University (M.B.A.), and Duquesne University School of Law (J.D.). He also wrote the briefs for Tooey at both the trial and appellate levels.

Mr. Brent M. Rosenthal also practices in Dallas, Texas. He specializes in civil appellate law, toxic tort litigation, and mass tort litigation. He graduated from Columbia University (B.A.) and the University of Texas at Austin School of Law (J.D.). He was head of the appellate practice at Baron & Budd for over 20 years before opening his own appellate practice in 2010. He taught Mass Tort Litigation at Southern Methodist University for 19 years and worked with Mr. Marshall on the brief for the Pennsylvania Supreme Court.

The Pound Civil Justice Institute’s Appellate Advocacy Award was first given in 2015. It recognizes “excellence in appellate advocacy in America and those who achieve it” while reflecting “the Institute’s mission to further the principles of access to civil justice and the right to trial by jury.”

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