Nemeroff Law Firm Attorney Named Recipient of 2016 Pound Institute Appellate Advocacy Award

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May 24, 2016, 01:15 ET

DALLAS, May 24, 2016 /PRNewswire/ -- The Nemeroff Law Firm is proud to announce that attorney, R. Scott Marshall is to receive the 2016 Pound Civil Justice Institute Appellate Advocacy Award for his significant mesothelioma victory before the Pennsylvania Supreme Court in Tooey v. AK Steel Corp. The case provided access to Pennsylvania's courts for injured workers and their families who have been devastated by mesothelioma, a terminal occupational cancer, as well as other occupational diseases effectively excluded by Pennsylvania's Workers' Compensation Act.

Nemeroff Law Firm Mesothelioma Victory Paves Way for Access to Justice by Pennsylvania Workers

Before the court's recent decision in Tooey, Pennsylvania workers with latent occupational cancer and other fatal diseases fell further victim to a Catch-22 never intended by Pennsylvania's legislature when it drafted the state's Workers' Compensation Act. Section 301(c)(2) provides that occupational diseases manifesting more than 300 weeks after a worker's last occupational exposure to the hazards causing disease do not fall within the purview of the Act. But Pennsylvania's intermediate courts had nevertheless interpreted the Act's exclusivity provision under Section 303(a) to bar common law claims against an employer by workers to whom the Act did not apply. "For most workers, their last exposure to asbestos on the job occurred more than 20 years ago," explains attorney Scott Marshall. "In Pennsylvania, our clients with mesothelioma essentially were left without a remedy against employers that knew asbestos was lethal, but chose not to protect their workers – employees weren't covered under workers' compensation, and they couldn't bring a claim in court either."

In 2008, the Nemeroff Law Firm resolved to face down the injustice on behalf of two clients diagnosed with mesothelioma in 2007. Client John Tooey had been exposed to asbestos between 1964 and 1982 as an industrial salesman of asbestos products for Ferro Engineering and client Spurgeon Landis had been exposed from 1946 until 1992 while working for Alloy Rods, Inc. The trial court denied the employers' motions for summary judgment based on the Act's exclusivity provisions, but Pennsylvania's intermediate appellate court reversed, ruling that it was constrained to do so by its own "improperly" decided precedent. "We knew that the Pennsylvania Supreme Court's decision in our case would dramatically affect not just our own clients but a host of similarly situated workers in Pennsylvania who – as things stood – were left with no legal remedy against careless, or even reckless, employers," said Marshall, whose team on the appeal included Bob Daley of Robert Peirce & Associates, P.C. in Pittsburgh and Brent Rosenthal of Rosenthal Weiner in Dallas.

According to Rick Nemeroff, founder of the Nemeroff Law Firm, the Pennsylvania Supreme Court's opinion in the case was exactly as we believed it should be. Adopting the plaintiffs' statutory construction argument as the only reasonable one, the court held that the language of the statute itself excluded the plaintiffs' claims from the parameters of the Act, meaning that the exclusivity provision did not preclude the plaintiffs' common law claims against the employers. Still, "for purposes of argument," the court also considered its interpretation of the statute in light of the legislature's intent. Noting that the statute was "specifically designed to benefit employees," the court observed that the employers' proposed construction would operate "as a de facto exclusion of coverage under the Act for essentially all mesothelioma claims" and would enable precisely the result the statute "was intended to prohibit − an employer's avoidance of liability through both recovery tracks." Ultimately, the court reversed the intermediate appellate court, reasoning: "It is 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 Act or at common law."

Pound Appellate Advocacy Award "Tremendous Honor"

The Pound Civil Justice Institute strives to ensure access to justice for ordinary citizens by providing a balanced view of issues related to the U.S. civil justice system. The Institute's Appellate Advocacy Award is given annually to lawyers "who have been instrumental in securing a final appellate court decision with significant impact on the right to trial by jury, public health and safety, consumer rights, civil rights, access to justice in civil cases, or other issues relevant to the work of the Pound Institute." "To be recognized in this way by the Pound Institute is a tremendous honor for Scott Marshall," said Nemeroff Law Firm founder Rick Nemeroff. "I could not be more pleased and proud of the significant result Scott has achieved for our clients and for other workers in Pennsylvania." Selected by a unanimous vote of the Institute's Award Committee, Marshall will receive this prestigious award at the Pound Fellows reception in Los Angeles, California on July 23, 2016, during the annual convention of the American Association for Justice (AAJ).

The case, Tooey v. A.K. Steel Corp., is reported at 81 A.3d 851 (Pa. 2013).

About The Nemeroff Law Firm

With offices in UT, LA, PA and TX, The Nemeroff Law Firm is a nationally recognized trial firm dedicated to helping individuals and families who suffer from asbestos related mesothelioma, harmful pharmaceuticals, and catastrophic personal injuries or death as a result of the wrongful or negligent conduct of others. Led by attorney Rick Nemeroff, the firm serves clients throughout the United States and Mexico, combining compassion and caring with aggressive litigation skills to deliver life-changing results. For more information, contact The Nemeroff Law Firm at 866-435-1831, go to www.nemerofflaw.com.

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