Kittrick v. GAF Corp.

125 F.R.D. 103, 14 Fed. R. Serv. 3d 1142, 1989 U.S. Dist. LEXIS 3005, 1989 WL 28120
CourtDistrict Court, M.D. Pennsylvania
DecidedFebruary 21, 1989
DocketCiv. No. 88-0202
StatusPublished
Cited by10 cases

This text of 125 F.R.D. 103 (Kittrick v. GAF Corp.) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kittrick v. GAF Corp., 125 F.R.D. 103, 14 Fed. R. Serv. 3d 1142, 1989 U.S. Dist. LEXIS 3005, 1989 WL 28120 (M.D. Pa. 1989).

Opinion

MEMORANDUM AND ORDER

NEALON, District Judge.

Currently before the court in the above-captioned asbestos action is third-party defendant Cleaver-Brooks’ motion for summary judgment. For the reasons that follow, the motion will be denied.

BACKGROUND

Plaintiffs Austin and Dorothy Kittrick filed this action against defendant-third-party plaintiff Eagle-Picher Industries, Inc. and various other defendants on February 9, 1988. See document 1 of record. Plaintiffs allege that, as a proximate result of the inhalation of asbestos fibers and dust contained in the products of defendants, plaintiff Austin Kittrick contracted asbestosis with associated complications, resulting in his total disability. Defendant Eagle-Picher filed a third-party complaint against, inter alia, third-party defendant Cleaver-Brooks on August 19, 1988. See document 21 of record.

On October 25, 1988, Cleaver-Brooks submitted requests for admissions to plaintiffs in an attempt to determine the extent of plaintiff Austin Kittrick’s alleged contact with Cleaver-Brooks’ boilers and to establish the nature of the allegations against Cleaver-Brooks. See document 42 of record, at ¶ 9 and Exhibit E. The following requests for admissions were made by Cleaver-Brooks: (1) that any packaged boiler allegedly manufactured by it with which plaintiff came in contact at any job site at any time contained no asbestos insulation or asbestos in any form when the boiler left its control; (2) that any insulation surrounding any Cleaver-Brooks boil[105]*105er was added after the boiler was delivered, installed, repaired, or modified at the job site; and (3) that plaintiff was not exposed to any boilers manufactured, mined, milled, fabricated, supplied, or sold by Cleaver-Brooks at any of the job sites on which he worked. See id., Exhibit A. Plaintiffs failed to reply to these request for admissions within the thirty days provided by the Fed.R.Civ.P. 36. See id. at If 9.

Third-party defendant filed a motion for summary judgment on January 9, 1989. See document 42 of record. A memorandum in support of the motion was attached thereto. Third-party plaintiff Eagle-Picher filed an opposition brief on January 26, 1989. See document 72 of record. On February 3, 1989, Cleaver-Brooks filed a reply brief. See document 75 of record. This matter is now ripe for disposition.

DISCUSSION

When examining a motion for summary judgment, the court must view all facts in the light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir.1981). If there exists a genuine issue as to any material fact, summary judgment must be denied. Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id. (citing 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2725, at pp. 93-95 (1983)). In addition, summary judgment will not lie if the dispute about a material fact is “genuine,” that is, “if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party.” Id. In opposing a motion for summary judgment, a party must present evidentiary affidavits or risk having the undisputed statements contained in the movant’s affidavits taken as true. See Fed.R.Civ.P. 56(c); see also Sierra v. Lehigh County Pennsylvania, 617 F.Supp. 427, 429 (E.D.Pa.1985).

The Supreme Court recently examined Rule 56 in the context of asbestos litigation in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

There, the Court stated as follows:

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.

Id. 477 U.S. at 322, 106 S.Ct. at 2552-2553, 91 L.Ed.2d 265. In making this determination, the court is to apply the same standard used for a directed verdict under Rule 50(a). See id. 477 U.S. at 323, 106 S.Ct. at 2553; see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. at 2511, 91 L.Ed.2d 202 (proper standard is whether, “under the governing law, there can be but one reasonable conclusion as to the verdict”); Fed.R.Civ.P. 50(a).

Applying these principles to the present case, in order for third-party plaintiff to avoid summary judgment, it must be shown that exposure to third-party defendant’s asbestos-containing products caused plaintiffs’ injuries. See Richards v. Raymark Industries, Inc., 660 F.Supp. 599, 600 (E.D.Pa.1987) and authorities cited therein; Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126, 128 (E.D.Pa.1985); Carollo v. Forty-Eight Insulation, Inc., 252 Pa.Super. 422, 381 A.2d 990 (1977). Thus, third-party plaintiff must offer evidence that Austin Kittrick was exposed to the asbestos-containing products of Cleaver-Brooks, either by working with them himself or by working in the vicinity of them. See Richards v. Raymark Industries, Inc., 660 F.Supp. at 601; Pongrac v. Consolidated Rail Corp., 632 F.Supp. at 129; see also Roehling v. National Gypsum Company Gold Bond Building Products, 786 F.2d 1225 (4th Cir.1986); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985); Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52-53 (1988).

[106]*106Cleaver-Brooks argues that it is entitled to summary judgment based on plaintiff’s failure to respond to the requests for admissions. See Fed.R.Civ.P. 36(a) (“Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request, ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter”). With this argument the court cannot agree. While there is a dearth of authority on this issue, the court believes that plaintiffs’ admissions cannot bind third-party plaintiff Eagle-Picher. See C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2264, at p.

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Bluebook (online)
125 F.R.D. 103, 14 Fed. R. Serv. 3d 1142, 1989 U.S. Dist. LEXIS 3005, 1989 WL 28120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kittrick-v-gaf-corp-pamd-1989.