Wilson v. A.P. Green Industries, Inc.

807 A.2d 922, 2002 Pa. Super. 294, 2002 Pa. Super. LEXIS 2624
CourtSuperior Court of Pennsylvania
DecidedSeptember 16, 2002
StatusPublished
Cited by30 cases

This text of 807 A.2d 922 (Wilson v. A.P. Green Industries, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilson v. A.P. Green Industries, Inc., 807 A.2d 922, 2002 Pa. Super. 294, 2002 Pa. Super. LEXIS 2624 (Pa. Ct. App. 2002).

Opinion

OLSZEWSKI, J.:

¶ 1 Pamela Perry Wilson, Administratrix of the Estate of Dolly F. Chase, appeals from the August 31, 2001, order granting The Flintkote Company’s (Flintkote) motion for summary judgment. We affirm.

¶2 On or about May 20, 1998, Dolly Chase (decedent) was diagnosed with Mesothelioma, a cancer of the lung’s inner lining caused by exposure to asbestos, and she died in August of the following year. Appellant commenced a products liability action against numerous companies, including Flintkote, claiming that they manufactured or sold asbestos-containing products, which decedent inhaled and which caused her death. Specifically, the complaint alleges that Flintkote products containing asbestos were used near decedent while she worked at the Philadelphia Naval Shipyard during World War II.

*924 ¶ 8 In order to establish that decedent was exposed to and breathed in fibers from Flintkote Fibrex Cement, appellant deposed Josie Usher, who worked with decedent between 1944-45. On April 9, 2001, shortly after this deposition was taken, appellee moved for summary judgment on grounds that appellant failed to satisfy the product identification requirement. Appellant opposed this motion relying solely on Ms. Usher’s testimony. The trial court granted appellee’s motion on August 31, 2001, and this timely appeal followed, in which appellant raises . the following questions:

1. Did the lower court abuse its discretion by failing to interpret the evidence of record in the light most favorable to Plaintiff as the non-moving party?
2. Did the lower court err by requiring the Plaintiff to prove regular, frequent and proximate exposure to defendants’ asbestos products in a meso-thelioma case?

Appellant’s brief at 3.

¶ 4 This Court will only overturn an order granting summary judgment where the trial court has “committed an error of law or abused its discretion.” Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (2001). Summary judgment is proper where there is “no genuine issue of any material fact as to a necessary element of the cause of action.” Pa.R.C.P. 1035.2(1); Murphy, 777 A.2d at 429. In reviewing such a grant, “[w]e must view the record in the light most favorable to the non-moving party, and [resolve] all doubts as to the existence of a genuine issue of material fact ... against the moving party.” Feidler v. Morris Coupling Co., 784 A.2d 812, 814 (Pa.Super.2001) (citation omitted).

¶ 5 We begin by addressing appellant’s second issue, concerning the level of proof a plaintiff must satisfy in an asbestos case. In order to succeed on a products liability cause of action, a plaintiff must show that: (1) “his/her injuries were caused by the product of a particular manufacturer or supplier”; and (2) the product was defective. Jobe v. W.P. Metz Refining, 445 Pa.Super. 76, 664 A.2d 1015, 1017 (1995). Establishing product identity in an asbestos case requires a plaintiff to produce evidence that she “inhaled asbestos fibers shed by the specific manufacturer’s product.” Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52 (1988). Ideally, a plaintiff or a witness will be able to directly testify that plaintiff breathed in asbestos fibers and that those fibers came from defendant’s product. Without such direct evidence, plaintiff must rely upon circumstantial evidence of exposure. Such evidence may not merely demonstrate the “presence of asbestos in the workplace,” but must show that plaintiff “worked in the vicinity of the product’s use.” Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 86 (Pa.Super.2002) (citing Eckenrod, 544 A.2d at 52). Specifically, a plaintiffs evidence of exposure and product identity must show that she “worked, on a regular basis, in physical proximity with the product, and that [her] contact with it was of such a nature as to raise a reasonable inference that [s]he inhaled asbestos fibers that emanated from it.” Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 622 (Pa.Super.1999) (citing the frequency, regularity, and proximity standard from Eckenrod, 544 A.2d at 53).

¶ 6 Appellant claims that this standard, which emerged from Eckenrod, does not apply here, because: (1) her decedent developed Mesothelioma; and (2) the standard only applies to circumstantial evidence, not direct evidence. Appellant’s Brief at 11. She claims that Josie Usher’s testimony provides direct evidence that de *925 cedent inhaled asbestos fibers from appel-lee’s product.

¶ 7 We reject appellant’s contention that the Eckenrod standard should not apply to a disease such as Mesothelioma, which can be caused by inhaling small amounts of asbestos. The fact that minor amounts of asbestos may cause this disease has no bearing on the requirement that plaintiff must actually inhale asbestos fibers from the specific manufacturer’s product.

¶ 8 At oral argument, appellant pointed to this Court’s recent decision in Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa.Super.2002), as support for its contention. In light of other contemporary cases handed down by this Court, we do not read Gutteridge as creating a distinction between asbestos-related cases involving lung cancer and those involving Meso-thelioma. In Gutteridge, a panel of this Court emphasized that while most asbestos plaintiffs, like the plaintiff in Eckenrod, develop lung cancer, Mr. Gutteridge developed Mesothelioma, which is “medically attributable” to asbestos exposure. Id. at 193. In setting forth the level of proof needed to survive a summary judgment motion, the panel cited directly to Ecken-rod. Id. The Court then stressed that although the plaintiff does not need to show “the specific role played by each fiber within the body[,]” she must prove that she “inhaled asbestos fibers shed by the specific manufacturer’s product.” Id. This is the same standard that we have articulated in all of our recent asbestos cases involving both lung cancer and Mesothelioma.

¶ 9 In Andaloro, a Mesothelioma case decided two months before Gutteridge, we ruled that in order to satisfy this requirement, “[t]he evidence [of exposure] must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product, and that his contact was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it.” Andaloro, 799 A.2d at 86.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anderson, W. v. Consolidated Rail Corp.
Superior Court of Pennsylvania, 2023
SMEAL v. CLARK EQUIPMENT COMPANY
E.D. Pennsylvania, 2022
GAY v. A.O. SMITH CORPORATION
W.D. Pennsylvania, 2021
Gregg v. V-J Auto Parts Co.
975 A.2d 1171 (Superior Court of Pennsylvania, 2009)
Weible v. Allied Signal, Inc.
963 A.2d 521 (Superior Court of Pennsylvania, 2008)
Wright v. Allied Signal, Inc.
963 A.2d 511 (Superior Court of Pennsylvania, 2008)
Gregg v. VJ Auto Parts, Inc.
943 A.2d 216 (Supreme Court of Pennsylvania, 2007)
Bugosh v. Allen Refractories Co.
932 A.2d 901 (Superior Court of Pennsylvania, 2007)
Summers v. Certainteed Corp.
886 A.2d 240 (Superior Court of Pennsylvania, 2005)
Rabold v. Ericsson Inc.
69 Pa. D. & C.4th 486 (Philadelphia County Court of Common Pleas, 2004)
Gilbert v. Monsey Products Co.
861 A.2d 275 (Superior Court of Pennsylvania, 2004)
Huntington National Bank v. Global Publishing Papers, Inc.
853 A.2d 396 (Superior Court of Pennsylvania, 2004)
Quate v. American Standard, Inc.
818 A.2d 510 (Superior Court of Pennsylvania, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
807 A.2d 922, 2002 Pa. Super. 294, 2002 Pa. Super. LEXIS 2624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-ap-green-industries-inc-pasuperct-2002.