occupying a space equivalent to a number of city blocks, and consisting of a machine shop and two turntables with stalls for 66 locomotives. Id. at 12, 142-45. In this facility, Mr. Angello worked as an engine wiper, id. at 11, a painter-helper, id., and finally as a pipefitter-helper. Id. at 14.
Mr. Angello testified that he was exposed to asbestos in the workplace and could identify two John Crane asbestos products with which he worked. Id. at 71-72 & 129-30. However, Mr. Angello testified that he was not exposed to asbestos when he worked as a car man in the yard, id. at 36, 84, and 137, and did not make reference to Mr. Pongrac in his deposition.
It is well settled that the party moving for summary judgment has the burden of proving that there exists no genuine issue of fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974); United States ex rel. Jones v. Rundle, 453 F.2d 147, 150 (3d Cir. 1971). Unless the moving party can make a prima facie demonstration that no material fact question exists, the burden of production does not shift to the non-moving party. See First Nat'l Bank v. Cities Servs. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2727, at 143-44 (2d ed. 1983). The movant may satisfy its burden by demonstrating that if the case went to trial there would be no competent evidence to support a judgment for his opponent. See 10A C. Wright, A. Miller & M. Kane, supra, § 2727, at 130. See also In re Japanese Electronic Prods. Antitrust Litigation, 723 F.2d 238, 258 (3d Cir. 1983), cert. granted, 471 U.S. 1002, 105 S. Ct. 1863, 85 L. Ed. 2d 157 (1985).
Defendant has satisfied its burden in this case. It has offered the plaintiff's answers to interrogatories, which show that plaintiff has been unable to link John Crane products to his injury.
Consequently, the burden is shifted to plaintiff to produce some evidence that he was exposed to John Crane products.
In this regard, the instant case differs from Catrett v. Johns-Manville Sales Corp., 244 U.S. App. D.C. 160, 756 F.2d 181 (D.C. Cir. 1985), where the D.C. Circuit held that the burden on summary judgment does not shift to the non-moving party where the moving party simply alleges in its motion that the non-moving party could not produce any evidence in support of her allegations. Id. at 186-87. Because John Crane has offered plaintiff's answers to interrogatories, it cannot be said to be relying on unsupported assertions in its motion, and the Catrett rationale is thus not controlling. Indeed, the Catrett majority expressly distinguished the instant situation in a footnote, stating that it was not addressing "the situation where a manufacturer, sued by a remote user of its product, seeks to comply with Rule 56 but simply cannot 'prove the negative' of non-use or non-exposure without reference to evidence in the hands of the plaintiff."
See id. at 184 n.9. Moreover, the Third Circuit appears to have expressly endorsed the practice of a moving party's relying on an opponent's evidence. See In re Japanese Electronic Prods. Antitrust Litigation, 723 F.2d 238, 258 (3d Cir. 1983) ("Rule 56(c) does not exclude the grant of summary judgment on the basis of materials originating entirely with the opponents of the motion"), cert. granted, 471 U.S. 1002, 105 S. Ct. 1863, 85 L. Ed. 2d 157 (1985).
Having concluded that defendant adequately shouldered its initial burden, the question becomes whether plaintiff has presented or can point to evidence in the record that would demonstrate a dispute as to a material fact. Even granting plaintiff all reasonable inferences as I must, plaintiff has not met his burden of producing evidence that he was exposed to John Crane asbestos products.
In Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir. 1985), the court of appeals, applying Georgia law in a products-liability asbestos case, affirmed an award of summary judgment to a defendant where plaintiff had not produced evidence that he worked in the vicinity of defendant's asbestos-containing products which were being applied at plaintiff's workplace. Id. at 1481-82. The court observed that although the plaintiff had shown that he was present in the workplace at the time the product was used, he had not shown that he was in the vicinity of the product's use. Id. at 1481.
Similarly, in Anastasi v. Pacor, Inc., May Term, 1978 No. 6751 (Pa. C.P. Phila. March 8, 1983), the court of common pleas overturned a jury verdict against a manufacturer of asbestos products, stating that although there was evidence that the manufacturer supplied products to plaintiff's decedent's workplace, the Philadelphia Naval Shipyard, there was no showing of where in the shipyard the decedent worked or the asbestos was used. Id., slip op. at 5-6.
From these cases it is clear that defendant's motion must be granted. While the Angello deposition shows that John Crane asbestos products may have been present in the Jersey City facility, plaintiff has offered no evidence that he worked in the vicinity of those products. Mr. Angello's deposition shows that there may have been John Crane asbestos products in the engine terminal, but provides no support for the proposition that there were any asbestos products in the rail facility outside the terminal. In fact, Mr. Angello expressly stated that he was not exposed to asbestos when he worked in the carmen's yard. See Angello deposition at 36, 84 & 137.
Other than the unsubstantiated statements by plaintiff's counsel at oral argument that Mr. Angello knew Mr. Pongrac and worked with him, there is no record evidence of where plaintiff worked in the rail facility. Consequently, I cannot say that there is even a reasonable inference from the record evidence that plaintiff was exposed to John Crane asbestos products and summary judgment must be granted in favor of John Crane.
AND NOW, this 7th day of October, 1985, the motion of John Crane-Houdaille, Inc. for summary judgment is hereby granted. Judgment is entered in favor of John Crane-Houdaille and against plaintiff and all cross-claimants.