The opinion of the court was delivered by: HUYETT
Plaintiff, Catasauqua Area School District, initiated this action on June 28, 1985, seeking recovery from various defendants for damages incurred by the abatement of asbestos-containing products from buildings within plaintiff's school district. Other defendants were added through consolidation with a later action in March, 1986.
Judgment has been entered, by previous orders, in favor of most defendants and presently, the following defendants remain in this action: Pfizer, Inc., Basic, Inc., Combustion Engineering, Inc., Eagle-Picher Industries Inc., and Bird, Inc. Plaintiff claims that each of these defendants is liable to it either directly, or indirectly based on theories of corporate successor liability. Plaintiff seeks compensatory damages, punitive damages, and injunctive relief for future medical monitoring expenses for its employees.
Presently pending are the following motions: Bird's motion for summary judgment; Pfizer's motion for summary judgment; and joint motions of various defendants for summary judgment on the issues of punitive damages and medical monitoring. These motions are discussed in turn below.
I. Summary Judgment Standard
Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The court does not rule on questions of disputed fact, but simply decides whether there is a genuine issue of material fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The facts and inferences therefrom must be viewed in the light most favorable to the opposing party, and any reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). However, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party . . . . If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Anderson, 106 S. Ct. at 2511.
II. Bird's Motion for Summary Judgment
Plaintiff claims that asbestos-containing roofing felts manufactured by Bird & Son, Bird's predecessor, were installed in Catasauqua High School during its construction. In its motion for summary judgment, Bird argues, inter alia, that there is no evidence that any Bird product was present in the high school. Because I agree, I must grant Bird's motion.
In support of its claim, plaintiff relies primarily on a materials list of products approved for installation into the high school (Bird's motion for summary judgment, Ex. D). The list includes a product called "# 15 Saturated Asbestos Felt" manufactured by Bird & Son. This list, however, shows only what products were approved for installation -- it does not show what products were actually installed. (Busch dep. at 167).
To establish that Bird asbestos felts were placed in the high school's roof, plaintiff relies on the testimony of Gerald A. Busch, a partner in Seibert & Busch, the successor firm to the architecture firm that designed Catasauqua High School. Busch, who worked as a draftsman on the plans for the high school, testified initially that the products on the materials list had to be the products actually used in the construction of the school because they were approved for installation. (Busch dep. at 166). However, Busch later conceded that the list does not show that the products were actually installed, and further testified that school districts often hired employees known as "Clerks of the Works" to ensure that the products on the materials list were actually installed in the building. (Busch dep. at 167-68). Plaintiff also relies on Busch's testimony that if a product on the materials list was changed, a revised materials list should exist which would reflect that change. (Busch dep. at 167). Busch based his testimony, however, on how a project would be handled if he were the architect; in this case, Busch was a draftsman, not the architect. In sum, a review of Busch's testimony shows that he has no actual knowledge of the products installed, and his testimony concerning the significance of the materials list in this case is speculation.
Except for Busch's testimony and the materials list, plaintiff has no evidence that the Bird asbestos roof felts were actually installed in the building. Plaintiff has done no testing on the roof to determine what products are present. (Bird's Ex. E & F No. 6). Nor has plaintiff identified nor deposed the Clerks of the Works, the individuals with the knowledge of which products were installed in the building.
In contrast, Bird has submitted affidavits of Thomas J. Harnett, an employee of Bird since 1960, and currently the Director of Field Sales. Harnett states that he is knowledgeable about Bird's customers and the distribution of Bird's products, and that Bird has no records or knowledge reflecting that any product of Bird or its predecessor was sold directly to plaintiff or to any sub-contractor or contractor identified by plaintiff for use in plaintiff's schools. (Bird's reply, Ex. C, para. 5 and Ex. A to Ex. C, paras. 10-12). Additionally, the materials list on which plaintiff relies required that 20 year bonds be purchased for the roof, and yet there is no evidence that the bonds were actually purchased. Harnett states that Bird has no record of a bond being issued to plaintiff (Bird's Ex. C, para. 4), and Gerald Busch testified that he had no idea whether the bond was purchased. (Busch dep. at 168). This evidence shows another area where the materials list may not have been complied with.
In sum, the cumulative value of plaintiff's evidence is simply insufficient to establish that Bird's products were actually present in the high school. As the Supreme Court has stated,
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. In such a situation, there can be "no genuine issue as to any material fact" since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986). Because plaintiff has no evidence that Bird's asbestos felts were installed in Catasauqua High School, a crucial element of plaintiff's case, I must grant Bird's motion for summary judgment.
III. Pfizer's Motion for Summary Judgment.
Plaintiff claims that Pfizer is liable because of repairs made to the Catasauqua High School with asbestos products manufactured by Pfizer, and also as a successor in liability to Basic. I discuss both contentions below.
Plaintiff claims that the asbestos-containing plaster in the Catasauqua Area High School is a product known as "Kilnoise". Pfizer manufactured Kilnoise from 1964 through 1972, and assumed all liabilities of the previous manufacturer, Gibsonburg Lime Products Company (GLPC), who manufactured Kilnoise since January 19, 1962. (Pfizer's Memorandum in Support of Summary Judgment at 2 & n.2). Since plaintiff's high school was built during 1959 through 1961 (Pfizer's Ex. B No. 1), Pfizer did not manufacture the Kilnoise that was used in the high school's original construction. Plaintiff alleges, however, that subsequent repairs were made to the school using Kilnoise, and that Pfizer is liable for the Kilnoise used in this repair work.
Q. If during a renovation there is an acoustical ceiling in place and it was necessary to redo a portion of the ceiling and so on, would it be mandatory for you to use the same product that was in the first ceiling in the renovation on the second ceiling?
A. The spec would probably read to match existing.
Q. How would you make a determination as to what was existing?
A. I couldn't. As far as the product, I couldn't say that was USG and that was ...