Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil Nos. 88-4702, 88-4703.
Mansmann and Scirica, Circuit Judges, and Standish, District Judge.*fn*
In this diversity matter we are asked to examine the substantive tort law of the Commonwealth of Pennsylvania in order to determine the role of expert testimony and the so-called "fiber drift" theory in proving causation in cases of alleged asbestos-related injury. Because the Supreme Court of Pennsylvania has not addressed the question before us, our task is to predict the position which that court would take in resolving this dispute. We conclude that the fiber drift theory, when grounded in the standards set forth in Pennsylvania decisions, is a factor to be considered in determining whether a plaintiff has adduced evidence of causation sufficient to withstand a motion for summary judgment.
These actions, brought by eight plaintiffs and their spouses, were part of a series of complaints filed in the U.S. District Court for the Eastern District of Pennsylvania on behalf of approximately 600 former employees of the former Firestone Tire and Rubber Company Plant in Pottstown, Pennsylvania ("Firestone"). These suits, a product of the National Tire Workers Litigation Project, named as defendants thirty manufacturers and suppliers of asbestos products to which the plaintiffs were allegedly exposed while employed at Firestone. The plaintiffs claim personal injury as a result of exposure to various asbestos-containing products including insulation, gaskets, friction materials, fillers, talc and soapstone. The plaintiffs allege that their asbestos-related personal injuries were caused in substantial part by exposure to asbestos shed by brake linings manufactured by Bendix, the predecessor to defendant Allied-Signal, Inc., cement manufactured by Eagle-Picher Industries, Inc., talc containing asbestos contaminants manufactured by Vermont Talc, Inc. and gaskets and packing manufactured by John Crane, Inc.
The cases of these eight plaintiffs were scheduled for two separate trials, one to begin on September 25, 1989, and the other on October 2, 1989.*fn1 Between September 13, 1989 and October 4, 1989, four defendants, Allied Signal Inc., Eagle-Picher Industries, Inc., John Crane, Inc. and Vermont Talc, Inc. filed motions for summary judgment. The motions of Defendants Eagle-Picher and John Crane were filed in the cases of Plaintiffs Reimert, Yourkavitch, Moyer and Davis only. All of the motions focused on the issue of causation. Specifically, the defendants contended that despite extensive discovery, the plaintiffs had failed to establish the requisite nexus between their alleged injuries and particular asbestos-containing products manufactured by the defendants.
The plaintiffs responded to the motions for summary judgment, maintaining that their own deposition testimony, the testimony of product identification witnesses, and the testimony of expert scientific witnesses would provide sufficient evidence of use and deterioration of the defendants' asbestos-containing products throughout the Firestone plant for a jury reasonably to infer that fibers from these products contributed substantially to the plaintiffs' injuries.
In arguing that the causation issue should be submitted to the jury, the plaintiffs placed principal reliance upon the testimony of scientific witnesses. These witnesses testified that asbestos-containing products of the type manufactured by the defendants would have been capable of emitting asbestos fibers in the Firestone plant. These fibers could have been carried by air currents and other means to various parts of the plant where they may have been inhaled by the plaintiffs, thus contributing to the alleged asbestos-related injuries. This theory that airborne asbestos fibers contribute to bystander disease is characterized as the "ambient air" theory, "re-entrainment," or as "fiber drift." For the purposes of this opinion, we adopt the last term.
On November 1, 1989, the district court granted the defendants' summary judgment motions with respect to all of the plaintiffs,*fn2 stating Pennsylvania substantive law as follows:
To withstand summary judgment, plaintiffs must present some competent evidence that the defendant's product was present in the workplace, that the plaintiffs worked in the vicinity of the product's use on a regular basis and inhaled asbestos fibers shed by defendant's products.
In re Tire Workers Asbestos Litigation, Nos. 88-4702 and 88-4703, slip op. at 5 (E.D. Pa. Nov. 1, 1989), citing Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (Pa. Super. 1988). The court found that "none of the eight plaintiffs has produced any evidence whatsoever that he was exposed to any Eagle-Picher, Bendix/Allied Signal, Vermont Talc or John Crane asbestos-containing product at the Firestone plant." Slip op. at 5-6. The totality of the evidence submitted was summarized as follows: (1) the plaintiffs could not personally identify any product to which they were allegedly exposed; (2) "at best their product identification witnesses might have seen some of the plaintiff-husbands using unidentified thermal insulation, brake and talc products;" slip op. at 7; and (3) the asbestos fiber drift theory advanced by the plaintiffs' experts was "speculative" since it could establish no more than that the "plaintiffs may have been exposed to the mixing and conglomeration of the airborne asbestos fibers, some of which may have been shed by defendants' asbestos-containing products." The district court concluded that the evidence presented was insufficient to establish causation under the prevailing law of Pennsylvania jurisdictions. Slip op. at 8. The order granting summary judgment was certified for appeal pursuant to 28 U.S.C. § 1292(b).*fn3
On November 10, 1989, the plaintiffs filed a motion to reconsider and to vacate the order granting summary judgment. In this motion the plaintiffs contended that the court had issued its November 1, 1989 memorandum opinion and order "without having the benefit of considering plaintiffs' scientific experts' deposition testimony." The deposition testimony of the experts and an additional affidavit were appended to the motion. On November 30, 1989, prior to the district court's ruling on the motion to reconsider, the plaintiffs moved for permission to appeal. We declined to accept certification of the Order under 28 U.S.C. § 1292(b).
On December 4, 1989, the district court denied the plaintiffs' motion to reconsider, ruling that the expert evidence presented by the plaintiffs was not sufficient under Pennsylvania law to defeat a summary judgment motion; the plaintiffs had not offered adequate evidence of product identification:
The court remains fully convinced that the plaintiffs can establish the asbestos fiber drift theory through the testimony of experts. However, these experts, no matter how many they might number and no matter what their testimony might be cannot convince the court . . . that the asbestos fiber drift theory satisfies the substantive law of Pennsylvania.
In re Tire Workers Asbestos Litigation, Nos. 88-4702 and 88-4703, slip op. at 4-5 (E.D. Pa. Dec. 4, 1989). On December 6, 1989, summary judgment was again granted to the defendants and the order was certified as final pursuant to Fed. R. Civ. P. 54(b). In re Tire Workers Asbestos Litigation, Nos. 88-4702 and 88-4703, slip op. (E.D. Pa. Dec. 6, 1989).
We note at the outset that the number of asbestos cases which have been filed in this jurisdiction and across the country is formidable. "More than 30,000 asbestos personal injury claims [had been] filed nationwide by 1986 and an additional 180,000 are projected to appear on court dockets by the year 2010." In re Asbestos Litigation, 829 F.2d 1233, 1235 (3d Cir. 1987), cert. denied, sub nom., Owens Illinois Inc. v. Danfield, 485 U.S. 1029, 99 L. Ed. 2d 901, 108 S. Ct. 1586 (1988). As the district court pointed out, some 1,000 of the cases are pending in the Eastern District of Pennsylvania alone. There is no body of federal law applicable to these claims; they are governed by the substantive tort law of the various states and are litigated under the theories of negligence, warranty and strict liability. Recognizing that our assessment of the fiber drift theory and its place in the law of Pennsylvania will have an impact beyond the confines of this appeal, we turn our attention to the issue presented.
This appeal requires that we determine the prima facie case that a plaintiff, allegedly injured as a result of exposure to asbestos fibers, must establish with regard to a defendant's product in order to survive a motion for summary judgment. We focus particularly upon the fiber drift theory advanced by the plaintiffs' expert scientific witnesses in order to determine whether that theory may be invoked to establish causation under the products liability law of the Commonwealth of Pennsylvania.
Our review of a district court's grant of summary judgment is plenary. We apply the same test for summary judgment as that applied by the district court "with all evidentiary inferences resolved in a light most favorable to the non-moving party." Aronow Roofing Co. v. Gilbane Bldg. Co., 902 F.2d 1127, 1128 (3d Cir. 1990). Summary judgment is properly granted where the non-moving party "fails to establish the existence" of an element essential to the case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). We review the district court's refusal to reconsider its entry of summary judgment for abuse of discretion. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171, 90 L. Ed. 2d 982, 106 S. Ct. 2895 (1986).
In order to assess the propriety of the district court's grant of summary judgment in this matter, we turn first to address the substantive tort law of Pennsylvania.
Under Pennsylvania law, the plaintiff in a products liability action bears the burden of demonstrating that a specific defendant is responsible for the harm alleged. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Proof of causation involves two elements: proof of cause in fact and proximate cause. Cause in fact or "but for" causation requires proof that the harmful result would not have come about but for the conduct of the defendant. Proximate cause, in addition, requires proof that the defendant's conduct was a substantial contributing factor in bringing about the harm alleged. Where the relevant facts show either that the defendant was not responsible for the injury, or that the causal connection between the defendant's negligence and the plaintiff's injury is remote, the question of causation is decided by the court as a matter of law. See Conti v. Ford Motor Co., 743 F.2d 195, 198 (3d Cir. 1984), cert. denied, 470 U.S. 1028, 84 L. Ed. 2d 784, 105 S. Ct. 1396 (1985) and Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).
What must be shown in order to establish the requisite causal connection between a plaintiff's asbestos-related injury and the defendant's asbestos-containing product is central to resolution of this case. In finding that the plaintiffs here have failed to establish a nexus between their alleged injuries and any of the defendants' products, the district court looked primarily to the Pennsylvania Superior Court's decision in Eckenrod v. GAF Corporation, 375 Pa. Super. 187, 544 A.2d 50, alloc. denied, 520 Pa. 605, 553 A.2d 963 (1988).
In Eckenrod the plaintiff's decedent had been employed as a millwright and maintenance pipefitter in the Wallace Run facility of Babcock and Wilcox. After more than 20 years of service, he died of lung cancer. The plaintiff alleged that her husband's death resulted from exposure to asbestos-containing products manufactured by several defendants. Summary judgment motions made by a number of defendants were granted based on the lack of product identification.
While co-worker affidavits showed that Eckenrod had been exposed to asbestos products, none of the witnesses clarified the proximity of the products to the deceased or were able to establish that the defendants had manufactured or supplied the products used. The only specific product identification testimony was contained in depositions of asbestos products distributors and one plant storeroom employee. While this testimony established that the defendants' asbestos products had been sold to Babcock and Wilcox, it did not show that the specific product had been used or that the decedent had ever worked in proximity to the product.
In affirming the grant of the defendants' motion for summary judgment, the Superior Court evaluated the evidence presented:
Whether direct or circumstantial evidence is relied upon, our inquiry, under a motion for summary judgment, must be whether plaintiff has pointed to sufficient material facts in the record to indicate that there is a genuine issue of material fact as to the causation of decedents' disease by the product of each particular defendant. Schmidt v. Johns Manville Corp., No. 80-3339 slip op. (D. Md. Nov. 30, 1982). Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiff's employment in proximity thereto. Id. . . . We acknowledge that the facts establish that the decedent on occasion was exposed to asbestos; there is no evidence, however, as to the regularity or nature of the decedent's contact with asbestos. Moreover, there is no testimony establishing that [the decedent] worked with asbestos manufactured or supplied by [the defendants]. The mere fact that [defendants'] asbestos products came into the facility does not show that the decedents ever breathed those specific asbestos products or that he worked where these asbestos products were delivered . . . .
What has come to be known in Pennsylvania as the Eckenrod "frequency, regularity and proximity test" was developed in the U.S. District Courts in Maryland and adopted by the Court of Appeals for the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986). In Lohrmann, a plaintiff shipworker argued that since he had presented evidence placing a company's asbestos-containing product in the workplace during the time of his employment, it was for the jury to determine whether that product contributed as a proximate cause to his disease. The court concluded that:
Such a rule would be contrary to the Maryland law of substantial causation. In dealing with a workplace as large as a shipyard, certain of the district judges have adopted a . . . standard for evaluating the sufficiency of the evidence of exposure . . . .
To support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.
Id. at 1162-1163. The court, affirming the entry of a directed verdict for a number of the defendants, explained that "there must be evidence of a reasonable and rational nature upon which a jury can make a rational inference that there is a casual connection between a defendant's action and a plaintiff's injury." Id. at 1163.
The Eckenrod frequency, regularity and proximity test of causation in asbestos litigation articulates the evidentiary requirements applied in earlier decisions interpreting Pennsylvania law, see Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983), aff'd, 349 Pa. Super. 610, 503 A.2d 44 (1985), and has been confirmed by another panel of the Superior Court in Samarin v. GAF Corp., 391 Pa. Super. 340, 571 A.2d 398 (Pa. Super. 1989), alloc. denied,... Pa. ,574 A.2d 71 (1989). In Samarin, the plaintiffs alleged injury as a result of exposure to asbestos dust released from products used to control temperature in a Babcock and Wilcox plant facility. After reviewing the plaintiffs' testimony, interrogatory answers, and affidavits, the court upheld an award of summary judgment in favor of the defendants on the ground that the plaintiffs had failed to establish a sufficient connection between their alleged injuries and the defendants' products.
The Eckenrod standard has been cited by federal decisions interpreting Pennsylvania law*fn4 and a similar nexus requirement has been upheld in other jurisdictions.*fn5
It was against the standards developed in Eckenrod and Samarin that the district court evaluated the evidence bearing upon causation in this case. Much of the evidence offered centered on the physical characteristics of the Firestone plant.
The Firestone tire-manufacturing facility, in which all of the plaintiffs were employed, operated from the 1940's until 1980 when the plant was sold. During the relevant period, the facility consisted of at least six buildings spread over more than 200 acres. The actual manufacture of tires took place in what is referred to as the "tire building."
The tire building consisted of three levels covering a minimum of 862,000 square feet of floor space. The building's three levels were designated by their height in feet above sea level, the 155' level, the 167' level, and the 180' level. The 155' level housed the mill room, an open space with no partitions and covered 196,000 feet. The 167' level contained the tube department and covered 258,000 square feet and the 180' level covered 408,000 square feet. With the exception of a closed plastics area, there were no partitions, between departments on the 180' level. The plaintiffs' primary allegations of asbestos exposure related to their employment in this building.
At the time of the defendants' summary judgment motions, the district court had before it three categories of evidence offered to establish the plaintiffs' exposure to the defendants' products: (1) the plaintiffs' own direct testimony; (2) the testimony of product identification witnesses; and (3) expert opinion. Because the probative value of each of the categories is fact-specific, we will summarize the substance of each category of evidence seriatim.
A. The Plaintiffs' Direct Testimony
1. John Davis -- Mr. Davis worked at Firestone from 1968 to 1980. He worked in the mill room on the 155' level for three years; this room was very dusty. He also worked for five years in the compound room on the 180' level which was also dusty. Forklifts frequently drove into low-hanging pipes, causing ceiling material to fall on him. This had also happened in the mill room. Mr. Davis spent one year in the curing area on the 180' level where there was a great deal of piping.
2. Ammon Moyer -- Mr. Moyer was employed at the Firestone plant from 1946 to 1980. He worked for six months in the tread-ply assembly section on the 180' level where air quality was "poor." He spent three years as a machine operator on the 180' level and was exposed to asbestos on steam pipes. Fork trucks struck the pipes at least once a week and the pipes were maintained every day, resulting in the release of light flaky dust. For 22 years, Mr. Moyer worked as a final inspector in an area adjacent to the curing process on the 180' level. Pipes in the curing area were covered with asbestos and the air in the final inspection area was "dusty" from the asbestos and talc.
3. Kenneth Reimert -- Mr. Reimert began working in the Firestone tire plant in 1960 as a serviceman in the mill room on the 155' level. In 1964 he moved to the tread tubing area on the 180' level. He worked on the same level from 1970 to 1980 as a tire builder. He described four years of working with soapstone which was sprayed onto the rubber above him and stated that there were asbestos pipes in all areas in which he worked. The pipes were being maintained "constantly" and Mr. Reimert sometimes performed emergency pipe-wrapping jobs. Mechanics made repairs to the building machines "right in front of him."
4. Stanley Yourkavitch -- Mr. Yourkavitch began work at Firestone in 1946 in the curing department on the 180' level. From 1962 to 1980, he worked in final inspection on the same level. He testified to using soapstone during his employment and to having ...