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ZENSON v. OWENS CORNING FIBERGLAS CORP.

November 2, 1993

RICHARD ZENSON, executor of the estate of George Zenson, Plaintiff
v.
OWENS CORNING FIBERGLAS CORPORATION and GARLOCK INCORPORATED, et al., Defendants



The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ

 MEMORANDUM/ORDER

 AND NOW, this 2nd day of November, 1993, upon consideration of defendant Garlock Incorporated's ("Garlock's") Motion for a Directed Verdict and defendant Owens Corning Fiberglas Corporation's ("OCF's") Motion For Judgment as a Matter of Law, it is hereby ORDERED that the Motions are GRANTED. Fed. R. Civ. P. 50(a); Wittekamp v. Gulf & Western, Inc., 991 F.2d 1137 (3d Cir. 1993), cert. denied, 126 L. Ed. 2d 256, 1993 U.S. LEXIS 6383, 62 U.S.L.W. 3273, 114 S. Ct. 309 (U.S. Oct. 12, 1993).

 Discussion

 This is a product liability action. Specifically, plaintiff, as executor, seeks damages for injuries caused to George Zenson (the "Decedent") as a result of exposure to asbestos products. The Decedent died of Mesothelioma at age seventy-nine (79) on April 13, 1989, having retired in 1964 from Sun Ship of Chester, Pennsylvania. Two other defendants settled with plaintiff.

 This case was not bifurcated. At the close of plaintiff's case on the issue of product identification, defendants' moved for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). As the Third Circuit explained in Wittekamp, a motion for judgment as a matter of law may be granted "only if, viewing the evidence in the light most favorable to [the non-moving party] and giving [the non-moving party] the advantage of every fair and reasonable inference, there is insufficient evidence form which a jury could reasonably find liability." Wittekamp, 991 F.2d at 1141.

 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. Robertson v. Allied Signal, Inc., 914 F.2d 360, 366 (3d Cir. 1990) (citing Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975)). In Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (1988), the Pennsylvania Superior Court specifically discussed this burden in the context of an asbestos action. The Eckenrod court stated:

 Eckenrod, 544 A.2d at 52 (citations omitted). In Robertson the Third Circuit adopted this standard, known in Pennsylvania as the "Eckenrod frequency, regularity and proximity test". Robertson, 914 F.2d at 366-369, 376.

 In this instance, testimony linking either defendant Garlock's or defendant OCF's asbestos products *fn1" to the particular area where plaintiff's Decedent worked is missing from plaintiff's case. There is no evidence of the regularity, frequency or nature of the Decedent's contact with those products. That is, there is no evidence of how much or how often these products were used in the area where the Decedent worked. As Eckenrod held:

 
The mere fact that [the defendants'] asbestos products came into the facility does not show that the decedent ever breathed these specific asbestos products or that he worked where these products were delivered.

 Eckenrod, 544 A.2d at 53.

 Additionally, Robertson mandates rejection of plaintiff's theory that the plaintiff's burden of proof with respect to causation is satisfied by evidence that asbestos fibers were in the air. Robertson, 914 F.2d at 380. Robertson held:

 
The fiber drift theory cannot stand alone; it must be supplemented by evidence showing the frequency of a product's use and the regularity of the plaintiff's employment in an area into which there is ...

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