Appeal from the Judgment Entered July 16, 2007, In the Court of Common Pleas of Philadelphia County, Civil at No. July Term, 2005, No. 3073.
The opinion of the court was delivered by: Freedberg, J.
BEFORE: BENDER, DONOHUE, and FREEDBERG, JJ.
¶ 1 In this asbestos personal injury action, Appellant Sara Jane Weible, individually and as executrix of the estate of her late husband William Weible, appeals from orders granting summary judgment in favor of Borg- Warner Corporation ("Borg-Warner"), Brake & Clutch Company of Philadelphia ("B&C"), Carlisle Companies Incorporated ("Carlisle"), and McCord Corporation ("McCord"). William Weible was employed as a residential boiler installer for Philadelphia Electric Company, now known as PECO, and spent time in the presence of automobile mechanics at the PECO garage facility in Morton, Pennsylvania. The mechanics performed automobile maintenance and repairs, including daily brake and clutch work, and less frequent gasket work, with asbestos-containing brakes, clutches, and gaskets. We conclude that there is sufficient record evidence against Borg-Warner, B&C, and Carlisle to withstand summary judgment.
Accordingly, we reverse and remand as to Borg-Warner, B&C, and Carlisle.
We conclude that the trial court correctly entered summary judgment in favor of McCord and we affirm the grant of summary judgment as to McCord.
¶ 2 In June of 2005, William Weible was diagnosed with mesothelioma, a cancer of the mesothelial tissue surrounding the lung caused by exposure to asbestos. He and his wife, Sara Jane Weible, filed suit against a number of parties, including Borg-Warner, B&C, Carlisle, and McCord, alleging that Mr. Weible's exposure to asbestos caused his mesothelioma. During the pendency of the action, Mr. Weible died from the disease. Borg-Warner, B&C, Carlisle, and McCord ultimately moved for summary judgment contending that Appellant failed to adduce sufficient evidence to establish that Mr. Weible inhaled asbestos fibers shed from their respective products.
The trial court granted summary judgment for each of the four companies by orders dated July 9, 2007, and docketed July 10, 2007. Appellant filed notice of appeal on July 19, 2007, and Appellant thereafter filed a statement of errors in compliance with Pennsylvania Rule of Appellate Procedure 1925.
In turn, the trial court issued an opinion pursuant to Rule 1925.
¶ 3 The posture of this appeal requires that we address the threshold issue of our jurisdiction to entertain the appeal. Appeal may be taken only from a final order, that is, an order that disposes of all claims and all parties. Pa.R.A.P. 341(a). A number of defendants remained of record following the trial court's grant of summary judgment for Borg-Warner, B&C, Carlisle, and McCord. This fact appears to call into question the finality of the trial court's orders granting summary judgment. However, the record reflects a July 16, 2007 trial court docket entry noting that this case was settled as to all remaining non-bankrupt parties, except the Manville Fund, but the case against the Manville fund was dismissed. "A trial court order declaring a case settled as to all remaining parties renders prior grants of summary judgment final for Rule 341 purposes, even if the prior orders entered disposed of fewer that all claims against all parties." Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 650 (Pa. Super. 2002); Harahan v. AC&S, Inc., 816 A.2d 296, 297 (Pa. Super. 2003). In this case all parties are now settled, bankrupt, or dismissed by grant of summary judgment or otherwise. Consequently, the grants of summary judgment for Borg- Warner, B&C, Carlisle, and McCord are final orders for appeal purposes and the present appeal is properly within our jurisdiction. Gutteridge, 804 A.2d at 650; Harahan, 816 A.2d at 297.
¶ 4 Appellant raises a single issue for our consideration, namely, whether the trial court abused its discretion or committed an error of law in concluding that there was insufficient record evidence to establish that Mr. Weible was exposed to Borg-Warner, B&C, Carlisle, and McCord asbestos- containing products. The issue calls upon us to review whether the record evidence of exposure to asbestos-containing material was sufficient to meet the frequency, regularity, and proximity test of Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988).
¶ 5 We review a grant of summary judgment under the following well- settled standards: Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontraverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.
[O]n appeal from a grant of summary judgment, we must examine the record in a light most favorable to the non-moving party. With regard to questions of law, an appellate court's scope of review is plenary. The Superior Court will reverse a grant of summary judgment only if the trial court has committed an error of law or abused its discretion. Judicial discretion requires action in conformity with law based on the facts and circumstances before the trial court after hearing and consideration. Gutteridge, 804 A.2d at 651. (citations omitted)
¶ 6 To withstand a summary judgment motion in an asbestos case, a plaintiff must meet the following standard:
In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer's product. Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use. Summary judgment is proper when the plaintiff has failed to establish that the defendants' products were the cause of plaintiff's injury.
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 decedent's disease by the product of each particular defendant. 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.
Eckenrod, 544 A.2d at 52, 53. (citations omitted)
¶ 7 In applying the Eckenrod frequency, regularity, and proximity test, we should be mindful of the limits of Eckenrod. In Eckenrod, three co-workers supplied affidavits indicating that they worked with the deceased plaintiff and that the deceased plaintiff was exposed to asbestos products, but the affidavits "did not elaborate on the nature or length of the exposure or the brand of the products available." Eckenrod, 544 A.2d at 52.
Moreover, "while the affidavits admitted that Mr. Eckenrod was 'exposed to' asbestos products, none clarified the proximity of the products to the workers or that the appellees were the manufacturers/suppliers of the products being used." Eckenrod, 544 A.2d at 52-53. Importantly, in Eckenrod, "the only testimony as to the identification of any of the products came from the depositions of distributors of the asbestos products and one main plant storeroom employee at B & W. Each of these depositions indicates that various appellees sold asbestos products to B & W, but do not establish where the specific product was used or that Mr. Eckenrod came into contact with an identifiable product." Eckenrod, 544 A.2d at 53.
Confronted with evidence of little more than proof that the offending product was shipped into the plant, this Court found that there was "not even a reasonable inference that appellant was exposed to appellees' asbestos products." Eckenrod, 544 A.2d at 53.
¶ 8 There is no requirement that a plaintiff who suffers an asbestos related injury must establish the specific role played by each individual asbestos fiber within the body. Gutteridge, 804 A.2d at 652; Lonasco v. A-Best Products Co., 757 A.2d 367, 375 (Pa. Super. 2000). "Instead, in order to make out a prima facie case, it is well established that the plaintiff must present evidence that he inhaled asbestos fibers shed by the specific manufacturer's product." Lonasco, 757 A.2d at 375-76 (italics added). A plaintiff must, however, establish more than the mere presence of asbestos in the workplace. The plaintiff must establish that he worked in the vicinity of a specific manufacturer's product. Gutteridge, 804 A.2d at 652; Lonasco, 757 A.2d at 376.
¶ 9 The nexus between an asbestos product and plaintiff may be established by direct and circumstantial evidence. Gutteridge, 804 A.2d at 652; Lilley v. Johns-Manville Corp., 596 A.2d 203, 207 (Pa. Super. 1991). The testimony of a witness with knowledge relating to the plaintiff's workplace exposure to an asbestos-containing product is admissible when probative. Gutteridge, 804 A.2d at 652-653; Lilley, 596 A.2d at 207.
Even when the plaintiff is not able to identify specific products manufactured by particular defendants, the testimony of co-workers is admissible to establish that the plaintiff worked in close proximity to the asbestos products in question. Gutteridge, 804 A.2d at 653; Taylor v. Celotex Corp., 574 A.2d 1084, 1091-92 (Pa. Super. 1990).
¶ 10 The frequency, regularity, and proximity test of Eckenrod, was adopted by the Pennsylvania Supreme Court in Gregg v. V-J Auto Parts Company, 943 A.2d 216 (Pa. 2007). In Gregg, the Supreme Court stated:
In this regard, the decision in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), referenced by both parties, provides helpful guidance concerning the application of the frequency, regularity, proximity factors in asbestos litigation. Tragarz explains that these criteria do not establish a rigid standard with an absolute threshold necessary to support liability. Rather, they are to be applied in an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficiently significant likelihood that the defendant's product caused his harm, from those in which such likelihood is absent on account of only casual or minimal exposure to the defendant's product. Further, Tragarz suggests that the application of the test should be tailored to the facts and circumstances of the case, such that, for example, its application should become "somewhat less critical" where the plaintiff puts forth specific evidence of exposure to a defendant's product. Similarly, under Tragarz, the frequency and regularity prongs become "somewhat less cumbersome" in cases involving diseases that the plaintiff's competent medical evidence indicates can develop after only minor exposures to asbestos fibers.
We agree with the Tragarz court's approach and adopt it here.
Gregg, 943 A.2d at 225-226 (internal citations omitted).
¶ 11 The Supreme Court concluded with the following observation in Gregg:
In summary, we believe that it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of a plaintiff's/decedent's asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant's product and the asserted injury.
¶ 12 In a recent en banc decision, this Court applied Gregg and Eckenrod to uphold a grant of summary judgment in an asbestos exposure case involving a lung cancer death. Tarzia v. American Standard, 952 A.2d 1170 (Pa. Super. 2008) (en banc). In Tarzia there was "nothing in the record to show what company manufactured any of the brake shoes Tarzia came into contact with," and there was "nothing in the record to show whether any of the brake shoes Tarzia came into contact with even contained asbestos." Tarzia, 952 A.2d at 1174. Under those particular circumstances, this Court concluded that a plaintiff "cannot demonstrate with any degree of confidence or certainty the frequency, regularity or proximity that Tarzia was exposed to any product from Cobra/American
Standard." Tarzia, 952 A.2d at 1174.
¶ 13 The record before us discloses the following. Mr. Weible worked as a residential boiler installer for PECO from 1958 to 1991. In doing his work, Mr. Weible drove a PECO fleet vehicle out of the PECO facility in Morton, Pennsylvania. The PECO fleet at the Morton facility consisted of as many as 350 vehicles, including cars, vans, and trucks. Routine maintenance and repairs of the fleet vehicles were performed by mechanics in a garage at the Morton facility. The garage had sufficient space for up to five or six vehicles at a time.
¶ 14 Over his time working for PECO, Mr. Weible developed a daily practice of parking his fleet vehicle, walking through the garage to clock out for the day, and remaining in the garage with the mechanics on duty. There were days when Mr. Weible spent as little as a few minutes in the garage; other days when he spent approximately one-half hour; and still other days when he spent as much as three to four hours. The mechanics would perform maintenance and repairs in the presence of Mr. Weible, including work involving asbestos-containing brakes, clutches, and gaskets. The process of removing and replacing brakes, clutches, and gaskets produced asbestos dust. Two mechanics from the Morton facility, Paul Baylor and David
DeMarco, recalled their ongoing contact with Mr. Weible, and also recalled their use of Borg-Warner clutches, B&C brakes and clutches, Carlisle brakes, and McCord gaskets. Baylor was at the Morton facility from the mid-1960's to the mid-1980's; DeMarco was there from the mid-1970's to the mid- 1980's.
¶ 15 In entering summary judgment, the trial court concluded that Appellant failed to establish, either through direct or circumstantial evidence, that Mr. Weible inhaled asbestos fibers from Borg-Warner, B&C, Carlisle, and McCord products. The trial court identified general deficiencies in the evidence as to all four of the brake, clutch, and gasket manufacturers, including: (1) that the evidence was unclear as to the number of years over which Mr. Weible engaged in the practice of remaining in the garage with mechanics; (2) that the evidence was unclear as to the length of time Mr. Weible spent with mechanics on any of the particular days over the years; and (3) that the evidence was at best equivocal as to whether the mechanics actually performed work while Mr. Weible was present. Generally, the trial court found:
In short, Decedent's testimony lacked certainty and specificity. Stopping by a garage for a few minutes a day for an indeterminate period does not rise to the level of regular, frequent, or proximate exposure require under Eckenrod. Moreover, interpreting the testimony would require speculation as to the regularity of Decedent's visits. It is clear under Juliano that the Court cannot speculate in order to allow Plaintiff to survive summary judgment.
Furthermore, Decedent never testified that any of the moving Defendants' products were used when he visited the garage. Also, Decedent never testified that Defendants' products contained asbestos. As will be later discussed, Plaintiff attempted to elicit further product identification testimony from Baylor and DeMarco. However, this Court did not consider such testimony because it was improperly elicited through leading questioning.
Plaintiff alleges Decedent had regular, frequent and proximate contact with asbestos over ambiguous periods of time during which asbestos exposure was not established. Also, Plaintiff failed to present sufficient product identification evidence linking Decedent to asbestos products made by Defendants. Thus, regular, proximate, and frequent exposure to asbestos fibers was not established.
Trial Court 1925 Opinion, 3/18/08, at 6. Beyond general deficiencies, the trial court also identified certain deficiencies in the evidence specific to each of the four asbestos manufacturers.
¶ 16 With regard to Borg-Warner clutches, the trial court found that all of the product identification testimony linking Mr. Weible to exposure to Borg-Warner clutches was elicited by improper leading questions of the two mechanics. Pertinent product identification testimony regarding Borg-Warner consisted of the following:
Q: Looking at that first page of what we've marked as Baylor-1, do you remember working with Borg Warner clutches?
Q: And did you check that off, is that an "X" there?
Q: What do you remember about Borg Warner?
A: They were asbestos clutches.
Q: Did the Borg Warner asbestos clutches produce dust when you worked on them?
Q: Did you breathe the dust?
A: Couldn't help it, yes.
Q: Was Mr. Weible around when you were working on Borg Warner clutches?
A: That I can't, I can't attest to.
Deposition of Paul Baylor, 2/6/07, at 47-49.
Q: You talked about Borg-Warner clutches, do you recall that?
Q: Well, what's the difference between a clutch and a brake?
A: Well, one starts the vehicle, the other stops it.
Q: Did the clutches have asbestos ...