Appeal from the Order dated November 10, 2003 In the Court of Common Pleas of Philadelphia County Civil at No(s): March Term, 1999 No. 3888.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, MUSMANNO, and BENDER, JJ.
¶ 1 This is an appeal on remand from the Supreme Court of Pennsylvania, Gregg v. V.J. Auto Parts Company, 596 Pa. 274, 943 A.2d 216 (2007), to determine, in light of the frequency, regularity and proximity of the decedent's, John I. Gregg, Jr.'s, exposure to asbestos products sold by Appellant, V-J Auto Parts Company, the trial court correctly determined summary judgment was warranted. Additionally, this Court is called upon to determine whether Appellee, John Andrew Gregg, the executor of John I. Gregg's estate, should be permitted to amend the complaint to conform to the evidence. We find that the trial court correctly determined that summary judgment is warranted under the circumstances in this case. Accordingly, we affirm the decision of the trial court and deny the motion to amend the complaint
¶ 2 The Supreme Court aptly summarized the facts and procedural history of this case as follows:
John I. Gregg, Jr. ("Mr. Gregg") died in March 1998. A year later, his son, Appellee John Andrew Gregg, as executor for his father's estate, filed a product liability complaint naming more than seventy defendants and alleging civil liability on their part for Mr. Gregg's death due to his exposure to asbestos-containing products and resultant pleural mesothelioma, a cancer of the lining of the lungs. Appellee averred that Mr. Gregg was exposed to asbestos throughout a forty-year history of employment with telecommunications companies as a cable splicer and line man; over a four-year period in which he worked as a gas station attendant; and during a three-year period while serving in the United States Navy. The complaint also alleged that, throughout his lifetime, Mr. Gregg installed and removed brake linings and clutches on cars and trucks, and that he was exposed to asbestos in these activities as well. By virtue of this last set of averments, Appellee included as defendants Allied-Signal, Inc., a successor corporation to Bendix Corporation, which manufactured brake products in the relevant time frame, and Appellant, V-J Auto Parts Company, a supplier of automobile parts.
Despite the assertions in the complaint concerning occupational exposure to asbestos, according to Appellee, he was unable to adduce any evidence to support them. Consequently, the action was settled and/or dismissed with regard to all defendants other than Appellant, and the litigation efforts focused on Mr. Gregg's personal automotive maintenance activities.
After the deadline for discovery passed, Appellant filed a motion for summary judgment, asserting that Appellee could not prove that Mr. Gregg was exposed to an asbestos-containing product purchased at Appellant's store with sufficient frequency and regularity to meet the test set forth in Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (1988) ("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."). According to the motion, Appellee could at best demonstrate that Mr. Gregg used brake products purchased from Appellant's store on two or three occasions throughout his entire lifetime; Appellee could not establish that any products purchased by Mr. Gregg from Appellant's store contained asbestos; and Appellee's own expert witness, pathologist Harvey B. Spector, M.D., attributed Mr. Gregg's disease solely to an "occupational history of exposure to asbestos," and not to non-occupational exposure such as Mr. Gregg's automobile maintenance activities.
In response, Appellee argued that his deposition testimony, and that of his sister and a neighbor of the Gregg household in the 1960 to 1965 timeframe, sufficiently established Mr. Gregg's exposure to asbestos-containing brake products sold by Appellant. Further, Appellee furnished a modified version of Dr. Spector's report, in which the pathologist revised his opinion to attribute Mr. Gregg's disease to "occupational and non-occupational" asbestos exposures, indicating that the change resulted from his review of the depositions of the product identification witnesses. Appellee also submitted documents attributable to Allied Signal, Inc. and Raybestos-Manhatten, Inc., supporting the claim that the brake products manufactured by these companies (or their predecessors) in the 1950s and 1960s time frame contained asbestos. Further, Appellee relied on expert affidavits of a chemist, an occupational disease physician, and an epidemiologist to establish that mesothelioma may be caused by even a small exposure to asbestos.
Upon receiving the Appellee's response and the supplemental report, Appellant filed a motion to strike the supplemental report and to preclude Appellee from relying upon it at trial. Appellant argued that the supplemental report was untimely, in that it was not produced until after the deadline for expert reports had passed, and that the report was prejudicial, since the case was scheduled to go to trial in two weeks.
The common pleas court (per Judge Tereshko) granted summary judgment in Appellant's favor, on the ground that Appellee's product identification testimony was inadequate. See Gregg v. V-J Auto Parts, No. 003888 March Term 1999, slip op. (Nov. 6, 2001). Initially, the court accepted Appellant's argument that the frequency, regularity, proximity analysis discussed in Eckenrod should apply. See id. at 3 ("The courts in Pennsylvania have been consistent in requiring the plaintiff to produce evidence that he frequently and regularly used, or worked in sufficient proximity to, a specific defendant's asbestos-containing product, and that he inhaled asbestos fibers shed therefrom in order to overcome a motion for summary judgment."). The common pleas court recognized that there was sufficient evidence that Mr. Gregg was exposed to asbestos at some point during his lifetime, and that this exposure caused his illness, but it found insufficient evidence linking the exposure to either Allied Signal, Inc. or Appellant to create a triable issue. In this regard, the court observed that the product identification witnesses were unable to confirm that Mr. Gregg specifically used brakes manufactured by Bendix Corporation and sold by Appellant, or more broadly, that Bendix Corporation manufactured, and Appellant distributed, the asbestos-containing product that was the cause of Mr. Gregg's disease. The court's opinion elaborated fairly extensively concerning the vagueness of the recollections of the product identification witnesses concerning circumstances and events from thirty-five to forty years earlier. See id. at 3-5.
Appellee appealed to the Superior Court, and a three-judge panel vacated the common pleas court's order and remanded in an unpublished opinion. See Gregg v. A.P. Green Industries, Inc., 813 A.2d 912 (Pa. Super. 2002). The panel concluded that the common pleas court erred because, regardless of whether there was sufficient evidence to identify a particular manufacturer, there was enough evidence to show brake products containing asbestos were purchased from Appellant's store. The Superior Court panel indicated, however, that it was unclear whether Appellee could present sufficient evidence to show that the amount of Mr. Gregg's exposure to asbestos in the relatively few times that he was shown to have changed asbestos-containing brakes, as compared to the forty-plus years of occupational exposure to asbestos containing products asserted in the complaint, was a substantial contributing factor to his disease. See id. at 913. Thus, the court remanded for such a determination.
On remand, the common pleas court (per Judge Ackerman) again found the record insufficient to meet the requirements of the frequency, regularity, and proximity analysis. Gregg v. V-J Auto Parts, Inc., No. 003888 March Term 1999, slip op. (C.P. Phila. Dec. 2, 2003). The court highlighted that Appellee did not remember specific parts purchased from Appellant's store; Appellee's sister had no knowledge concerning whether products purchased from Appellant's store contained asbestos; and the household neighbor assumed that brake products purchased from Appellant's store contained asbestos and could only recall two or three times in which he saw Mr. Gregg installing brake products purchased from Appellant. The common pleas court explained:
This court is mindful that there is no requirement that plaintiff must prove how many asbestos fibers one must inhale necessary to a determination of causation; however, evidence of exposure must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product and that his contact with same was of such nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it. See Junge v. Garlock, 427 Pa. Super. 592, 629 A.2d 1027 (1993); Samarin v. GAF Corp., 391 Pa. Super. 340, 571 A.2d 398 (1989); Eckenrod. The fact that plaintiff's supplemental medical expert opined that Mr. Gregg's occupational exposure and his non-occupational exposure from performing brake jobs both contributed to his mesothelioma, this is non determinative since our case law requires the plaintiff to produce sufficient evidence of regular and frequent exposure to asbestos products supplied by the ...