COLLEEN M. KRAUSS, EXECUTOR OF THE ESTATE OF HENRY M. KRAUSS, Appellant
TRANE U.S. INC., f/k/a AMERICAN STANDARD, et al; ALLIS-CHALMERS CORPORATION; AQUA CHEM, INC., d/b/a CLEAVER BROOKS DIVISION, INDIVIDUALLY AND SUCCESSOR IN INTEREST TO SPRINGFIELD BOILERS; AVENTIS CROPSCIENCE USA, INC., a/k/a AMCHEM PRODUCTS INC., now known as BAYER CROPSCIENCE INC., f/k/a BENJAMIN FOSTER CO., c/o CORPORATION SERVICES CO.; A.W. CHESTERTON CO.; BABCOCK POWER, INC., f/k/a BABCOCK BORSIG POWER INC., f/k/a D.B. RILEY STOKER CORPORATION; BONDEX INTERNATIONAL INC., c/o DANIEL J. RYAN, ESQUIRE; CRANE COMPANY; CROWN CORK AND SEAL COMPANY INC.; DURABLE MANUFACTURING COMPANY, INC.; ELLIOT TURBOMACHINERY COMPANY, a/k/a ELLIOT COMPANY; FOSTER WHEELER ENERGY CORPORATION; GARLOCK SEALING TECHNOLOGIES, LLC.; GEORGIA-PACIFIC CORPORATION, INDIVIDUALLY AND AS SUCCESSOR TO BESTWALL GYPSUM COMPANY; GOODRICH CORPORATION; GOULDS PUMPS INCORPORATED; GUARDLINE INC.; INDUSTRIAL HOLDINGS CORPORATION, f/k/a THE CARBORUNDUM COMPANY, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO LOCKPORT FELT, A DIVISION OF THE CARBORUNDUM COMPANY; INGERSOLL RAND COMPANY; KAISER GYPSUM COMPANY, INC.; KCG INC., AS SUCCESSOR IN INTEREST TO RUCO; METROPOLITAN LIFE INSURANCE COMPANY; MURCO WALL PRODUCTS, INC.; OAKFABCO, INC., f/k/a KEWANEE BOILER CORPORATION; OWENS-ILLINOIS INC., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO OWENS-ILLINOIS GLASS COMPANY; RAPID-AMERICAN CORPORATION f/k/a GLEN ALDENCORPORATION, INDIVIDUALLY AND AS SUCCESSORBY-MERGER TO GLEN ALDEN CORPORATION, BRIGGS MANUFACTURING CO., PHILIP CAREY CORPORATION AND PHILIP CAREY MANUFACTURING COMPANY; RPM INC., AS SUCCESSOR TO REPUBLIC POWDERED METALS, SUCCESSOR TO BONDEX; SEPCO CORPORATION; THE SHERWIN-WILLIAM COMPANY; T.H. AGRICULTURE & NUTRITION LLC.; UNION CARBIDE CORPORATION, INDIVIDUALLY AND f/k/a UNION CARBIDE CHEMICALS AND PLASTIC COMPANY, INC.; UNIROYAL HOLDING, INC., AS SUCCESSOR TO UNITED STATES RUBBER COMPANY; VIACOM, INC., INDIVIDUALLY AND AS SUCCESSOR-BY-MERGER TO CBS CORPORATION, f/k/a WESTINGHOUSE ELECTRIC CORPORATION; WICKES CORPORATION, INDIVIDUALLY AND AS SUCCESSOR BY MERGER TO WICKES BOILER CO.; ZURN INDUSTRIES INC., a/k/a AND AS SUCCESSOR-BY-MERGER TO ERIE CITY IRON WORKS; KELLY MOORE PAINT COMPANY INC.; BORDEN CHEMICAL INC., f/k/a BORDEN CHEMICAL COMPANY AND n/k/a HEXIO SPECIALTY CHEMICALS INC., PRENTICE HALL CORPORATION; CERTAIN-TEED CORPORATION f/k/a CERTAINTEED PRODUCTS CORPORATION; FORD MOTOR COMPANY; FREEPORT-McMORAN INC., f/k/a FREEPORT CHEMICAL COMPANY, AND SUCCESSOR TO AGRICO INC.; THE PEP-BOYS MANNY, MOE & JACK; A.P. GREEN a/k/a A.P. GREEN REFRACTORIES, INC., f/k/a A.P. GREEN REFRACTORIES COMPANY, AND A SUBSIDIARY OF ANH REFRACTORIES COMPANY; BENJAMIN FOSTER COMPANY, A DIVISION OF AMCHEM; HARBISON-WALKER, f/k/a HARBISON-WALKER REFRACTORIES COMPANY AND A SUBSIDIARY OF ANH REFRACTORIES COMPANY; KAISER ALUMINUM AND CHEMICAL CORPORATION, Appellees; COLLEEN M. KRAUSS, EXECUTOR OF THE ESTATE OF HENRY M. KRAUSS, Appellant
CBS CORPORATION, et al; ANCO INSULATIONS, INC.; BORDEN CHEMICAL INC., f/k/a BORDEN CHEMICAL COMPANY AND n/k/a HEXION SPECIALTY CHEMICALS, INC., PRENTICE HALL CORPORATION; CBS CORPORATION; CERTAIN-TEED CORPORATION, f/k/a CERTAINTEED PRODUCTS CORPORATION; FORD MOTOR COMPANY; FREEPORT-McMORAN INC., f/k/a FREEPORT CHEMICAL COMPANY AND SUCCESSOR TO AGRICO INC.; GENERAL ELECTRIC COMPANY; GOULDS PUMPS INC.; THE PEP BOYS-MANNY, MOE & JACK; TRANE U.S. INC., f/k/a AMERICAN STANDARD INC.; ZURN INDUSTRIES INC., a/k/a AND AS SUCCESSOR-BY-MERGER TO ERIE CITY IRON WORKS; A.P. GREEN a/k/a A.P. GREEN REFRACTORIES, INC., f/k/a A.P. GREEN REFRACTORIES COMPANY, AND A SUBSIDIARY OF ANH REFRACTORIES COMPANY; BENJAMIN FOSTER COMPANY, A DIVISION OF AMCHEM; HARBISON WALKER f/k/a HARBISON WALKER REFRACTORIES COMPANY AND A SUBSIDIARY OF ANH REFRACTORIES COMPANY; KAISER ALUMINUM AND CHEMICAL CORPORATION, Appellees
Argued April 8, 2014
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Appeal from the Orders of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 00726 January Term, 2007 and 00212 February Term, 2006. Before NEW, J.
Jonathan W. Miller, Philadelphia, for appellant.
Kevin L. Tuliszewski,, for Georgia Pacific, appellee.
BEFORE: SHOGAN, STABILE and PLATT[*], JJ.
Appellant, Colleen M. Krauss, Executrix of the Estate of Henry M. Krauss (" Decedent" ), appeals from the orders granting summary judgment in favor of Appellees General Electric Company (" GE" ); Georgia-Pacific, L.L.C; CBS Corporation-Westinghouse (" Westinghouse" ); Goulds Pumps, Inc.; Zurn Industries; and Trane U.S. Inc., f/k/a American Standard (" American Standard" ), (jointly " Appellee Manufacturers" ). We affirm.
The trial court summarized the factual and procedural history of this case as follows:
Appellant Colleen M, Krauss, as [Executrix] of the Estate of Henry M. Krauss, commenced suit against twelve (12) defendants on February 7, 2006, under the caption Krauss v. Anco Insulations, Inc., et al, Philadelphia Court of Common Pleas February Term 2006, No. 212. On January 8, 2007, Appellant filed a second suit against thirty-seven (37) additional defendants under the caption Krauss v. Allis Chalmers Corp., et al, Philadelphia Court of Common Pleas January Term 2007, No. 726. Appellant filed a Motion to Consolidate the two actions on February 7, 2011, and the cases were consolidated under the February Term 2006, No. 212 court term and number by court Order dated May 13, 2011.
Appellant Colleen M. Krauss contends Appellant's decedent, Henry M. Krauss, was employed in the bricklaying trade, and during the course of his employment, Mr. Krauss worked at various job sites throughout the state of Louisiana, including at Borden Chemical in Geimser, Kaiser Aluminum and Chemical Company in both Baton Rouge and Gramercy, Freeport Chemical in Convent, AgraCo in Donaldsville, and while in the employ of John Wayne Smith
Masonry in Baton Rouge. Appellant claims Mr. Krauss also worked at Kirkland Masonry in Boca Raton, Florida. According to Appellant, Mr. Krauss worked at these job sites between the years of 1978 and 1983 with each job varying in length.
Appellant claims Appellant's decedent was exposed to asbestos at numerous jobsites from working with and/or around Appellees' products, including turbines manufactured by Appellees General Electric and CBS Corporation (Westinghouse); boilers manufactured by Appellees Zurn Industries, Foster Wheeler, LLC and Trane U.S. Inc. f/k/a American Standard; pumps manufactured by Appellee Goulds Pumps, Inc., and joint compound and other spackling and adhesive products manufactured by Appellee Georgia[-]Pacific, LLC. Appellant claims while on the job the decedent[,] Mr. Krauss[,] got asbestos on his clothes and hair and in his lungs, and as a result he contracted mesothelioma. Appellant's decedent was not deposed before his death.
On November 13, 2012, all the Appellees filed Motions for Summary Judgment. Appellant filed Answers to the Motions for Summary Judgment of Appellees Georgia-Pacific, LLC; Foster Wheeler, LLC; CBS Corporation (Westinghouse); Goulds Pumps, Inc.; Zurn Industries and Trane US, Inc. f/k/a American Standard on November 30, 2012. Appellant filed an Answer to the Motion for Summary Judgment of Appellee General Electric Company on December 7, 2012. On January 16, 2013[, the trial court] granted summary judgment in favor of Appellee General Electric Company. On January 19, 2013[, the trial court] granted summary judgment in favor of Appellees Foster Wheeler, L.L.C.; Georgia-Pacific, LLC; CBS Corporation (Westinghouse); Goulds Pumps, Inc.; Zurn Industries and Trane U.S. Inc. f/k/a American Standard.
On February 21, 2013, Appellant filed [her] Notices of Appeal of the aforementioned Orders. On February 28, 2013, [the trial court] issued Orders directing Appellant to file a Concise Statement of Matters Complained of on Appeal pursuant to [Pa.R.A.P.] 1925(b). On March 18, 2013, Appellant filed [her] 1925(b) Statements.
Trial Court Opinion, 10/10/13, at 1-3.
Appellant presents the following issues for our review:
A. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED ALL SIX MOTIONS FOR SUMMARY JUDGMENT WHERE THE AFFIDAVIT OF MIKE MORGAN RAISES A GENUINE ISSUE OF MATERIAL FACT CONCERNING
FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO  ASBESTOS PRODUCTS OF ALL SIX MANUFACTURERS?
B. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF CBS CORPORATION WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN TURBINES OF CBS CORPORATION'S ACKNOWLEDGED PREDECESSOR, WESTINGHOUSE?
C. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF GENERAL ELECTRIC COMPANY WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN TURBINES OF GENERAL ELECTRIC COMPANY?
D. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF GEORGIA-PACIFIC WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING EXPOSURE TO GEORGIA-PACIFIC'S ASBESTOS-CONTAINING PRODUCTS?
E. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF GOULDS PUMPS WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN GOULDS PUMPS?
F. DOES THE RECORD REVEAL GENUINE ISSUES OF MATERIAL FACT WHETHER DEFENDANTS CAN BE HELD LIABLE FOR THEIR INCLUSION OF THIRD PARTIES' ASBESTOS-CONTAINING PRODUCTS AS COMPONENTS IN THEIR OWN PRODUCTS?
G. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF TRANE WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN AMERICAN STANDARD BOILERS?
H. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF ZURN WHERE THE RECORD REVEALS A GENUINE ISSUE OF MATERIAL FACT CONCERNING FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO ASBESTOS IN ZURN BOILERS?
Appellant's Brief at 7-11 (verbatim).
An order granting summary judgment is subject to the following scope and standard of appellate review:
Our standard of review on an appeal from the grant of a motion for summary judgment is well-settled. A reviewing
court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
Shepard v. Temple University, 2008 PA Super 93, 948 A.2d 852, 856 (Pa. Super. 2008) (quoting Murphy v. Duquesne University, 565 Pa. 571, 777 A.2d 418, 429 (Pa. 2001)).
Furthermore, our Courts have developed summary judgment standards specific to asbestos cases. In Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52 (Pa. Super. 1988), this Court set forth the evidence an asbestos plaintiff must produce to establish a prima facie case sufficient to proceed to trial:
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.
Id. at 52-53 (citations omitted).
The Eckenrod " frequency, regularity, proximity" standard for determining whether a plaintiff has come forward with sufficient evidence to allow a jury to conclude reasonably that the plaintiff breathed some asbestos fibers from a defendant's product originally applied only to consideration of circumstantial, rather than direct, evidence. See, e.g., Gilbert v. Monsey Products Co., 2004 PA Super 380, 861 A.2d 275, 277 (Pa. Super. 2004) (" Because Appellant provided direct testimony [that he inhaled asbestos fibers from the defendant's product], the Eckenrod test was not applicable." ). However, our Supreme Court later extended the application of the Eckenrod
factors to all evidence of asbestos exposure:
Further, we find that the bright-line distinction that Appellee seeks to draw between direct and circumstantial evidence cases is not warranted, because this distinction is unrelated to the strength of the evidence and is too difficult to apply, since most cases involve some combination of direct and circumstantial evidence.
Gregg v. V-J Auto Parts, Company, 596 Pa. 274, 943 A.2d 216, 226 (Pa. 2007).
Additionally, in Gregg, our Supreme Court modified the " frequency, regularity, proximity" criteria previously enunciated by this Court in Eckenrod. Specifically, the Supreme Court adopted the approach utilized by the United States Court of Appeals for the Seventh Circuit in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992):
The decision in Tragarz v. Keene Corp., 980 F.2d 411 (7th Circ. 1992), . . . provides helpful guidance concerning the application of the frequency, regularity and 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.
Gregg, 943 A.2d at 225.
Thus, our Supreme Court disapproved of the application of a rigid Eckenrod " frequency, regularity, proximity" test in every case, and instead adopted a new fact-specific sliding scale approach that includes two important considerations not part of the Eckenrod analysis:
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.
Gregg, 943 A.2d at 225 (citing Tragarz, 980 F.2d at 420-421) (internal citations omitted).
The Gregg Court also rejected the viability of the " each and every exposure" or " any breath" theory. It stated:
[W]e do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation ... The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.
Id. at 226-27.
In summarizing its holding, the Gregg Court explained:
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.
Gregg, 943 A.2d at 227.
In Betz v. Pneumo Abex, LLC, 615 Pa. 504, 44 A.3d 27, 30 (Pa. 2012), the Supreme Court specifically addressed the admissibility of expert opinion of the " any-exposure" or " any breath" theory of causation, which states, " each and every fiber of inhaled asbestos is a substantial contributing factor to any asbestos-related disease." Id. at 30. The Betz Court rejected the " any exposure" theory of causation, concluding it was theoretically " in irreconcilable conflict with itself." Id. at 56. As the Court explained: " one cannot simultaneously maintain that a single fiber among millions is substantially causative, while also conceding that a disease is dose responsive."  Id. Therefore, the Betz Court affirmed the trial court's decision to preclude the use of the " any exposure" theory of causation in asbestos cases. Id. at 58.
Additionally, in Howard v. A.W. Chesterton, Co., 621 Pa. 343, 78 A.3d 605 (Pa. 2013) ( per curiam ) (Howard III), our Supreme Court indicated that the following principles apply to all asbestos cases involving a dose-responsive disease: (1) the " theory that each and every exposure, no matter how small" is not viable to establish a defendant's liability; (2) proof of de minimus exposure to a product is insufficient to establish causation; (3) an expert must make " some reasoned, individualized assessment of a plaintiff's or decedent's exposure history" in opining about substantial-factor causation of the asbestos disease; and (4) summary judgment " is an available vehicle" for challenging de minimus exposure. Howard III, 78 A.3d at 608.
Mindful of the foregoing tenets, we turn to Appellant's claims. Appellant first contends that the affidavit of Michael A. (" Mike" ) Morgan, Decedent's former co-worker, is sufficient on its own to raise genuine issues of material fact concerning Decedent's frequent, regular, and proximate exposure to asbestos in products from all Appellee Manufacturers in this case. Appellant's Brief at 33. Appellant has attached this Affidavit to all of her responses to motions for summary judgment filed by the Appellee Manufacturers.
The affidavit in question provides, in its entirety, as follows:
I, Mike Morgan, being first duly sworn, depose and state as follows:
1) I knew and worked with Henry (Hank) Krauss in the bricklaying trade.
2) I worked with Hank Krauss at numerous job sites, including Borden Chemical in Geismer, Louisiana, Kaiser Aluminum and Chemical Company in Baton Rouge Gramercy, Louisiana, Freeport Chemical Convent, Louisiana and AgraCo in Donaldsville, Louisiana between 1978 and 1983. Each of these jobs lasted approximately one week or longer.
3) At our job sites there were boilers manufactured by American Standard, Foster Wheeler and Zurn.
4) We worked at sites where there were turbines manufactured by General Electric and Westinghouse.
5) There were a number of products manufactured by Georgia[-]Pacific including joint compound and other adhesive products.
6) We used Kaiser Gypsum cement, particularly at the Kaiser Aluminum and Chemical plants.
7) I am familiar with Goulds Pumps. Their large industrial pumps were at some of the facilities where Hank Krauss and I worked.
8) All of the boilers, turbines and pumps were insulated with heat-resistant asbestos products to the best of my knowledge and belief.
9) The use of all the above-mentioned products created a great deal of visible dust. That dust got on our clothing, in our hair and in our lungs. We breathed in that dust and were never given any warning that the inhalation of asbestos fibers could be hazardous to our health.
Further, the Affiant sayeth not.
" Exhibit A" to Plaintiff's responses to motions for summary judgment, Affidavit of Mike Morgan, 10/17/12, at 1 (emphasis in original).
Our Supreme Court has stated the following with regard to lay witness opinions as to the presence of asbestos:
Where . . . a party proffers a witness expressing an opinion on matters such as the presence of asbestos in the workplace, the trial court must be rigorous in assuring that the lay witness satisfies the strictures of Rule 701. In particular, the proponent of technical lay opinion testimony must show that the testimony is based on sufficient personal experience or the specialized knowledge of the witness. Pa.R.E. 602. . . . Without meeting the requirements of Rule 701, the lay opinion is not " rationally based on the perception of the witness" or truly " helpful" to the jury.
Gibson v. Workers' Comp. Appeal Bd. (Armco Stainless & Alloy Prods.), 580 Pa. 470, 861 A.2d 938, 945 (Pa. 2004). Rule 701 of the rules of evidence further provides:
Rule 701. Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
In his affidavit, Mr. Morgan boldly professed that he recalled all of these products being present at the various worksites where he worked with Decedent over the course of a five-year period, approximately twenty-nine to thirty-four years prior to executing the affidavit. Mr. Morgan's affidavit, however, provides no specific evidence
that Decedent was exposed to a product manufactured by a particular manufacturer or supplier at a particular worksite.
Additionally, the affidavit fails to establish with any certainty that these products contained asbestos. Mr. Morgan's affidavit asserts that " all of the boilers, turbines and pumps" identified in his affidavit were insulated with asbestos products based on his " knowledge and belief." It, however, provides no specific evidence upon which he based his determination that these boilers, turbines, and pumps were insulated with asbestos products.
In Gibson, the claimant presented testimony of a co-worker who testified that he had seen a substance that he " believed" to be asbestos at the factory where he and the claimant had worked. Gibson, 861 A.2d at 941. The Court determined that such testimony was insufficient to establish that asbestos existed in the workplace. Id. at 946. In addressing the shortcoming of the lay-witness testimony, the Court stated:
The admissibility of lay opinion testimony is not without limit. Given the standard we articulate today for the admission of lay opinion evidence of a technical nature, we conclude that the [judge] failed to examine with sufficient rigor whether the testimony in question was informed by sufficient experience or specialized knowledge. More particularly, in order to satisfy the " rationally derived" and helpfulness standards of Rule 701, Claimant needed to demonstrate that the witness possessed sufficient experience or specialized knowledge that qualified him to offer a technical opinion regarding the presence of asbestos in the workplace. While a lay witness could acquire this additional insight by either formal education or practical experience, it appears the witness at issue simply possessed neither.
Actual knowledge and observation on the part of the lay witness are the essential bases for the reception of the opinion. Pursuant to Rule 602, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Thus, we must agree . . . that the record is devoid of substantial evidence to support a finding of long-term asbestos exposure in the workplace.
Id. at 948.
Additionally, in Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398, 404, 409 (Pa. Super. 1989), this Court held that a witness's testimony regarding a material's high heat application was insufficient to support the conclusion that the product contained asbestos. We noted that such facts simply created " an insufficient foundation for a jury to infer by a preponderance of the evidence that the heat resistant products used . . . contained asbestos." Id. at 403. Similarly, in Bushless v. GAF Corp., 401 Pa.Super. 351, 585 A.2d 496, 503 (Pa. Super. 1990), we held that a statement that a person knew a product contained asbestos from his years of experience and because of the product's ability to withstand high temperatures was insufficient to create an issue of material fact that the product contained asbestos. Conversely, in Harahan v. AC & S, Inc., 2003 PA Super 28, 816 A.2d 296, 298 (Pa. Super. 2003), the lay opinion of a co-worker credibly established the presence of asbestos in the workplace
through personal knowledge where the co-worker testified that he knew that the product contained asbestos because the product was labeled as containing asbestos.
Mr. Morgan's statements in his affidavit that the boilers, turbines, and pumps contained asbestos are not based on his actual knowledge, as is required by Pa.R.E. 701 and relevant case law. Instead, Mr. Morgan's affidavit reflects only his presumption and belief that these multiple products contained asbestos. Such statements are insufficient to show that there exists a genuine issue of fact as to the existence of asbestos in these products. Gibson, 861 A.2d at 948; Samarin, 571 A.2d at 404; Bushless, 585 A.2d at 503.
Additionally, such statements do not present competent evidence for the jury because it is speculative. A plaintiff cannot survive summary judgment when mere speculation would be required for the jury to find in plaintiff's favor. Juliano v. Johns-Manville Corp., 416 Pa.Super. 321, 611 A.2d 238, 239 (Pa. Super. 1992) (stating that " [i]n the absence of sufficient evidence demonstrating that plaintiff worked with or near the asbestos materials of a particular defendant, a jury cannot find, except by speculation, that it was a defendant's product which caused plaintiff's injury. Speculation, however, is an inadequate basis for recovery." ). A jury is not permitted to find that it was a defendant's product that caused the plaintiff's injury based solely upon speculation and conjecture; " there must be evidence upon which logically its conclusion must be based." Farnese v. Southeastern Pennsylvania Transp. Authority, 338 Pa.Super. 130, 487 A.2d 887, 890 (Pa. Super. 1985). " In fact, the trial court has a duty to prevent questions from going to the jury which would require it to reach a verdict based on conjecture, surmise, guess or speculation." Id. at 890. Additionally, a party is not entitled to an inference of fact that amounts merely to a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83, 231 A.2d 179, 180 (Pa. 1967).
Thus, because Mr. Morgan's affidavit is based solely on speculation and conjecture, it is insufficient as a basis upon which Appellant's case can survive summary judgment. It fails to establish a genuine issue of material fact as to the presence of a specific manufacturer's product at a specific worksite where Decedent worked, and fails to establish that asbestos was present in those products in the various worksites. Appellant is not entitled to an inference of fact based merely on Mr. Morgan's unsubstantiated claims. Flaherty, 231 A.2d at 180.
Furthermore, Mr. Morgan's affidavit does not meet the " frequency, regularity, proximity" test required by Eckenrod and Gregg. In the affidavit itself, Mr. Morgan does not identify the length of time that he and Decedent were exposed to the alleged asbestos-containing products at each worksite. Instead, the affidavit states generally that " each of these jobs lasted approximately one week or longer." Moreover, Mr. Morgan does not identify the proximity to the alleged asbestos-containing products with which Decedent worked. Mr. Morgan's affidavit is insufficient to establish a causal connection between any of the individual Appellee Manufacturer's products and Decedent's disease. Thus, we conclude that Mr. Morgan's affidavit, in and of itself, does not create a genuine issue of material fact precluding entry of summary judgment. Accordingly, we review the claims and additional evidence Appellant presents regarding each named Appellee Manufacturer.
We first consider Appellant's claims as to Westinghouse. Westinghouse submitted a motion for summary judgment on the basis that Appellant failed to present any evidence that Decedent was exposed to asbestos from any products or equipment made, sold, supplied or specified by Westinghouse. CBS Corporation (Westinghouse) Motion for Summary Judgment, 11/13/12, at 3. Alternatively, it argued, that any claimed exposure to a Westinghouse product was insufficient to have caused Decedent's alleged injuries. Id.
In her response to Westinghouse's motion for summary judgment, Appellant argued that summary judgment was inappropriate as there were disputed issues of material fact. Plaintiff's Response to CBS Corporation's (Westinghouse) Motion for Summary Judgment, 11/30/12, at 3. Appellant maintained that, pursuant to Eckenrod and Gregg, she had established Decedent's proximal, regular, and frequent exposure to asbestos-containing turbines manufactured by Westinghouse, compelling denial of the motion for summary judgment. Id. In support of her claim, Appellant attached the following documentation to her response: 1) " Exhibit A", the affidavit of Mike Morgan; 2) " Exhibit B", excerpts from the deposition of Mike Morgan; and 3) " Exhibit C", excerpted answers to interrogatories from an unrelated case filed against Westinghouse.
We have set forth and addressed the affidavit of Mike Morgan, identified as " Exhibit A," previously and concluded that such affidavit fails to establish that Decedent was exposed to Westinghouse turbines containing asbestos. Thus, we shall consider Appellant's additional evidence.
Attached as " Exhibit B," is an excerpt of the transcript from the deposition of Mike Morgan. Plaintiff's Response to CBS Corporation's (Westinghouse) Motion for Summary Judgment, 11/30/12, " Exhibit B." In that deposition, Mr. Morgan was asked if he had worked with Decedent at any sites where there was a Westinghouse turbine. Id. at 64. Mr. Morgan indicated that they both worked at AgraCo in 1978 and 1979, at which site there were Westinghouse turbines. Id. Mr. Morgan testified that there were three turbines, all three of which were manufactured by Westinghouse. Id. at 71. The following exchange took place when Mr. Morgan was asked whether he had knowledge that the Westinghouse turbines at the AgraCo plant contained asbestos:
[Counsel]: Do you have any knowledge that the Westinghouse turbines at the AgraCo plant contained asbestos?
[Mr. Morgan]: Contains suspicious?
[Counsel]: Contained asbestos.
[Mr. Morgan]: I'm sorry.
[Counsel]: That's okay.
[Mr. Morgan]: No, I'm not aware of that.
[Counsel]: You have no knowledge of that?
[Mr. Morgan]: ...