United States District Court, M.D. Pennsylvania
JOHN JOSEPH ROTHENBECKER, JR. and SHEILA ROTHENBECKER, his wife, Plaintiffs,
3M COMPANY, Defendant.
Richard Caputo United States District Judge
before me is the Motion for Summary Judgment (Doc. 18) filed
by Defendant 3M Company (“3M”). John Joseph
Rothenbecker, Jr. (“Rothenbecker”) claims that he
was exposed to harmful levels of respirable silica when
drilling or cutting concrete while wearing 3M respirators
during his career as a sheet metal worker. After being
diagnosed with silicosis, Rothenbecker and his wife
(collectively, where appropriate, “Plaintiffs”)
commenced this action asserting strict liability and
negligence claims against 3M as well as a derivative loss of
consortium cause of action. 3M now argues that it is entitled
to judgment as a matter of law on Plaintiffs' strict
liability and negligence claims for lack of evidence that its
respirators were the proximate cause of Rothenbecker's
injuries. Because a dispute of material fact exists as to
this issue, 3M's motion for summary judgment will be
facts relevant to the instant motion are brief and largely
not in dispute. For approximately four (4) years beginning in
1984, Rothenbecker worked as an apprentice at Power
Mechanical, where his duties included cleaning up the shop,
loading trucks, and making deliveries. (See 3M's
Statement of Material Facts “3M's SMF”,
¶ 2; Plaintiffs' Statement of Material Facts
“Plfs.' SMF”, ¶ 2). Rothenbecker would
also go to job sites to clean and cut concrete holes during
this time. (See Rothenbecker's SMF, ¶ 2).
1989 until about 2001, Rothenbecker worked as a journeyman
sheet metal worker at various different construction sites
through the local sheet metal workers union. (See
3M's SMF, ¶ 3; Rothenbecker's SMF, ¶ 3).
Throughout his time as a journeyman, Rothenbecker's job
generally involved two (2) hours per day of drilling,
cutting, or chipping concrete. (See 3M's SMF,
¶ 4; Rothenbecker's SMF, ¶ 4). When drilling
into concrete, Rothenbecker would wear a 3M mask.
(See Rothenbecker Dep., 97:17-98:5; 194:9-12). Once
Rothenbecker moved into more of a supervisory role, he was
not provided breathing equipment because he was not hands-on
drilling concrete. (See id. at 219:6-20; see
also id. at 20:9-21:22).
stopped working in April or May 2015. (See id. at
33:7-13). He learned that he had silicosis that summer.
(See id. at 14:15-20, 70:24-71:6, 216:17-20).
on the foregoing, Plaintiffs commenced this action against 3M
on March 13, 2017 in the Court of Common Pleas of Luzerne
County, Pennsylvania. (See Doc. 1-1,
generally). In the Complaint, Plaintiffs assert
claims for: (1) negligence (Count One); (2) strict liability
(Count Two); (3) punitive damages (Count Three); and (4) loss
of consortium (Count Four). (See id.).
timely removed the action to this Court, (see Doc.
1, generally), and filed an Answer with Affirmative
Defenses. (See Doc. 3, generally).
Discovery ensued. At the close thereof, 3M filed the instant
motion for summary judgment. (See Doc. 18,
generally). That motion is fully briefed and ripe
judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A court may grant a motion for
summary judgment if, after it considers all probative
materials of record, with inferences drawn in favor of the
non-moving party, the court is satisfied that there are no
genuine issues of material fact and the movant is entitled to
judgment as a matter of law.” Chavarriaga v. N.J.
Dep't of Corrs., 806 F.3d 210, 218 (3d Cir. 2015)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 330,
106 S.Ct. 2548, 2556, 91 L.Ed.2d 265 (1986); Brooks v.
Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000)). “A
fact is ‘material' under Rule 56 if its existence
or nonexistence might impact the outcome of the suit under
the applicable substantive law. A dispute over a material
fact is ‘genuine' if ‘a reasonable jury could
return a verdict for the nonmoving party.'”
Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
“In determining whether the dispute is genuine, the
court's function is not to weigh the evidence or to
determine the truth of the matter . . . .” American
Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 587,
581 (3d Cir. 2009) (citing Anderson, 477 U.S. at
248-49, 106 S.Ct. 2505).
moving party bears the initial burden to identify
“specific portions of the record that establish the
absence of a genuine issue of material fact.”
Santini, 795 F.3d at 416 (citing Celotex,
477 U.S. at 323, 106 S.Ct. 2548, 2553). If this burden is
satisfied by the movant, the burden then “shifts to the
nonmoving party to go beyond the pleadings and ‘come
forward with specific facts showing that there is a genuine
issue for trial.'” Id. (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538
(1986)). The nonmovant's burden is not satisfied by
“simply show[ing] that there is some metaphysical doubt
as to the material facts.” Chavarriaga, 806
F.3d at 218.
product that is predominantly at issue here, the 3M 8710
respirator, received a certificate of approval from the
National Institute of Occupational Safety and Health
(“NIOSH”) and the U.S. Bureau of Mines
(“USBM”) on May 24, 1972 after the NIOSH and USBM
jointly enacted respirator regulations to oversee the
performance and quality of respiratory equipment. See
Kilty v. Weyerhaeuser Co., No. 16-715, 2018 WL 2464470,
at *2 (W.D. Wisc. June 1, 2018) (citing 30 C.F.R. § 11).
“The regulations provided that respirators shall be
considered approved for use ‘only where such
respirators are the same in all respects as those respirators
which have been approved after meeting the minimum
requirements for performance and respiratory protection
prescribed in Part 11.'” Id. (quoting 30
8710 respirator was introduced by 3M “for protection
against pneumoconiosis-producing and fibrosis-producing dusts
. . . .” 3M Co. v. Johnson, 895 So.2d 151, 155
(Miss. 2005). “The United States Occupational Safety
and Health Administration (“OSHA”) approved the
8710 respirator for use in environments where exposures to
certain substances . . . did not exceed ten times the