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Kardos v. Armstrong Pumps, Inc.

Superior Court of Pennsylvania

October 28, 2019

JOYCE E. KARDOS, EXECUTRIX OF THE ESTATE OF NICHOLAS J. KARDOS, DECEASED, AND JOYCE E. KARDOS, IN HER OWN RIGHT Appellant
v.
ARMSTRONG PUMPS, INC.; ATLAS INDUSTRIES, INC.; BADGER METER, INC.; BALTIMORE & OHIO RAILROAD, CHESAPEAKE & OHIO RAILROAD, THE CHESSIE SYSTEM RAILROAD, AND CSX TRANSPORTATION, INC. AS SUCCESSOR IN INTEREST TO ALL THE FOREGOING; BLUE M; CARRIER CORPORATION; CASHCO, INC.; CBS CORPORATION, A DELAWARE CORPORATION, F/K/A VIACOM INC., SUCCESSOR BY MERGER TO CBS CORPORATION, A PENNSYLVANIA CORPORATION, F/K/A WESTINGHOUSE ELECTRIC CORPORATION; CHEVRON U.S.A. PRODUCTS COMPANY, NOW KNOWN AS CHEVRON PRODUCTS COMPANY; COOPER INDUSTRIES, LLC IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO CROUSE HINDS COMPANY AND AS SUCCESSOR-IN-INTEREST TO MCGRAW-EDISON COMPANY; CRANE CO.; DEZURIK, INC.; THE FAIRBANKS COMPANY; FLOWSERVE US, INC., SOLEY AND AS SUCCESSOR TO ROCKWELL MANUFACTURING COMPANY, ROCKWELL VALVES, INC., EDWARD VOGT VALVE COMPANY, AND HILLS-MCCANNA; FORT KENT HOLDINGS, INC., IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO DUNHAM BUSH, INC. AND WARREN WEBSTER & CO.; GOULDS PUMPS, INC.; GRINNELL LLC; HAMMOND VALVE COMPANY; HEXAGON MANUFACTURING INTELLIGENCE, IN ITS OWN RIGHT AND AS SUCCESSOR IN INTEREST TO BROWN & SHARPE; HONEYWELL, INC.; I.U. NORTH AMERICA, INC., AS SUCCESSOR BY MERGER TO THE GARP COMPANY, FORMERLY KNOWN AS THE GAGE AND SUPPLY COMPANY; IMO INDUSTRIES, INC., F/K/A IMO DELAVAL TURBINE, INC., DELAVAL TURBINE, INC., DELAVLCO CORPORATION; INDUSTRIAL HOLDINGS CORPORATION F/K/A CARBORUNDUM COMPANY; INGERSOLL-RAND; INVENSYS; ITT CORPORATION, F/K/A ITT INDUSTRIES; JENDOCO CONSTRUCTION; LEEDS & NORTHRUP COMPANY; LIMBACH COMPANY; M.S. JACOBS & ASSOCIATES, INC.; METROPOLITAN LIFE INSURANCE COMPANY, A/K/A METROPOLITAN INSURANCE COMPANY; MILTON ROY COMPANY; MINE SAFETY APPLIANCE COMPANY; OWENS-ILLINOIS, INC.; PATTERSON KELLY CORPORATION, A/K/A HARSCO CORPORATION; ROCKWELL AUTOMATION, INC., IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO ALLEN BRADLEY; SAFETY FIRST INDUSTRIES, INC., IN ITS OWN RIGHT AND AS SUCCESSOR-IN-INTEREST TO SAFETY FIRST SUPPLY, INC.; SPIRAX SARCO, INC.; SQUARE D. COMPANY; THE CLARK CONTROLLER COMPANY; TRANE U.S. INC. F/K/A AMERICAN STANDARD, INC. Appellees

          Appeal from the Final Order Entered December 6, 2017 In the Court of Common Pleas of Allegheny County Civil Division at No(s): No. G.D. 16-003521, No. G.D. 16-003523

          BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

          OPINION

          GANTMAN, P.J.E.

         Appellant, Joyce E. Kardos, Executrix of the Estate of Nicholas J. Kardos, Deceased, and Joyce E. Kardos, in her own right, appeals from the final order entered in the Allegheny County Court of Common Pleas that disposed of the remaining claims against the remaining defendants in these cases consolidated at Docket No. G.D. 16-003521. Specifically, Appellant challenges the trial court's preclusion order of December 12, 2016, and the summary judgments entered on August 9, 2017, and August 18, 2017, in favor of Appellees, Armstrong Pumps, Inc., The Fairbanks Company ("Fairbanks"), Flowserve US, Inc. ("Flowserve"), Hammond Valve Company, Ingersoll-Rand, Patterson Kelly Corporation, a/k/a Harsco Corporation ("Patterson Kelly"), Rockwell Automation, Inc., in its own right and as successor-in-interest to Allen Bradley ("Rockwell Automation"), and Square D. Company ("Square D").[1] We vacate the orders entering summary judgment in favor of Appellees, reverse the order precluding Mr. Kardos' affidavit and deposition testimony from consideration at the summary judgment stage, and remand for further proceedings.

         The relevant facts and procedural history of this case are as follows. In January 2016, doctors diagnosed Mr. Kardos with mesothelioma, a type of cancer caused by exposure to asbestos. On March 10, 2016, Mr. Kardos and Appellant filed a complaint against numerous manufacturers, suppliers, and users of asbestos products. Between July 11, 2016 and July 15, 2016, Appellees Armstrong Pumps, Flowserve, Ingersoll-Rand, Patterson Kelly, Rockwell Automation, and Square D filed motions for summary judgment based on lack of product identification. Further discovery ensued, including a jobsite inspection at Mr. Kardos' former place of employment, Gulf Research.

         On September 12, 2016, Mr. Kardos executed an affidavit regarding his work at Gulf Research and his exposures to asbestos while employed there. On September 28, 2016 and September 30, 2016, Defendant Mahoning Valley Supply Co. noticed Mr. Kardos for two separate days of deposition. Defendants and Appellees deposed Mr. Kardos on October 17, 2016 and October 24, 2016; at the end of the second day, Defendants and Appellees noticed a third day of deposition, which occurred on October 26, 2016. The depositions consisted solely of cross-examination regarding Mr. Kardos' work history and his exposure to asbestos-containing products. During the three days of deposition, Appellees Armstrong Pumps, Inc., Flowserve, Ingersoll-Rand, Rockwell Automation, and Square D all began and finished their cross- examinations; Appellees Fairbanks, Hammond Valve Company, and Patterson Kelly attended the deposition but did not question Mr. Kardos. Appellees and Defendants did not notice a fourth day of deposition. Mr. Kardos died on November 3, 2016. On November 14, 2016, Appellant was appointed as executrix of Mr. Kardos' estate and substituted as Plaintiff.

         On December 5, 2016, Appellee Fairbanks filed a motion for summary judgment based on a lack of product identification; Appellee Fairbanks further argued the court should not consider Mr. Kardos' affidavit and deposition testimony because these documents were inadmissible hearsay. On December 5, 2016 and December 6, 2016, Appellees Square D and Rockwell Automation filed motions for summary judgment based on Mr. Kardos' lack of regular and frequent exposure to their products and failure to isolate the presence of asbestos in their products. On December 6, 2016, Appellee Hammond Valve Company filed a motion for summary judgment based on lack of product identification and also argued for the preclusion of Mr. Kardos' affidavit and deposition testimony. Appellant filed a response on December 7, 2016, which argued in part that the court should consider Mr. Kardos' affidavit and deposition testimony at the summary judgment stage, and that these documents could be admissible at trial under the Rules of Evidence and Civil Procedure.

         On December 9, 2016, Defendant Jendoco Construction and Appellee Rockwell Automation each filed a motion to preclude Mr. Kardos' affidavit and deposition testimony. That same day, Appellee Patterson Kelly filed a motion for summary judgment, which requested preclusion of Mr. Kardos' affidavit and deposition testimony, and further argued that Mr. Kardos failed to meet his burden of product identification. On December 12, 2016, Appellee Armstrong Pumps, Inc., filed a motion to join all preclusion motions filed by other Defendants regarding Mr. Kardos' affidavit and deposition testimony. That same day, the court entered an order that precluded Appellant from using Mr. Kardos' affidavit and deposition testimony in response and opposition to any party's motion for summary judgment.

         On August 9, 2017, the court granted summary judgment in favor of Appellees Armstrong Pumps, Inc., Fairbanks, Flowserve, Hammond Valve Company, Ingersoll-Rand, and Patterson Kelly. The court granted summary judgment in favor of Appellees Rockwell Automation and Square D on August 18, 2017. The case proceeded to trial against the remaining Defendants, all of whom eventually settled. The final orders to settle, discontinue, and end were entered on December 6, 2017, which effectively resolved all the remaining claims against the remaining parties. On January 2, 2018, Appellant timely filed a notice of appeal challenging the earlier preclusion and summary judgment orders. The court ordered Appellant, on January 9, 2018, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on January 29, 2018.

         Appellant raises the following issues for our review:

WAS THE AFFIDAVIT AND DEPOSITION OF NICHOLAS KARDOS PROPER EVIDENCE TO BE CONSIDERED BY THE TRIAL COURT IN RESPONSE TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT?
WAS THE DEPOSITION OF NICHOLAS KARDOS ADMISSIBLE AT TRIAL PURSUANT TO PENNSYLVANIA RULE OF EVIDENCE 804(B)(1) AND PENNSYLVANIA RULE OF CIVIL PROCEDURE 4020(A)(3)?
DID THE TRIAL COURT'S RULING OF EXCLUDING THE THREE-DAY DEPOSITION OF A PLAINTIFF DYING FROM MESOTHELIOMA VIOLATE THE OPEN COURT AND REMEDIES CLAUSE OF PA. CONST. ART. I, § [11] AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE PENNSYLVANIA CONSTITUTION AND PUBLIC POLICY?

(Appellant's Brief at 7).

         In her first issue, Appellant argues the Rules of Civil Procedure allow the court to consider depositions and affidavits during summary judgment proceedings, even when these documents would be inadmissible hearsay at trial. Appellant contends the use of Mr. Kardos' deposition, where he testified consistently with his affidavit, was proper in this context and expected under the Rules of Civil Procedure. Appellant submits Mr. Kardos was the most appropriate person to speak about his work and asbestos exposure because he had direct and independent knowledge, and this first-hand knowledge weighed in favor of consideration at the summary judgment stage.

         In her second issue, Appellant argues Mr. Kardos' deposition falls under the Rule 804(b)(1) exception to hearsay, as Mr. Kardos is unavailable due to his death, he testified during a lawful deposition, and Appellees had the opportunity to cross-examine Mr. Kardos, even though they might not be fully satisfied with their cross-examination. Appellant posits not all parties must be present at a deposition to qualify under Rule 804(b)(1), only that the parties had an opportunity to attend. Appellant continues Appellees' counsel were all present at Mr. Kardos' deposition, and the decision of some attorneys to refrain from asking questions of Mr. Kardos does not call for the exclusion of his deposition testimony. Appellant insists the civil standard under Rule 804(b)(1) is plainly an opportunity to cross-examine, while the criminal standard under Rule 804(b)(1) provides for a full and fair opportunity to cross-examine. Appellant asserts Mr. Kardos attended three full days of deposition and was available to all Appellees' counsel.

         Appellant further argues Mr. Kardos' deposition is admissible at trial under Rule 4020(a)(3), which allows for the admission of depositions if the court finds it is in the interests of justice and exceptional circumstances exist. Appellant maintains Mr. Kardos gave substantially complete testimony on his exposure to asbestos from which a jury could rule in Appellant's favor. Appellant contends at the very least, the court should have permitted the use of the deposition against those Appellees who had concluded their cross-examination of Mr. Kardos.

         In her final issue, Appellant argues the preclusion of Mr. Kardos' affidavit and deposition violates the Open Court and Remedies Clause of the Pennsylvania Constitution as well as public policy, because the court denied Mr. Kardos and Appellant a remedy and set a precedent that could allow future defendants to delay or manipulate depositions to their ultimate advantage. Appellant concludes this Court should reverse the court's entry of summary judgment, remand for the court to consider Mr. Kardos' affidavit and deposition testimony at the summary judgment stage, and declare his deposition testimony admissible at trial. We agree in part.

         Our standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347 (Pa.Super. 2006).

Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000) (internal citations and quotation marks omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court's grant of summary judgment,

[W]e apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view 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. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.
Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of [a] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, which could be established by additional discovery or expert report and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006) (internal citations and quotation marks omitted) (emphasis added).

         In an asbestos case, the plaintiff must present sufficient evidence establishing product identification to survive a summary judgment motion. Eckenrod v. GAF Corp., 544 A.2d 50, 52 (Pa.Super. 1988), appeal denied, 520 Pa. 605, 553 A.2d 968 (1988). That is, "[the] plaintiff must establish that the injuries were caused by a product of a particular manufacturer or supplier." Vanaman v. DAP, Inc., 966 A.2d 603, 607 (Pa.Super. 2009) (en banc). In other words, the plaintiff must present some evidence that he inhaled asbestos fibers shed by the specific manufacturer's product. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 652 (Pa.Super. 2002), appeal denied, 574 Pa. 748, 829 A.2d 1158 (2003). As a result, the plaintiff must do more than just show the mere presence of asbestos in the workplace. Lonasco v. A-Best Products Co., 757 A.2d 367, 376 (Pa.Super. 2000), appeal denied, 566 Pa. 645, 781 A.2d 145 (2001). Instead, the plaintiff must prove he worked in the vicinity of a specific manufacturer's product. Id.

         When evaluating the plaintiff's evidence in asbestos cases at the summary judgment stage, Pennsylvania courts use the "frequency, regularity, and proximity" test established in Eckenrod. Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 292, 943 A.2d 216, 227 (2007). In Gregg, our Supreme Court adopted the Eckenrod standard and held that courts should make a reasoned assessment of whether, in light of the evidence on the frequency, regularity, and proximity of a plaintiff's alleged exposure, a jury could draw a sufficient causal connection between the defendant's product and the asserted injury. Id. at 290, 942 A.2d at 227. Therefore, the relevant inquiry under a manufacturer's motion for summary judgment is "whether [a] 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." Vanaman, supra at 607. See also Rost v. Ford Company, 637 Pa. 625, 151 A.3d 1032 (2016) (emphasizing that "frequent, regular, and proximate" test in this context requires evidence of exposure sufficient to allow jury to infer causal connection between exposure to asbestos-containing products and development of mesothelioma).

         Eckenrod, however, is not a rigid test that sets an absolute threshold required to support liability. Gregg, supra at 290, 943 A.2d at 225. Rather, courts should apply Eckenrod in an evaluative fashion, in a way tailored to the facts and circumstances of the case. Linster v. Allied Signal, Inc., 21 A.3d 220, 224 (Pa.Super. 2011), appeal denied, 614 Pa. 714, 38 A.3d 826 (2012). Application of the test becomes less stringent where the plaintiff produces specific evidence of exposure to a defendant's product. Id. Similarly, in cases involving mesothelioma, the frequency and regularity requirements should become "less cumbersome." Id. A plaintiff ...


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