JOYCE E. KARDOS, EXECUTRIX OF THE ESTATE OF NICHOLAS J. KARDOS, DECEASED, AND JOYCE E. KARDOS, IN HER OWN RIGHT Appellant
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
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.
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"). 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
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.
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.
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.
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.
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
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, §
 AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE
PENNSYLVANIA CONSTITUTION AND PUBLIC POLICY?
(Appellant's Brief at 7).
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
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.
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.
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.
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
[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
Upon appellate review, we are not bound by the trial
court's conclusions of law, but may reach our own
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61
(Pa.Super. 2006) (internal citations and quotation marks
omitted) (emphasis added).
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
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).
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 ...