The Pennsylvania Superior Court in Sterling v. P&H Mining Equipment, Inc recently affirmed the Court of Common Pleas of Philadelphia County’s grant of summary judgment in favor of defendant P&H Mining Equipment, Inc. (P&H) because plaintiff Norman Sterling failed to provide the required standard of proof in an asbestos case.   In an important decision following the standard of proof required in an asbestos case, the Superior Court noted that:

“When evaluating the plaintiff’s evidence in an asbestos case at the summary judgment stage, Pennsylvania courts apply the ‘frequency, regularity, proximity’ standard derived from Eckenrod v. GAF Corp, 544 A.2d 50 (Pa. Super. 1988) appeal denied….”

While noting these criteria are not a rigid standard, they are used as an aid in distinguishing cases in which a plaintiff can adduce sufficient evidence.  The trial court found that P&H was entitled to summary judgment because even if it was  assumed that the P&H cranes contained asbestos brakes and wiring, “there was insufficient evidence” from which to infer Mr. Sterling inhaled asbestos fibers from such brakes and wiring. Even though there were admissions that products contained asbestos, “these admissions, however, were insufficient” to show Mr. Sterling used or worked with that equipment. To the contrary, the evidence was that he was on cranes supplied by other companies and saw dust emanate from the wheel areas of the cranes when brakes were applied, but conceded that the dust could be from other sources of dust in the yards where he worked. 

Mr. Sterling and his witnesses provided no information as to the “frequency, regularity, or proximity” of Mr. Sterling to  asbestos products.  Because there was insufficient evidence “to support an inference” that Mr. Sterling inhaled asbestos from component parts of P&H cranes, the Superior Court found the dismissal by the trial court to be proper.

Commentary

This case is certain to be cited in future summary judgment cases, especially since the standards are stated so clearly requiring the plaintiff to prove he actually inhaled dust from the defendant's particular products, and that the evidence must be sufficient to show frequency, regularity and proximity to the asbestos products as well as certainty as to the content of the dust. This case is a model for how to defend an asbestos products case in Pennsylvania.