U.S. District Court for the Western District of Pennsylvania, April 28, 2021
In this asbestos action, the plaintiff alleged that the decedent Carl Gay developed mesothelioma from exposure to asbestos numerous the defendants’ products. Six defendants moved for summary judgment, arguing that the plaintiff did not properly identify their products. Specifically, they argued that the plaintiff could not show that the decedent was exposed to their respective products with the necessary frequency, regularity, and proximity to cause his mesothelioma. They also argued that the plaintiff could not show that the asbestos products were actually manufactured, distributed, or sold by the respective the defendants. The judge granted all six motions.
All parties agreed that the substantive law of Pennsylvania applied. As to causation, Pennsylvania has adopted the frequency, regularity, and proximity standard. At the summary judgment stage, the court is to determine whether “a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury.” With regard to the proximity prong, “a plaintiff cannot merely show that the product was present at the plaintiff’s workplace; he must present evidence to establish that the the plaintiff inhaled asbestos fibers of the specific product of a manufacturer.” In addition, “[a] the plaintiff cannot survive summary judgment when mere speculation would be required for the jury to find in the plaintiff’s favor.” Further, “[s]imply establishing that a defendant’s product was merely present at a plaintiff’s place ofwork is insufficient … Instead, the plaintiff must show “a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.” (internal citations omitted).
As to the defendant Flowserve, the plaintiff alleged exposure to asbestos from Durametallic products while serving in the Navy. While the decedent testified that he may have seen Durametallic products, he did not testify that any worker around him installed, removed, or manipulated the Durametallic products. Moreover, the decedent’s testimony and a Durametallic manual could not place the Durametallic products near the decedent while he performed his work.
As to the defendant Air & Liquid Systems, the decedent did not testify that he worked with or around Buffalo pumps specifically. The plaintiff submitted records, as well as deposition testimony from an unrelated case which showed that Buffalo pumps were present at the decedent’s worksites. However, the court found that the records and deposition testimony did not show that Buffalo pumps were in the decedent’s vicinity at his worksites. The court also found that the plaintiff could not show that the the defendant’s products contained asbestos, that the defendant required the use of asbestos-containing materials on their products, or that the plaintiff was exposed to asbestos from asbestos-containing materials original to their products.
Defendant Weir Valves & Controls argued that the record showed that any exposure from Atwood valves were de minimis. Specifically, the decedent recalled that there were two Atwood valves on the USS Seawolf. However, he testified that he did not recall any work being done on the valves, and that he did not believe he was in the area if any work was performed. Further, any records that showed that Atwood valves were present at other worksites did not show their locations, if these products were installed, or if any maintenance was performed on them in the decedent’s presence.
As to the defendant Gardner Denver, the decedent did not specifically identify Gardner Denver pumps during his deposition. While the plaintiff submitted a Naval Records Equipment List to show that Gardner Denver pumps were present on the decedent’s ships, the court found the list insufficient as the list was incomplete, did not identify the location of the pumps on the ships, and did not set forth whether the pumps contained asbestos. Further, the court did not rely on deposition testimony from an unrelated matter as the deponent began working at the location after the decedent left the location. (The court similarly found for DeZurik valves as to the aforementioned deposition testimony.)
As to the defendant Carrier, the court found that the decedent replaced gaskets on one air conditioning unit on one occasion, which took a few minutes. Therefore, the court held that this minimal exposure did not establish that exposure from Carrier’s product was a substantial cause of the plaintiff’s disease.
Finally, as to the defendant Hunter Sales, the decedent did not testify that he was exposed to gaskets supplied by Hunter. Instead, the plaintiff submitted two sales invoices from an unrelated matter which showed that Hunter supplied gaskets to one of the decedent’s job sites. However, these records did not show whether the gaskets contained asbestos. Further, the plaintiff’s submission of Hunter’s former president’s deposition testimony was unavailing. While he testified that Hunter supplied asbestos-containing gaskets, the court found that the testimony did not establish that the decedent was exposed to asbestos from their gaskets. In addition, the plaintiff’s expert report of industrial hygienist Frank Parker was equally unavailing. The court found that any argument that the decedent could have been exposed to asbestos from gaskets supplied before the decedent’s time at the job site was speculative.
As such, the court found that no genuine issue of fact existed as the factfinder could not find in the plaintiff’s favor without “making several inferential leaps.” Thus, all of the motions for summary judgment were granted.