Superior Court of Pennsylvania, May 22, 2019
PENNSYLVANIA – In Lamson v. Georgia-Pacific LLC f/k/a Georgia Pacific Corporation, Individually and as Successor-in-Interest to Bestwall Gypsum Company, et al., the Superior Court of Pennsylvania recently reviewed the plaintiff’s (appellant) appeal from an order granting summary judgment to two defendants (appellees) in the case. The trial court had concluded that the appellant failed to demonstrate that he was exposed to asbestos from fire doors manufactured by the appellees. The superior court, held that the appellant submitted sufficient evidence to create a genuine issue of material on that question, and thereafter reversed the grant of summary judgment.
The appellant in this case worked as a carpenter at DuPont in Gibbstown, NJ from 1962 to 1967 and at the Philadelphia Navy Yard from 1967 to 1971. He became an inspector at the Navy Yard in 1971 and then a general foreman in 1981, a position he retired from in 1994. The appellant alleged that he regularly installed and repaired fire doors during his employment as a carpenter at DuPont and the Navy Yard. He testified that he worked with thousands of fire doors in his career, and testified that he “constantly” repaired them because they were old and coming apart. In addition, the appellant installed and removed the doors with a saw. He described his work with fire doors as being dusty, particularly when he used a saw to trim the doors, drilled through the fire doors to install wooden pieces, or sanded the fire doors with a sanding block or power sander. In addition to the appellant’s testimony, a coworker from the Navy Yard testified that the fire doors they encountered were thick doors insulated with asbestos to prevent fire from moving from one room to the next.
One of the defendant’s interrogatory responses admitted that some of their fire doors contained asbestos. The other defendant submitted an affidavit from the general foreman of the company’s mineral core manufacturing operation from 1971 to 1976 and superintendent of the area where fire doors were manufactured from 1976 to 1979, which concluded that the company manufactured both asbestos-containing and non-asbestos-containing fire doors.
Dr. Finkelstein prepared a report in this case based on the testimony of the appellant and his coworker. Dr. Finkelstein opined that the appellant experienced regular and proximate exposures to visible dust from the appellees’ asbestos-containing fire doors, and these exposures were a substantial contributing cause of his mesothelioma. The appellant filed suit and following discovery, the trial court granted the two defendants’ motions for summary judgment. The appellant filed an appeal following the conclusion of the proceedings against other defendants. Without requesting a Pa. R.A.P. 1925(b) statement of issues raised on appeal, the trial court filed an opinion explaining its grounds for granted summary judgment to the appellees.
In its review of the trial court’s grant of summary judgment, the superior court focused on the standards required for grants of summary judgment in asbestos actions, including the frequency, regularity, and proximity standard espoused in Gregg v. VJ Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007). In its review of the evidence, viewed in the light most favorable to the appellant, the court held that the testimony of the appellant and the co-worker demonstrated that the two fire door defendants supplied fire doors to DuPont and the Navy Yard, and that the appellant repaired and/or installed those fire doors as a carpenter at both locations. Despite the inability of the appellant and the coworker to specify the number of fire doors worked on or the length of time spent by the appellant working on the doors, the court held that such omissions went to the weight and credibility of the testimony.
The court also reviewed the decision of Krauss v. Trane U.S. Inc., 104 A.3d 556 (Pa. Super. 2014), a case heavily relied upon by the two defendants to say that the appellant failed to furnish sufficient evidence on the asbestos content of the fire doors at issue. In its review, the court differentiated the present case from Krauss in multiple respects, including the positive identification of dust from the work performed by the appellant in the present case. Furthermore, unlike Krauss, the appellant relied on admissions from the two fire door defendants that their fire doors contained asbestos, as opposed to reliance upon lay witness testimony for such conclusions. The court held that the appellant did not need to demonstrate that every fire door contained asbestos in order to survive summary judgment, and as a victim of mesothelioma, only needed to present evidence that asbestos was present in some fire doors manufactured by the appellees. The court further rejected the appellees’ argument that the work performed by the appellant did not generate asbestos-laden dust, as the appellant testified about drilling and sawing into the fire doors. The court held that such activities penetrated the asbestos core of the fire doors, which generated dust containing asbestos particles.
The case summary is provided with permission from Westlaw here.