Summary Judgment Affirmed Where Plaintiff Fails to Demonstrate the Frequency, Regularity, or Proximity of Decedent’s Alleged Exposure Superior Court of Pennsylvania, January 19, 2017

Appellant James Floyd, Jr.’s Father, James Floyd Sr. (the decedent), passed away after he was diagnosed with mesothelioma. Mr. Floyd alleged that the decedent was exposed to various asbestos-containing products, including AstenJohnson, Inc.’s dryer felts, while the decedent was employed at Sun Oil from 1939-1951 and at Scott Paper from 1951-1984. AstenJohnson made dryer felts used on paper machines that contained asbestos until 1980. Appellant provided deposition testimony that he worked with the decedent at Scott Paper from 1977-1984. Appellant testified that the decedent replaced dryer felts approximately twice a year. Appellant testified that Scott Paper was dusty, however, he could not testify more specifically where the dust came from. Additionally, Appellant supplied the testimony of Alan Koronkiewicz from two unrelated asbestos cases. In those depositions, Koronkiewicz testified that the felts at Scott Paper were made by three different manufacturers, including AstenJohnson. All of the asbestos felts Koronkiewicz opened from the 1950’s through the 1970’s were made by AstenJohnson. However, Koronkiewicz could not identify the decedent specifically.

On October 28, 2015, the Court of Common Pleas of Philadelphia County in Pennsylvania granted AstenJohnson’s motion for summary judgment. In doing so, the court applied the standard from Kraus v. Trane U. S. Inc. Kraus states that in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of plaintiff’s injury. In granting AstenJohnson’s motion, the court commented that Appellant’s testimony is insufficient to show (1) the dryer felt the decedent worked with was an AstenJohnson felt; (2) the decedent inhaled dust from any of the felts; (3) the felts the decedent worked with contained asbestos.

This standard requires a plaintiff attempting to defeat a motion for summary judgment to present evidence concerning “the frequency of use of the product and the regularity of plaintiff’s employment in proximity thereto. The trial court, in evaluating this evidence concerning frequency, regularity and proximity of exposure, must then make a reasoned assessment of whether a jury would be justified in making “the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury.” (citation omitted)

Appellant appealed that decision, arguing that sufficient evidence existed from which a reasonable jury could infer that the decedent’s mesothelioma was caused by his exposure to AstenJohnson’s asbestos containing dryer felts. The court of appeals disagreed. The court found the trial court properly relied on Sterling v. P & H Mining Equipment. Sterling held, “that summary judgment is proper in an asbestos case where plaintiff’s only evidence consists of plaintiff’s personal belief that dust contains asbestos and the testimony of co-workers who were unable to note the frequency, regularity, or proximity of plaintiff’s alleged exposure to asbestos.” The appellate court noted that because the Koronkiewicz testimony could not identify the decedent in this matter, it provides no information regarding the frequency, regularity, and proximity of the decedent’s alleged exposure. As such, the Appellant failed to adduce sufficient evidence to support the inference that the decedent inhaled asbestos from AstenJohnson’s dryer felts. Thus, the trial court properly entered summary judgment in favor of AstenJohnson.

Read the full decision here.

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