U.S. District Court for the Western District of Pennsylvania, June 25, 2021
Plaintiff Allisa Gay brought suit against various manufacturers and distributors, alleging that her father, Carl Gay (decedent), developed mesothelioma from exposure to the defendants’ asbestos-containing products while serving in the U.S. Navy. Defendant Viking Pump, Inc. filed a motion for summary judgment, arguing that the plaintiff did not properly identify its product as a cause of the decedent’s disease and death.
Viking admits that it sold Viking Pumps to the U.S. Navy, and documents show that the Navy approved Viking Pumps for the ships and facility where the plaintiff alleges exposure. Over the decedent’s nine-day deposition, he testified that he recalled a Viking pump present aboard the USS Blower but could not specify where it was located or what its function was. He did not recall the pump being removed from the line or breaking down, and could not remember others working on the pump. Similarly, the decedent recalled a Viking pump aboard the USS Blackfin but could not provide any detail. He later served in the U.S. Air Force at the SM-1 facility in Ft. Belvoir, Virginia. He recalled a single, small horizontal Viking pump used to pump water, but could not provide any testimony that others removed this pump from its line. He did not believe that Viking manufactured the gaskets or packing, and he only guessed that each pump was overhauled at some point.
Pennsylvania law requires a plaintiff to show not only that the plaintiff was exposed to a defective product manufactured or sold by the defendant, but that the plaintiff’s exposure was a “substantial factor” in causing the plaintiff’s injury. A plaintiff must establish that he was exposed to asbestos from a defendant’s product with “sufficient frequency, regularity, and proximity” that a jury could infer an adequate causal connection between that product and the claimed injury. Further, as for proximity, a plaintiff cannot merely show that the product was present at the plaintiff’s workplace; he must establish that he inhaled asbestos fibers of a defendant’s product.
Viking argued that the plaintiff failed to produce sufficient evidence to satisfy her burden of showing that the decedent was exposed to asbestos fibers of any product manufactured, distributed, or supplied by Viking, and that the plaintiff failed to produce sufficient evidence to show that the decedent was exposed to asbestos fibers of any Viking product on a regular, frequent, or proximate basis.
While the record shows that Viking pumps may have been present at the three locations where the decedent worked, Viking argued that the plaintiff had not established that any of these pumps were used, that they incorporated asbestos-containing components, or that the decedent was regularly near any work performed on the pumps that would have created respirable dust.
The court examined the decedent’s testimony regarding the two ships and the Air Force facility. Simply establishing that a defendant’s product was present at a worksite is insufficient to meet the plaintiff’s burden. Based on the decedent’s very limited testimony regarding Viking pumps, the court held that the plaintiff did not offer enough evidence to show that the decedent was exposed to asbestos from a Viking pump at these three locations and granted Viking’s motion for summary judgment.
In the same action, defendants Exelon Corp., Exelon Generation Co., and Exelon Nuclear Partners, LLC also brought a motion for summary judgment. The plaintiff alleges that the decedent was exposed to asbestos while working at two power stations owned by Exelon. Exelon argues that the plaintiff did not properly identify its products and failed to establish that the decedent was exposed to asbestos from any of its products.
The court examined the decedent’s testimony regarding the work he performed and was near at these two facilities, the Limerick Power Station and the Nine Mile Power Plant. After conducting fact-specific inquiries, the court determined that the plaintiff failed to establish that the decedent was exposed to asbestos-containing products at the Limerick Power Station, or that the decedent was around any asbestos-containing products with sufficient frequency, regularity, and proximity. However, the court held that because the decedent testified that he was near workers installing Flexitallic gaskets, which contained asbestos during this timeframe, a genuine issue of material fact remained regarding the decedent’s frequency or regularity of exposure to this product, and denied Exelon’s motion for summary judgment with respect to this facility.