U.S. District Court for the Eastern District of Pennsylvania, May 14, 2021
In this asbestos action, the plaintiff alleges that the decedent Richard Nybeck developed lung cancer following occupational exposure to asbestos. Pertinent to the motions for summary judgment, the decedent alleged that he worked with Allen-Bradley electrical motors and starters which were mounted to asbestos-containing phenolic board at the Philadelphia International Airport. In addition, he dismantled A.O. Smith electric motors which contained asbestos-containing phenolic board at the Philadelphia Technical Institute. Both defendants argued that the plaintiff had not established that he was exposed to asbestos from their products. Moreover, the defendants argued that the plaintiff had not shown the “necessary regularity, frequency, or proximity to create an issue of fact.” The plaintiff contended that a genuine issue of material fact remains as to both product identification and causation. Ultimately, the court granted both motions.
Under Pennsylvania law, a plaintiff must show that “use of a defendant’s product exposed the plaintiff to airborne asbestos fibers and that this exposure occurred with sufficient frequency, regularity, and proximity such that a fact-finder may infer that the plaintiff’s exposure was a substantial factor” of plaintiff’s asbestos-related disease. Further, one “must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product.” In addition, the court noted that “[a]n every exposure to asbestos generalized opinion does not suffice to create a jury question in a case where exposure to the defendant’s product is de minimis.”
The plaintiff submitted evidence in the form of the decedent’s deposition testimony, records, and expert reports to show that a genuine issue of material fact existed. However, the court was not persuaded by the plaintiff’s arguments. First, the plaintiff testified that his belief that the phenolic boards inside of A.O. Smith’s products and the phenolic boards which Allen-Bradley’s products were mounted to contained asbestos because he read that information in a technical magazine. Since the decedent was unable to recall the title or the date of the magazine, the court determined that an “unidentified, undated trade magazine” constituted inadmissible hearsay, which is insufficient to create a genuine issue of fact.
Second, the plaintiff submitted various records from both defendants, including discovery responses from unrelated cases, deposition transcripts from unrelated cases, engineering drawings, National Safety Council publications, and internal documents from other entities. However, the court found that the documents did not show whether the decedent came into contact with these defendants’ products at the specific jobsites and during the specified timeframes the decedent testified to in his deposition. Further, the evidence did not show whether those defendants’ products contained asbestos.
Finally, the plaintiffs proffered two medical liability and causation reports. Notably, one expert provided a generalized summary of the decedent’s alleged asbestos exposures, and opined that his “cumulative exposures … from any and all products, containing any and all fiber types, would have contributed to his developing [lung cancer and asbestosis].” The second expert opined that “the combination of asbestos exposure . . . has been a substantial contributing factor to [the decedent’s] lung cancer.” The court set forth that neither expert report mentions the specific defendant’s product, and did not contend that the decedent was exposed to asbestos at the specific job site during the specific timeframe. As such, the court found that the expert witnesses “could not establish the factual basis” in support of their claim. Therefore, the court found that a reasonable jury could not find that the defendants’ products were a substantial factor in the decedent’s development of lung cancer. Thus, the court granted the summary judgment motions.