Pennsylvania District Court Denies Summary Judgment to Defendant Under Colorado Law

United States District Court for the Western District of Pennsylvania.

Plaintiffs alleged that Harald H. Mehnert developed mesothelioma as a result of his exposure to asbestos-containing laboratory equipment while working as a lab technician at the U.S. Geological Survey in Denver, Colorado from 1959 to 1995. Plaintiffs sued numerous defendants, including Fisher Scientific Company, LLC (“Fisher”), and Mr. Mehnert generally alleged that he used asbestos-containing paper tape, cloth, clamps with asbestos sleeves, gloves, and boards that he ordered from both Fisher and a company called Van Water & Rogers from 1964 to 1988. During his deposition, Mr. Mehnert was unable to testify as to which specific products he purchased from each company, instead testifying that both companies carried the same products, which were interchangeable.

Fisher produced a corporate representative, who affirmed that based on the company’s record retention policy, it did not have any record of sales to any entity between 1964 and 1995, and therefore did not know to whom it may have sold asbestos-containing products. Fisher’s corporate representative also affirmed that Fisher never sold asbestos tape as described by Mr. Mehnert, though it did sell asbestos paper tape, and that Fisher never sold asbestos boards as described by Mr. Mehnert, though it did sell asbestos boards. Fisher’s corporate representative further affirmed that while Fisher manufactured clamps that were offered for sale in its catalogs, another company manufactured the asbestos sleeves on the clamps; Fisher never sold pre-cut sheets of asbestos cloth as described by Mr. Mehnert; and Fisher last offered asbestos-containing gloves for sale in 1979.

Fisher moved for summary judgment arguing that it did not sell the asbestos products that Mr. Mehnert testified that he used while employed at the U.S. Geological Survey, and that there was no evidence that Mr. Mehnert was exposed to asbestos from such products with the requisite frequency, regularity, proximity to establish causation.

The court, applying Colorado substantive law, held that Mr. Mehnert’s testimony created a genuine issue of material fact concerning his exposure to asbestos-containing products supplied by Fisher. Mr. Mehnert alleged that he was exposed to asbestos-containing products supplied by Fisher during his career, and testified specifically regarding each product that he had purchased. While Fisher argued that it did not sell those products identified by Mr. Mehnert, this argument hinged on purported discrepancies in his descriptions of the products as contradicted by Fisher’s corporate representative. The court held that these contradictions created a genuine issue of material fact which precluded summary judgment, and it was within the province of the jury to weigh the credibility of Mr. Mehnert and Fisher’s corporate representative. As such, summary judgment to Fisher was denied.

Read the case decision here.