Summary Judgment Affirmed in Railroad Case Upon Plaintiff’s Failure to Preserve Issue for Appeal

PENNSYLVANIA – The plaintiff, Michael Eorio filed suit against multiple defendants including CBS and General Electric (GE) alleging he contracted lung cancer while working as a railroad employee from 1972-2010. The plaintiff and one co-worker alleged Mr. Eorio had been exposed to asbestos containing products for which CBS and GE were liable. The plaintiff passed away prior to trial and a substitution of the plaintiff was entered. CBS and GE moved for summary judgment. The trial court granted summary judgment as to both defendants and the plaintiff appealed.

On appeal, the plaintiff took exception that the trial court found him not qualified to testify about his exposure to asbestos products. However, the court quickly noted that the plaintiff had not raised that issue in his appeal and therefore waived that issued. Secondly, the plaintiff argued the trial court “ignored evidence” as to his exposure. According to the plaintiff, a genuine issue as to material fact existed. The court noted the standard for summary judgment which permits summary judgment when “no genuine issue of material fact” exists. Further, the court relied on the standard for summary judgment in asbestos cases which requires the plaintiff to “show that he inhaled asbestos fibers shed by the specific manufacturer’s product.” Here, the court noted that the trial court concluded that the plaintiff’s evidence was nothing more than speculation. That finding did not raise a genuine issue as to material fact. Accordingly, summary judgment was proper and therefore affirmed by the court.

Read the case decision here.