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An asbestos plaintiff should defeat a summary judgment motion even when he cannot identify specific instances in which he used the product manufactured by a defendant, a Superior Court panel has ruled in a memorandum decision. In Hollingsworth v. AC&S Inc., et al., plaintiff John Hollingsworth, a Langhorne man who worked as a plumber for roughly four decades, testified that over the course of his career he had worked with asbestos-containing pipes that bore the name of defendant CertainTeed Corp., but he could not recall the exact jobs on which he had used CertainTeed’s products, as opposed to a competing brand’s, the memorandum states. Before the case could go before a jury in a Philadelphia common pleas court, Judge Allan L. Tereshko granted a CertainTeed motion for summary judgment on the grounds that product identification had not been sufficiently established, said Hollingsworth’s attorney, Benjamin P. Shein of the Shein Law Center. “We conclude that the trial court erred in finding that there is no genuine issue of material fact on the question of product identification,” the memorandum states. “Accordingly, the order granting judgment in favor of CertainTeed must be reversed.” The panel in Hollingsworth consisted of Judges Joan Orie Melvin and Mary Jane Bowes and Senior Judge Phyllis W. Beck. According to the memorandum, Hollingsworth had worked as a plumber and journeyman from the 1940s to the 1980s, often working with pipes and shingles that contained asbestos and inhaling the dust that was created when he drilled holes in them. He testified that he remembered handling pipes labeled “asbestos” and “CertainTeed” but could not recall any similar markings on shingles he worked with. Shein said that with the exception of CertainTeed, the dozens of other defendants originally named by Hollingsworth and his wife, Helen, in their suit have either settled or since declared bankruptcy. The panel began its memorandum by citing the Superior Court’s 1988 opinion in Eckenrod v. GAF Corp., which explains the evidentiary standard for asbestos cases. “‘A plaintiff must establish more than the presence of asbestos in the workplace,’” the memorandum states, quoting Eckenrod. ‘”He must prove that he worked in the vicinity of the product’s use.’” In addition, according to the memorandum, the court’s 2002 decision in McNeal v. Eaton Corp. mandates that where circumstantial — but not direct — evidence has been provided, a summary judgment review must be based on the frequency of the plaintiff’s use of the product, the regularity of that use and the plaintiff’s proximity to the product when use occurred. “The trial court concluded that ‘throughout his deposition, [Mr. Hollingsworth] merely offered a vague account of his history with [CertainTeed] products and products manufactured by other companies’ and that he failed to establish the regularity and frequency of his exposure to CertainTeed products,” the memorandum states, citing Tereshko’s July 2002 opinion. “After careful review, we cannot agree.” Because Hollingsworth personally testified as to the connection between CertainTeed and the asbestos products he handled, the panel concluded, the evidence he provided was direct in nature. “Pursuant to Eckenrod,” the memorandum states, “appellants needed only to show that Mr. Hollingsworth inhaled asbestos fibers shed by this particular manufacturer’s product. Since no circumstantial evidence formed the basis of appellants’ claim, there is no requirement that appellants also establish the regularity and frequency of his exposure. We are, therefore, constrained to conclude the trial court erred in granting summary judgment on the basis that appellants did not produce such evidence.” Finding that a jury should decide whether Hollingsworth’s testimony should result in recovery, the panel remanded the case for further proceedings. Shein, who was assisted by Bethann P. Schaffzin, said that he plans to move for publication of the panel’s memorandum. “This decision was significant because it is the first time since 1988, I believe, that an appellate court has distinguished between the standards required for direct and circumstantial evidence in an asbestos case,” Shein said. “Prior to this [memorandum], many defendants . . . wanted the higher standard, which basically addresses circumstantial evidence, applied to direct evidence.” Shein also said that his client died of mesothelioma last year, as the appeal to the Superior Court was pending, at the age of 76. CertainTeed was represented in the matter by Robert Lawler and Renee Berger of Wilbraham Lawler & Buba. Berger no longer works at the firm. Lawler did not immediately respond to calls seeking comment. (Copies of the eight-page opinion in Hollingsworth v. AC&S Inc., et al. , PICS No. 04-0330, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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