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In analyzing lower courts’ grantings of summary judgments to asbestos defendants, the Pennsylvania Superior Court has in a number of past nonprecedential holdings limited its reading of its 1988 “regular and frequent” exposure standard to cases involving circumstantial, as opposed to direct, evidence. But with its opinion last week in Gilbert v. Monsey Products Co., attorneys frequently involved in asbestos litigation say, the Superior Court has for the first time expressly ruled that it will not apply the standard it set out in 1988′s Eckenrod v. GAF Corp., in cases in which direct evidence of exposure has been presented. George Gilbert, who died of mesothelioma in March at age 61, had been deposed via video prior to his death and claimed that he had used products made by defendants Monsey and IPA Systems Inc., according to his attorney, Richard Myers of Paul Reich & Myers. “Because appellant provided direct testimony, the Eckenrod test was not applicable,” President Judge Joseph A. Del Sole wrote. “We therefore find that the trial court erred in applying the Eckenrod test. Accordingly, the orders … granting summary judgment in favor of Monsey and IPA are reversed.” Del Sole was joined by Judge Joan Orie Melvin. Senior Judge Phyllis W. Beck filed a concurring statement. The lower court in Gilbert, according to the Superior Court’s docket, was presided over by Philadelphia Common Pleas Judge Norman C. Ackerman. Ackerman serves as coordinating judge for the Complex Litigation Center, which oversees many of the asbestos-related actions filed in Philadelphia. According to Myers, Pennsylvania trial courts have often cited Eckenrod in dismissing defendants from cases in which they appear to have been only minor players. “This will affect every asbestos case filed [in Pennsylvania],” Myers said. “ Eckenrod has been used — especially in Philadelphia and in the Complex Litigation Center — to limit the number of defendants in a particular case,” Myers said. Myers, who has handled the case with partner Robert Paul, said that the main defendant in Gilbert has been Georgia-Pacific Corp., while Gilbert’s exposure to Monsey and IPA products was “very limited” and involved one summer in the 1960s in which he worked construction and various projects he performed on his own home. Gilbert had spent much of his career working as a math teacher in Council Rock School District. Eckenrod requires an asbestos plaintiff to prove frequent, regular and proximate exposure to a defendant’s product, according to Del Sole’s opinion. Before the trial in Gilbert began, Monsey and IPA moved for summary judgment, arguing that Gilbert had failed to present enough evidence to satisfy Eckenrod. “Granting these motions,” Del Sole wrote, “the trial court held that as a matter of law, the evidence presented by appellant did not meet the frequency and regularity requirements of the Eckenrod test.” In recent years, according to the opinion, the Superior Court has held that, ideally, an asbestos plaintiff will be able to directly testify that he or she breathed in asbestos fibers shed from a certain defendant’s products. “Without such direct evidence, plaintiff must rely on circumstantial evidence of exposure; specifically, plaintiff must meet the Eckenrod test,” Del Sole wrote. Because Gilbert was able to assert that he had worked with Monsey and IPA’s products and inhaled their fibers, it should be left for the jury to determine whether his evidence of regularity and frequency proves causation, Del Sole wrote. The summary judgments were vacated, and the case has been remanded. In her concurring statement, Beck noted that the actual language of Eckenrod refers to both direct and circumstantial evidence. “In this case, appellant himself was able to provide direct evidence of identification, and thus circumstantial evidence was not required,” Beck wrote, adding later, “In this case, I find the general principles of Eckenrod applicable. Where appellant himself testified about his exposure to appellees’ products and provided sufficient evidence of product identification, the trial court’s grant of summary judgment was [in] error.” Carl Buchholz of Rawle & Henderson, who represented Monsey, said that he was not surprised by the panel’s decision. “We still don’t understand why there should be a distinction on the regularity and frequency test whether there’s direct evidence or circumstantial evidence,” Buchholz said. Buchholz also called the issue of the applicability of Eckenrod a “secondary” issue in the Gilbert appeal. The main issue he raised on appeal, he said, had been the plaintiff’s lack of expert testimony as to whether Monsey’s product emitted fibers to begin with. “Anybody citing Gilbert for the proposition that you don’t need frequency and regularity in a direct-evidence case may be faced with the argument that that [portion of the] holding [in Gilbert] is dicta,” Buchholz said. Buchholz said he is planning to recommend that his client petition for an en banc review of the fibers emission experts issue presented by Gilbert. But Myers called the issue of the applicability of Eckenrod “first and foremost in this case.” Myers said that several years ago, a client of his successfully appealed to the Superior Court a Bucks County court’s granting of summary judgment in an asbestos case that presented virtually the same scenario as Gilbert. But the court’s July 1998 reasoning in John Baker v. HB Smith was articulated in an unpublished memorandum, according to Myers. More recently, in its March memorandum decision in Hollingsworth v. AC&S Inc., the Superior Court held that a Philadelphia court erred in granting summary judgment to an asbestos defendant in a case in which no circumstantial evidence formed the basis of the plaintiff’s case. “This has been going on for [a number of] years,” Myers said of the court’s practice of limiting the Eckenrod test only via unpublished opinions. “But Gilbert is really the first published opinion where they have limited Eckenrod to cases involving circumstantial evidence of exposure only.”

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