The state Supreme Court has agreed to hear arguments on the summary judgment threshold in an asbestos case.
In a one-page order issued October 11, the justices granted allocatur to determine whether the state Superior Court misapplied the high court’s 2007 holding in Gregg v. V-J Auto Parts when it allowed an asbestos suit to proceed against several manufacturers despite the plaintiff’s submission of what the defendants said were “generic, non-case-specific expert affidavits” in place of specific evidence of the regularity, frequency and proximity of his exposure to an asbestos product.
The second question on which the justices granted allocatur was whether the suit should have been allowed to proceed despite the plaintiff’s testimony that he did not see any dust generated by the asbestos products during his exposure to them.
In Howard v. A.W. Chesterton, according to court papers, a three-judge panel of the Superior Court unanimously reversed a Philadelphia trial court’s order and allowed plaintiffs Margaret and Robert Howard, co-executors of the estate of John C. Ravert, to proceed past the summary judgment stage of their asbestos mass tort litigation.
In an October 2011 opinion in Howard, Judge Sallie Updyke Mundy said Philadelphia Court of Common Pleas Judge Allan L. Tereshko failed to make the type of “reasoned assessment” of the evidence required by Gregg.
Mundy was joined by Judges Anne E. Lazarus and Robert A. Freedberg. Freedberg retired from the court at the beginning of the year.
According to Mundy, Ravert, who has since died, commenced this action in 2007, alleging that his mesothelioma was the result of exposure to several products manufactured by defendants A.W. Chesterton Co., ACE Hardware Corp., Monsey Products Corp., Pecora Corp. and Union Carbide Corp.
Specifically, Ravert alleged he was exposed to asbestos after using and being around Chesterton’s string packing used to seal pumps, ACE’s and Monsey’s roof coating and roof cement, Pecora’s furnace cement and Union Carbide’s powdered asbestos.
Only ACE, Monsey, Pecora and Union Carbide petitioned the Supreme Court for allocatur.
The justices granted ACE’s, Monsey’s and Pecora’s petitions, but denied Union Carbide’s petition.
In Howard, Tereshko granted summary judgment to Chesterton, ACE, Monsey and Pecora, relying mainly on Ravert’s testimony at deposition that he did not see any “dust” when using the defendants’ products, Mundy said.
According to Mundy, Tereshko found that this admission precluded the existence of any material issue of fact regarding Ravert’s exposure to asbestos generated by the defendants’ products.
Mundy, however, sided with the plaintiffs, saying she agreed “that the trial court failed to interpret the evidence in a light most favorable to the nonmoving party.”
“Rather, the trial court engaged in an inappropriate weighing of the evidence, and the inferences to be drawn therefrom, to conclude that no genuine issue of material fact existed relative to Ravert’s exposure to respirable asbestos fibers from appellees’ products,” Mundy said.
In his opinion supporting his ruling, Tereshko said he based his decision on the Superior Court’s 1988 ruling in Eckenrod v. GAF and the Supreme Court’s ruling in Gregg, according to Mundy.
In Eckenrod, the Superior Court held that “a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use.”
In Gregg, the Supreme Court held that, at the summary judgment stage, courts should “make a reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and proximity of plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant’s product and the asserted injury.”
Mundy, however, cited the 2011 Superior Court case Linster v. Allied Signal, in which it held that “the frequency and regularity prongs become less cumbersome when dealing with cases involving diseases, like mesothelioma, which can develop after only minor exposures to asbestos fibers.”
Mundy added that she agreed with the plaintiffs that Tereshko erred in “applying the Ekenrod standard without adapting it to the particular circumstances of this case.”
According to Mundy, while Ravert had testified at deposition that he did not see any dust generated by the defendants’ products and Tereshko said in his opinion that “the terms ‘dust’ and ‘fibers’ are used interchangeably as they are microscopic and cannot generally be seen with the naked eye,” that equivalency between the two terms was never expressed to Ravert during the deposition.
“We conclude the trial court erred to the extent it equated Ravert’s responses about the dustiness of the various products or their application with an admission that no asbestos fibers were inhaled from those products or applications,” Mundy said. “In doing so the trial court did not construe the testimony in the light most favorable to the nonmoving party and imposed its own inferences on the evidence when an alternate inference, that no visible dust was inhaled, was possible.”
Ravert testified that he used and was around various products containing asbestos over the years. In addition, the plaintiffs had submitted several reports and affidavits in which experts opined that people who worked around asbestos gaskets, packing, welding rods, brake linings and cement products could have inhaled asbestos fibers even if they did not see dust, according to Mundy.
Tereshko, however, found these opinions to be insufficient to overcome summary judgment, Mundy said.
“Instantly, the trial court does not elaborate on its dismissiveness toward appellants’ expert exhibits and affidavits other than to refer back to Ravert’s statements relative to ‘dust’ in the application of appellees’ products,” Mundy said. “This is not the ‘reasoned assessment’ contemplated by Gregg, and we conclude the trial court’s determination that no genuine issue of material fact existed relative to Ravert’s exposure to asbestos from appellees’ products was erroneous.”
Tereshko granted summary judgment to Union Carbide for a different reason than the other defendants, Mundy said.
According to Mundy, Tereshko concluded that Ravert could not have used the powdered asbestos he claimed to have used during his employment at the Bee Fuel Co., because, based on affidavits submitted by Union Carbide, the company did not start making the product until 1963, after Ravert’s employment with Bee Fuel had ended.
Mundy, however, found that there existed a genuine issue of material fact regarding whether Ravert used Union Carbide powdered asbestos, citing the Supreme Court’s 1932 ruling in Borough of Nanty-Glo v. American Surety Co. of New York, which held that summary judgment cannot be granted based on an affidavit from a corporate witness when contradictory evidence exists.
“Instantly, Ravert gave a detailed description of his use of an asbestos powder from bags labeled ‘Union Carbide’ while mixing cement when employed at Bee Fuel Co.,” Mundy said. “The reliability of Ravert’s recollections is an issue for a jury. Consequently, we conclude the trial court’s grant of summary judgment for Union Carbide on the basis of a credibility determination of Ravert’s testimony and Union Carbide’s affidavits was error.”
Pecora’s attorney, Jennifer A. Stern of Marks, O’Neill, O’Brien & Courtney in Philadelphia; Monsey’s attorney, Peter J. Neeson of Rawle & Henderson in Philadelphia; and ACE Hardware’s attorney, John J. Bateman of Lavin, O’Neil, Ricci, Cedrone & DiSipio in Philadelphia, could not be reached for comment at press time.
Union Carbide’s attorney, Catherine N. Jasons of Kelley, Jasons, McGowan, Spinelli, Hanna & Reber in Philadelphia, and counsel for the plaintiffs, Robert E. Paul of Paul, Reich & Myers in Philadelphia, also could not be reached.