Sterling, N. v. P&H Mining Equipment ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NORMAN J. STERLING AND LAURA M. IN THE SUPERIOR COURT OF
STERLING, H/W PENNSYLVANIA
Appellants
v.
P&H MINING EQUIPMENT, INC. A/K/A
JOY GLOBAL SURFACE MINING, INC.
Appellee No. 1006 EDA 2014
Appeal from the Order Entered February 24, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2012 No. 3461
BEFORE: GANTMAN, P.J., SHOGAN, J., and ALLEN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 16, 2015
Appellants, Norman J. Sterling and Laura M. Sterling, H/W, appeal
from the order entered in the Philadelphia County Court of Common Pleas,
which entered summary judgment in favor of Appellee, P&H Mining
Equipment, Inc. (“P&H”). We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this appeal as follows:
On October 24, 2012, [Appellants] commenced this suit
against fifty-eight (58) defendants, alleging [Appellant] Mr.
Sterling developed lung cancer [and asbestos-related lung
diseases] from his exposure to various asbestos-containing
products while employed by Bethlehem Steel Corporation
from roughly 1952 to 1979. With respect to P&H,
[Appellants] claimed [Appellant] Mr. Sterling was exposed
to asbestos-containing component parts of P&H cranes
used in Bethlehem Steel’s “beam yard” (shipping yard). At
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his October 22-23, 2014 deposition, [Appellant] Mr.
Sterling described his work loading, unloading, and
operating cranes, including some P&H cranes, in the beam
yard from approximately 1969 to 1978.
On December 23, [2013], P&H filed its Motion for
Summary Judgment, arguing [Appellants] could not show
[Appellant] Mr. Sterling was exposed to asbestos from its
cranes. In their Answer, [Appellants] claimed [Appellant]
Mr. Sterling’s testimony, and the prior testimony of other
Bethlehem Steel employees, showed [Appellant] Mr.
Sterling inhaled dust from brakes and wiring on P&H
cranes, and P&H had previously admitted said brakes and
wiring contained asbestos.
On February 24, 2014, the [c]ourt granted P&H’s Motion,
finding [Appellants] failed to produce sufficient evidence
[Appellant] Mr. Sterling inhaled asbestos fibers from
component parts of P&H cranes. On February 26, 2014,
this matter settled as to all remaining defendants.
(Trial Court Opinion, filed August 18, 2014, at 1-2) (internal citations to the
record omitted). Appellants filed a timely notice of appeal on March 18,
2014. On April 2, 2014, Appellants filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellants raise a single issue for our review:
DID THE [TRIAL] COURT ERR IN FAILING TO RESOLVE ALL
CONTESTED ISSUES IN FAVOR OF THE NON-MOVING
PARTY INCLUDING ALL REASONABLE INFERENCES, WHEN
EVIDENCE OF [APPELLANT MR. STERLING] WORKING ON,
UNDER, AND IN P&H OVERHEAD CRANES AT BETHLEHEM
STEEL WAS DISREGARDED?
(Appellants’ Brief at 1).
In their sole issue, Appellants argue that during his tenure at
Bethlehem Steel, Appellant Mr. Sterling worked on, under, and inside P&H
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cranes. Appellants contend that by P&H’s own admission, its cranes
contained parts made with asbestos, including the brakes and wiring.
Appellants assert Appellant Mr. Sterling’s job duties constantly put him in
the direct vicinity of P&H cranes, and he and his coworkers frequently saw
dust produced by the cranes’ asbestos-containing brakes. For example,
Appellants claim that Appellant Mr. Sterling’s duties as a crane man required
him to assist the repairmen who regularly performed dust-producing
maintenance on the brakes. Appellants suggest this brake dust continuously
“filled the air surrounding [Appellant] Mr. Sterling at Bethlehem Steel.”
(Appellant’s Brief at 5). Appellants aver that Appellant Mr. Sterling
subsequently developed lung cancer due to asbestos inhalation. Appellants
conclude they produced sufficient evidence for a jury to consider whether
Appellants proved a causal connection between P&H cranes and Appellant
Mr. Sterling’s lung cancer, and this Court should reverse summary judgment
in favor of P&H. We disagree.
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its discretion or
committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344,
347 (Pa.Super. 2006). In reviewing a trial court’s grant of summary
judgment:
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there
exists a genuine issue of material fact. We view the record
in the light most favorable to the non-moving party, and
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all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material
fact and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be
entered. All doubts as to the existence of a genuine issue
of a material fact must be resolved against the moving
party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause
of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or
defense which in a jury trial would require the issues to be
submitted to a jury. In other words, whenever there is no
genuine issue of any material fact as to a necessary
element of the cause of action or defense, which could be
established by additional discovery or expert report and
the moving party is entitled to judgment as a matter of
law, summary judgment is appropriate. Thus, a record
that supports summary judgment either (1) shows the
material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action
or defense.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
Additionally, in an asbestos case:
[I]n order for a plaintiff to defeat a motion for summary
judgment, a plaintiff must present evidence to show that
he inhaled asbestos fibers shed by the specific
manufacturer’s product. Therefore, a plaintiff must
establish more than the presence of asbestos in the
workplace; he must prove that he worked in the vicinity of
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the product’s use. Summary judgment is proper when the
plaintiff has failed to establish that the defendants’
products were the cause of plaintiff’s injury.
Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa.Super. 2014). See also
Vanaman v. DAP, Inc., 966 A.2d 603, 607 (Pa.Super. 2009) (en banc)
(stating plaintiff must establish in asbestos case that injuries were caused by
product of particular manufacturer or supplier).
When evaluating the plaintiff’s evidence in an asbestos case at the
summary judgment stage, Pennsylvania courts apply the “frequency,
regularity, proximity” standard derived from Eckenrod v. GAF Corp., 544
A.2d 50 (Pa.Super. 1988), appeal denied, 520 Pa. 605, 553 A.2d 968 (1988)
(stating whether plaintiff can defeat summary judgment motion depends on
frequency of use of asbestos product and regularity of plaintiff’s employment
in proximity to product). “[I]t is appropriate for courts, at the summary
judgment stage, to make a reasoned assessment concerning whether, in
light of the evidence concerning frequency, regularity, and proximity of a
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.” Gregg v. V-J Auto Parts,
Co., 596 Pa. 274, 292, 943 A.2d 216, 227 (2007). Nevertheless, the criteria
of frequency, regularity, and proximity “do not establish a rigid standard
with an absolute threshold necessary to support liability.” Id. at 290, 943
A.2d at 225.
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Rather, they are to be applied in an evaluative fashion as
an aid in distinguishing cases in which the plaintiff can
adduce evidence that there is a sufficiently significant
likelihood that the defendant’s product caused his harm,
from those in which such likelihood is absent on account of
only casual or minimal exposure to the defendant’s
product. [A]pplication of the test should be tailored to the
facts and circumstances of the case, such that, for
example, its application should become somewhat less
critical where the plaintiff puts forth specific evidence of
exposure to a defendant’s product. Similarly, …the
frequency and regularity prongs become somewhat less
cumbersome in cases involving diseases that the plaintiff’s
competent medical evidence indicates can develop after
only minor exposures to asbestos fibers.
Id. (internal citations and quotation marks omitted).
Instantly, the trial court reasoned as follows:
In this case, P&H was entitled to summary judgment.
Even assuming the P&H cranes at Bethlehem Steel
contained asbestos brakes and wiring, there was
insufficient evidence from which to infer [Appellant] Mr.
Sterling inhaled asbestos fibers from said brakes and
wiring.
* * *
[Appellant] Mr. Sterling’s deposition testimony regarding
his work with and around P&H cranes was insufficient to
show he inhaled asbestos dust from the cranes’ wiring or
brakes. [Appellant] Mr. Sterling testified his work on
cranes, including P&H cranes, consisted of loading and
unloading steel from the cranes as a “chain man” and
operating the cranes from cabs as a “crane man.” He
testified he was in a cab and the brakes were “out on the
four wheels outside the cab.” He testified the brakes were
repaired by millwrights and electricians. He testified he
saw dust while working [in] the steel beam yard when
cranes were operating and the dust came from the wheels
of the cranes. He guessed he was exposed to dust from
crane brakes merely because he saw some type of dust
emanating from the wheels of operating cranes. There
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was no factual basis to support any inference he breathed
the dust or the dust contained asbestos. Absent any
additional evidence regarding the nature of [Appellant] Mr.
Sterling’s contact with crane brakes or wiring, his
testimony would not support a reasonable inference he
inhaled asbestos dust from wiring or brakes on P&H
cranes.
The cited testimony of other Bethlehem Steel employees in
other cases did nothing to show [Appellant] Mr. Sterling
inhaled dust from component parts of P&H cranes.
[Appellants] offered (1) Brian Gaugler’s testimony, from
Mr. Gaugler’s own trial, that Mr. Gaugler helped change
crane brakes as a chain man, crane man, marker, bar
turner, and forklift operator; (2) Michael Carl’s testimony,
from Mr. Carl’s own trial, that Mr. Carl saw the brakes on
cranes while oiling and greasing the cranes as a chain man
and crane man; (3) John D. Wagner’s testimony, from Mr.
Wagner’s own trial, that Mr. Wagner worked with crane
wiring and brakes as a motor inspector; and (4) John G.
Weiss’ testimony, from Mr. Weiss’ own trial, that Mr. Weiss
inhaled dust from crane brakes and wiring while tearing
out crane trolleys. [Appellants] did not draw any
connection between any of the foregoing testimony and
[Appellant] Mr. Sterling’s purported exposure. Indeed,
[Appellant] Mr. Sterling’s name was never mentioned by
the four (4) witnesses. Even assuming these other
Bethlehem Steel employees were exposed to asbestos dust
from crane brakes and wiring, there was still no basis to
infer [Appellant] Mr. Sterling was similarly exposed. In
fact, [Appellant] Mr. Sterling never placed himself working
with any wiring or brakes as did the other four (4)
Bethlehem Steel employees.
In summary, the totality of [Appellant] Mr. Sterling’s
testimony as to P&H is as follows:
[Appellant] Mr. Sterling worked as a chain man and crane
man at Bethlehem Steel. His job consisted of chaining up
big piles of steel and putting them in a run and piling
them. In doing so, he operated cranes, including P&H
cranes. As a chain man, he would observe dust coming
from the wheels of the cranes.
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[Appellant] Mr. Sterling did not testify to any information
as to the nature of the dust, how far he was from the dust,
whether he inhaled the dust, or whether the dust he
observed contained asbestos.
(Trial Court Opinion at 2-4). (internal citations to the record omitted). The
record supports the court’s analysis. In answers to interrogatories, P&H
conceded in general terms that it had sold some equipment and replacement
component parts containing small amounts of asbestos. These admissions,
however, were insufficient to establish Appellant Mr. Sterling used or worked
on that equipment at Bethlehem Steel. Appellant Mr. Sterling also admitted
he worked mostly on cranes supplied by other companies. Although
Appellant Mr. Sterling testified he saw dust emanate from the wheel area of
the cranes when the brakes were applied, he conceded there were multiple
sources of dust in the beam yard. See Krauss, supra (stating plaintiff’s
speculative personal belief that product contained asbestos fails to create
genuine issue of fact as to existence of asbestos in product).
Moreover, the testimony of other former Bethlehem Steel employees
provided no information regarding the frequency, regularity, or proximity of
Appellant Mr. Sterling’s own alleged exposure to asbestos in P&H products.
Appellants thus failed to adduce evidence sufficient to support an inference
that Appellant Mr. Sterling inhaled asbestos from component parts of P&H
cranes. Therefore, the court properly entered summary judgment in favor of
P&H. See Gregg, supra; Eckenrod, supra. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2015
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