Criswell, T. v. Atlantic Richfield Co. , 2015 Pa. Super. 119 ( 2015 )

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2015 PA Super 119TIMOTHY CRISWELL, EXECUTOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF EARL J. CRISWELL, : PENNSYLVANIA
DEC’D, :
:
Appellant :
:
v. :
:
ATLANTIC RICHFIELD COMPANY AND :
SUNOCO, INC. (R&M), :
:
Appellees : No. 2175 EDA 2014
Appeal from the Order entered May 27, 2014,
Court of Common Pleas, Philadelphia County,
Civil Division at No. 3789 April Term, 2012
BEFORE: BOWES, DONOHUE and STABILE, JJ.
OPINION BY DONOHUE, J.: FILED MAY 18, 2015
Timothy Criswell (“Criswell”), as the executor of the estate of Earl J.
Criswell (“Decedent”), appeals from the orders of court granting summary
judgment in favor of appellees Atlantic Richfield Company (“Atlantic”) and
Sunoco, Inc. (“Sunoco”) (collectively, “Appellees”). Following our review, we
reverse.
This case involves negligence claims brought by Criswell under the
Jones Act, 46 U.S.C.A. § 30104,1 against multiple defendants, claiming that
1
“It is established that the courts of this Commonwealth have concurrent
jurisdiction with federal courts to try actions brought under the Jones Act for
injuries sustained, and for maintenance and cure[,] under traditional
maritime law.” Richards v. Dravo Corp., 375 A.2d 750, 752 (Pa. Super.
1977). Further, the Jones Act provides that the rules of liability established
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exposure to asbestos during his time as a member of the Merchant Marine
caused him to develop lung cancer. Specifically, Criswell alleges negligence
on the part of Appellees because they required Decedent to work with
asbestos aboard their vessels when they knew it was hazardous to his health
and they did not warn him of this danger. Following the close of discovery,
all defendants moved for summary judgment. Relevant to this appeal,
Appellees sought summary judgment on the basis that Criswell could not
prove exposure to asbestos on their ships. Atlantic’s Motion for Summary
Judgment, 3/11/14, at 1; Sunoco’s Motion for Summary Judgment, 3/11/14,
at 1. The trial court granted Atlantic’s and Sunoco’s motions for summary
judgment only. The claims against the remaining defendants were settled
prior to trial. Criswell then filed this timely appeal, in which he presents the
following two issues for our review:2
1. Did the [trial] court err by disregarding evidence
of [] Decedent’s extensive exposure to asbestos
insulation while serving as a merchant seaman
aboard [Appellees’] tankers?
2. Did the [trial] court err when it held that
[Criswell] had failed to prove [Appellees]
“negligent, however slight” under the Jones Act?
Criswell’s Brief at 4.
under the Federal Employers’ Liability Act (“FELA”) will apply in a negligence
action brought thereunder. Id. at 752 n.1.
2
The trial court did not order Criswell to file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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We begin with our standard of review:
[O]ur 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. Our scope of review is
plenary. In reviewing a trial court’s grant of
summary judgment, we 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 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.
***
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions.
Petrina v. Allied Glove Corp., 46 A.3d 795, 797-98 (Pa. Super. 2012)
(internal citations omitted).
Rule of Civil Procedure 1035 governs motions for summary judgment
and provides, in relevant part, as follows:
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any
party may move for summary judgment in whole or
in part as a matter of law
(1) 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, or
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(2) 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.
Pa.R.C.P. 1035.2. This Court has explained the application of this rule as
follows:
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.
Petrina, 46 A.3d at 798.
Criswell first argues, essentially, that the trial court failed to view the
evidence in the light most favorable to him when it determined that he failed
to establish Decedent’s exposure to asbestos on Appellees’ ships. We agree.
In granting Appellees’ motions for summary judgment, the trial court
concluded that Criswell had failed to establish exposure to asbestos
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“sufficient to cause the disease” by focusing solely on discrete portions of
Decedent’s testimony.3 It reasoned as follows:
[W]hen asked[,] [Decedent] admitted that he has no
special training in identifying asbestos by sight. See
Dep at p 531. [Decedent] was also unable to look at
dust and determine whether it contained asbestos.
Id. Yet, when testifying in connection with exposure
from [Atlantic], [Decedent] testified that he believed
the steam lines he worked on were covered in
asbestos “because it's a very serious thing to have
pipes that are not covered with some type of
asbestos, especially if it's high pressure or high
temperature.” Id. at 590.
When testifying in connection with [Sunoco],
[Decedent] admitted he did not personally handle
insulation material. Id. at 1132. He admitted he
didn’t know if the insulation material contained
asbestos. Id. at 1166. [Decedent] further admitted
that he did not see any writing on the old material
that were [sic] removed, and that his only basis for
believing the replacement components contained
asbestos was their high heat application. Id. at
1170.
The [sic] type of testimony is precisely the type of
testimony that is too speculative to be accepted by
this court. In Samarin v. GAF Corp[.], [] 571 A.2d
398 ([Pa. Super.] 1989), alloc. denied, [] 574 A.2d
71 ([Pa.] 1990), the Superior Court held that
evidence of a materials high heat application is
insufficient to support the conclusion that the
product contained asbestos. The Superior Court
further held that “without more facts, it is not
reasonable for the trial court to infer that the
products must have contained asbestos because they
were heat resistant.” Id. at 403[;] [s]ee also
3
That the trial court couched its finding in terms of exposure “sufficient to
cause the disease” is telling of its additional failure to apply the correct
standard regarding causation, which we discuss infra.
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Bushless v. GAF Corp., 585 A.2d 496 (Pa. Super.
1990). Here, Plaintiff is relying on high heat
application without further evidence just as in the
aforementioned cases. Therefore [s]ummary
[j]udgment is proper.
Trial Court Opinion, 9/22/14, at 3.
It is apparent that the trial court found that the only evidence Criswell
produced to establish Decedent’s exposure to asbestos was Decedent’s
testimony that he assumed the materials contained asbestos because they
could withstand high temperatures, and the trial court concluded that this
alone is an insufficient basis upon which to infer that the materials
contained asbestos. This is an accurate statement of the law, in the
abstract. See Samarin, 571 A.2d at 404 (“[W]ithout more facts, it is not
reasonable for the trial court to infer that these products must have
contained asbestos because they were heat resistant.”) (emphasis in the
original). In this case, however, Criswell presented other evidence regarding
Decedent’s exposure to asbestos.
Decedent testified that he worked on Atlantic vessels for
approximately five years; first as an oiler for about six months and then as a
pump man. Response to Atlantic’s Motion for Summary Judgment, 3/27/14,
Exhibit F at 72-73. As the pump man, Decedent was responsible for
maintaining “all the main cargo pumps, all the valves in the tanks, steam
smothering system, CO2 system.” Id. at 74. In that capacity, he worked
with insulation that went around the steam lines and valves. Id. at 75. To
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perform repairs on the insulation, Decedent had to cut molded insulation and
mix a mortar to fill in holes. Id. at 79-80. Decedent used a bag of loose
material labeled “asbestos” to make this mortar. Id. at 80, 718-19.
Decedent testified that when using the loose asbestos, “you tried to be
careful, stay out of the wind. … The wind blowing up, you would try to be
careful. … [I]t was annoying to get on you. It was sticky and itchy … .” Id.
Decedent also stated that vibrations would cause dust from deteriorating
insulation to fall off and that “seven days a week, twenty four hours a day it
was in the air.” Id. at 586-89. These materials were kept in a designated
asbestos locker, which served in part to prevent the loose asbestos from
blowing around. Id. at 723-24. Inexplicably, the trial court ignored this
clear evidence of exposure to asbestos. Viewing it in the light most
favorable to Criswell, and resolving all doubts as to the existence of a
genuine issue of material fact against Atlantic, we conclude that this is
evidence of Decedent’s exposure to asbestos on Atlantic’s ships.
Decedent also testified that he worked on Sunoco vessels following his
discharge from the Navy in 1946 until 1953. Response to Sunoco’s Motion
for Summary Judgment, 3/27/14, Exhibit D at 59; Exhibit F. Decedent
testified that he would mix loose asbestos into a mortar to repair insulation
of the steam lines on Sunoco ships. Id., Exhibit D at 69-70.4 He testified
4
The trial court overlooked this testimony when it concluded that with
regard to Sunoco, “[Decedent] admitted he did not personally handle
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that he worked with pre-fabricated asbestos insulation that was molded into
half-moon shapes, which he then placed on steam lines, bound with wire,
coated and painted. This process created dust from the insulation, which he
inhaled. Id. at 67-68. Decedent also testified that he would remove
cracked and broken insulation and replace it with molded asbestos, which he
would cut to the appropriate size. Id. at 826-28, 834-35. According to
Decedent, the engine rooms were insulated with asbestos, and vibrations
through the ship caused dust from the insulation to fall. Id. at 66. When he
worked as a wiper on Sunoco vessels, he swept up the insulation that had
been removed. Id. at 1164-65.
Unlike on the Atlantic ships, Decedent did not testify that he worked
with any item labeled “asbestos” on a Sunoco vessel. Nevertheless, he did
testify that Sunoco ships had turbines manufactured by General Electric and
that he worked with insulation for these turbines. Id. at 738-44. Decedent
also produced documents from General Electric, dated November 1958,
titled “General Specifications for Heat Retention Materials” and specifically
indicated for its steam turbines. Response to Sunoco’s Motion for Summary
Judgment, 3/27/14, Exhibit I. These documents state that asbestos was a
insulation material. Trial Court Opinion, 9/22/14, at 3. The testimony the
trial court cited in support of this conclusion actually indicates that Decedent
did not install this material during the short period he held the position of
wiper. N.T., 6/5/12, at 1132. Decedent testified that he was promoted from
the position of wiper after approximately his first year or two with Sunoco.
Id. at 1167-68.
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component of the insulation materials referred to as “plastic insulating
cement” and “pre-formed sectional pipe insulation” and also, obviously, a
material referred to as “sprayed asbestos.” Id. Decedent testified that
fixing or replacing the insulation materials that covered the turbines released
particles therefrom into the air. Response to Sunoco’s Motion for Summary
Judgment, 3/27/14, Exhibit D at 744. This evidence, when considered in the
light most favorable to Criswell, is evidence of Criswell’s exposure to
asbestos on Sunoco vessels.5
In his second issue, Criswell argues that the trial court applied the
wrong standard for negligence when concluding that he failed to put forth
evidence to establish causation. We agree. The trial court began from the
premise that “[i]n order to establish causation in an asbestos claim under
the Jones Act, a plaintiff must show that … the product was a substantial
5
Sunoco argues that Decedent’s basis for belief that he was exposed to
asbestos aboard its ships was that the material he worked with could
withstand high temperatures and that this is insufficient to overcome its
summary judgment motion. Sunoco’s Brief at 17. There is no merit to this
claim, as we have just established that Criswell produced other evidence of
Decedent’s exposure to asbestos on its ships. Sunoco also argues that
Decedent believed that he worked with asbestos because the ships’
engineers told him it was asbestos. Sunoco argues that this evidence is
hearsay and therefore incompetent to overcome its motion for summary
judgment. Id. at 19. The trial court did not address this evidentiary issue,
and we need not consider it now. As our discussion indicates, the record
contains additional evidence to support a finding of exposure to asbestos,
and so we do not need to consider the competency of this particular
testimony. That is to say, even if Sunoco’s argument is correct, there is
other competent evidence that establishes exposure to asbestos on its
vessels.
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factor in causing the injury he suffered.” Trial Court Opinion, 9/22/14, at 2
(citing Lindstrom v. A-C Product Liab. Trust, 424 F.3d 488 (6th Cir.
2005)).6 This is incorrect. To prove causation under the Jones Act, a
plaintiff need only prove “whether the employer’s negligence played any
part, however slight, in causing the injury.” Richards, 375 A.2d at 752 n.2;
see also CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2636 (U.S.
2011) (“Under [FELA] the test of a jury case is simply whether the proofs
justify with reason the conclusion that employer negligence played any part,
even the slightest, in producing the injury or death for which damages are
sought.”).7 As recounted above, Criswell established exposure to asbestos
on Appellees’ vessels. Criswell has also produced an expert report by Arthur
Frank, M.D., Ph.D., in which Dr. Frank opined that Decedent developed
asbestos-related pleural disease, called by some
pleural asbestosis, based upon the prior history of
exposures [to asbestos] as well as the radiographic
findings. Secondly, and more importantly, he
developed and then died from lung carcinoma that
was caused by his exposures in combination with his
habit of cigarette smoking. The cumulative
exposures he had to asbestos, from any and all
6
As noted by Criswell, Lindstrom is a products liability case and does not
involve a claim brought under the Jones Act.
7
More specifically, this relaxed standard of causation means that under the
Jones Act, a plaintiff does not have to prove that the defendant’s negligence
was the proximate cause of its injury. The Jones Act plaintiff need only
establish that negligence of the employer played any part at all in bringing
about the injury. CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2638
(U.S. 2011).
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products, containing and [sic] any fiber type, would
have given rise to these two conditions.
Response to Atlantic’s Motion for Summary Judgment, 3/27/14, Exhibit O at
2; Response to Sunoco’s Motion for Summary Judgment, 3/27/14, Exhibit M
at 2. This evidence is sufficient to meet the relaxed causation standard
employed under the Jones Act; that is, it is sufficient to “justify with reason
the conclusion that employer negligence played any part, even the slightest,
in producing the injury or death for which damages are sought.” CSX
Transp., 131 S. Ct. at 2636.
In sum, the trial court failed to view the evidence in the light most
favorable to Criswell and applied the wrong standard for causation for a
negligence claim under the Jones Act. In both respects, it misapplied the
law. Our review of the record reveals that Appellees’ summary judgment
motions should have been denied, and so we reverse the trial court’s
determination.
Orders reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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