DocketNumber: 38 EAP 2005
Judges: Cappy, Castille, Saylor, Eakin, Baer, Baldwin, Fitzgerald
Filed Date: 12/28/2007
Status: Precedential
Modified Date: 10/19/2024
The question presented concerns the appropriate application of the “frequency, regularity, proximity” criteria in asbestos product liability litigation.
John I. Gregg, Jr. (“Mr. Gregg”) died in March 1998. A year later, his son, Appellee John Andrew Gregg, as executor for his father’s estate, filed a product liability complaint naming more than seventy defendants and alleging civil liability on their part for Mr. Gregg’s death due to his exposure to asbestos-containing products and resultant pleural mesothelioma, a cancer of the lining of the lungs. Appellee averred that Mr. Gregg was exposed to asbestos throughout a forty-year history of employment with telecommunications companies as a cable splicer and line man; over a four-year period in which he worked as a gas station attendant; and during a three-year period while serving in the United States Navy. The complaint also alleged that, throughout his lifetime, Mr. Gregg installed and removed brake linings and clutches on cars and trucks, and that he was exposed to asbestos in these activities as well. By virtue of this last 'set of averments, Appellee included as defendants Allied-Signal, Inc., a successor corporation to Bendix Corporation, which manufactured brake products in the relevant time frame, and Appellant, V-J Auto Parts Company, a supplier of automobile parts.
Despite the assertions in the complaint concerning occupational exposure to asbestos, according to Appellee, he was unable to adduce any evidence to support them. Consequently, the action was settled and/or dismissed with regard to all defendants other than Appellant,
After the deadline for discovery passed, Appellant filed a motion for summary judgment, asserting that Appellee could
In response, Appellee argued that his deposition testimony, and that of his sister and a neighbor of the Gregg household in the 1960 to 1965 timeframe, sufficiently established Mr. Gregg’s exposure to asbestos-containing brake products sold by Appellant. Further, Appellee furnished a modified version of Dr. Spector’s report, in which the pathologist revised his opinion to attribute Mr. Gregg’s disease to “occupational and non-occupational” asbestos exposures, indicating that the change resulted from his review of the depositions of the product identification witnesses. Appellee also submitted documents attributable to Allied Signal, Inc. and Raybestos-Manhatten, Inc., supporting the claim that the brake products manufactured by these companies (or their predecessors) in the 1950s and 1960s time frame contained asbestos. Further, Appellee relied on expert affidavits of a chemist, an occupational disease physician, and an epidemiologist to establish that mesothelioma may be caused by even a small exposure to asbestos.
Upon receiving the Appellee’s response and the supplemental report, Appellant filed a motion to strike the supplemental
The common pleas court (per Judge Tereshko) granted summary judgment in Appellant’s favor, on the ground that Appellee’s product identification testimony was inadequate. See Gregg v. V-J Auto Parts, No. 003888 March Term 1999, slip op., 2001 WL 35923757 (Nov. 6, 2001). Initially, the court accepted Appellant’s argument that the frequency, regularity, proximity analysis discussed in Eckenrod should apply. See id. at 3 (“The courts in Pennsylvania have been consistent in requiring the plaintiff to produce evidence that he frequently and regularly used, or worked in sufficient proximity to, a specific defendant’s asbestos-containing product, and that he inhaled asbestos fibers shed therefrom in order to overcome a motion for summary judgment.”). The common pleas court recognized that there was sufficient evidence that Mr. Gregg was exposed to asbestos at some point during his lifetime, and that this exposure caused his illness, but it found insufficient evidence linking the exposure to either Allied Signal, Inc. or Appellant to create a triable issue. In this regard, the court observed that the product identification witnesses were unable to confirm that Mr. Gregg specifically used brakes manufactured by Bendix Corporation and sold by Appellant, or more broadly, that Bendix Corporation manufactured, and Appellant distributed, the asbestos-containing product that was the cause of Mr. Gregg’s disease.
On remand, the common pleas court (per Judge Ackerman) again found the record insufficient to meet the requirements of the frequency, regularity, and proximity analysis. Gregg v. V-J Auto Parts, Inc., No. 003888 March Term 1999, slip op. (C.P.Phila. Dec.2, 2003). The court highlighted that Appellee did not remember specific parts purchased from Appellant’s store; Appellee’s sister had no knowledge concerning whether products purchased from Appellant’s store contained asbestos; and the household neighbor assumed that brake products purchased from Appellant’s store contained asbestos and could only recall two or three times in which he saw Mr. Gregg installing brake products purchased from Appellant. The common pleas court explained:
*281 This court is mindful that there is no requirement that plaintiff must prove how many asbestos fibers one must inhale necessary to a determination of causation; however, evidence of exposure must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product and that his contact with same was of such nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it. See Junge v. Garlock, 427 Pa.Super. 592, 629 A.2d 1027 (1993); Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989); Eckenrod. The fact that plaintiffs supplemental medical expert opined that Mr. Gregg’s occupational exposure and his non-occupational exposure from performing brake jobs both contributed to his mesothelioma, this is non determinative since our case law requires the plaintiff to produce sufficient evidence of regular and frequent exposure to asbestos products supplied by the defendant. It is acknowledged that decedent was exposed to asbestos sometime during his lifetime, and that exposure caused his illness, but there is insufficient evidence that links his asbestos exposure to the defendant in this matter.
Id. at 5. Finally, the court relied on Wilson v. A.P. Green Industries, Inc., 807 A.2d 922 (Pa.Super.2002), as rejecting the argument that the frequency, regularity and proximity test should not apply in mesothelioma cases. See id. at 4-5 (quoting Wilson, 807 A.2d at 925).
On further appeal, initially, a different Superior Court panel affirmed, finding that the common pleas court correctly determined that Appellee’s product identification evidence was insufficient to create a jury issue. See Gregg v. V-J Auto Parts Co., No. 3528 EDA 2003, slip op. (Pa.Super. Jul. 22, 2004). On Appellee’s motion for reconsideration, however, the panel withdrew its initial opinion, and, in a subsequent one, it reversed the common pleas court’s summary judgment order. See Gregg v. V-J Auto Parts Co., No. 3528 EDA 2003, slip op., 2005 WL 1596624 (Pa.Super. Apr. 25, 2005). The panel reasoned that the case could not be disposed on the issue of product identification, since that issue had been addressed and
Judge Bowes dissented, expressing her disagreement with the majority’s reasoning and with Gilbert. According to Judge Bowes, the frequency, regularity, proximity test is appropriately applied by courts at the dispositive motions stage, regardless of whether the evidence of exposure is direct or circumstantial in character. She highlighted Eckenrod’s reaffirmance that, in order to survive a motion for summary judgment, every plaintiff, whether relying on direct or circum
On Appellant’s petition for allowance of appeal, this Court granted further review, limited to the following issue:
In a products liability suit brought against the manufacturer or supplier of a product containing asbestos, to survive summary judgment must the plaintiff show frequent use of, and regular close proximity to, the product, even if the plaintiff presents direct evidence of inhalation?
Presently, Appellant advocates the adoption by this Court of the frequency, regularity, proximity test and its application by the courts at the dispositive motions stage of asbestos product liability litigation. Appellant regards the analysis as a straightforward application of the requirement for plaintiffs to prove substantial-factor causation as an essential element of a negligence or strict liability claim. Appellant traces the history of the frequency, regularity, proximity test to Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), in which a federal court formulated a de minimus rule by which the viability an asbestos product liability claim is assessed according to the frequency of the use of the product and the regularity or extent of the plaintiffs (or decedent’s) employment in proximity to the product. See id. at 1162. Appellant highlights that, in Lohmiann, the plaintiff presented evidence that he was exposed to a specific asbestos-containing product ten to fifteen times for a duration of one to eight hours over a thirty-nine year period, which was held to be insufficient to raise an inference that the exposure was a substantial factor in the development’of his disease. See id. at 1163. According to Appellant, the frequency, regularity, proximity test has been adopted in a majority of jurisdictions in evaluating whether there is sufficient proof to support a reasonable inference of substantial-factor causation in an asbestos product liability case. See generally Slaughter v. Southern Talc Co., 949 F.2d 167, 171 (5th Cir.1991) (“The most frequently used test for causation in asbestos cases is the ‘frequency-regularity-proximity’ test announced in Lohrmann[.]”).
Consistent with Judge Bowes’ position, Appellant also argues that the Superior Court’s Eckenrod decision has been misinterpreted to exclude the use of the frequency, regularity, proximity criteria whenever direct evidence of exposure is offered. Appellant urges that their application should not
Appellant also advances several policy bases supporting the adoption of the frequency, regularity, proximity test in cases involving either direct or circumstantial evidence, or both. In particular, Appellant believes that the application of any looser test yields unfair results. For example, viewing the circumstances of the present case, Appellant believes that it is unfair for Appellee to hale a peripheral defendant, such as a retailer of automobile parts, into court based on direct evidence of minimal exposure, while ignoring Mr. Gregg’s forty-some-year history of occupational exposure to asbestos as asserted in the complaint. See, e.g., Brief for Appellant at 20 (“The plaintiff expected the trial court to turn a blind eye to all of the decedent’s occupational exposure in favor of placing liability on a party unlikely to have caused decedent’s illness.”). According to Appellant, permitting plaintiffs to pursue wholesale liability based on minor or infrequent exposure is out of sync with all reasonable probabilities concerning causation and creates a perverse incentive for plaintiffs to most aggressively
Finally, Appellant criticizes Appellee’s reliance on the conclusion in Dr. Spector’s supplemental report that non-oecupational exposure was a substantial cause of Mr. Gregg’s disease, quoting the lead opinion from Summers v. Certainteed Corp., 886 A.2d 240 (Pa.Super.2005) (equally divided court), authored by Judge Klein, as follows:
Just because a hired expert makes a legal conclusion does not mean that a trial judge has to adopt it if it is not supported by the record and is devoid of common sense. For example, [the plaintiffs liability expert] used the phrase, “Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted.” However, suppose an expert said that if one took a bucket of water and dumped it into the ocean, that was a “substantial contributing factor” to the size of the ocean. [The expert’s] statement saying every breath is a “substantial contributing factor” is not accurate. If someone walks past a mechanic changing brakes, he or she is exposed to asbestos. If that person worked for a factory making lagging, it can hardly be said that one whiff of the asbestos from the brakes is a “substantial factor” in causing disease.
Id. at 244 (emphasis in original). Appellant likens its circumstance to that of the defendant in Chavers v. General Motors Corp., 349 Ark. 550, 79 S.W.3d 361 (2002) (considering frequency, regularity, and proximity of alleged exposure to asbestos via brake products to conclude that the plaintiffs evidence did not present a jury question), contending that such case is on all fours with the present one.
Appellee, on the other hand, opposes the application of any form of de minimus screening test, particularly in mesothelioma cases. Appellee stresses that mesothelioma is unique
According to Appellee, the Superior Court has largely followed such approach. See, e.g., Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 98, 596 A.2d 203, 210 (Pa.Super.1991) (affirming an asbestos product liability jury verdict, while highlighting a medical expert’s testimony that “even one day’s exposure to asbestos dust constituted a ‘substantial contributing factor’ ”). Appellee also offers a different perspective from Appellant’s concerning the prevailing approach of the courts across jurisdictions, contending the majority refuse to apply a de minimus standard, see, e.g., Purcell v. Asbestos Corp., 153 Or.App. 415, 959 P.2d 89, 94 (1998) (rejecting Lohrmann as setting too high a burden for plaintiffs in a mesothelioma case); Horton v. Harwick Chemical Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196, 1201 (1995) (same, in an asbestosis case), or at least assess regularity, frequency, and proximity in light of the medical evidence of causation, see, e.g., Thacker v. UNR Industries, Inc., 151 Ill.2d 343, 177 Ill.Dec. 379, 603 N.E.2d 449, 460 (1992). Indeed, Appellee contends that Lohmann is no longer good law in the jurisdiction in which it arose, in light of the Maryland Court of Appeals’ decision in Eagle-Picher v. Balbos, 326 Md. 179, 604 A.2d 445 (1992), which demonstrates that medical causation shapes the legal causation question.
Appellee also disputes Appellant’s characterizations of Mr. Gregg’s automobile maintenance work as “casual” and “recreational” and suggests that a better characterization would be “quasi-occupational.” While Appellee recognizes that he was able to identify only a few incidents of Mr. Gregg’s exposure concretely, he maintains that the more general references in the testimony are circumstantial evidence that Mr. Gregg ■performed brake changes with asbestos-containing products from Appellant’s store more frequently. Further, Appellee criticizes Appellant’s efforts to compare Mr. Gregg’s asserted occupational exposure with his exposure while changing brakes, explaining that there is no evidence of occupational exposure. Moreover, Appellee notes that he has filed a motion to amend his complaint to remove the allegations of occupational exposure. Appellee distinguishes the Chavers decision, relied upon by Appellant, as involving actual evidence of substantial occupational exposure to asbestos and weaker evidence of exposure in automobile maintenance activities.
As to policy, Appellee asserts that there are no “floodgates of litigation” involving mesothelioma, the occurrence of which has remained about 3,000 cases per year in the United States, which Appellee indicates that courts historically have been able to handle without significant difficulty. Thus, Appellee suggests that there is no reason for this Court to create an additional barrier for victims of the disease and/or their
At the outset, Appellee is correct that the use of the frequency, regularity, proximity analysis arose out of circumstances in which the exposure of the plaintiffs (or their decedents) to the defendants’ asbestos-containing products could not be demonstrated directly. In many of these cases, the most that the plaintiffs were able to demonstrate was that the plaintiff worked in a facility, and the defendant’s product was at some time used in the same facility. See, e.g., Lohrmann, 782 F.2d at 1162 (“Appellants would have us adopt a rule that if the plaintiff can present any evidence that a company’s asbestos-containing product was at the workplace while the plaintiff was at the workplace, a jury question has been established as to whether that product contributed as a proximate cause to the plaintiff’s disease.”); Eckenrod, 375 Pa.Super. at 192, 544 A.2d at 53 (“The mere fact that appellees’ asbestos products came into the facility does not show that the decedent ever breathed these specific asbestos products or that he worked where these asbestos products were delivered.”). The foundational cases are therefore distinguishable from the present circumstances, at least to the degree that a witness described Mr. Gregg, on two or three occasions, breathing dust created when he “scuffed” asbestos-containing brake pads obtained from Appellant with sandpaper.
Like many other courts, however, we believe that the criteria should have broader application in the courts’
We agree with the Tragarz court’s approach and adopt it here. Further, we find that the bright-line distinction that Appellee seeks to draw between direct and circumstantial evidence cases is not warranted, because this distinction is unrelated to the strength of the evidence and is too difficult to apply, since most cases involve some combination of direct and circumstantial evidence.
We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under pre
In summary, we believe that it 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 plaintiffs/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. We hold, therefore, that the common pleas court did not err in its decision to make this assessment. It remains to be determined on remand whether, in light of Appellee’s evidence concerning the frequency, regularity, and proximity of Mr. Gregg’s exposure to asbestos-containing products sold by Appellant, the common pleas court correctly determined that a jury issue was not present.
The order of the Superior Court is vacated, and the matter is remanded for further proceedings consistent with this opin
Jurisdiction is relinquished.
. This case was reassigned to this author.
. Summary judgment was also granted in favor of Allied Signal, Inc., and the propriety of this decision is not at issue in the present appeal.
. It is unclear why the court focused only on Bendix Corporation products in relation to Appellant’s potential liability, since Appellee also adduced product identification testimony indicting that Mr. Gregg was also exposed to Raybestos brake products sold by Appellant.
. The panel also noted that the common pleas court's position on the motion to strike Dr. Spector's supplemental expert report was unclear from the record, and thus, it required clarification on remand.
Judge Montemuro dissented, taking the position that no issue was raised by Appellee concerning the expert report, and the report was untimely and, therefore, should not be considered.
On remand, the common pleas court denied the motion to strike the supplemental expert report.
. See, e.g., Commonwealth v. Bricker, 882 A.2d 1008 (Pa.Super.2005) ("We liave held that circumstantial evidence is reviewed by the same standards as direct evidence.”); Monaci v. State Horse Rating Comm’n, 111 A.2d 612, 618 (Pa.Cmwlth.1998) ("When properly proved, circumstantial evidence is entitled to as much weight as direct evidence.”). See generally Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 93, 596 A.2d 203, 207 (1991) (explaining that "the nexus between a specific asbestos product and a plaintiff's medical condition may be supplied by a variety of direct and circumstantial evidence.”).
. While Appellant maintains that Appellee cannot demonstrate that the brake pads contained asbestos, the witness testified that installations that he saw were of Raybestos products, and Appellee has adduced evidence that Raybestos brake products sold in the relevant period contained asbestos.
Testimony that Mr. Gregg also breathed dust while cleaning out the wheel wells of automobiles during the brake-changing process is less direct, since a number of inferences are required to connect the dust to brake products purchased from Appellant. For example, there was no testimony that Mr. Gregg procured brake products exclusively from Appellant's store (indeed, there was evidence that he bought some items from another automobile supply store in which he previously had worked).
. For example, although Appellee describes Eckenrod as a case in which the plaintiff had adduced purely circumstantial evidence of
. Notably, under some of these theories, in recognition of the fact that a defendant may be held liable under less than substantial-factor causation, relief from joint and several liability may be available. See Menne, 861 F.2d at 1468 n. 22.