GAY v. A.O. SMITH CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALLISA D. GAY,

Plaintiff, Civil Action No. 2:19-cv-1311

v. Hon. William S. Stickman I'V

A.O. SMITH CORPORATION, et al.,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiff Allisa D. Gay (“Plaintiff”) sued Defendant General Electric Co. (“GE”) and

various manufacturers and distributors on October 8, 2019 in the Court of Common Pleas of

Allegheny County, Pennsylvania and alleged that Decedent Carl E. Gay (“Decedent”) developed

mesothelioma from exposure to GE’s asbestos-containing products. On October 11, 2019, GE

filed a Notice of Removal to the United States District Court for the Western District of

Pennsylvania under 28 U.S.C. § 1446. Before the Court is GE’s Motion for Summary Judgment.

(ECF No. 903). The Court must determine whether Plaintiff has properly identified GE’s product

as a cause of Mr. Gay’s disease and, ultimately, death. For the following reasons, GE’s Motion is

granted.

I. Background

This case involves an alleged asbestos-related injury because of Mr. Gay’s employment in

the United States Navy from 1946 to 1958, the United States Air Force from 1958 to 1967, General

Electric Co. from 1967 to 1974, Stone and Webster from 1974 to 1989 and from his automotive

work starting in the 1940s. (See ECF Nos. 1-1; 1-2). Mr. Gay was diagnosed with mesothelioma

in June 2019. (ECF No. 1-15, § 165; ECF No. 675).

Mr. Gay was deposed over nine days—November 5--7, 11-13, 21-22, 25, 2019-—and

identified various manufacturers, suppliers and users of asbestos products. Mr. Gay died on April

12, 2020. (ECF No. 1-15, § 165; ECF No. 675). His daughter, Allisa D. Gay, was named executor

of her father’s estate and filed an Amended Complaint on August 13, 2020. (ECF No. 692). Allisa

Gay was substituted as Plaintiff. Wd).

IL. Relevant Facts

Plaintiff alleges Mr. Gay developed mesothelioma from exposure to GE’s asbestos-

containing products while working at PM-1 nuclear facility in Sundance, Wyoming; the SM-1

Power Station in Ft. Belvoir, Virginia; and the Beaver Valley Power Station in Shippingport,

Pennsylvania.

Mr. Gay testified that he worked at the SM-1 nuclear facility in Ft. Belvoir, Virginia from

1958 until 1961 and again from 1964 to 1967. (ECF No. 997-2, p. 2). The SM-1 was a small

nuclear power generating station that was part of a pilot program to determine the feasibility of

building nuclear power plants in remote locations. (/d.). When Mr. Gay arrived at the SM-1, the

facility was fully operational. (/d). He began work as a reactor operator and became a

maintenance supervisor. (/d.). His duties required him to perform maintenance at the SM-1

facility using gaskets and packing on various pieces of equipment, including pumps and valves.

Ud. at 2-3). After he became maintenance supervisor, he assisted others with hands-on

maintenance work. (/d. at 4).

A. Electrical Panel Boards and Switchgear

Plaintiff claims Mr. Gay was exposed to asbestos from GE panelboards and switchgear at

three locations including the PM-1 electrical generating station in Sundance, Wyoming; the SM-1

Power Station in Ft. Belvoir, Virginia; and at the Beaver Valley Power Station while working for

Stone and Webster.

Mr. Gay believed that GE breakers, switches and control panels were in place at the PM-1

station. (ECF No. 906-4, p. 2). He did not work with this equipment but stated that electricians

performed routine maintenance on this equipment two or three times during the three years he was

present there. (/d.). Mr. Gay observed others racking in and racking out metal-clad cabinets.

(ECF No. 906-5, p. 4).

Mr. Gay believed he was exposed to asbestos at the SM-1 station when electricians cleaned

out switchgears. (/d. at 3). Mr. Gay stated that the electricians opened and closed electrical boxes

and checked carbon contacts. (Ud. at 3, 4). He was not involved with this work. (Ud. at 4). Mr.

Gay worked near others who used compressed air to blow dust out of electrical control panels at

the SM-1 facility. (ECF 997-2, p. 6). He testified that ALCO, the company that built the facility,

and the U.S. Army published a maintenance manual that he consulted in the performance of his

job. (Ud. at 8). He testified that various pieces of equipment at the plant were disassembled

periodically for demonstrative purposes because the plant was an educational facility. (ECF

No. 997-1, p. 3). Routine maintenance was common while he worked at the plant. (/d.).

Mr. Gay worked at the Beaver Valley Power Station from 1974 through the beginning of

1976 as that plant was under construction. (ECF No. 906-4, p. 3). Mr. Gay claimed that GE

switchgear was present at the power station, but he did not observe others working on GE

switchgear while he was there. (ECF Nos. 906-4, p. 3; 906-5, pp. S—6). Mr. Gay believed he may

have flipped a switch on a break but did not believe that these actions exposed him to asbestos.

(Id. at 6).

B. Turbines

Mr. Gay testified about a GE turbine that he identified at the SM-1 Power station where he

was stationed while in the U.S. Air Force. GE made the turbine at the facility. (ECF No. 997-2,

p. 5). He believed that insulation had been applied to the turbine by the time he arrived there.

(ECF No. 906-2, pp. 26-27). He did not see others remove the insulation on the turbine. (/d.).

He was not involved in the removal of insulation from the turbine and he never observed the

turbine being opened. (ECF No. 906-5, pp. 2-3). Part of the maintenance he performed at the

SM-1 facility included one instance in which he removed a steam contro! valve from the turbine.

(id.). As part of the maintenance, Mr. Gay disconnected the flanges and the oil line and removed

the valve with a large crane. (ECF No. 954-2, p. 5). This work did not disturb any insulation on

the turbine. (/d.). Mr. Gay believed that the valve was a component of the turbine but was not

sure. (/d. at 6). He did not know who manufactured the valve. (/d.).

III. Standard of Review

Summary judgment is warranted if the Court is satisfied that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex

Corp. v. Cattrett, 477 U.S. 317, 322 (1986). A fact is material if it must be decided to resolve the

substantive claim or defense to which the motion is directed. In other words, there is a genuine

dispute of material fact “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must

view the evidence presented in the light most favorable to the nonmoving party. Jd. at 255. It

refrains from making credibility determinations or weighing evidence. Id. “Real questions about

credibility, gaps in the evidence, and doubts as to the sufficiency of the movant’s proof” will defeat

a motion for summary judgment. El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007).

IV. Applicable Law

A. Pennsylvania Law Applies

The parties agree that Pennsylvania substantive law applies. For that reason, the Court will

apply Pennsylvania law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Guar. Trust

Co. v. York, 326 U.S. 99, 108 (1945).

B. Causation Standard

Before imposing liability on a defendant in a product liability action, Pennsylvania law

requires a plaintiff to show not only that the plaintiff was exposed to a defective product

manufactured or sold by the defendant but that the plaintiff's exposure was a substantial factor in

causing the plaintiff's injury. Richards v. Raymark Indus. Inc., 660 F. Supp. 599 (E.D. Pa. 1987);

Gregg v. V-J Auto Parts Co., 943 A.2d 216, 224-26 (Pa. 2007); accord Robertson v. Allied Signal

Inc., 914 F.2d 360, 375 (3rd Cir. 1990) (applying Pennsylvania law). The Pennsylvania Supreme

Court held in asbestos litigation that “it is appropriate for courts, at the summary judgment stage,

to make a reasoned assessment concerning whether, in the 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 defendant’s

product and the asserted injury.” Gregg, 943 A.2d at 226-27 (adopting the frequency, regularity

and proximity standard in asbestos cases). As a result, a plaintiff must prove he was exposed to

asbestos from a defendant’s product with sufficient frequency, regularity and proximity so that a

jury could make the necessary inference of an adequate causal connection between that product

and the asserted injury. /d. at 227.

As for proximity, a plaintiff cannot merely show that the product was present at the

plaintiff’ s workplace; he must present evidence to establish that the plaintiff inbaled asbestos fibers

of the specific product of a manufacturer. Kardos v. Armstrong Pumps, Inc., 222 A.3d 393, 399

(Pa. Super. 2019); Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 652 (Pa. Super.

2002), appeal denied, 829 A.2d 1158 (2003).

V. ANALYSIS

GE moves for summary judgment on the grounds that it is not liable for injuries caused by

asbestos products for two reasons. First, Plaintiff failed to produce sufficient evidence to satisfy

her burden of showing that Mr. Gay was exposed to asbestos fibers of any product manufactured,

distributed or supplied by GE. Second, Plaintiff failed to produce sufficient evidence to satisfy

her burden of showing that Mr. Gay was exposed to asbestos fibers of any product manufactured,

distributed or supplied by GE on a regular, frequent or proximate basis.

“At the heart of an asbestos case is at least product identification—that is, a plaintiff cannot

triumph against a manufacturer unless he shows that the victim came across the manufacturer’s

product and that the product caused his injury.” Mehnert v. Agilent Techs., Inc., No. CV 18-893,

2020 WL 1493542 (W.D. Pa. Mar. 27, 2020) (quoting Walker v. Blackmer Pump Co., 367 F. Supp.

_ 360, 372 (E.D. Pa. 2019)). Such an inquiry is “fact-intensive.” Id.

For Plaintiff to defeat GE’s Motion for Summary Judgment, Plaintiff must show not only

that Mr. Gay was exposed to asbestos-containing products with sufficient proximity, regularity

and frequency to cause his injuries but also that the asbestos products to which Plaintiff claims

exposure were manufactured, distributed or sold by GE. Eckenrod, 544 A.2d at 53; see also Wilson

Green Indus., 807 A.2d 922, 924 (Pa. Super. 2002) (“Ideally, a plaintiff or a witness will

be able to directly testify that plaintiff breathed in asbestos fibers and that those fivers came from

defendant’s product.”). The Court has a “duty to prevent questions from going to the jury which

would require it to reach a verdict based on conjecture, surmise, guess or speculation.” Krauss v.

Trane, 104 A.3d 556, 568 (Pa. Super. 2014) (citation omitted).

A. Evidentiary Issues

GE opposes various pieces of evidence that Plaintiff offered. “When opposing patties tell

two different stories, one of which is blatantly contradicted by the record, so that no reasonable

jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a

motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). The Third Circuit held

in the context of submitting sham affidavits:

It is use of the term “genuine issue,” rather than any issue of fact, that implicitly

demonstrates the necessity of the sham affidavit doctrine as a means of sorting the

wheat from the chaff. In explaining its use of the term “genuine issue” of fact, the

Liberty Lobby Court buttressed the trial judge’s role in sorting the genuine from the

fallacious: “There is no requirement that the trial judge make findings of fact. The

inquiry performed is the threshold inquiry of determining whether there is the need

for a trial—whether, in other words, there are any genuine factual issues that

properly can be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.”

Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3rd Cir. 2007). Lawyer assertions contrary

to the evidence or without the support of any admissible evidence are not genuine issues sufficient

to oppose summary judgment.

GE argues that because Mr. Gay’s affidavit contradicts his sworn testimony, it constitutes

a sham affidavit and should not be considered. Jiminez, 503 F.3d at 253. Plaintiff later removed

Mr. Gay’s affidavits from its record. Because of the inconsistencies and because Plaintiff no

longer relies on its contents, the Court will not consider Mr. Gay’s affidavit.

GE also challenges a Google Books document. The document does not mention disturbing

asbestos during the maintenance procedures at the SM-1 facility. Without mention of asbestos,

the document does not create a genuine issue of material fact. See Willis vy. UPMC Children’s

Hosp. of Pittsburgh, 808 F.3d 638, 643 (d Cir. 2015). “To satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce evidence sufficient

to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. (a). Plaintiff

did not provide a foundation for the document. It lacks authentication, lacks relevance and

constitutes hearsay. While an unauthenticated document may be used to oppose a motion for

summary judgment, the document must be “reducible to admissible evidence.” Horton vy.

Nicholson, 435 F. Supp. 2d 429 (E.D. Pa. 2006) (citing Williams v. Borough of W. Chester, Pa.,

891 F.2d 458 Gd. 1990)). Because the document lacks foundation or authentication, the Court

will not consider it in adjudicating this motion.

B. Plaintiff Failed to Show Mr. Gay Was Exposed to Asbestos from GE Products

with Requisite Frequency, Regularity and Proximity.

GE argues Plaintiff lacks the proper evidence to avoid summary judgment and proceed to

trial. The Court will consider each alleged exposure.

1. SM-1 Facility

GE argues Mr. Gay’s only work relating to the GE turbine at the SM-1 facility included

removing insulation from a steam valve control. He did not know if the valve was part of the

turbine or even if GE manufactured it. In support of her contention that the steam control valve

was a component of the turbine, Plaintiff attached Exhibit 3, “Army Package Power Reactor Appr-

1 Operating Manual and Inspection Service Manual” for Alco Products, Inc. (ECF No. 954-3).

GE argues that nothing in the manual proves that the steam control valve was a component of the

turbine or that the document even applied to the SM-1 facility. Plaintiff offered no affidavit and

no other authentication or foundation for the document. Plaintiff’s evidence fails to show that GE

created the valve and that Mr. Gay was exposed to asbestos from this project with frequency or

regularity.

Considering the GE turbine, Mr. Gay testified that he never removed insulation from the

turbine and never observed the turbine with its shell removed. (ECF No. 981-1, pp. 2-3). Mr.

Gay also testified about the various switchgear at the SM-1 facility that he believed GE

manufactured. He never observed the installation of switchgear but claimed that electricians

opened and closed metal-clad switchgear boxes. The only thing he knew the electricians were

doing was checking metal or carbon contacts. (Ud. at 3-4). Plaintiff contends that regular

maintenance occurred at the SM-1 facility, which shows that Mr. Gay was likely exposed to

asbestos dust. Mr. Gay testified that he supervised workers who calibrated, cleaned and blew dust

over the instrument panels. (ECF No. 954-2, p. 6). He did not associate GE with the

instrumentation panels. (/d.). Plaintiff must not only prove that dust contained asbestos but must

also tie that dust to a specific product. Plaintiff did not do that here.

2. PM-1 Nuclear Facility

Plaintiff contends that Mr. Gay was exposed to asbestos from electrical control panels that

contained arc shields and controllers at the PM-1 facility. He observed electricians working on

electrical contactors, racking in and racking out of switchgear and the installation of switchgear.

In his deposition, Mr. Gay answered questions about his time at the PM-1 nuclear power station.

When asked about the other workers there, he testified that the only work he could recall was that

electricians racked in and racked out metal-clad switchgear. (ECF No. 981-1, p. 4). He did not

perform routine maintenance on the equipment. (/d. at 5). He recalled others maintaining the

equipment, including blowing dust, but he did not think that occurred more than two or three times

while he was there. (ECF No. 954-1, p. 5). Plaintiff’s evidence that he was exposed to asbestos-

containing products from GE at the PM-1 facility fall short. She did not prove that Mr. Gay was

exposed to dust from a GE product with sufficient regularity or frequency. Citing general

maintenance cannot show that Mr. Gay’s mesothelioma was caused by asbestos from a GE

product.

3. Beaver Valley Power Station

Mr. Gay testified about switchgear located at the Beaver Valley Power Station. He did not

recall any work done on switchgear there. (ECF No. 981-1, pp. 5-6). Mr. Gay testified that he

may have flipped a switch (also called “closing a breaker”) on a control panel. (Id. at 6). He also

testified that he was around workers who handled the wiring and installation of motors at the plant.

(ECF No. 954-1, pp. 6-7). He testified to being near contract employees insulating switch gears

and pulling cables through conductors. (/d.)

GE also contends Plaintiff's testimony of James Daugherty lacks relevance. Although Mr.

Gay’s and Mr. Daugherty’s time overlapped, Mr. Daugherty was not in the same locations at issue

until two years after Mr. Gay left. Mr. Daugherty did not testify being near GE products until

1978, two years after Mr. Gay departed from the power station. (ECF No. 981-2, pp. 4-5).

Plaintiff failed to provide enough evidence that the GE products at the Beaver Valley

Power Station contained asbestos. Thus, Plaintiff cannot show that Mr. Gay’s mesothelioma was

caused by GE.

4. GE’s Answers to Interrogatories

Plaintiff supplied GE’s answer to interrogatories. (ECF No. 954-13). The documents

provide that “some of GE’s switchgear may have contained certain components, including arc

chutes and circuit breakers, which upon information and belief, depending on the time, the

particular specifications, uses, applications, and customer requirements, may have contained some

quantity of encapsulated chrysotile [i.e., asbestos].” (Jd. at 10). GE’s answers for control panels

were similar. GE argues that these interrogatories do not establish that the switchgear and control

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panels Mr. Gay encountered during his career contained asbestos. And GE states the evidence

does not show Mr. Gay was exposed with sufficient frequency, duration and proximity to cause

the disease. (ECF No. 981, p. 7).

The Court agrees with GE. Plaintiffs evidence does not show that the products Mr. Gay

identified contained asbestos. Krauss, 104 A.3d at 574-75, 578 (holding manufacturers’ answers

to interrogatories that some products may have contained asbestos did not create a genuine issue

of fact). Plaintiff has only shown that Mr. Gay was around GE products generally. He did not

work on these products and could not recall how often others worked on these products.

VI. Conclusion

The Court finds no genuine issue of material fact exists. Plaintiff did not show that Mr.

Gay’s mesothelioma was caused by GE products and that he was exposed to asbestos from those

products with sufficient frequency, regularity or proximity. The Court grants GE’s Summary

Judgment. As a result, GE’s Motion for Partial Summary Judgment is granted. An Order of Court

will follow.

BY THE COURT:

BATE

WILLIAM 8S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

Gide Zi

Dated

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