Opinion

Krauss, C. v. Trane US Inc.

104 A.3d 556

Court: Superior Court of Pennsylvania
Filed: Oct 22, 2014
Status: Published
Author: Shogan
On the bench: Shogan, Stabile, Platt
Cited by: 116 cases
Authority: More cited than 94.8%

upholding the trial court’s decision to enter summary judgment -7- J-A28007-23 because the plaintiff “failed to establish that [General Electric (GE)] products containing asbestos were present at the worksite” and, as such, the appellant “failed to create an issue of material fact establishing that [the d]ecedent was exposed to asbestos-containing GE products”

How later courts described this case

upholding the trial court’s decision to enter summary judgment -7- J-A28007-23 because the plaintiff “failed to establish that [General Electric (GE)] products containing asbestos were present at the worksite” and, as such, the appellant “failed to create an issue of material fact establishing that [the d]ecedent was exposed to asbestos-containing GE products”
stating plaintiff’s speculative personal belief that product contained asbestos fails to create genuine issue of fact as to existence of asbestos in product
holding manufacturers’ answers to interrogatories that some products may have contained asbestos did not create a genuine issue of fact
stating that it is not this Court’s responsibility to comb through the record to find the factual underpinnings supporting a claim

Written by the judges who cited it.

The opinion

J-A12014-14

2014 PA Super 241

COLLEEN M. KRAUSS, EXECUTOR OF : IN THE SUPERIOR COURT OF

THE ESTATE OF HENRY M. KRAUSS, : PENNSYLVANIA

Appellant :

v. :

TRANE US INC., f/k/a AMERICAN :

STANDARD, et al; ALLIS-CHALMERS :

CORPORATION; AQUA CHEM, INC., :

d/b/a CLEAVER BROOKS DIVISION, :

INDIVIDUALLY AND SUCCESSOR IN :

INTEREST TO SPRINGFIELD BOILERS; :

AVENTIS CROPSCIENCE USA, INC., :

a/k/a AMCHEM PRODUCTS INC., now :

known as BAYER CROPSCIENCE INC., :

f/k/a BENJAMIN FOSTER CO., c/o :

CORPORATION SERVICES CO.; A.W. :

CHESTERTON CO.; BABCOCK POWER, :

INC., f/k/a BABCOCK BORSIG POWER :

INC., f/k/a D.B. RILEY STOKER :

CORPORATION; BONDEX :

INTERNATIONAL INC., c/o DANIEL J. :

RYAN, ESQUIRE; CRANE COMPANY; :

CROWN CORK AND SEAL COMPANY :

INC.; DURABLE MANUFACTURING :

COMPANY, INC.; ELLIOT :

TURBOMACHINERY COMPANY, a/k/a :

ELLIOT COMPANY; FOSTER WHEELER :

ENERGY CORPORATION; GARLOCK :

SEALING TECHNOLOGIES, LLC.; :

GEORGIA-PACIFIC CORPORATION, :

INDIVIDUALLY AND AS SUCCESSOR :

TO BESTWALL GYPSUM COMPANY; :

GOODRICH CORPORATION; GOULDS :

PUMPS INCORPORATED; GUARDLINE :

INC.; INDUSTRIAL HOLDINGS :

CORPORATION, f/k/a THE :

CARBORUNDUM COMPANY, :

INDIVIDUALLY AND AS SUCCESSOR :

IN INTEREST TO LOCKPORT FELT, A :

DIVISION OF THE CARBORUNDUM :

COMPANY; INGERSOLL RAND :

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COMPANY; KAISER GYPSUM :

COMPANY, INC.; KCG INC., AS :

SUCCESSOR IN INTEREST TO RUCO; :

METROPOLITAN LIFE INSURANCE :

COMPANY; MURCO WALL PRODUCTS, :

INC.; OAKFABCO, INC., f/k/a :

KEWANEE BOILER CORPORATION; :

OWENS-ILLINOIS INC., INDIVIDUALLY :

AND AS SUCCESSOR IN INTEREST TO :

OWENS-ILLINOIS GLASS COMPANY; :

RAPID-AMERICAN CORPORATION f/k/a :

GLEN ALDENCORPORATION, :

INDIVIDUALLY AND AS SUCCESSOR- :

BY-MERGER TO GLEN ALDEN :

CORPORATION, BRIGGS :

MANUFACTURING CO., PHILIP CAREY :

CORPORATION AND PHILIP CAREY :

MANUFACTURING COMPANY; RPM :

INC., AS SUCCESSOR TO REPUBLIC :

POWDERED METALS, SUCCESSOR TO :

BONDEX; SEPCO CORPORATION; THE :

SHERWIN-WILLIAM COMPANY; T.H. :

AGRICULTURE & NUTRITION LLC.; :

UNION CARBIDE CORPORATION, :

INDIVIDUALLY AND f/k/a UNION :

CARBIDE CHEMICALS AND PLASTIC :

COMPANY, INC.; UNIROYAL HOLDING, :

INC., AS SUCCESSOR TO UNITED :

STATES RUBBER COMPANY; VIACOM, :

INC., INDIVIDUALLY AND AS :

SUCCESSOR-BY-MERGER TO CBS :

CORPORATION, f/k/a WESTINGHOUSE :

ELECTRIC CORPORATION; WICKES :

CORPORATION, INDIVIDUALLY AND :

AS SUCCESSOR BY MERGER TO :

WICKES BOILER CO.; ZURN :

INDUSTRIES INC., a/k/a AND AS :

SUCCESSOR-BY-MERGER TO ERIE :

CITY IRON WORKS; KELLY MOORE :

PAINT COMPANY INC.; BORDEN :

CHEMICAL INC., f/k/a BORDEN :

CHEMICAL COMPANY AND n/k/a :

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HEXIO SPECIALTY CHEMICALS INC., :

PRENTICE HALL CORPORATION; :

CERTAIN-TEED CORPORATION f/k/a :

CERTAINTEED PRODUCTS :

CORPORATION; FORD MOTOR :

COMPANY; FREEPORT-McMORAN INC., :

f/k/a FREEPORT CHEMICAL COMPANY, :

AND SUCCESSOR TO AGRICO INC.; :

THE PEP-BOYS MANNY, MOE & JACK; :

A.P. GREEN a/k/a A.P. GREEN :

REFRACTORIES, INC., f/k/a A.P. :

GREEN REFRACTORIES COMPANY, :

AND A SUBSIDIARY OF ANH :

REFRACTORIES COMPANY; BENJAMIN :

FOSTER COMPANY, A DIVISION OF :

AMCHEM; HARBISON-WALKER, f/k/a :

HARBISON-WALKER REFRACTORIES :

COMPANY AND A SUBSIDIARY OF ANH :

REFRACTORIES COMPANY; KAISER :

ALUMINUM AND CHEMICAL :

CORPORATION, :

: No. 644 EDA 2013

Appellees

Appeal from the Orders Entered January 22 and 23, 2013,

In the Court of Common Pleas of Philadelphia County,

Civil Division, at No. 00726 January Term, 2007.

COLLEEN M. KRAUSS, EXECUTOR OF : IN THE SUPERIOR COURT OF

THE ESTATE OF HENRY M. KRAUSS, : PENNSYLVANIA

Appellant :

v. :

CBS CORPORATION, et al; ANCO :

INSULATIONS, INC.; BORDEN :

CHEMICAL INC., f/k/a BORDEN :

CHEMICAL COMPANY AND n/k/a :

HEXION SPECIALTY CHEMICALS, INC., :

PRENTICE HALL CORPORATION; CBS :

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J-A12014-14

CORPORATION; CERTAIN-TEED :

CORPORATION, f/k/a CERTAINTEED :

PRODUCTS CORPORATION; FORD :

MOTOR COMPANY; FREEPORT- :

McMORAN INC., f/k/a FREEPORT :

CHEMICAL COMPANY AND :

SUCCESSOR TO AGRICO INC.; :

GENERAL ELECTRIC COMPANY; :

GOULDS PUMPS INC.; THE PEP BOYS- :

MANNY, MOE & JACK; TRANE US INC., :

f/k/a AMERICAN STANDARD INC.; :

ZURN INDUSTRIES INC., a/k/a AND :

AS SUCCESSOR-BY-MERGER TO ERIE :

CITY IRON WORKS; A.P. GREEN a/k/a :

A.P. GREEN REFRACTORIES, INC., :

f/k/a A.P. GREEN REFRACTORIES :

COMPANY, AND A SUBSIDIARY OF :

ANH REFRACTORIES COMPANY; :

BENJAMIN FOSTER COMPANY, A :

DIVISION OF AMCHEM; HARBISON :

WALKER f/k/a HARBISON WALKER :

REFRACTORIES COMPANY AND A :

SUBSIDIARY OF ANH REFRACTORIES :

COMPANY; KAISER ALUMINUM AND :

CHEMICAL CORPORATION, :

Appellees : No. 671 EDA 2013

Appeal from the Orders Entered January 22 and 23, 2013,

In the Court of Common Pleas of Philadelphia County,

Civil Division, at No. 00212 February Term, 2006.

BEFORE: SHOGAN, STABILE and PLATT, JJ.

OPINION BY SHOGAN, J.: FILED OCTOBER 22, 2014

Appellant, Colleen M. Krauss, Executrix of the Estate of Henry M.

Krauss (“Decedent”), appeals from the orders granting summary judgment

*Retired Senior Judge assigned to the Superior Court.

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in favor of Appellees General Electric Company (“GE”); Georgia-Pacific,

L.L.C; CBS Corporation-Westinghouse (“Westinghouse”); Goulds Pumps,

Inc.; Zurn Industries; and Trane US Inc., f/k/a American Standard

(“American Standard”), (jointly “Appellee Manufacturers”).1 We affirm.

The trial court summarized the factual and procedural history of this

case as follows:

Appellant Colleen M, Krauss, as [Executrix] of the Estate of

Henry M. Krauss, commenced suit against twelve (12)

defendants on February 7, 2006, under the caption Krauss v.

Anco Insulations, Inc., et al, Philadelphia Court of Common Pleas

February Term 2006, No. 212. On January 8, 2007, Appellant

filed a second suit against thirty-seven (37) additional

defendants under the caption Krauss v. Allis Chalmers Corp., et

al, Philadelphia Court of Common Pleas January Term 2007,

No. 726. Appellant filed a Motion to Consolidate the two actions

on February 7, 2011, and the cases were consolidated under the

February Term 2006, No. 212 court term and number by court

Order dated May 13, 2011.

Appellant Colleen M. Krauss contends Appellant’s

decedent, Henry M. Krauss, was employed in the bricklaying

trade, and during the course of his employment, Mr. Krauss

worked at various job sites throughout the state of Louisiana,

including at Borden Chemical in Geimser, Kaiser Aluminum and

Chemical Company in both Baton Rouge and Gramercy, Freeport

Chemical in Convent, AgraCo in Donaldsville, and while in the

employ of John Wayne Smith Masonry in Baton Rouge.

Appellant claims Mr. Krauss also worked at Kirkland Masonry in

Boca Raton, Florida. According to Appellant, Mr. Krauss worked

at these job sites between the years of 1978 and 1983 with each

job varying in length.

We note that Appellant also filed an appeal from the decision involving

Foster Wheeler, L.L.C., but subsequently filed an application for leave to

discontinue the appeal as to Foster Wheeler, L.L.C. on December 20, 2013.

This Court granted that application on January 14, 2014.

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Appellant claims Appellant’s decedent was exposed to

asbestos at numerous jobsites from working with and/or around

Appellees’ products, including turbines manufactured by

Appellees General Electric and CBS Corporation (Westinghouse);

boilers manufactured by Appellees Zurn Industries, Foster

Wheeler, LLC and Trane US. Inc. f/k/a American Standard;

pumps manufactured by Appellee Goulds Pumps, Inc., and joint

compound and other spackling and adhesive products

manufactured by Appellee Georgia[-]Pacific, LLC. Appellant

claims while on the job the decedent[,] Mr. Krauss[,] got

asbestos on his clothes and hair and in his lungs, and as a result

he contracted mesothelioma. Appellant’s decedent was not

deposed before his death.

On November 13, 2012, all the Appellees filed Motions for

Summary Judgment. Appellant filed Answers to the Motions for

Summary Judgment of Appellees Georgia-Pacific, LLC; Foster

Wheeler, LLC; CBS Corporation (Westinghouse); Goulds Pumps,

Inc.; Zurn Industries and Trane US, Inc. f/k/a American

Standard on November 30, 2012. Appellant filed an Answer to

the Motion for Summary Judgment of Appellee General Electric

Company on December 7, 2012. On January 16, 2013[, the trial

court] granted summary judgment in favor of Appellee General

Electric Company. On January 19, 2013[, the trial court]

granted summary judgment in favor of Appellees Foster

Wheeler, L.L.C.; Georgia-Pacific, LLC; CBS Corporation

(Westinghouse); Goulds Pumps, Inc.; Zurn Industries and Trane

US Inc. f/k/a American Standard.

On February 21, 2013, Appellant filed [her] Notices of

Appeal of the aforementioned Orders. On February 28, 2013,

[the trial court] issued Orders directing Appellant to file a

Concise Statement of Matters Complained of on Appeal pursuant

to [Pa.R.A.P.] 1925(b). On March 18, 2013, Appellant filed [her]

1925(b) Statements.

Trial Court Opinion, 10/10/13, at 1-3.2

Appeal may be taken only from a final order that disposes of all claims and

all parties. Pa.R.A.P. 341(a). The record reflects trial court docket entries

on both dockets, dated January 28, 2013, noting that the cases were settled

as to all remaining non-bankrupt parties, except the Manville Fund, but the

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Appellant presents the following issues for our review:

A. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED ALL SIX MOTIONS FOR SUMMARY JUDGMENT

WHERE THE AFFIDAVIT OF MIKE MORGAN RAISES A

GENUINE ISSUE OF MATERIAL FACT CONCERNING

FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO []

ASBESTOS PRODUCTS OF ALL SIX MANUFACTURERS?

B. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

CBS CORPORATION WHERE THE RECORD REVEALS A

GENUINE ISSUE OF MATERIAL FACT CONCERNING

FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO

ASBESTOS IN TURBINES OF CBS CORPORATION’S

ACKNOWLEDGED PREDECESSOR, WESTINGHOUSE?

C. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

GENERAL ELECTRIC COMPANY WHERE THE RECORD

REVEALS A GENUINE ISSUE OF MATERIAL FACT

CONCERNING FREQUENT, REGULAR AND PROXIMATE

EXPOSURE TO ASBESTOS IN TURBINES OF GENERAL

ELECTRIC COMPANY?

D. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

GEORGIA-PACIFIC WHERE THE RECORD REVEALS A

GENUINE ISSUE OF MATERIAL FACT CONCERNING

EXPOSURE TO GEORGIA-PACIFIC’S ASBESTOS-

CONTAINING PRODUCTS?

case against the Manville Fund was dismissed without prejudice. Appellant

asserts, despite this language, that Appellant and the Manville Fund, in fact,

had settled. “A trial court order declaring a case settled as to all remaining

parties renders prior grants of summary judgment final for Rule 341

purposes, even if the prior orders entered disposed of fewer than all claims

against all parties.” Gutteridge v. A.P. Green Services, Inc., 804 A.2d

643, 650 (Pa. Super. 2002). In this case, all parties are now settled,

bankrupt, or dismissed by grant of summary judgment or otherwise.

Consequently, the grants of summary judgment for the Appellees identified

herein are final orders for appeal purposes and the present appeal is

properly within our jurisdiction. Id. at 650.

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E. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

GOULDS PUMPS WHERE THE RECORD REVEALS A

GENUINE ISSUE OF MATERIAL FACT CONCERNING

FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO

ASBESTOS IN GOULDS PUMPS?

F. DOES THE RECORD REVEAL GENUINE ISSUES OF

MATERIAL FACT WHETHER DEFENDANTS CAN BE HELD

LIABLE FOR THEIR INCLUSION OF THIRD PARTIES’

ASBESTOS-CONTAINING PRODUCTS AS COMPONENTS IN

THEIR OWN PRODUCTS?

G. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

TRANE WHERE THE RECORD REVEALS A GENUINE ISSUE

OF MATERIAL FACT CONCERNING FREQUENT, REGULAR

AND PROXIMATE EXPOSURE TO ASBESTOS IN AMERICAN

STANDARD BOILERS?

H. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

ZURN WHERE THE RECORD REVEALS A GENUINE ISSUE

OF MATERIAL FACT CONCERNING FREQUENT, REGULAR

AND PROXIMATE EXPOSURE TO ASBESTOS IN ZURN

BOILERS?

Appellant’s Brief at 7-11 (verbatim).

An order granting summary judgment is subject to the following scope

and standard of appellate review:

Our standard of review on an appeal from the grant of a

motion for summary judgment is well-settled. A reviewing court

may disturb the order of the trial court only where it is

established that the court committed an error of law or abused

its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary

judgment, we focus on the legal standard articulated in the

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that

where there is no genuine issue of material fact and the moving

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party is entitled to relief as a matter of law, summary judgment

may be entered. Where the nonmoving party bears the burden

of proof on an issue, he may not merely rely on his pleadings or

answers in order to survive summary judgment. Failure of a

non-moving party to adduce sufficient evidence on an issue

essential to his case and on which he bears the burden of proof

establishes the entitlement of the moving party to judgment as a

matter of law. Lastly, we will review 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.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).

Furthermore, our Courts have developed summary judgment

standards specific to asbestos cases. In Eckenrod v. GAF Corp., 544 A.2d

50, 52 (Pa. Super. 1988), this Court set forth the evidence an asbestos

plaintiff must produce to establish a prima facie case sufficient to proceed to

trial:

In order for liability to attach in a products liability action,

plaintiff must establish that the injuries were caused by a

product of the particular manufacturer or supplier. Additionally,

in 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 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.

***

Whether direct or circumstantial evidence is relied upon,

our inquiry, under a motion for summary judgment, must be

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whether plaintiff has pointed to sufficient material facts in the

record to indicate that there is a genuine issue of material fact

as to the causation of decedent’s disease by the product of each

particular defendant. Whether a plaintiff could successfully get

to the jury or defeat a motion for summary judgment by

showing circumstantial evidence depends upon the frequency of

the use of the product and the regularity of plaintiff’s

employment in proximity thereto.

Id. at 52-53 (citations omitted).

The Eckenrod “frequency, regularity, proximity” standard for

determining whether a plaintiff has come forward with sufficient evidence to

allow a jury to conclude reasonably that the plaintiff breathed some asbestos

fibers from a defendant’s product originally applied only to consideration of

circumstantial, rather than direct, evidence. See, e.g., Gilbert v. Monsey

Products Co., 861 A.2d 275, 277 (Pa. Super. 2004) (“Because Appellant

provided direct testimony [that he inhaled asbestos fibers from the

defendant’s product], the Eckenrod test was not applicable.”). However,

our Supreme Court later extended the application of the Eckenrod factors

to all evidence of asbestos exposure:

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.

Gregg v. V-J Auto Parts, Company, 943 A.2d 216, 226 (Pa. 2007).

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Additionally, in Gregg, our Supreme Court modified the “frequency,

regularity, proximity” criteria previously enunciated by this Court in

Eckenrod. Specifically, the Supreme Court adopted the approach utilized

by the United States Court of Appeals for the Seventh Circuit in Tragarz v.

Keene Corp., 980 F.2d 411 (7th Cir.1992):

The decision in Tragarz v. Keene Corp., 980 F. 2d 411 (7th

Circ. 1992), . . . provides helpful guidance concerning the

application of the frequency, regularity and proximity factors in

asbestos litigation. Tragarz explains that these criteria do not

establish a rigid standard with an absolute threshold necessary

to support liability. 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.

Gregg, 943 A.2d at 225.

Thus, our Supreme Court disapproved of the application of a rigid

Eckenrod “frequency, regularity, proximity” test in every case, and instead

adopted a new fact-specific sliding scale approach that includes two

important considerations not part of the Eckenrod analysis:

Tragarz suggests that the application 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, under Tragarz, the frequency

and regularity prongs become “somewhat less cumbersome” in

cases involving diseases that the plaintiff’s competent medical

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evidence indicates can develop after only minor exposures to

asbestos fibers. [3]

Gregg, 943 A.2d at 225 (citing Tragarz, 980 F.2d at 420-421) (internal

citations omitted).

The Gregg Court also rejected the viability of the “each and every

exposure” or “any breath” theory. It stated:

[W]e do not believe that it is a viable solution to indulge in a

fiction that each and every exposure to asbestos, no matter how

minimal in relation to other exposures, implicates a fact issue

concerning substantial-factor causation ... The result, in our

view, is to subject defendants to full joint-and-several liability for

injuries and fatalities in the absence of any reasonably

developed scientific reasoning that would support the conclusion

that the product sold by the defendant was a substantial factor

in causing the harm.

Id. at 226–27.

In summarizing its holding, the Gregg Court explained:

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 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, 943 A.2d at 227.

Mesothelioma is “a cancer of the mesothelial tissue surrounding the lung,

which is a rare disease with the exception of those exposed to asbestos.”

Sporio v. W.C.A.B. (Songer Construction), 717 A.2d 525, 527 (Pa.

1998). Mesothelioma “is medically attributable specifically to exposure to

asbestos or asbestine products.” Gutteridge, 804 A.2d at 652.

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In Betz v. Pneumo Abex, LLC, 44 A.3d 27, 30 (Pa. 2012), the

Supreme Court specifically addressed the admissibility of expert opinion of

the “any-exposure” or “any breath” theory of causation, which states, “each

and every fiber of inhaled asbestos is a substantial contributing factor to any

asbestos-related disease.” Id. at 30. The Betz Court rejected the “any

exposure” theory of causation, concluding it was theoretically “in

irreconcilable conflict with itself.” Id. at 56. As the Court explained: “one

cannot simultaneously maintain that a single fiber among millions is

substantially causative, while also conceding that a disease is dose

responsive.”4 Id. Therefore, the Betz Court affirmed the trial court’s

decision to preclude the use of the “any exposure” theory of causation in

asbestos cases. Id. at 58.

Additionally, in Howard v. A.W. Chesterton, Co., 78 A.3d 605 (Pa.

2013) (per curiam) (Howard III), our Supreme Court indicated that the

following principles apply to all asbestos cases involving a dose-responsive

disease: (1) the “theory that each and every exposure, no matter how

small” is not viable to establish a defendant’s liability; (2) proof of de

minimus exposure to a product is insufficient to establish causation; (3) an

expert must make “some reasoned, individualized assessment of a plaintiff’s

or decedent’s exposure history” in opining about substantial-factor causation

In Betz, 44 A.3d at 31, the Court noted that all experts agreed that

mesothelioma is a dose-responsive disease.

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E. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

GOULDS PUMPS WHERE THE RECORD REVEALS A

GENUINE ISSUE OF MATERIAL FACT CONCERNING

FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO

ASBESTOS IN GOULDS PUMPS?

F. DOES THE RECORD REVEAL GENUINE ISSUES OF

MATERIAL FACT WHETHER DEFENDANTS CAN BE HELD

LIABLE FOR THEIR INCLUSION OF THIRD PARTIES’

ASBESTOS-CONTAINING PRODUCTS AS COMPONENTS IN

THEIR OWN PRODUCTS?

G. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

TRANE WHERE THE RECORD REVEALS A GENUINE ISSUE

OF MATERIAL FACT CONCERNING FREQUENT, REGULAR

AND PROXIMATE EXPOSURE TO ASBESTOS IN AMERICAN

STANDARD BOILERS?

H. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN

IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF

ZURN WHERE THE RECORD REVEALS A GENUINE ISSUE

OF MATERIAL FACT CONCERNING FREQUENT, REGULAR

AND PROXIMATE EXPOSURE TO ASBESTOS IN ZURN

BOILERS?

Appellant’s Brief at 7-11 (verbatim).

An order granting summary judgment is subject to the following scope

and standard of appellate review:

Our standard of review on an appeal from the grant of a

motion for summary judgment is well-settled. A reviewing court

may disturb the order of the trial court only where it is

established that the court committed an error of law or abused

its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary

judgment, we focus on the legal standard articulated in the

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that

where there is no genuine issue of material fact and the moving

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J-A12014-14

party is entitled to relief as a matter of law, summary judgment

may be entered. Where the nonmoving party bears the burden

of proof on an issue, he may not merely rely on his pleadings or

answers in order to survive summary judgment. Failure of a

non-moving party to adduce sufficient evidence on an issue

essential to his case and on which he bears the burden of proof

establishes the entitlement of the moving party to judgment as a

matter of law. Lastly, we will review 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.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).

Furthermore, our Courts have developed summary judgment

standards specific to asbestos cases. In Eckenrod v. GAF Corp., 544 A.2d

50, 52 (Pa. Super. 1988), this Court set forth the evidence an asbestos

plaintiff must produce to establish a prima facie case sufficient to proceed to

trial:

In order for liability to attach in a products liability action,

plaintiff must establish that the injuries were caused by a

product of the particular manufacturer or supplier. Additionally,

in 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 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.

***

Whether direct or circumstantial evidence is relied upon,

our inquiry, under a motion for summary judgment, must be

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Gibson v. Workers’ Comp. Appeal Bd. (Armco Stainless & Alloy

Prods.), 861 A.2d 938, 945 (Pa. 2004). Rule 701 of the rules of evidence

further provides:

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the

form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and

knowledge within the scope of Rule 702.

Pa.R.E. 701.5

In his affidavit, Mr. Morgan boldly professed that he recalled all of

these products being present at the various worksites where he worked with

Decedent over the course of a five-year period, approximately twenty-nine

We note that on January 17, 2013, and effective March 18, 2013, the

Pennsylvania Rules of Evidence were rescinded and replaced. As set forth in

the explanatory comments to the new rules, they now

closely follow the format, language, and style of the amended

Federal Rules of Evidence. The goal of the Pennsylvania

Supreme Court’s rescission and replacement of the Pennsylvania

Rules of Evidence was . . . to make its rules more easily

understood and to make the format and terminology more

consistent, but to leave the substantive content unchanged.

Explanatory Comments preceding the Pennsylvania Rules of Evidence, at ¶

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to thirty-four years prior to executing the affidavit. Mr. Morgan’s affidavit,

however, provides no specific evidence that Decedent was exposed to a

product manufactured by a particular manufacturer or supplier at a

particular worksite.

Additionally, the affidavit fails to establish with any certainty that

these products contained asbestos. Mr. Morgan’s affidavit asserts that “all of

the boilers, turbines and pumps” identified in his affidavit were insulated

with asbestos products based on his “knowledge and belief.” It, however,

provides no specific evidence upon which he based his determination that

these boilers, turbines, and pumps were insulated with asbestos products.6

In Gibson, the claimant presented testimony of a co-worker who

testified that he had seen a substance that he “believed” to be asbestos at

the factory where he and the claimant had worked. Gibson, 861 A.2d at

941. The Court determined that such testimony was insufficient to establish

that asbestos existed in the workplace. Id. at 946. In addressing the

shortcoming of the lay-witness testimony, the Court stated:

The admissibility of lay opinion testimony is not without

limit. Given the standard we articulate today for the admission

of lay opinion evidence of a technical nature, we conclude that

the [judge] failed to examine with sufficient rigor whether the

testimony in question was informed by sufficient experience or

specialized knowledge. More particularly, in order to satisfy the

Further, although Mr. Morgan’s affidavit asserts that he used joint

compounds and other adhesive products manufactured by Georgia-Pacific, it

makes no claim that these products contained asbestos.

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“rationally derived” and helpfulness standards of Rule 701,

Claimant needed to demonstrate that the witness possessed

sufficient experience or specialized knowledge that qualified him

to offer a technical opinion regarding the presence of asbestos in

the workplace. While a lay witness could acquire this additional

insight by either formal education or practical experience, it

appears the witness at issue simply possessed neither.

Actual knowledge and observation on the part of the lay

witness are the essential bases for the reception of the opinion.

Pursuant to Rule 602, a witness may not testify to a matter

unless evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter. Thus, we

must agree . . . that the record is devoid of substantial evidence

to support a finding of long-term asbestos exposure in the

workplace.

Id. at 948.

Additionally, in Samarin v. GAF Corp., 571 A.2d 398, 404, 409 (Pa.

Super. 1989), this Court held that a witness’s testimony regarding a

material’s high heat application was insufficient to support the conclusion

that the product contained asbestos. We noted that such facts simply

created “an insufficient foundation for a jury to infer by a preponderance of

the evidence that the heat resistant products used . . . contained asbestos.”

Id. at 403. Similarly, in Bushless v. GAF Corp., 585 A.2d 496, 503 (Pa.

Super. 1990), we held that a statement that a person knew a product

contained asbestos from his years of experience and because of the

product’s ability to withstand high temperatures was insufficient to create an

issue of material fact that the product contained asbestos. Conversely, in

Harahan v. AC & S, Inc., 816 A.2d 296, 298 (Pa. Super. 2003), the lay

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opinion of a co-worker credibly established the presence of asbestos in the

workplace through personal knowledge where the co-worker testified that he

knew that the product contained asbestos because the product was labeled

as containing asbestos.

Mr. Morgan’s statements in his affidavit that the boilers, turbines, and

pumps contained asbestos are not based on his actual knowledge, as is

required by Pa.R.E. 701 and relevant case law. Instead, Mr. Morgan’s

affidavit reflects only his presumption and belief that these multiple products

contained asbestos. Such statements are insufficient to show that there

exists a genuine issue of fact as to the existence of asbestos in these

products. Gibson, 861 A.2d at 948; Samarin, 571 A.2d at 404; Bushless,

585 A.2d at 503.

Additionally, such statements do not present competent evidence for

the jury because it is speculative. A plaintiff cannot survive summary

judgment when mere speculation would be required for the jury to find in

plaintiff’s favor. Juliano v. Johns-Manville Corp., 611 A.2d 238, 239 (Pa.

Super. 1992) (stating that “[i]n the absence of sufficient evidence

demonstrating that plaintiff worked with or near the asbestos materials of a

particular defendant, a jury cannot find, except by speculation, that it was a

defendant’s product which caused plaintiff’s injury. Speculation, however, is

an inadequate basis for recovery.”). A jury is not permitted to find that it

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was a defendant’s product that caused the plaintiff’s injury based solely

upon speculation and conjecture; “there must be evidence upon which

logically its conclusion must be based.” Farnese v. Southeastern

Pennsylvania Transp. Authority, 487 A.2d 887, 890 (Pa. Super. 1985).

“In fact, the trial 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.” Id. at 890. Additionally, a party is not entitled to an

inference of fact that amounts merely to a guess or conjecture. Flaherty

v. Pennsylvania Railroad Co., 231 A.2d 179, 180 (Pa. 1967).

Thus, because Mr. Morgan’s affidavit is based solely on speculation and

conjecture, it is insufficient as a basis upon which Appellant’s case can

survive summary judgment. It fails to establish a genuine issue of material

fact as to the presence of a specific manufacturer’s product at a specific

worksite where Decedent worked, and fails to establish that asbestos was

present in those products in the various worksites. Appellant is not entitled

to an inference of fact based merely on Mr. Morgan’s unsubstantiated claims.

Flaherty, 231 A.2d at 180.

Furthermore, Mr. Morgan’s affidavit does not meet the “frequency,

regularity, proximity” test required by Eckenrod and Gregg. In the

affidavit itself, Mr. Morgan does not identify the length of time that he and

Decedent were exposed to the alleged asbestos-containing products at each

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worksite. Instead, the affidavit states generally that “each of these jobs

lasted approximately one week or longer.” Moreover, Mr. Morgan does not

identify the proximity to the alleged asbestos-containing products with which

Decedent worked. Mr. Morgan’s affidavit is insufficient to establish a causal

connection between any of the individual Appellee Manufacturer’s products

and Decedent’s disease. Thus, we conclude that Mr. Morgan’s affidavit, in

and of itself, does not create a genuine issue of material fact precluding

entry of summary judgment. Accordingly, we review the claims and

additional evidence Appellant presents regarding each named Appellee

Manufacturer.

We first consider Appellant’s claims as to Westinghouse.

Westinghouse submitted a motion for summary judgment on the basis that

Appellant failed to present any evidence that Decedent was exposed to

asbestos from any products or equipment made, sold, supplied or specified

by Westinghouse. CBS Corporation (Westinghouse) Motion for Summary

Judgment, 11/13/12, at 3. Alternatively, it argued, that any claimed

exposure to a Westinghouse product was insufficient to have caused

Decedent’s alleged injuries. Id.

In her response to Westinghouse’s motion for summary judgment,

Appellant argued that summary judgment was inappropriate as there were

disputed issues of material fact. Plaintiff’s Response to CBS Corporation’s

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(Westinghouse) Motion for Summary Judgment, 11/30/12, at 3. Appellant

maintained that, pursuant to Eckenrod and Gregg, she had established

Decedent’s proximal, regular, and frequent exposure to asbestos-containing

turbines manufactured by Westinghouse, compelling denial of the motion for

summary judgment. Id. In support of her claim, Appellant attached the

following documentation to her response: 1) “Exhibit A”, the affidavit of

Mike Morgan; 2) “Exhibit B”, excerpts from the deposition of Mike Morgan;

and 3) “Exhibit C”, excerpted answers to interrogatories from an unrelated

case filed against Westinghouse.

We have set forth and addressed the affidavit of Mike Morgan,

identified as “Exhibit A,” previously and concluded that such affidavit fails to

establish that Decedent was exposed to Westinghouse turbines containing

asbestos. Thus, we shall consider Appellant’s additional evidence.

Attached as “Exhibit B,” is an excerpt of the transcript from the

deposition of Mike Morgan. Plaintiff’s Response to CBS Corporation’s

(Westinghouse) Motion for Summary Judgment, 11/30/12, “Exhibit B.” In

that deposition, Mr. Morgan was asked if he had worked with Decedent at

any sites where there was a Westinghouse turbine. Id. at 64. Mr. Morgan

indicated that they both worked at AgraCo in 1978 and 1979, at which site

there were Westinghouse turbines. Id. Mr. Morgan testified that there were

three turbines, all three of which were manufactured by Westinghouse. Id.

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at 71. The following exchange took place when Mr. Morgan was asked

whether he had knowledge that the Westinghouse turbines at the AgraCo

plant contained asbestos:

[Counsel]: Do you have any knowledge that the Westinghouse

turbines at the AgraCo plant contained asbestos?

[Mr. Morgan]: Contains suspicious?

[Counsel]: Contained asbestos.

[Mr. Morgan]: I’m sorry.

[Counsel]: That’s okay.

[Mr. Morgan]: No, I’m not aware of that.

[Counsel]: You have no knowledge of that?

[Mr. Morgan]: No.

Id. at 71.

Mr. Morgan stated that he and Decedent worked at the AgraCo site for

approximately three weeks in 1978 and for approximately two weeks in

1979. Plaintiff’s Response to CBS Corporation’s (Westinghouse) Motion for

Summary Judgment, 11/30/12, “Exhibit B” at 65. Additionally, Mr. Morgan

testified that the closest he and Decedent got to the turbines was about

twenty-five to thirty feet when entering or exiting the pump tank. Id. at 86-

87. Mr. Morgan explained that “we never actually got right up next to one of

them.” Id. at 87. Mr. Morgan further testified to the atmosphere, twenty-

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five to thirty feet from the turbines, as being “whatever the weather was like

outside. You know, it was normal.” Id.

“Exhibit C” includes answers to interrogatories, completed by

Westinghouse, in an unrelated case.7 The relevant interrogatories and

answers state as follows:

B.4.a. Are or have any of defendant’s predecessors,

affiliates, subsidiaries, or parent corporations engaged in the

mining, sale and distribution of asbestos and/or asbestos fiber

and/or asbestos containing insulation products? lf so, state the

name of each entity, describe the nature of the involvement that

each entity has or has had in the mining, distribution or sale of

these products and materials, and set forth the inclusive dates

each was involved in each aspect of this business.

ANSWER:

No, as to asbestos and asbestos fiber. As to ‘‘asbestos

containing insulation products,” the plaintiff has not defined that

term. Westinghouse understands that term to mean a product

whose sole or predominant purpose is to provide protection

and/or insulation from extremely high temperatures. Subject to

that understanding, only blankets associated with steam turbines

qualify as such a material. Westinghouse sold these blankets

between approximately 1930 and approximately 1960 as to

some turbines it sold. Thereafter, such blankets were made,

sold or furnished by others.

“Exhibit C,” at 6.

B.14 Has your company, and/or its subsidiaries or

affiliates ever manufactured or distributed asbestos containing

products?

As noted, these answers to interrogatories were provided in an unrelated

case. We make no determination as to the admissibility of these responses

at trial.

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