Blystone v. Owens-Illinois, Inc. (E.D. Pa., Jan. 13, 2020)

Our plain-English summary of Blystone v. Owens-Illinois, Inc. (U.S. District Court, Eastern District of Pennsylvania, January 13, 2020).

John R. Blystone and his wife sued many defendants, claiming he developed mesothelioma from asbestos exposure. This order concerned only U.S. Steel, which employed him for two weeks in 1960. He testified that he worked eight-hour days in a windowless open hearth room, six or seven feet from workers who scraped asbestos insulation off ceiling pipes. His only job was sweeping up the dust and debris, and he said he inhaled the dust. Plaintiffs also submitted documents showing U.S. Steel used asbestos coating in its open hearth areas and on pipes. U.S. Steel moved for summary judgment, arguing the evidence was too thin on frequency, regularity and proximity of exposure, and that plaintiffs needed an expert to prove a duty. The court granted the motion as uncontested for claims based on his service aboard the USS Thuban, which plaintiffs dropped. It denied the motion for the open hearth claims, finding a genuine factual dispute about exposure. It also held that duty did not require expert testimony because employers must provide a safe workplace.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Pennsylvania
• Decided: January 13, 2020
• Docket: Civil Action No. 18-1165
• Stage: Summary judgment
• State: Pennsylvania

Outcome. The court granted U.S. Steel's summary judgment motion as uncontested on the USS Thuban claims, which plaintiffs dropped, and denied it on the claims about exposure in the open hearth area, so those claims by John and Bridget Blystone go forward.

What the court held. A worker's testimony that he spent full days a few feet from workers scraping asbestos pipe insulation, together with company documents showing asbestos coating use, creates a genuine dispute about exposure. A negligence claim against an employer for a safe workplace does not need expert testimony to establish duty.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Expert Testimony, Product Identification.

The people and their exposure

• John R. Blystone: mesothelioma

Who	Work	Where	When	Products
John R. Blystone	sweeper in the open hearth area (iron and steel); worked near others using it	U.S. Steel open hearth area	1960	pipe and block insulation

The defendants

• United States Steel Corporation (USX Corporation) (employer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Blystone v. Owens-Illinois, Inc. (January 22, 2020). The court granted DAP, Inc.'s motion for summary judgment and entered judgment for DAP against the Blystone plaintiffs, because they had no non-speculative evidence that the DAP caulk Mr. Blystone used contained asbestos.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

JOHN R. BLYSTONE, etal., Plaintiffs,

v.

OWENS ILLINOIS, INC., etal. Defendants.

Civil Action No. 18-1165.

January 13, 2020.

United States District Court, E.D. Pennsylvania.

JOHN R. BLYSTONE & BRIDGET BLYSTONE, H/W, Plaintiffs, represented by FRANCIS A. EIDEN, WEITZ & LUXENBERG

PC.

CARLISLE INDUSTRIAL BRAKE & FRICTION, INC., Defendant, represented by STEPHEN M. CAPRIOTTI, JR., KELLEY

JASONS MCGOWAN SPINELLI & HANNA.

DAP, INC., Defendant, represented by MICHAEL J. BLOCK, WILBRAHAM, LAWLER & BUBA.

EATON CORPORATION, Defendant, represented by INGRID H. GRAFF, MARSHALL, DENNEHEY, WARNER, COLEMAN

& GOGGIN, P.C. & TIFFANY GIANGIULIO, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN.

STRICK TRAILERS, LLC, Defendant, represented by GREGORY M. STOKES, SWARTZ CAMPBELL LLC & KEVIN

O'BRIEN, MARKS, O'NEILL, O'BRIEN, DOHERTY & KELLY P.C.

UNION CARBIDE CORPORATION, Defendant, represented by CATHERINE N. JASONS, KELLEY JASONS MCGUIRE

SPINELLI HANNA LLP.

USX CORPORATION, formerly known as, Defendant, represented by NICOLE LENGEL, BENNETT, BRICKLIN &

SALTZBURG, C. PAUL CAVENDER, BURR & FORMAN LLP, MICHELE E. TURNER, BENNETT, BRICKLIN &

SALTZBURG & PAUL F. LANTIERI, BENNETT BRICKLIN & SALTZBURG LLP.

MERITOR, INC., formerly known as, Defendant, represented by LEAH A. LEWIS, REILLY JANICZEK & MCDEVITT &

SUSAN M. VALINIS, REILLY JANICZEK & MCDEVITT P.C.

MERITOR, INC., formerly known as ARVINMERITOR, INC., Cross Defendant, represented by SUSAN M. VALINIS, REILLY

JANICZEK & MCDEVITT P.C. & LEAH A. LEWIS, REILLY JANICZEK & MCDEVITT.

STRICK TRAILERS, LLC, Cross Defendant, represented by GREGORY M. STOKES, SWARTZ CAMPBELL LLC.

MERITOR, INC., formerly known as, Cross Defendant, represented by LEAH A. LEWIS, REILLY JANICZEK & MCDEVITT.

PNEUMO ABEX LLC, SUCCESSOR IN INTEREST TO ABEX CORPORATION (ABEX) & UNION CARBIDE

CORPORATION, Cross Claimants, represented by CATHERINE N. JASONS, KELLEY JASONS MCGUIRE SPINELLI

HANNA LLP.

CARLISLE INDUSTRIAL BRAKE & FRICTION, INC., Cross Defendant, represented by STEPHEN M. CAPRIOTTI, JR.,

KELLEY JASONS MCGOWAN SPINELLI & HANNA.

UNION CARBIDE CORPORATION & PNEUMO ABEX LLC, SUCCESSOR IN INTEREST TO ABEX CORPORATION

(ABEX), Cross Defendants, represented by CATHERINE N. JASONS, KELLEY JASONS MCGUIRE SPINELLI HANNA LLP.

USX CORPORATION, Cross Defendant, represented by NICOLE LENGEL, BENNETT, BRICKLIN & SALTZBURG, C.

PAUL CAVENDER, BURR & FORMAN LLP & PAUL F. LANTIERI, BENNETT BRICKLIN & SALTZBURG LLP.

MERITOR, INC., Cross Claimant, represented by LEAH A. LEWIS, REILLY JANICZEK & MCDEVITT & SUSAN M.

VALINIS, REILLY JANICZEK & MCDEVITT P.C.

EATON CORPORATION, Cross Defendant, represented by TIFFANY GIANGIULIO, MARSHALL DENNEHEY WARNER

COLEMAN & GOGGIN.

USX CORPORATION, Cross Claimant, represented by C. PAUL CAVENDER, BURR & FORMAN LLP & PAUL F.

LANTIERI, BENNETT BRICKLIN & SALTZBURG LLP.

MERITOR, INC., Cross Defendant, represented by LEAH A. LEWIS, REILLY JANICZEK & MCDEVITT & SUSAN M.

VALINIS, REILLY JANICZEK & MCDEVITT P.C.

METROPOLITAN LIFE INSURANCE CO., Cross Defendant, represented by STEWART R. SINGER.

CARLISLE INDUSTRIAL BRAKE & FRICTION, INC., Cross Claimant, represented by STEPHEN M. CAPRIOTTI, JR.,

KELLEY JASONS MCGOWAN SPINELLI & HANNA.

EATON CORPORATION, Cross Claimant, represented by TIFFANY GIANGIULIO, MARSHALL DENNEHEY WARNER

COLEMAN & GOGGIN.

SEARS, ROEBUCK AND CO., Cross Claimant, represented by MARK DOUGLAS EISLER, WILBRAHAM, LAWLER &

BUBA, P.C.

SEARS, ROEBUCK AND CO., Cross Defendant, represented by MARK DOUGLAS EISLER, WILBRAHAM, LAWLER &

BUBA, P.C.

DAP, INC. & KELSEY-HAYES COMPANY, AS SUCCESSOR IN INTEREST TO FRUEHAUF CORPORATION, Cross

Defendants, represented by MICHAEL J. BLOCK, WILBRAHAM, LAWLER & BUBA.

DAP, INC. & KELSEY-HAYES COMPANY, AS SUCCESSOR IN INTEREST TO FRUEHAUF CORPORATION, Cross

Claimants, represented by MICHAEL J. BLOCK, WILBRAHAM, LAWLER & BUBA.

STRICK TRAILERS, LLC, Cross Claimant, represented by GREGORY M. STOKES, SWARTZ CAMPBELL LLC.

ORDER

NITZA I. QUIÑONES ALEJANDRO, District Judge.

AND NOW, this 10th day of January 2020, upon consideration of the motion for summary judgment filed by Defendant

United States Steel Corporation (named in the complaint as "USX Corporation") ("Defendant" or "U.S. Steel"), [ECF 80], Defendant's supplemental brief, [ECF 84], and Plaintiffs' response in opposition thereto, [ECF 86], it is hereby ORDERED that:

(1) Defendant's motion is GRANTED as uncontested[1] with respect to Plaintiffs' claims premised on John R.

Blystone's purported exposure to asbestos while serving aboard the USS Thuban; and

(2) Defendant's motion is DENIED with respect to Plaintiffs' claims premised on Mr. Blystone's purported

exposure to asbestos contained in the open hearth area of Defendant's workplace.[2]

[1] In their response to Defendant's underlying motion, Plaintiffs have indicated that they will no longer be proceeding against U.S. Steel for any alleged exposure that occurred while Mr. Blystone was serving on the USS Thuban. [ECF 86, at p. 6 of 26]. These claims are, therefore, dismissed.

[2] In this matter, Plaintiffs assert various claims against numerous defendants premised on Mr. Blystone's alleged exposure to products containing asbestos. With respect to U.S. Steel, Mr. Blystone's employer for two weeks in 1960, Plaintiffs allege that Mr. Blystone developed mesothelioma as a result of his exposure to asbestos from insulation in the "open hearth" area of the workplace. Defendant filed its motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, which directs courts to grant summary judgment where the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In its motion,

Defendant argues that Plaintiffs' negligence claims premised on Mr. Blystone's purported exposure to asbestos-containing insulation in the open hearth area should be dismissed because Plaintiffs have failed to present sufficient evidence to meet the requisite "frequency, regularity and proximity" standard to overcome Defendant's motion for summary judgment. This Court disagrees.

Mr. Blystone testified that during his two-week employment with Defendant, he worked five days a week and eight hours a day in the open hearth area of the factory. The open hearth area was located inside a room with no windows. Every day, all day long, Mr. Blystone worked six or seven feet away from workers who scraped off the asbestos insulation covering the pipes located in the ceiling area. Mr. Blystone's only job during this period, which he did the entire workday, was to sweep up the resultant dust and debris. Mr. Blystone claims to have inhaled the dust created by the workers scraping the insulation, as well as the dust created by his sweeping up the resultant debris. Further, documents attached to Plaintiffs' response show that Defendant utilized asbestos coating in the open hearth areas of its plants and to cover pipes. In light of this evidence, this Court finds that Plaintiffs have presented evidence sufficient to create a genuine dispute of material fact regarding the issue of Mr. Blystone's exposure to asbestos in the U.S. Steel workplace. Therefore, Defendant's motion for summary judgment is denied.

Defendant also argues that Plaintiffs failed to establish any duty owed by Defendant to Mr. Blystone. Specifically, Defendant argues Plaintiffs were required to establish such a duty by way of an expert. Defendant's argument is without merit. Though a plaintiff asserting a claim for negligence must show the breach of a duty owed by a defendant, such demonstration is not dependent on expert testimony. Moreover, employers owe employees a duty of care which requires them to provide a safe workplace. Therefore, Defendant's motion is denied.

Sources

• The opinion on Google Scholar
• Pennsylvania asbestos laws
• Pennsylvania asbestos exposure sites