Eckenrod v. GAF Corp. (1988)

Our plain-English summary of Eckenrod v. GAF Corp. (Pennsylvania Superior Court, May 6, 1988).

Jean Eckenrod, widow and administratrix of Eugene Eckenrod, sued several asbestos product makers and suppliers. Her husband worked from 1959 to 1982 as a millwright, maintenance pipefitter and welder at the Babcock & Wilcox Wallace Run facility. He was diagnosed with lung cancer in March 1982 and died that November. She said he used asbestos gloves and cloth supplied by A-Best and H.K. Porter in the furnace area. The trial court granted summary judgment to the defendants for lack of product identification. On appeal, the Superior Court affirmed. Co-worker affidavits said only that they worked with him "upon occasion" and that he was exposed to asbestos, without describing its nature, length, brand or closeness to him. Distributor and storeroom testimony showed that products were sold to the plant, but not where they were used or that he came into contact with them. The court held this did not support even a reasonable inference of exposure to the defendants' products. Co-defendant Pittsburgh Gage's challenge to the other defendants' judgments also failed. Judge Kelly concurred, saying Gage had waived its challenge.

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: Pennsylvania Superior Court
• Decided: May 6, 1988
• Citation: 544 A.2d 50
• Stage: Appeal from summary judgment
• State: Pennsylvania

Outcome. The Superior Court affirmed summary judgment for A-Best, Porter, Raymark, Owens-Corning and Garlock, because the widow and co-defendant Pittsburgh Gage did not show the decedent was exposed to those defendants' asbestos products.

What the court held. To defeat summary judgment in an asbestos case, a plaintiff must present evidence that the decedent inhaled fibers shed by the specific defendant's product, which requires more than the presence of asbestos in the workplace; circumstantial proof depends on frequency of use and regularity of work near the product.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

Why this case is relevant

In this 1988 decision, the Pennsylvania Superior Court affirmed summary judgment for asbestos defendants because the widow could not tie her husband's exposure to their particular products. The court held that a plaintiff must present evidence that he inhaled fibers shed by the specific manufacturer's product, and that showing asbestos was present in the workplace is not enough. Circumstantial proof, it said, depends on how often the product was used and how regularly the plaintiff worked near it. Proof that products were sold to the plant, and co-worker statements of occasional exposure, fell short.

Later Pennsylvania Superior Court decisions cite it as the source of the "frequency, regularity, and proximity" test for product identification at summary judgment. Those decisions differ in how they describe the Pennsylvania Supreme Court's 2007 Gregg decision. One said Gregg modified the law Eckenrod established by adopting a flexible, case-by-case approach. Others said Gregg essentially adopted the Eckenrod test. The high courts of Ohio, Illinois and Maryland, and federal appeals courts, have also cited it on proof of exposure to a particular product.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Eugene C. Eckenrod: lung cancer; died

Who	Work	Where	When	Products
Eugene C. Eckenrod	maintenance pipefitter, welder, and millwright	Wallace Run facility, Babcock & Wilcox Company	1959-1982	asbestos textiles, asbestos gloves (A-Best), asbestos cloth (A-Best), asbestos cloth (H.K. Porter)

The defendants

• A-Best Products Company (supplier) · its asbestos trust
• H.K. Porter Company, Inc. (supplier)
• Raymark Industries, Inc. (manufacturer)
• Owens-Corning Fiberglas Corporation (manufacturer) · its asbestos trust
• Garlock, Inc. (manufacturer) · its asbestos trust
• GAF Corporation (manufacturer) · its asbestos trust
• John Crane-Houdaille, Inc. (manufacturer)
• Anchor Packing Company (manufacturer)
• The Pittsburgh Gage Company

Later decisions citing this one

64 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Rost v. Ford Motor Co. (Pennsylvania Supreme Court, 2016). The Pennsylvania Supreme Court affirmed the judgment for the Rost estates against Ford Motor Company, holding that the causation testimony was proper and that, although consolidation with two other cases was error, Ford showed no prejudice.
• Gregg v. VJ Auto Parts Company (Pennsylvania Supreme Court, Eastern District, 2007). The Pennsylvania Supreme Court vacated the Superior Court's order, which had reversed summary judgment for V-J Auto Parts, held that the trial court did not err in applying the frequency, regularity, proximity assessment, and remanded for further proceedings.
• Horton v. Harwick Chem. Corp. (Ohio Supreme Court, 1995). The Ohio Supreme Court reversed the court of appeals, which had upheld summary judgment for the asbestos product defendants, and remanded to the trial court, so the Hortons and Derrick won on the causation standard. It agreed with the appellate court that alternative liability does not apply.
• Eagle-Picher Industries, Inc. v. Balbos (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory judgments for the Balbos and Knuckles plaintiffs against Eagle-Picher and the other defendants, except that it reversed the Knuckles judgment against Porter Hayden for lack of proof, and it ordered a new trial on punitive damages against Owens-Illinois and Eagle-Picher.
• Thacker v. Unr Industries, Inc. (Illinois Supreme Court, 1992). The Illinois Supreme Court affirmed the appellate court, which had upheld the jury verdicts for plaintiff Lois Thacker and denied the Manville Fund's request for judgment n.o.v.
• Greenleaf v. Garlock, Inc. (U.S. Court of Appeals, Third Circuit, 1999). The Third Circuit reversed in part and affirmed in part: it held that the state-court damages verdict barred relitigation of damages, so judgment for the Greenleafs against Garlock and Owens Corning must be entered at the state amount. It also ordered a new trial on Garlock's and Owens Corning's crossclaims against the non-appearing defendants.
• Jackson v. Anchor Packing Co. (U.S. Court of Appeals, Eighth Circuit, 1993). The Eighth Circuit affirmed summary judgment for all defendants (Owens-Corning, Owens-Illinois, Fibreboard, Keene, Anchor, Chesterton, Garlock, John Crane, Rexnord and Georgia Talc) against the ten Mohawk tire plant workers, because the workers lacked sufficient proof that a particular defendant's products caused their injuries.
• Rotondo v. Keene Corp. (U.S. Court of Appeals, Third Circuit, 1992). The Third Circuit affirmed the district court's denial of Keene Corporation's motions for directed verdict, j.n.o.v. and a new trial, leaving the jury verdict for Rose Rotondo in place.
• Constantine v. Lenox Instrument Co., Inc. (Pennsylvania Superior Court, 2024). The Superior Court affirmed the denial of Lenox's post-trial motion, leaving the bench-trial judgment for Constantine in place, and reversed in part the order on delay damages, finding three periods wrongly excluded and remanding.
• Mullen v. American Circuit Breaker Corporation (Pennsylvania Superior Court, 2023). The Superior Court reversed the trial court's grant of summary judgment for IntriCon Corporation (formerly Selas) and remanded for further proceedings, siding with the estate administratrix Debbie Mullen.
• Brandt v. Bon-Ton Stores, Inc. (Pennsylvania Superior Court, 2020). The Superior Court affirmed the trial court's exclusion of the plaintiff's exposure expert testimony and its grant of summary judgment to Colgate-Palmolive, against Charles Brandt and the Estate of Sally Brandt.
• Kardos v. Armstrong Pumps, Inc. (Pennsylvania Superior Court, 2019). The Superior Court vacated the summary judgments for the remaining defendant-appellees, reversed the order precluding Mr. Kardos' affidavit and deposition, and remanded for further proceedings, ruling for the plaintiff estate.
• Lamson v. Georgia-Pacific LLC (Pennsylvania Superior Court, 2019). The Superior Court reversed the summary judgment that had been granted to International Paper and Weyerhaeuser, ruling for the Lamson estate, and remanded for trial.
• Gilbert v. Advance Auto Parts (Pennsylvania Superior Court, 2018). The Superior Court affirmed the trial court's summary judgment for Advance Auto Parts, Automotive Distribution Network and Ford Motor Company, rejecting the estate's and widow's claims for lack of evidence of frequent, regular exposure to their products.
• Mack Trucks, Inc. v. Coates (Maryland Court of Special Appeals, 2018). The Court of Special Appeals reversed the judgments for Coates against Mack Trucks and Ford on negligent failure to warn, and reversed the judgments for CertainTeed on Mack's and Ford's cross-claims, remanding for further proceedings; it held the evidence against Mack was legally sufficient.
• Floyd v. AstenJOHNSON, Inc. (Pennsylvania Superior Court, 2017). The Superior Court affirmed summary judgment for AstenJohnson, Inc., holding the executor of James Floyd Sr.'s estate failed to produce enough evidence that Floyd inhaled asbestos from AstenJohnson's dryer felts.
• Haldaman v. Eaton Corporation (Pennsylvania Superior Court, 2014). The Superior Court affirmed the trial court's orders granting summary judgment to Eaton, P&H Mining, Reading Crane, Morgan Engineering, CBS Corp. and General Electric, and rejected the Haldaman estate's appeal; the Kentile appeal had been discontinued.
• Krauss v. Trane US Inc. (Pennsylvania Superior Court, 2014). The Superior Court affirmed the trial court's summary judgment for General Electric, Georgia-Pacific, CBS/Westinghouse, Goulds Pumps, Zurn Industries and Trane (American Standard), and the executrix lost.
• Nelson v. Airco Welders Supply (Pennsylvania Superior Court, 2014). The Superior Court vacated the $14.5 million judgment for Darlene Nelson and the Nelson estate against Crane Co., Hobart Brothers and Lincoln Electric, and remanded for a new trial on liability and damages.
• Painter v. Sears, Roebuck and Co., Inc. (Pennsylvania Superior Court, 2014). The Superior Court affirmed the trial court's summary judgment for Sears, American Biltrite and CertainTeed, rejecting Sara Painter's claims over her late husband's mesothelioma.
• Smith v. Bmw OF North America LLC (Pennsylvania Superior Court, 2014). The Superior Court affirmed the trial court's summary judgment for Ford Motor Company and Borg-Warner Corporation, against the estate of Paul Rowland, represented by Amy Smith as executrix.
• Fisher v. Sexauer (Pennsylvania Superior Court, 2012). The Superior Court affirmed the trial court's summary judgment for J.A. Sexauer, Kentile and Pecora Corporation, ruling against Beverly Fisher because the evidence did not show enough exposure to each defendant's product.
• Howard v. AW Chesterton Co. (Pennsylvania Superior Court, 2011). The Superior Court reversed the orders granting summary judgment to Chesterton, ACE Hardware, Monsey, Pecora and Union Carbide, vacated the judgment, and remanded the plaintiffs' case for further proceedings.
• Betz v. Pneumo Abex LLC (Pennsylvania Superior Court, 2010). The Superior Court reversed the trial court's summary judgment for Allied Signal and Ford (and the other friction product defendants) and remanded, holding that the trial court wrongly granted the defendants' Frye motion excluding the estate's causation experts.
• Moore v. Ericsson, Inc. (Pennsylvania Superior Court, 2010). The Superior Court affirmed the judgment on the molded jury verdict for Judith Moore and the Estate of Donnie Moore against Ericsson, Inc., and rejected both Ericsson's appeal and Moore's cross-appeal.
• Burger v. Owens-Illinois, Inc. (Pennsylvania Superior Court, 2009). The en banc Superior Court affirmed the trial court's summary judgment for Crown Cork, DAP, Pneumo Abex and Owens-Illinois, ruling against Jon and Lois Burger.
• Estate of Hicks v. Dana Companies, LLC (Pennsylvania Superior Court, 2009). The en banc Superior Court affirmed the judgment for the Estate of Louis Hicks against Dana Companies and John Crane, rejecting both defendants' challenges to the verdict, the evidence rulings, the jury instructions and the reverse-bifurcated trial.
• Gregg v. VJ Auto Parts Co. (Pennsylvania Superior Court, 2009). On remand from the Pennsylvania Supreme Court, the Superior Court affirmed summary judgment for V-J Auto Parts and denied the estate's motion to amend the complaint.
• Vanaman v. Dap, Inc. (Pennsylvania Superior Court, 2009). The en banc Superior Court affirmed the trial court's summary judgment for Crown Cork & Seal and DAP, ruling against Robert Vanaman and the estate of Violet Vanaman.
• Weible v. Allied Signal, Inc. (Pennsylvania Superior Court, 2008). The Superior Court reversed summary judgment for Borg-Warner, Brake & Clutch Co. of Philadelphia and Carlisle and remanded for further proceedings, but affirmed summary judgment for McCord, in the suit by Sara Jane Weible over her husband's mesothelioma.

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.

375 Pa. Superior Ct. 187 (1988)

544 A.2d 50

Jean E. ECKENROD, Administratrix of the Estate of Eugene C. Eckenrod, and Jean E. Eckenrod, in

Her Own Right

v.

GAF CORPORATION, Raymark Industries, Inc., Owens-Corning Fiberglas Corporation, A-Best

Products Company, Garlock, Inc., John Crane-Houdaille, Inc., H.K. Porter Company, Inc.,

Individually and as Successor-in-Interest to Southern Textile Company, Formerly Southern

Asbestos Company, the Pittsburgh Gage Company & Anchor Packing Company.

Jean E. ECKENROD, Administratrix of the Estate of Eugene C. Eckenrod, and Jean E. Eckenrod, in

Her Own Right, Appellant,

v.

GAF CORPORATION, Raymark Industries, Inc., Owens-Corning Fiberglas Corporation, A-Best

Products Company, Garlock, Inc., John Crane-Houdaille, Inc., H.K. Porter Company, Inc.,

Individually and as Successor-in-Interest to Southern Textile Co., Formerly Southern Asbestos

Co., the Pittsburgh Gage Company & Anchor Packing Company.

Argued January 14, 1988.

Filed May 6, 1988.

Rearguments Denied July 12, 1988.

Superior Court of Pennsylvania.

[*189] Francis X. McTiernan, Jr., Pittsburgh, for Pittsburgh Gage.

Thomas W. White, Pittsburgh, for Eckenrod.

Kathy K. Condo-Caritis, Pittsburgh, for GAF.

David R. Johnson, Pittsburgh, for Raymark.

Thomas Herbertson, Pittsburgh, for A-Best.

John A. Bacharach, Pittsburgh, for Garlock.

Before OLSZEWSKI, TAMILIA and KELLY, JJ.

OLSZEWSKI, Judge:

This is an appeal from an order granting summary judgment in favor of defendants-appellees A-Best Products Company ("A-Best"); Raymark Industries, Inc.; Owens-Corning Fiberglas Corporation; Garlock, Inc.; and H.K. Porter Company, Inc. ("Porter"). Appellant Eckenrod claims that there was an issue of material fact regarding the liability of Porter and A-Best. Appellant Gage Company maintains that the lower court erred in determining that appellant Eckenrod failed to present sufficient factual evidence that her decedent was exposed to asbestos manufactured and/or supplied by all appellees during his employment with Babcock & Wilcox Company ("B & W"). For reasons discussed below, we affirm the order of the trial court.

Appellant's decedent, Eugene C. Eckenrod, began employment as a millwright in 1959 with B & W. From 1959 to 1982, decedent worked as a maintenance pipefitter, welder, and millwright at the Wallace Run facility. In March 1982, decedent was diagnosed as having lung cancer. He died in November 1982.

Appellant Eckenrod filed suit on November 15, 1984, alleging that her decedent died as a result of exposure to defendants' asbestos products while working at B & W. [*190] Most of the defendants moved for summary judgment in early 1987 based on lack of product identification. On March 7, 1987, the motions of GAF Corporation, John Crane-Houdaille, Inc., and

Anchor Packing Company were granted and the complaints against them dismissed. On May 7, 1987, the trial court granted the remaining motions for summary judgment and dismissed the complaints against each.[1] It is the May 7, 1987, order that appellants challenge herein.

Appellant Eckenrod challenges only the granting of summary judgment in favor of A-Best and Porter. Appellant Gage Company contends that the judgment was improper as to all defendants.[2] We have declared that when reviewing an order granting summary judgment, our function is to determine whether there exist issues of triable fact. Bobb v. Kraybill, 354 Pa.Super. 361, 511 A.2d 1379 (1986). We have further determined that:

A summary judgment should only be entered in those cases which are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). The court must accept as true all well pleaded facts in the plaintiff's pleadings, and give the plaintiff the benefit of all reasonable inferences to be drawn therefrom. Just v. Sons of Italy Hall, 240 Pa.Super. 416, 368 A.2d 308 (1976).

Roland v. Krayco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986); see also Lucera v. Johns-Manville Corp., 354 Pa. Super. 520, 512 A.2d 661 (1986).

In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused [*191] by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). 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. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa.Super. 610, 503 A.2d 44 (1985). 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. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). Summary judgment is proper when the plaintiff has failed to establish that the defendants' products were the cause of plaintiff's injury. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Eckenrod contends that her decedent used asbestos gloves supplied by A-Best for twenty years, asbestos cloth supplied by A-Best for fifteen years, and asbestos cloth supplied by Porter for eight years while employed by B & W in the furnace area of the Wallace Run Facility. In support of her assertion, appellant claims that traveling requisition forms place both companies as a supplier of the products to B & W. In order to place her husband in the vicinity of the asbestos products and to detail his work activities, appellant relied on affidavits of three co-workers. The affiants indicated that they had worked with the decedent "upon occasion" at the Wallace Run facility; none, however, stated that the decedent worked exclusively or continuously at the Wallace Run furnace during his period of employment. Further, each indicated "exposure" to asbestos products but did not elaborate on the nature or length of the exposure or the brand of products available. Additionally, while the affiants admitted that Mr. Eckenrod was "exposed to" asbestos products, none clarified the proximity of the products to the workers or that the appellees [*192] were the manufacturers/suppliers of the products being used. In fact, the only testimony as to the identification of any of the products came from the depositions of distributors of the asbestos products and one main plant storeroom employee at B & W. Each of these depositions indicates that various appellees sold asbestos products to B & W, but do not establish where the specific product was used or that Mr. Eckenrod came into contact with an identifiable product.

Whether direct or circumstantial evidence is relied upon, our inquiry, under a motion for summary judgment, must be 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. Schmidt v. Johns-Manville Corp., No. 80-3339 Slip op. (D.Md. November 30, 1982). 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.

Upon careful scrutiny of the record, we must uphold the trial court's granting of the motions for summary judgment in favor of Porter and A-Best. We acknowledge that the facts establish that the decedent on occasion was exposed to asbestos; there is no evidence, however, as to the regularity or nature of decedent's contact with asbestos. Moreover, there is no testimony establishing that Mr. Eckenrod worked with asbestos supplied and/or manufactured by Porter or A-Best or any of the other appellees. 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. Pongrac, supra; Anastasi, supra. Absent testimony of record that identifies appellees' products as being present in the furnace, there is not even a reasonable inference that appellant was exposed [*193] to appellees' asbestos products. Pongrac, supra; see also Wible, supra.

Appellant Gage Company also challenges the granting of summary judgment in favor of the remaining appellees. After careful review of the record, we find that the standard delineated supra has not been satisfied regarding these appellees as well. Appellant Gage Company has failed to point to any testimony which establishes that Mr. Eckenrod inhaled asbestos fibers shed by the remaining appellee's products. Therefore, we must uphold the trial court's determination in this regard as well.

The order and judgment of the trial court are affirmed.

Concurring statement by Kelly, J.

KELLY, Judge, concurring:

I agree with the majority as to its disposition of appellant Eckenrod's claim. Eckenrod failed to present evidence as to the nature or regularity of decedent's exposure to asbestos, or evidence that decedent worked with asbestos products supplied or manufactured by appellees.

I differ, however, with the majority's disposition of the appeal of appellant Gage Company. Gage Company, defendant in the court below, failed to file even a memorandum opposing a grant of the remaining defendants' summary judgment motions. It is a longstanding tenet of appellate jurisprudence that a party may not ordinarily raise a claim for the first time at the appellate level. See Pa.R. A.P. 302(a); see also Marzullo v. Stop-N-Go Food Stores, 364 Pa.Super. 106, 109, 527 A.2d 550, 551 (1987); Valvano v. Galardi, 363 Pa.Super. 584, 592, 526 A.2d 1216, 1220 (1987). The rationale behind this principle is that the trial court in the first instance must be permitted the opportunity to address any arguments which a party may have. Szakmeister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1984); Cherry v. Willer, 317 Pa.Super. 58, 463 A.2d 1082 (1983). I would hold that appellant Gage Company waived its right to challenge the grant of summary judgment [*194] by failing to challenge the co-defendants' motion for summary judgment in the court below. See Pennsylvania Department of Transportation v. Phillips, 87 Pa.Cmwlth. 504, 488 A.2d 77 (1985).[*]

[1] Appellant Pittsburgh Gage Company did not file a motion for summary judgment.

[2] Appellees Garlock, Inc., Raymark Industries, Inc., and H.K. Porter Company, Inc., contend that appellant Gage Company has waived its right to appeal by not challenging the motions for summary judgment in the trial court. We note, however, that an order granting summary judgment is final and appealable. Progressive Home Federal Savings and Loan Ass'n v. Kocak, 359 Pa.Super. 120, 518 A.2d 808 (1986). Therefore, appellant Gage Company was not required to raise challenges to the motions or the order in the trial court. [*] In support of its position that Gage Company was not required to raise any challenge in the court below, the majority cites the rule that an order granting summary judgment is final and appealable. While this rule explains Gage's failure to file post-verdict motions challenging the order granting summary judgment, it does not excuse Gage's failure to challenge the co-defendants' motions for summary judgment.

Sources

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