Gay v. AO Smith Corporation (W.D. Pa., Apr. 27, 2021, as to Weir Valves & Controls USA)

Our plain-English summary of Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, April 27, 2021).

Carl Gay developed mesothelioma, diagnosed in June 2019, and died in April 2020. His daughter Allisa Gay, as executor of his estate, sued many manufacturers and distributors, including Atwood & Morrill (Weir Valves & Controls USA), a valve maker. The case was removed to federal court in Pittsburgh. Mr. Gay had served in the Navy, Air Force, at General Electric and at Stone & Webster, and had done automotive work. The estate claimed exposure to asbestos in Atwood valves aboard the submarine USS Seawolf and at the Beaver Valley and Nine Mile Point power stations. Atwood moved for summary judgment. The court applied maritime law to the ship and Pennsylvania law to the power stations. Mr. Gay recalled seeing about two Atwood valves on the submarine but no one working on them. He never testified to seeing Atwood valves at the power stations. The court held that the evidence showed at most minimal exposure and required several inferential leaps, so it could not show Atwood valves were a substantial factor in his mesothelioma. Summary judgment went to Atwood.

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, Western District of Pennsylvania
• Decided: April 27, 2021
• Docket: Civil Action No. 2:19-cv-1311
• Stage: Summary judgment
• State: Pennsylvania

Outcome. The district court granted summary judgment for Atwood (Weir Valves & Controls USA) against the estate of Carl Gay because the plaintiff did not show sufficient exposure to Atwood valves.

What the court held. Under Pennsylvania law (frequency, regularity and proximity) and maritime law (a high enough level of exposure), proof that a defendant's product was merely present at a worksite, with only de minimis exposure, does not show the product was a substantial factor in causing the disease.

Issues decided: Causation, Choice of Law, Maritime Law and Navy Ships, Product Identification, Venue, Removal and Transfer.

The people and their exposure

• Carl E. Gay: mesothelioma; died

Who	Work	Where	When	Products
Carl E. Gay	Navy service (the Navy); military service	USS Seawolf	1946-1958	gaskets and packing, Atwood valves
Carl E. Gay	hydrostatic testing at power stations (power plants and utilities)	Beaver Valley Power Station, Shippingport, Pennsylvania	1974-1989	Atwood valves
Carl E. Gay	hydrostatic testing at power stations (power plants and utilities)	Nine Mile Point Generating Station, Lycoming, New York	1974-1989	Atwood valves

The defendants

• Weir Valves & Controls USA Inc., d/b/a Atwood & Morrill Co., Inc. (manufacturer)

Other decisions in this case

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

• Gay v. AO Smith Corporation (April 26, 2021). The district court granted Gardner Denver's motion for summary judgment against plaintiff Allisa Gay, executor of Carl Gay's estate, because she did not show he was exposed to asbestos from a Gardner product.
• Gay v. AO Smith Corporation (April 26, 2021). The court granted summary judgment for Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiff Allisa Gay, because the evidence did not show that Carl Gay was exposed to asbestos from a Buffalo pump.
• Gay v. AO Smith Corporation (April 26, 2021). The court granted Hunter Sales Corp.'s motion for summary judgment, ruling against plaintiff Allisa Gay because she did not show that Carl Gay breathed asbestos fibers from Hunter Sales gaskets.
• Gay v. AO Smith Corporation (April 26, 2021). The district court granted summary judgment to Flowserve U.S., Inc. (successor to Durametallic Corp.) because the plaintiff, executor of Carl Gay's estate, did not show he was exposed to asbestos from Durametallic products.
• Gay v. AO Smith Corporation (April 27, 2021). The district court granted Mueller Steam Specialty's motion for summary judgment because the plaintiff, executor of Carl Gay's estate, did not identify a Mueller Steam product as a cause of his mesothelioma.
• Gay v. AO Smith Corporation (April 27, 2021). The district court granted Carrier Corp.'s motion for summary judgment, ruling that the plaintiff, the estate of Carl Gay, could not show Carrier's product was a substantial cause of his mesothelioma.
• Gay v. AO Smith Corporation (June 17, 2021). The court granted the Exelon defendants' summary judgment motion on claims about the Limerick Power Station and denied it on claims about the Nine Mile Power Plant, so the estate's claim continues only as to Nine Mile.
• Gay v. AO Smith Corporation (June 17, 2021). The district court granted Honeywell's motion for summary judgment, ruling for Honeywell and against the plaintiff estate, because the plaintiff did not show Mr. Gay was exposed to asbestos from a Honeywell product.
• Gay v. AO Smith Corporation (June 17, 2021). The district court granted Warren Pumps LLC's motion for summary judgment against plaintiff Allisa Gay, executor of Carl Gay's estate, because the evidence did not show he was exposed to asbestos from a Warren pump.
• Gay v. AO Smith Corporation (June 17, 2021). The district court granted Viking Pump's motion for summary judgment against the estate of Carl Gay, finding no genuine issue that he was exposed to asbestos from a Viking pump.
• Gay v. AO Smith Corporation (June 17, 2021). The district court granted Square D/Schneider Electric's motion for summary judgment against the estate of Carl Gay because the plaintiff did not show that the Square D products at issue contained asbestos.
• Gay v. AO Smith Corporation (June 17, 2021). The district court granted General Electric's motion for summary judgment because the plaintiff, executor of Carl Gay's estate, did not show he was exposed to asbestos from a GE product with enough frequency, regularity and proximity.
• Gay v. AO Smith Corporation (June 17, 2021). The district court granted Yuba Heat Transfer, LLC's motion for summary judgment against plaintiff Allisa Gay, executor of Carl Gay's estate, because she did not show Mr. Gay was exposed to asbestos from a Yuba product.
• Gay v. AO Smith Corporation (June 17, 2021). The court denied Power Piping Co.'s motion for summary judgment, so the estate of Carl Gay, represented by his daughter Allisa Gay, may continue its claim against Power Piping.
• Gay v. AO Smith Corp. (June 25, 2021). The court ruled on General Electric's summary judgment motion in a federal asbestos case, but the opinion contradicts itself: the reasoning finds the plaintiff failed to show enough exposure to GE products and says the motion is granted, while the opening and closing paragraphs say it is denied.
• Gay v. AO Smith Corporation (February 15, 2022). The court granted Duquesne Light Company's non-product motion for summary judgment, ruling against the plaintiff estate because Duquesne Light owed Mr. Gay no duty as landowner or as employer of an independent contractor.
• Gay v. AO Smith Corp. (February 16, 2022). The court granted Duquesne Light Company's motion for summary judgment on the remaining premises liability claim, ruling for Duquesne Light and against the estate of Carl Gay.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Air and Liquid Systems Corp. v. DeVries (U.S. Supreme Court, 2019). The Supreme Court affirmed the Third Circuit's judgment vacating summary judgment for the equipment manufacturers (Air and Liquid Systems, CBS, Foster Wheeler, Ingersoll Rand, General Electric) and sent the case back so the District Court could reconsider under the Court's own duty-to-warn test, which favored the veterans' families.
• Howard v. AW Chesterton Co. (Pennsylvania Supreme Court, 2013). The Pennsylvania Supreme Court, on the plaintiffs' concession, vacated the Superior Court's order and reversed it, reinstating the trial court's summary judgment for the defendants (Monsey, Ace Hardware, Pecora).
• 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.
• 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.
• 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.
• Gutteridge v. AP Green Services, Inc. (Pennsylvania Superior Court, 2002). The Superior Court reversed the summary judgments for Hercules Chemical, Pecora and PECO, which had been entered against Mrs. Gutteridge, and remanded the case for further proceedings.
• Wilson v. AP Green Industries, Inc. (Pennsylvania Superior Court, 2002). The Superior Court affirmed the trial court's grant of summary judgment to Flintkote Co. against the administratrix of Dolly Chase's estate, finding no sufficient evidence that she was exposed to Flintkote Fibrex Cement.
• Eckenrod v. GAF Corp. (Pennsylvania Superior Court, 1988). 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.
• Mehnert v. Agilent Technologies, Inc. (U.S. District Court, Western District of Pennsylvania, 2020). The district court denied Fisher Scientific's motion for summary judgment, so the Mehnerts' negligence and loss of consortium claims against Fisher go forward to a jury.
• Walker v. Blackmer Pump Co. (U.S. District Court, Eastern District of Pennsylvania, 2019). The district court denied the summary judgment motions of Ingersoll-Rand, Warren Pumps and Blackmer Pump, so the plaintiff's claims against all three go forward.

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.

CARL E. GAY, Plaintiff,

v.

A.O. SMITH CORPORATION, etal., Defendants.

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

April 27, 2021.

United States District Court, W.D. Pennsylvania.

MEMORANDUM OPINION

WILLIAM S. STICKMAN, IV, District Judge.

Plaintiff Allisa D. Gay ("Plaintiff") sued Defendant Weir Valves & Controls USA Inc., d/b/a Atwood & Morrill Co., Inc. ("Atwood"), 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 Defendant's asbestos-containing products. On October 11, 2019, Defendant General Electric Co. 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 Atwood's Motion for Summary Judgment. (ECF No. 895). The Court must determine whether Plaintiff has properly identified Atwood's product as a cause of Mr. Gay's disease and, ultimately, death. For the following reasons, Atwood'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. (Id.).

II. Relevant Facts

Plaintiff alleges that Mr. Gay developed mesothelioma from exposure to Defendant's asbestos-containing products while working at various sites throughout Mr. Gay's career. Plaintiff contends Mr. Gay was exposed to asbestos products aboard the USS Seawolf before 1959 and while employed by Stone & Webster from 1974 to 1989, where he visited several facilities, including Beaver Valley Power Station in Shippingport, Pennsylvania and Nine Mile Point Generating Station in Lycoming, New York. (ECF No. 895, p. 2; ECF No. 949, p. 1). Atwood manufactured valves used throughout the United States. Mr. Gay testified to seeing Atwood's valves aboard the USS Seawolf, but that he never saw anyone working on the valves. (ECF No. 975-2, p. 2). Mr. Gay did not testify seeing Atwood's valves at the Beaver Valley Power Station or the Nine Mile Point Generating Station. Mr. Gay performed hydrostatic testing at both power stations. (ECF No. 949-9, p. 4). 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. Id. 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. The Court Will Apply Pennsylvania Law and Maritime Law.

The parties agree that Pennsylvania substantive law applies although some of the alleged exposures occurred on a U.S. Navy submarine. Under traditional admiralty choice of law rules, a court may apply state law if it does not conflict with federal admiralty law. See Calhoun v. Yamaha Motor Corp., USA., 40 F.3d 622 (3d Cir. 1994); see also Floyd v. Lykes Bros. S.S. Co., 844 F.2d 1044, 1046-47 (3d Cir. 1988) (courts may substitute state law with maritime law when maritime law is silent or a local matter is at issue, but a court may not apply state law where it would conflict with maritime law); Centennial Ins. Co. v. Lithotech Sales, LLC, 29 F. App'x. 835, 836 (3d Cir. 2002) (maritime law displaces only inconsistent state law). For these reasons, the Court will apply Pennsylvania law in evaluating Defendant's Motion for Summary Judgment for the Nine Mile Power Plant and the Beaver Valley Power Station. 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). As for exposure aboard the USS Seawolf, the Court will apply maritime law.

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 or 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. Id. 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 he inhaled 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

Defendant moves for summary judgment because Plaintiff has not properly identified Defendant's products. (ECF No. 896, p. 1). First, it contends that 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 Atwood. (Id.). Second, it argues that 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 Atwood on a regular, frequent or proximate basis. (Id. at 3). "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. 3d 360, 372 (E.D. Pa. 2019)). Such an inquiry is "fact-intensive." Id.

For Plaintiff to defeat Defendant'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 Defendant. Eckenrod v. GAF Corp., 544 A.2d 50, 53 (Pa. Super. 1988); see also Wilson v. A.P. 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. Plaintiff Failed to Show a Genuine Issue of Material Fact About Mr. Gay's

Asbestos Exposure Aboard the USS Seawolf.

In maritime asbestos cases, a plaintiff must show "a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural." Hays v. A. W. Chesterton, Inc., No. 2:09-93728-ER, 2012 WL 3062224, at [*1] n.1 (E.D. Pa. Apr 18, 2012) (quoting Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005) (reversed by Air & Liquid Sys. Corp. v. Devries, 139 S. Ct. 986 (2019) on other grounds)).

Plaintiff established that Atwood valves were present aboard the USS Seawolf. In his affidavit, Mr. Gay claimed he was around Atwood valves while others worked on them. (ECF No. 949-3, ¶ 13). In his deposition, Mr. Gay said he knew Atwood valves were present aboard the submarine, but he recalled no work being done on the Atwood valves, and he did not think he was near the valves when anyone else worked on the valves. (ECF No. 975-2, p. 2). At most, Mr. Gay remembered two Atwood valves aboard the submarine. (Id.). A court will not automatically exclude an affidavit because it conflicts with an earlier or later deposition of the same witness. Mehnert v. Agilent Techs., Inc., No. CV 18-593, 2020 WL 1493542, at [*11] (W.D. Pa. Mar. 27, 2020). Defendant implores that, although Plaintiff can establish that Atwood valves were present aboard the submarine, any exposure Mr. Gay would have had to the valves was de minimis. (ECF No. 975, pp. 3-4). Plaintiff counters that the working quarters were incredibly tight aboard the USS Seawolf. (See ECF No. 949-3, ¶ 16). Causation in maritime asbestos cases is "determined with respect to each defendant separately." Hays, 2012 WL 3062224, at [*1] n.1. Plaintiff cannot allude to tight quarters and claim Mr. Gay must have been exposed to asbestos from Defendant's products. Plaintiff failed to show that Mr. Gay had a high level of exposure to Atwood's valves. Granting every inference to Mr. Gay, the record shows that he had de minimis, if any, exposure to the asbestos in the Atwood valve. Though Plaintiff showed that the Atwood valves were present aboard the USS Seawolf, Plaintiff has not shown Mr. Gay had the requisite exposure to prove that Atwood's valves were a substantial cause for his disease. Id. The Court grants summary judgment for Defendant as for Mr. Gay's exposure to Atwood valves aboard the USS Seawolf.

B. Plaintiff Failed to Establish Mr. Gay Was Exposed to Asbestos from

Atwood Valves with Requisite Frequency, Regularity and Proximity at the

Beaver Valley Power Station and Nine Mile Power Plant.

Plaintiff must show that Mr. Gay's injuries were caused by a product supplied by Defendant. Plaintiff is unable to show that Mr. Gay was exposed to Atwood valves with the necessary frequency, regularity and proximity. In Howard v. A.W. Chesterton Co., 78 A.3d 605 (Pa. 2013), the Pennsylvania Supreme Court held that these principles apply dose-responsive diseases: (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 minimis exposure to a product does not establish causation; (3) an expert must make "some reasoned, individualized assessment of a plaintiff's or decedent's exposure history" to determine substantial-factor causation of the asbestos-related illness; and (4) summary judgment "is an available vehicle" for challenging de minimis exposure. Howard, 78 A.3d at 608.

Defendant highlights that, ultimately, the record shows that it may have supplied some asbestos-containing products to certain locations that Mr. Gay worked during his career, but it does not show if these products were ever used or installed, where they were used, if any maintenance was performed on them or if Mr. Gay was present during this effort. (ECF No. 975, p. 4). According to Defendant, the facts taken in a light most favorable to Plaintiff show no more than the mere

presence of Defendant's product at Mr. Gay's workplace. (Id.). It is their position that the evidence goes no further to show that Mr. Gay was exposed to asbestos from an Atwood product. (Id.). The Court agrees a factfinder could not find for Plaintiff without making several inferential leaps. See Liberty Lobby, 477 U.S. at 248.

For these reasons, the Court finds Plaintiff has not proffered enough evidence to show that Atwood valves were a substantial factor in Mr. Gay's mesothelioma. The Court grants summary judgment as for Mr. Gay's exposure at the Beaver Valley Power Station and the Nine Mile Power Plant.

VI. Conclusion

The Court finds that a genuine issue of material fact does not exist regarding Mr. Gay's alleged exposure aboard the USS Seawolf, at the Beaver Valley Power Station or the Nine Mile Power Plant. All other potential instances of exposure to Atwood valves are precluded. As a result, Defendant's Motion for Summary Judgment is granted. Orders of Court will follow.

Sources

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