Gay v. AO Smith Corporation (W.D. Pa., Apr. 27, 2021, as to Mueller Steam Specialty)

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

Allisa Gay sued Mueller Steam Specialty and other manufacturers and distributors after her father, Carl Gay, developed mesothelioma and died in April 2020. She was substituted as plaintiff as executor of his estate. Mr. Gay had worked in the Navy, the Air Force, at General Electric and at Stone & Webster, and had done automotive work. The claim against Mueller Steam concerned 1974 to 1976, when he worked at the Beaver Valley Power Station. The plaintiff alleged he was exposed to asbestos from Mueller Steam's strainers and steam traps. The court had to decide whether the plaintiff had identified a Mueller Steam product as a cause of the disease. Mr. Gay never named Mueller Steam in nine days of deposition. The only witness who saw Mueller steam traps at the plant began work after Mr. Gay left and recalled them from 1979. Mueller Steam showed it never made steam traps and sold others' traps only from 1986. The court found no evidence of exposure to a Mueller Steam product with the required frequency, regularity and proximity under Pennsylvania law. It granted summary judgment for Mueller Steam.

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 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.

What the court held. Under Pennsylvania law, a plaintiff must show exposure to asbestos from the specific defendant's product with sufficient frequency, regularity and proximity for a jury to infer causation. The presence of a product at a workplace, or other workers' later testimony about it, is not enough.

Issues decided: Causation, Product Identification.

The people and their exposure

• Carl E. Gay: mesothelioma; died

Who	Work	Where	When	Products
Carl E. Gay	inspector of piping systems and equipment (power plants and utilities); worked near others using it	Beaver Valley Power Station, Pennsylvania	1974-1976	Mueller Steam strainers and steam traps
Carl E. Gay	Navy employment (the Navy); military service	United States Navy	1946-1958
Carl E. Gay	automotive work (auto mechanics and brake work)		starting in the 1940s

The defendants

• Mueller Steam Specialty (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 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.
• 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:

• 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.
• 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.

ALLISA D. 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 Mueller Steam Specialty ("Mueller Steam") 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 Mueller Steam's Motion for Summary Judgment. (ECF No. 881). The Court must determine whether Plaintiff has properly identified Mueller Steam's product as a cause of Mr. Gay's disease and, ultimately, death. For the following reasons, Mueller Steam'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 between 1974 and 1976 while working at the Beaver Valley Power Station as an employee of Stone & Webster. (ECF No. 943, p. 1). Plaintiff alleges Mr. Gay was exposed to asbestos from Mueller Steam's strainers and steam traps. (Id.). Mr. Gay inspected all piping systems installed at the Beaver Valley Power Station. (ECF No. 943-1, ¶ 24). He ensured all piping systems and equipment met the specifications required by the plant. (Id.). He was near construction workers who installed new equipment. (Id.).

James Daugherty testified in an unrelated case about his experience at the Beaver Valley Power Station. (ECF No. 943-4). Mr. Daugherty began working at the Beaver Valley Power Station in 1976 after Mr. Gay left. (Id. at 2-3). Mr. Daugherty started training for a special license in 1978. (Id. at 4). That work required that he enter and inspect Unit 1 of the Beaver Valley Power Station where Mr. Gay had worked. (Id. at 4-5). Mr. Daugherty identified Mueller steam traps in Unit 1 and remembered seeing them starting in 1979. (Id. at 7-8).

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. Pennsylvania Law Applies

The parties agree that Pennsylvania substantive law applies. For that reason, the Court will apply Pennsylvania law. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Guar. Trust Co. v. York, 326 U.S. 99, 108 (1945). B. Causation Standard

Before imposing liability on a defendant in a product liability action, Pennsylvania law requires a plaintiff to show not only that the plaintiff was exposed to a defective product manufactured or sold by the defendant but that the plaintiff's exposure was a substantial factor in causing the plaintiff's injury. Richards v. Raymark Indus. Inc., 660 F. Supp. 599 (E.D. Pa. 1987); Gregg v. V-J Auto Parts Co., 943 A.2d 216, 224-26 (Pa. 2007); accord Robertson v. Allied Signal Inc., 914 F.2d 360, 375 (3rd Cir. 1990) (applying Pennsylvania law). The Pennsylvania Supreme Court held in asbestos litigation that "it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in the light of the evidence concerning frequency, regularity, and proximity of a plaintiff's/decedent's asserted exposure, a jury would be entitled to make the necessary inference of a sufficient causal connection between defendant's product and the asserted injury." Gregg, 943 A.2d at 226-27 (adopting the frequency, regularity and proximity standard in asbestos cases). As a result, a plaintiff must prove he was exposed to asbestos from a defendant's product with sufficient frequency, regularity and proximity so that a jury could make the necessary inference of an adequate causal connection between that product and the asserted injury. 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 the plaintiff 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 it is not liable for injuries caused by asbestos products for three reasons. First, Mr. Gay did not identify Mueller Steam in either his deposition or his affidavit. Second, Mueller Steam did not sell steam traps during the time Mr. Gay worked at the Beaver Valley Power Station. Finally, Plaintiff's evidence failed to establish that Mr. Gay was exposed to Mueller Steam products with the requisite frequency, regularity and proximity. "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, 544 A.2d at 53; 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. Mr. Gay Did Not Identify Mueller Steam in Either His Deposition or His

Affidavit.

Mr. Gay was deposed over nine days and never identified Mueller Steam. (ECF Nos. 943-1; 943-2; 943-3; 943-4). A "plaintiff must establish more than mere presence of asbestos in the workplace; he must prove that he worked in a vicinity in which a specific manufacturer's product was used." Gutteridge, 804 A.2d at 652. The Court holds that Plaintiff's proffered evidence cannot establish Mr. Gay worked near asbestos-containing materials manufactured by Defendant.

B. Mueller Steam Did Not Sell Stream Traps During the Time Mr. Gay Worked

at the Beaver Valley Power Station.

Plaintiff proffered testimony that Mr. Gay worked at the Beaver Valley Power Station from March 1974 to the summer of 1976. Plaintiff cited Mr. Daugherty's deposition to establish that Defendant's products were present at the Beaver Valley Power Station while Mr. Gay worked there. (ECF No. 943). Mr. Daugherty, in his deposition, said he recalled seeing Mueller steam traps in 1979. (ECF No. 943-4, p. 7). Plaintiff conceded, though, that Mr. Daugherty started working at the power station after Mr. Gay left and that his recollection postdates Mr. Gay's tenure. (ECF No. 943, p. 6). The Pennsylvania Superior Court in Sterling v. P&H Mining Equip., Inc., 113 A.3d 1277, 1282 (Pa. Super. 2015), held although other workers had testified about their exposures in their cases, their testimony "did nothing to show that [the plaintiff] inhaled dust" from the equipment at issue. Id. at 1282. The court found such testimony insufficient to establish the "frequency, regularity, or proximity of [the plaintiff's] own alleged exposure." Id. at 1283. Showing that a product was present at a workplace does not establish that a plaintiff was exposed to that product. See Eckenrod, 544 A.2d at 52 ("[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."). Plaintiff cites Mueller Steam's discovery responses served in a West Virginia case and verified by Cathy Hayes Stanley. (ECF No. 943-5). Cathy Hayes Stanley is the former customer service manager and current corporate representative of Mueller Steam. (ECF No. 984, p. 2). From those documents, Plaintiff established that Mueller Steam manufactured strainers. (Id.).

Defendant highlights the fact that Mueller Specialty did not sell steam traps until 1986, ten years after Mr. Gay left the Beaver Valley Power Station. (Id. at 2-3). In an affidavit from a different case, Ms. Hayes Stanley stated, "Muller Steam Specialty never manufactured steam traps." (ECF No. 984-1, p. 1). Mueller Steam sold steam traps manufactured by another company under the Mueller Steam Specialty name. (Id.). Mr. Daugherty claimed to have seen Mueller Steam traps, but steam traps and strainers are different systems. The steam traps Mr. Daugherty identified must have been from a different manufacturer because Mueller Steam never manufactured steam traps and only sold them after 1986. The Court finds Plaintiff did not properly identify Mueller Steam's products.

C. Plaintiff Failed to Establish That Mr. Gay Was Exposed to Asbestos-

Containing Products of Mueller Steam with the Requisite Frequency,

Regularity or Proximity.

Since Plaintiff did not identify Mueller Steam by name and Mueller Steam did not sell steam traps during the relevant time, Plaintiff has failed to establish ever being around a Mueller Steam product on any occasion let alone on a regular, frequent, and proximate basis. Neither Plaintiff's expert nor decedent ever discussed Mueller Steam products. The Court agrees that a factfinder could not find for Plaintiff without making several inferential leaps. See Liberty Lobby, 477 U.S. at 248. Plaintiff does not provide facts to establish that Mr. Gay worked with or around an asbestos-containing product of Gardner. For these reasons, the Court finds Plaintiff failed to proffer enough evidence to show Air & Liquid's pumps were a substantial factor in Mr. Gay's mesothelioma.

VI. Conclusion

The Court finds that a genuine issue of material fact does not exist in this case. 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