Gay v. AO Smith Corporation (W.D. Pa., June 17, 2021, as to Yuba Heat Transfer)

Our plain-English summary of Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, June 17, 2021).

Allisa Gay, executor of her father Carl Gay's estate, sued Yuba Heat Transfer, LLC and many other companies. She alleged that Mr. Gay developed mesothelioma, was diagnosed in June 2019, and died in April 2020, from asbestos exposure. His work history included the Navy, the Air Force, General Electric, Stone and Webster, and automotive work. The claim against Yuba concerned his work from 1977 to 1981 on the construction of the Nine Mile Point power station, where Yuba supplied feedwater heaters that called for asbestos gaskets. Yuba moved for summary judgment, arguing there was no proof he was exposed to asbestos from its products. The court applied Pennsylvania's frequency, regularity and proximity standard. It noted that Mr. Gay never mentioned feedwater heaters or Yuba in his deposition. It found no evidence that Yuba equipment was installed, removed or repaired near him in a way that released fibers. The court held that the presence of a product at a worksite is not enough and granted summary judgment for Yuba.

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: June 17, 2021
• Docket: Civil Action No. 2:19-cv-1311
• Stage: Summary judgment
• State: Pennsylvania

Outcome. 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.

What the court held. Under Pennsylvania law, a plaintiff must show exposure to the specific defendant's asbestos product with sufficient frequency, regularity and proximity; mere presence of the product at the workplace is not enough.

Issues decided: Causation, Choice of Law, Product Identification.

The people and their exposure

• Carl E. Gay: mesothelioma; died

Who	Work	Where	When	Products
Carl E. Gay	assistant superintendent, later superintendent, of field quality control (power plants and utilities); worked near others using it	Niagara Mohawk Power Station (Nine Mile Point), New York	1977-1981	gaskets and packing, Yuba feedwater heaters (asbestos-containing gaskets)
Carl E. Gay	assistant superintendent, later superintendent, of field quality control (power plants and utilities)	Nine Mile Point power station, New York	1977-1981	pipe and block insulation, gaskets and packing, asbestos textiles, asbestos-containing insulation, welding blankets, gaskets on pipe flanges

The defendants

• Yuba Heat Transfer, LLC (manufacturer)
• General Electric Co. (manufacturer)
• A.O. Smith Corporation (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 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 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.

June 17, 2021.

United States District Court, W.D. Pennsylvania.

MEMORANDUM OPINION

WILLIAM S. STICKMAN, IV, District Judge.

Plaintiff Allisa D. Gay ("Plaintiff") sued Defendant Yuba Heat Transfer, LLC ("Defendant") 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 Yuba's Motion for Summary Judgment. (ECF No. 848). The Court must determine whether Plaintiff has properly identified Yuba's product as a cause of Mr. Gay's disease and, ultimately, death. For the following reasons, Yuba'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 the Niagara Mohawk Power Station (Nine Mile Point) from 1977 to 1981. More specifically, Plaintiff argues Mr. Gay was exposed to asbestos from Yuba's feedwater heaters, which caused his mesothelioma. (ECF No. 937, p. 10). Mr. Gay worked full-time at the Nine Mile power station during its initial construction, from 1977 until 1981. (ECF No. 937-1, ¶ 28). Throughout Mr. Gay's tenure, the defendant furnished high-pressure and low-pressure feedwater heaters for use at the plant. (ECF No. 937-4, p. 2). These heaters were large, tank-like structures and included attachment points for plant piping, access hatches, inspection portholes and valves.

Mr. Gay did not identify Yuba by name or feedwater heaters. Mr. Gay testified that he inspected the piping systems for the nuclear reactor and pressure systems throughout the Nine Mile plant. (ECF No. 937-1). He worked near the construction workers who installed various pieces of equipment. (ECF No. 937-2, pp. 4-5).

Yuba's documents show that the equipment that it furnished to Mr. Gay's worksite required the use of asbestos-containing gaskets. The blueprints called for the use of asbestos gaskets on the equipment. Yuba's documents show that the equipment was intended to be assembled at the site following the blueprints. (ECF No. 937-5).

Plaintiff's expert report from an engineer showed that gaskets and packing contained asbestos until the 1980s, and another report from an industrial hygienist attested that the normal use and handling of asbestos-containing packing and gasket materials release airborne fibers. (ECF Nos. 937-7, 937-8).

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 arguing that it is not liable for injuries caused by asbestos products for two reasons. First, 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 Yuba. Second, 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 Yuba on a regular, frequent or proximate basis.

"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 fibers 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). Yuba admitted in response to Plaintiff's discovery requests that it supplied feedwater heaters to the Nine Mile Point Power Station in 1973, 1980 and 1982. (ECF No. 937-4, p. 2). Yuba also produced the accompanying drawings, setting plans and bills of material for these equipment items. Yuba does not dispute that asbestos-containing gaskets were used in the build of these feedwater heaters.

Yuba disputes Plaintiff's argument that, simply because it supplied feedwater heaters to the Nine Mile Point Power Station while Mr. Gay worked there, he was exposed to asbestos fibers from the water heaters. In his deposition, Mr. Gay never mentioned water heaters and never named Yuba. Plaintiff has not supplied testimony or any other evidence to suggest that Yuba feedwater heaters were installed, removed, repaired or replaced in a way that caused asbestos fibers to be released in the presence of Mr. Gay.

Mr. Gay testified that he was present at the job from 1977 to 1981 as an assistant superintendent, and later superintendent, of field quality control on the structural and electrical side. (ECF No. 849-1, pp. 2-5). Mr. Gay attested that pressure vessels, piping and electrical items were installed while he was at the facility. (Id. at 2). Mr. Gay observed and inspected the welding work on the rebar, the installation of pipe insulation and the pulling of electrical cables. (Id. at 8-10). He also inspected and took alignments for pump shafts. (Id. at 10-11). He testified to exposure to asbestos-containing insulation, welding blankets and gaskets on pipe flanges during hydrostatic testing. (Id. at 11-14).

On the other hand, Mr. Gay conceded that he had few opportunities for exposure to asbestos-containing gaskets because of the new construction. (Id. at 12). For the gaskets, Mr. Gay testified that some had to be removed when a valve or pump failed. (ECF No. 849-2, p. 7). He could not identify any products at Nine Mile Power Station that he believed contained asbestos, beyond the insulation, welding blankets and gaskets. (Id.).

Plaintiff argues that (1) Mr. Gay was near piping systems, high-pressure systems and various pieces of equipment during his time at the Nine Mile plant; (2) he was near construction workers who installed equipment and worked on gaskets associated with that kind of equipment; and (3) he was all over the job site. However, Plaintiff's argument lacks any specificity. The Court agrees with Yuba's analysis. 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, 222 A.3d at 399. Plaintiff cannot establish that Mr. Gay was exposed to the alleged asbestos with regularity, frequency or proximity. Mr. Gay never testified to being near Yuba's products and never stated he was near construction workers assembling the Yuba products. Ultimately, Plaintiff failed to proffer enough evidence to show that Mr. Gay was exposed to any asbestos from a Yuba product.

A factfinder could not find for Plaintiff without making several inferential leaps. See Liberty Lobby, 477 U.S. at 248. The Court finds Plaintiff failed to proffer enough evidence to show that asbestos from a Yuba product was a factor in Mr. Gay's mesothelioma.

VI. Conclusion

The Court finds that no genuine issue of material fact exists 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