Gilbert v. Monsey Products Co. (2004)

Our plain-English summary of Gilbert v. Monsey Products Co. (Pennsylvania Superior Court, September 30, 2004).

Elizabeth Gilbert, as administratrix of the estate of George E. Gilbert and in her own right, sued several companies, including Monsey Products Company and IPA Systems, Inc. The suit alleged that their products contained asbestos and that Mr. Gilbert's use of them caused him to develop mesothelioma. Before trial, Monsey and IPA moved for summary judgment, arguing he had not shown frequent, regular and proximate exposure to their products as required by Eckenrod v. GAF Corp. The trial court agreed and granted judgment for both. The Superior Court of Pennsylvania reversed. It explained that the Eckenrod test applies when a plaintiff must rely on circumstantial evidence of exposure. Here, Mr. Gilbert testified directly that he worked with the companies' products and inhaled fibers from them, so the test did not apply. Whether the exposure was regular and frequent enough to cause the injury was a question for the jury. The court vacated the judgments and remanded. One judge concurred in the result, finding Eckenrod's general principles still applicable.

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: September 30, 2004
• Citation: 861 A.2d 275
• Stage: Appeal from summary judgment
• State: Pennsylvania

Outcome. The Superior Court reversed the trial court's summary judgment for Monsey Products and IPA Systems, vacated the judgments, and remanded the case to the plaintiff's estate's benefit for trial.

What the court held. When a plaintiff gives direct testimony that he worked with a defendant's asbestos-containing products and inhaled fibers from them, the Eckenrod frequency, regularity and proximity test for circumstantial evidence does not apply, and the sufficiency of exposure is a jury question.

Issues decided: Product Identification.

The people and their exposure

• George E. Gilbert: mesothelioma

Who	Work	Where	When	Products
George E. Gilbert				Monsey Products Company and IPA Systems, Inc. products

The defendants

• Monsey Products Company (manufacturer)
• IPA Systems, Inc. (manufacturer)
• A.P. Green Refractories Co. (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Harahan v. AC & S, Inc. (Pennsylvania Superior Court, 2003). The Superior Court reversed summary judgment for Amchem Products (Benjamin Foster Division) and remanded for further proceedings, ruling for the plaintiff widow.
• 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.

Later decisions citing this one

8 later decisions in our library cite this one:

• 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.
• Groover v. CBS Corporation (Pennsylvania Superior Court, 2014). The Superior Court affirmed the trial court's orders granting summary judgment to CBS Corporation (Westinghouse) and Spirax Sarco, Inc. against Allen Groover, because he offered insufficient evidence that his wife breathed asbestos fibers from their products.
• 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.
• 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.
• 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.
• Bugosh v. Allen Refractories Co. (Pennsylvania Superior Court, 2007). The Superior Court of Pennsylvania affirmed the $1,400,000 judgment for Judith Bugosh against Taylored Industries, I.U. North America and Surface Combustion, rejecting each defendant's challenges.
• Bugosh v. Allen Refractories Company (Pennsylvania Superior Court, 2007). The Superior Court affirmed the $1,400,000 judgment for the plaintiff widow and estate against Taylored Industries, I.U. North America and Surface Combustion, rejecting each defendant's challenges.
• Donoughe v. Lincoln Elec. Co. (Pennsylvania Superior Court, 2007). The Superior Court affirmed the denial of Lincoln Electric's and Hobart Brothers' motions for JNOV and a new trial, so the Donoughes kept the verdict against them, but it vacated the judgment and remanded because the trial court wrongly treated the Manville Trust settlement as a pro rata set-off instead of pro tanto.

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.

861 A.2d 275 (2004)

Elizabeth D. GILBERT, Administratrix of the Estate of George E. Gilbert and Elizabeth D. Gilbert, in

her Own Right, Appellants,

v.

MONSEY PRODUCTS COMPANY and A.P. Green Refractories Co., etal., Appellees.

Elizabeth D. Gilbert, Administratrix of the Estate of George E. Gilbert and Elizabeth D. Gilbert, in

her Own Right, Appellants,

v.

IPA Systems, Inc. and A.P. Green Refractories Co., etal., Appellees.

Argued April 13, 2004.

Filed September 30, 2004.

Reargument Denied December 6, 2004.

Superior Court of Pennsylvania.

[*276] Robert E. Paul, Philadelphia, for appellants.

Carl D. Buchholz, Philadelphia, for Monsey Products.

Kimberly Boyer, Philadelphia, for IPA Systems.

Before: DEL SOLE, P.J., ORIE MELVIN and BECK, JJ.

OPINION BY DEL SOLE, P.J.:

¶ 1 This case comes before us on appeal from the entry of summary judgment in favor of two defendants in an asbestos-related products liability case. Because we find that the trial court erred as a matter of law, we vacate the judgments of the trial court.

¶ 2 Appellant brought a products liability action against multiple companies including Appellees Monsey Products Company ("Monsey") and IPA Systems, Inc. ("IPA"). Appellant alleged that certain Monsey and IPA products contained asbestos and that his use of these products caused him to develop mesothelioma. As the matter headed to trial, Monsey and IPA moved for summary judgment on the ground that Appellant failed to present evidence sufficient to satisfy the product identification requirements established in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988), which requires a plaintiff to prove frequent, regular and proximate exposure to a defendant's product. Id. Granting these motions, the trial court held that as a matter of law, the evidence presented by Appellant did not meet the frequency and regularity requirements of the Eckenrod test.

¶ 3 In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any doubts as to the existence of a genuine issue of material fact against the moving party. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa.Super.2002). In reviewing a grant of summary judgment, our scope of review is plenary and this Court will reverse only upon finding that the trial court abused its discretion or erred as a matter of law. Harahan v. AC & S, Inc., 816 A.2d 296 (Pa.Super.2003). The inquiry under a motion for summary judgment is whether the plaintiff "has pointed to sufficient ... facts in the record to indicate that there is a genuine issue of material fact as to the causation of [the] disease by the product of each particular defendant." Eckenrod v. GAF Corp., 544 A.2d at 53.

¶ 4 For liability to attach in a products liability action, plaintiff must prove that defendant's product caused plaintiff's injury. Eckenrod, 375 Pa.Super. 187, 544 A.2d 50. In asbestos litigation, plaintiff must present evidence that he inhaled asbestos fibers shed by defendant's product. Id. In Wilson v. A.P. Green Industries, Inc., 807 A.2d 922 (Pa.Super.2002), we stated, " [i]deally, a plaintiff ... will be able to directly testify that plaintiff breathed in asbestos fibers and that those fibers came from defendant's product." Id. at 924. Without such direct evidence, plaintiff must rely on circumstantial evidence of exposure; specifically, plaintiff must meet the Eckenrod test. Id. (emphasis added).

¶ 5 In the present case, Appellant was able to testify and stated that he worked with Appellees' products and inhaled fibers from these products. The [*277] question as to whether there was sufficient regularity and frequency so as to cause Appellant's injury is a question for the jury. Wilson, 807 A.2d 922.

¶ 6 Because Appellant provided direct testimony, the Eckenrod test was not applicable. We therefore find that the trial court erred in applying the Eckenrod test. Accordingly, the orders dated November 21, 2002, granting summary judgment in favor of Monsey and IPA are reversed.

¶ 7 Judgments vacated. Case remanded. Jurisdiction relinquished.

¶ 8 BECK, J., files a concurring statement.

BECK, J., Concurring.

¶ 1 I concur in the result reached by the majority because the record reveals that appellant produced sufficient evidence of product identification to overcome the motion for summary judgment. In this case, appellant himself was able to provide direct evidence of identification, and thus circumstantial evidence was not required. "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 the plaintiff's disease. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 53 (1988). In this case, I find the general principles of Eckenrod applicable. Where appellant himself testified about his exposure to the appellees' products and provided sufficient evidence of product identification, the trial court's grant of summary judgment was error.

Sources

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