Gilbert v. Monsey Products Company (2004)

Our plain-English summary of Gilbert v. Monsey Products Company (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 Monsey and IPA products contained asbestos and that Mr. Gilbert's use of them caused his mesothelioma. Before trial, the trial court granted summary judgment to Monsey and IPA. It held that the evidence did not meet the frequency and regularity requirements of the Eckenrod test, which requires frequent, regular and proximate exposure to a defendant's product when direct proof is lacking. The Superior Court of Pennsylvania reversed. It noted that Mr. Gilbert himself testified that he worked with the companies' products and inhaled fibers from them. Because that was direct testimony, the Eckenrod test for circumstantial evidence did not apply, and whether the exposure was regular and frequent enough was a question for the jury. The court vacated the judgments and remanded the case. One judge concurred in the result in a separate statement.

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: 2004 Pa. Super. 380
• Docket: Nos. 611 EDA 2003, 805 EDA 2003
• Stage: Appeal from summary judgment
• State: Pennsylvania

Outcome. The Superior Court reversed the orders granting summary judgment for Monsey Products Co. and IPA Systems, vacated the judgments, and remanded, ruling for the plaintiff (Gilbert).

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

Issues decided: Product Identification.

The people and their exposure

• George E. Gilbert: mesothelioma; died

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.

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.

2004 PA Super 380

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.

Nos. 611 EDA 2003, 805 EDA 2003

Filed: September 30, 2004.

Superior Court of Pennsylvania.

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., 544 A.2d 50 (Pa. Super. 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, 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 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.

CONCURRING STATEMENT BY BECK, J.

¶ 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., 544 A.2d 50, 53 (Pa. Super. 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