Gregg v. VJ Auto Parts Company (2007)

Our plain-English summary of Gregg v. VJ Auto Parts Company (Pennsylvania Supreme Court, December 28, 2007).

John I. Gregg, Jr. died of pleural mesothelioma in 1998. His son, as executor of his estate, sued more than seventy defendants. The complaint alleged exposure through a forty-year telecommunications career, work as a gas station attendant, Navy service, and brake work on cars. No evidence of the job exposures was found, and the case against all defendants except V-J Auto Parts, an auto parts retailer, was settled or dismissed. The remaining claim rested on Mr. Gregg's own brake jobs, which witnesses put at two or three occasions with brakes bought from V-J. The trial court granted summary judgment to V-J, finding too little frequent, regular exposure. The Superior Court reversed, holding that the test does not apply when there is direct evidence of exposure. The Pennsylvania Supreme Court rejected that distinction. It adopted a flexible frequency, regularity and proximity assessment for summary judgment and found generalized expert opinions that any exposure counts insufficient where exposure to the defendant's product is minimal. It vacated the Superior Court's order and remanded. Two justices dissented, saying the majority was weighing credibility.

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 Supreme Court, Eastern District
• Decided: December 28, 2007
• Docket: No. 38 EAP 2005
• Stage: Appeal from summary judgment
• State: Pennsylvania

Outcome. 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.

What the court held. At summary judgment, courts may assess the frequency, regularity and proximity of the claimed exposure, applied flexibly, whether the exposure evidence is direct or circumstantial. Generalized expert opinions that any exposure is a substantial factor do not create a jury question where exposure to the defendant's product is minimal.

Issues decided: Causation, Expert Testimony, Product Identification.

Why this case is relevant

In this decision the Pennsylvania Supreme Court took up the "frequency, regularity, proximity" test for asbestos exposure evidence for the first time. Until then, the test had developed only in the Superior Court. The court held that judges deciding summary judgment may weigh how frequent, regular and close the exposure was, applying those factors flexibly, whether the evidence of exposure is direct or circumstantial. It also held that general expert opinions that any exposure is a substantial factor do not create a jury question where exposure to the defendant's product is minimal. The court vacated the Superior Court's order and sent the case back. Three justices dissented in two opinions, saying the majority was weighing credibility; Justice Baer also objected to the majority's criticism of expert testimony.

In the later decisions we have collected, the Pennsylvania Superior Court regularly cites this case as the Supreme Court authority adopting the frequency, regularity and proximity test, first set out in Eckenrod, for use at summary judgment. Some of those opinions note that the test becomes less demanding in mesothelioma cases. Later Pennsylvania Supreme Court decisions cite it for rejecting the "each and every exposure" theory and have returned to refine its principles. Federal courts, including the Sixth Circuit and federal trial courts in Pennsylvania, have also cited it, as have appellate courts in New York and Kentucky.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• John I. Gregg, Jr.: pleural mesothelioma; died

Who	Work	Where	When	Products
John I. Gregg, Jr.	personal automotive maintenance (home brake work)			brakes, clutches and friction materials, Bendix, Raybestos
John I. Gregg, Jr.	cable splicer and line man		forty-year history
John I. Gregg, Jr.	gas station attendant		four-year period
John I. Gregg, Jr.	service in the United States Navy; military service		three-year period

The defendants

• V-J Auto Parts Company (supplier)
• Allied-Signal, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Chavers v. General Motors Corp. (Arkansas Supreme Court, 2002). The Arkansas Supreme Court affirmed the trial court's summary judgment for General Motors, AlliedSignal and Ford, rejecting the claims of Deidra Chavers over her husband's mesothelioma death.
• Horton v. Harwick Chem. Corp. (Ohio Supreme Court, 1995). The Ohio Supreme Court reversed the court of appeals, which had upheld summary judgment for the asbestos product defendants, and remanded to the trial court, so the Hortons and Derrick won on the causation standard. It agreed with the appellate court that alternative liability does not apply.
• Eagle-Picher Industries, Inc. v. Balbos (Maryland Court of Appeals, 1992). The Court of Appeals of Maryland affirmed the compensatory judgments for the Balbos and Knuckles plaintiffs against Eagle-Picher and the other defendants, except that it reversed the Knuckles judgment against Porter Hayden for lack of proof, and it ordered a new trial on punitive damages against Owens-Illinois and Eagle-Picher.
• Tragarz v. Keene Corp. (U.S. Court of Appeals, Seventh Circuit, 1992). The Seventh Circuit affirmed the $3,000,000 judgment for Grace Tragarz against Keene and Owens-Corning Fiberglas, but reversed the denial of Keene's request to file a contribution cross-claim against OCF and remanded for proceedings between the two defendants.
• Slaughter v. Southern Talc Co. (U.S. Court of Appeals, Fifth Circuit, 1991). The Fifth Circuit reversed summary judgment for Owens-Corning Fiberglas and remanded for trial, affirmed summary judgment for Southern Talc, and reinstated the order letting Mrs. Moran and Mrs. Green substitute for their deceased husbands.
• Menne v. Celotex Corp. (U.S. Court of Appeals, Tenth Circuit, 1988). The Tenth Circuit remanded for a new trial after a $2.5 million jury verdict for Menne's estate against Celotex, Eagle-Picher and Fibreboard, because the causation and state-of-the-art jury instructions were flawed.
• Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
• Summers v. Certainteed Corp. (Pennsylvania Superior Court, 2005). The en banc Superior Court was evenly divided, so the trial court's summary judgment for the asbestos defendants (CertainTeed and Union Carbide) against plaintiffs Summers and Nybeck was affirmed.
• Gilbert v. Monsey Products Co. (Pennsylvania Superior Court, 2004). 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.
• 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.
• Lonasco v. A-Best Products Co. (Pennsylvania Superior Court, 2000). The Superior Court affirmed the denial of judgment notwithstanding the verdict to Owens-Corning and Garlock on Phase I, and affirmed the grant of a new Phase II trial on Garlock's liability, so the Lonascos and the Collinses prevailed.
• Coward v. Owens-Corning Fiberglas Corp. (Pennsylvania Superior Court, 1999). The Superior Court affirmed the trial court's denial of Owens-Corning's motions for judgment n.o.v. and a new trial, leaving the plaintiffs' verdicts and the judgment entered for them in place.
• Lilley v. Johns-Manville Corp. (Pennsylvania Superior Court, 1991). The Superior Court affirmed the judgment against Fibreboard Corporation for one-eighth of the Lilleys' verdict plus delay damages, and also rejected the Lilleys' cross-appeal over the directed verdict on Fibreboard's cross-claims against Garlock and Eagle-Picher.
• 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

66 later decisions in our library cite this one. The 30 from the highest courts, newest first:

• Fowler v. Akzo Nobel Chemicals, Inc. (New Jersey Supreme Court, 2022). The New Jersey Supreme Court reversed the Appellate Division, reinstated the jury's verdict and $2,380,000 award for the Edenfield estate against Union Carbide, and remanded for any remaining issues.
• Roverano v. John Crane, Inc. (Pennsylvania Supreme Court, 2020). The Pennsylvania Supreme Court reversed the Superior Court's order for percentage apportionment, holding that liability among strictly liable asbestos defendants John Crane and Brand is apportioned per capita (a win for the Roveranos). It also held that bankruptcy trusts may be put on the verdict sheet on appropriate requests and proofs, and remanded for a new trial on apportionment (a win for the defendants on that issue).
• Rost v. Ford Motor Co. (Pennsylvania Supreme Court, 2016). The Pennsylvania Supreme Court affirmed the judgment for the Rost estates against Ford Motor Company, holding that the causation testimony was proper and that, although consolidation with two other cases was error, Ford showed no prejudice.
• 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).
• Betz v. Pneumo Abex LLC (Pennsylvania Supreme Court, 2012). The Pennsylvania Supreme Court reversed the Superior Court and held that the trial judge did not abuse his discretion in excluding the plaintiff's 'any-exposure' expert opinion under Frye, which restored the basis for summary judgment for Allied Signal and Ford against the executrix; the case was remanded to consider any remaining preserved issues.
• Summers v. Certainteed Corp. (Pennsylvania Supreme Court, 2010). The Pennsylvania Supreme Court reversed the Superior Court's order affirming summary judgment for Union Carbide, Certainteed and Allied Signal, disapproved Quate v. American Standard, and sent the cases back so Summers and Nybeck could proceed.
• Moeller v. Garlock Sealing Technologies, LLC (U.S. Court of Appeals, Sixth Circuit, 2011). The Sixth Circuit reversed the district court's denial of Garlock's motion for judgment as a matter of law, so Garlock won and the jury's $516,094 verdict for Olwen Moeller could not stand.
• Fisher v. American International Industries (Pennsylvania Superior Court, 2024). The Superior Court affirmed the denial of American International Industries' motions for nonsuit, directed verdict and JNOV, but vacated the judgment that gave it one-half of the verdict and remanded for judgment divided per capita among it, Whittaker Clark and Daniels, and Colgate-Palmolive.
• Korol v. Aurora Pump Company (Pennsylvania Superior Court, 2023). The Superior Court reversed the trial court's summary judgment for Crane Company and Warren Pump Company, which had been entered against the decedent's estate, and remanded for further proceedings.
• Mullen v. American Circuit Breaker Corporation (Pennsylvania Superior Court, 2023). The Superior Court reversed the trial court's grant of summary judgment for IntriCon Corporation (formerly Selas) and remanded for further proceedings, siding with the estate administratrix Debbie Mullen.
• Brandt v. Bon-Ton Stores, Inc. (Pennsylvania Superior Court, 2020). The Superior Court affirmed the trial court's exclusion of the plaintiff's exposure expert testimony and its grant of summary judgment to Colgate-Palmolive, against Charles Brandt and the Estate of Sally Brandt.
• Lamson v. Georgia-Pacific LLC (Pennsylvania Superior Court, 2019). The Superior Court reversed the summary judgment that had been granted to International Paper and Weyerhaeuser, ruling for the Lamson estate, and remanded for trial.
• Gilbert v. Advance Auto Parts (Pennsylvania Superior Court, 2018). The Superior Court affirmed the trial court's summary judgment for Advance Auto Parts, Automotive Distribution Network and Ford Motor Company, rejecting the estate's and widow's claims for lack of evidence of frequent, regular exposure to their products.
• Floyd v. AstenJOHNSON, Inc. (Pennsylvania Superior Court, 2017). The Superior Court affirmed summary judgment for AstenJohnson, Inc., holding the executor of James Floyd Sr.'s estate failed to produce enough evidence that Floyd inhaled asbestos from AstenJohnson's dryer felts.
• Mtr OF Nyc Asbestos Litig. (New York Supreme Court, Appellate Division, 1st Dept., 2017). The Appellate Division affirmed the judgment for Ford Motor Company, upholding the trial court's order setting aside the jury's verdict for plaintiff Mary Juni, and dismissed the appeal from the order as subsumed in the appeal from the judgment.
• Roverano v. John Crane, Inc. (Pennsylvania Superior Court, 2017). The Superior Court affirmed the denial of post-trial motions on every issue except the Fair Share Act, vacated the judgment, and remanded for a new trial to apportion the verdict among the tortfeasors, a partial win for John Crane and Brand Insulations over the Roveranos.
• 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.
• Haldaman v. Eaton Corporation (Pennsylvania Superior Court, 2014). The Superior Court affirmed the trial court's orders granting summary judgment to Eaton, P&H Mining, Reading Crane, Morgan Engineering, CBS Corp. and General Electric, and rejected the Haldaman estate's appeal; the Kentile appeal had been discontinued.
• 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.
• Nelson v. Airco Welders Supply (Pennsylvania Superior Court, 2014). The Superior Court vacated the $14.5 million judgment for Darlene Nelson and the Nelson estate against Crane Co., Hobart Brothers and Lincoln Electric, and remanded for a new trial on liability and damages.
• 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.
• Rost v. Ford Motor Company (Pennsylvania Superior Court, 2014). The Superior Court affirmed the judgment for Richard and Joyce Rost against Ford Motor Company, rejecting Ford's appeal and the Rosts' cross-appeal.
• Smith v. Bmw OF North America LLC (Pennsylvania Superior Court, 2014). The Superior Court affirmed the trial court's summary judgment for Ford Motor Company and Borg-Warner Corporation, against the estate of Paul Rowland, represented by Amy Smith as executrix.
• Nelson v. Airco Welders Supply (Pennsylvania Superior Court, 2013). The Superior Court vacated the $14.5 million judgment for Darlene Nelson (executrix of James Nelson's estate) against Crane Co., Hobart Brothers and Lincoln Electric, and remanded for a new trial on both liability and damages.
• Fisher v. Sexauer (Pennsylvania Superior Court, 2012). The Superior Court affirmed the trial court's summary judgment for J.A. Sexauer, Kentile and Pecora Corporation, ruling against Beverly Fisher because the evidence did not show enough exposure to each defendant's product.
• Howard v. AW Chesterton Co. (Pennsylvania Superior Court, 2011). The Superior Court reversed the orders granting summary judgment to Chesterton, ACE Hardware, Monsey, Pecora and Union Carbide, vacated the judgment, and remanded the plaintiffs' case for further proceedings.
• Linster v. Allied Signal, Inc. (Pennsylvania Superior Court, 2011). The Superior Court vacated the judgment, reversed the trial court's grant of summary judgment for Crane Company, and remanded for further proceedings, so the Linsters (plaintiffs) won and Crane Company lost.
• Betz v. Pneumo Abex LLC (Pennsylvania Superior Court, 2010). The Superior Court reversed the trial court's summary judgment for Allied Signal and Ford (and the other friction product defendants) and remanded, holding that the trial court wrongly granted the defendants' Frye motion excluding the estate's causation experts.
• Crane v. Linkus (Maryland Court of Special Appeals, 2010). The Court of Special Appeals affirmed the judgment for Mr. Linkus (and his estate) against John Crane, Inc., rejecting Crane's challenges to causation, the size of the verdict, and the denial of credits for bankrupt entities' payments.
• Burger v. Owens-Illinois, Inc. (Pennsylvania Superior Court, 2009). The en banc Superior Court affirmed the trial court's summary judgment for Crown Cork, DAP, Pneumo Abex and Owens-Illinois, ruling against Jon and Lois Burger.

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.

JOHN ANDREW GREGG, EXECUTOR OF THE ESTATE OF JOHN I. GREGG, JR., DECEASED,

Appellee

v.

V-J AUTO PARTS COMPANY, Appellant

No. 38 EAP 2005.

Resubmitted: May 30, 2007.

Decided: December 28, 2007.

Supreme Court of Pennsylvania, Eastern District.

Before: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN, FITZGERALD, JJ.

OPINION

MR. JUSTICE SAYLOR[1]

The question presented concerns the appropriate application of the "frequency, regularity, proximity" criteria in asbestos product liability litigation.

John I. Gregg, Jr. ("Mr. Gregg") died in March 1998. A year later, his son, Appellee John Andrew Gregg, as executor for his father's estate, filed a product liability complaint naming more than seventy defendants and alleging civil liability on their part for Mr. Gregg's death due to his exposure to asbestos-containing products and resultant pleural mesothelioma, a cancer of the lining of the lungs. Appellee averred that Mr. Gregg was exposed to asbestos throughout a forty-year history of employment with telecommunications companies as a cable splicer and line man; over a four-year period in which he worked as a gas station attendant; and during a three-year period while serving in the United States Navy. The complaint also alleged that, throughout his lifetime, Mr. Gregg installed and removed brake linings and clutches on cars and trucks, and that he was exposed to asbestos in these activities as well. By virtue of this last set of averments, Appellee included as defendants Allied-Signal, Inc., a successor corporation to Bendix Corporation, which manufactured brake products in the relevant time frame, and Appellant, V-J Auto Parts Company, a supplier of automobile parts.

Despite the assertions in the complaint concerning occupational exposure to asbestos, according to Appellee, he was unable to adduce any evidence to support them. Consequently, the action was settled and/or dismissed with regard to all defendants other than Appellant,[2] and the litigation efforts focused on Mr. Gregg's personal automotive maintenance activities.

After the deadline for discovery passed, Appellant filed a motion for summary judgment, asserting that Appellee could not prove that Mr. Gregg was exposed to an asbestos-containing product purchased at Appellant's store with sufficient frequency and regularity to meet the test set forth in Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (1988) ("Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiff's employment in proximity thereto."). According to the motion, Appellee could at best demonstrate that Mr. Gregg used brake products purchased from Appellant's store on two or three occasions throughout his entire lifetime; Appellee could not establish that any products purchased by Mr. Gregg from Appellant's store contained asbestos; and Appellee's own expert witness, pathologist Harvey B. Spector, M.D., attributed Mr. Gregg's disease solely to an "occupational history of exposure to asbestos," and not to non-occupational exposure such as Mr. Gregg's automobile maintenance activities.

In response, Appellee argued that his deposition testimony, and that of his sister and a neighbor of the Gregg household in the 1960 to 1965 timeframe, sufficiently established Mr. Gregg's exposure to asbestos-containing brake products sold by Appellant. Further, Appellee furnished a modified version of Dr. Spector's report, in which the pathologist revised his opinion to attribute Mr. Gregg's disease to "occupational and non-occupational" asbestos exposures, indicating that the change resulted from his review of the depositions of the product identification witnesses. Appellee also submitted documents

attributable to Allied Signal, Inc. and RaybestosM-anhatten, Inc., supporting the claim that the brake products manufactured by these companies (or their predecessors) in the 1950s and 1960s time frame contained asbestos. Further, Appellee relied on expert affidavits of a chemist, an occupational disease physician, and an epidemiologist to establish that mesothelioma may be caused by even a small exposure to asbestos.

Upon receiving the Appellee's response and the supplemental report, Appellant filed a motion to strike the supplemental report and to preclude Appellee from relying upon it at trial. Appellant argued that the supplemental report was untimely, in that it was not produced until after the deadline for expert reports had passed, and that the report was prejudicial, since the case was scheduled to go to trial in two weeks.

The common pleas court (per Judge Tereshko) granted summary judgment in Appellant's favor, on the ground that Appellee's product identification testimony was inadequate. See Gregg v. V-J Auto Parts, No. 003888 March Term 1999, slip op. (Nov. 6, 2001). Initially, the court accepted Appellant's argument that the frequency, regularity, proximity analysis discussed in Eckenrod should apply. See id. at 3 ("The courts in Pennsylvania have been consistent in requiring the plaintiff to produce evidence that he frequently and regularly used, or worked in sufficient proximity to, a specific defendant's asbestos-containing product, and that he inhaled asbestos fibers shed therefrom in order to overcome a motion for summary judgment."). The common pleas court recognized that there was sufficient evidence that Mr. Gregg was exposed to asbestos at some point during his lifetime, and that this exposure caused his illness, but it found insufficient evidence linking the exposure to either Allied Signal, Inc. or Appellant to create a triable issue. In this regard, the court observed that the product identification witnesses were unable to confirm that Mr. Gregg specifically used brakes manufactured by Bendix Corporation and sold by Appellant, or more broadly, that Bendix Corporation manufactured, and Appellant distributed, the asbestos-containing product that was the cause of Mr. Gregg's disease.[3] The court's opinion elaborated fairly extensively concerning the vagueness of the recollections of the product identification witnesses concerning circumstances and events from thirty-five to forty years earlier. See id. at 3-5.

Appellee appealed to the Superior Court, and a three-judge panel vacated the common pleas court's order and remanded in an unpublished opinion. See Gregg v. A.P. Green Industries, Inc., Nos. 3500-3501 EDA 2001, slip op. (Pa. Super. Sep. 9, 2002). The panel concluded that the common pleas court erred because, regardless of whether there was sufficient evidence to identify a particular manufacturer, there was enough evidence to show brake products containing asbestos were purchased from Appellant's store. The Superior Court panel indicated, however, that it was unclear whether Appellee could present sufficient evidence to show that the amount of Mr. Gregg's exposure to asbestos in the relatively few times that he was shown to have changed asbestos-containing brakes, as compared to the forty-plus years of occupational exposure to asbestos containing products asserted in the complaint, was a substantial contributing factor to his disease. See id. at 3, 7. Thus, the court remanded for such a determination.[4]

On remand, the common pleas court (per Judge Ackerman) again found the record insufficient to meet the requirements of the frequency, regularity, and proximity analysis. Gregg v. V-J Auto Parts, Inc., No. 003888 March Term 1999, slip op. (C.P. Phila. Dec. 2, 2003). The court highlighted that Appellee did not remember specific parts purchased from Appellant's store; Appellee's sister had no knowledge concerning whether products purchased from Appellant's store contained asbestos; and the household neighbor assumed that brake products purchased from Appellant's store contained asbestos and could only recall two or three times in which he saw Mr. Gregg installing brake products purchased from Appellant. The common pleas court explained:

This court is mindful that there is no requirement that plaintiff must prove how many asbestos fibers one must inhale necessary to a determination of causation; however, evidence of exposure must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product and that his contact with same was of such nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it. See Junge v. Garlock, 427 Pa. Super. 592, 629 A.2d 1027 (1993); Samarin v. GAF Corp., 391 Pa. Super. 340,

571 A.2d 398 (1989); Eckenrod. The fact that plaintiff's supplemental medical expert opined that Mr. Gregg's occupational exposure and his non-occupational exposure from performing brake jobs both contributed to his mesothelioma, this is non determinative since our case law requires the plaintiff to produce sufficient

evidence of regular and frequent exposure to asbestos products supplied by the defendant. It is

acknowledged that decedent was exposed to asbestos sometime during his lifetime, and that exposure

caused his illness, but there is insufficient evidence that links his asbestos exposure to the defendant in this matter.

Id. at 5. Finally, the court relied on Wilson v. A.P. Green Industries, Inc., 807 A.2d 922 (Pa. Super. 2002), as rejecting the argument that the frequency, regularity and proximity test should not apply in mesothelioma cases. See id. at 4-5 (quoting Wilson, 807 A.2d at 925).

On further appeal, initially, a different Superior Court panel affirmed, finding that the common pleas court correctly determined that Appellee's product identification evidence was insufficient to create a jury issue. See Gregg v. V-J Auto Parts Co., No. 3528 EDA 2003, slip op. (Pa. Super. Jul. 22, 2004). On Appellee's motion for reconsideration, however, the panel withdrew its initial opinion, and, in a subsequent one, it reversed the common pleas court's summary judgment order. See Gregg v. V-J Auto Parts Co., No. 3528 EDA 2003, slip op. (Pa. Super. Apr. 25, 2005). The panel reasoned that the case could not be disposed on the issue of product identification, since that issue had been addressed and resolved in Appellee's favor by a prior Superior Court panel decision. See id. at 6 (citing Gregg v. A.P. Green Industries, Inc., Nos. 3500-3501 EDA 2001, slip op. at 2 (Pa. Super. Sep. 9, 2002) ("there was sufficient evidence to show brake linings containing asbestos were purchased from V-J" (emphasis in original))). In terms of the application of the frequency, regularity, proximity criteria, the court drew a distinction between cases in which there is direct evidence of exposure and those in which the evidence of exposure is circumstantial. Relying on Gilbert v. Monsey Products, Co., 861 A.2d 275 (Pa. Super. 2004), the panel concluded that the frequency, regularity, proximity analysis was inapplicable where there is direct evidence that a plaintiff (or his decedent) inhaled asbestos fibers deriving from a defendant's product. See Gregg, No. 3528 EDA 2003, slip op. at 11. Thus, the panel determined, essentially, that direct testimony concerning exposure to a defendant's asbestos-containing product will always raise material questions of fact concerning causation that can be resolved only by the fact finder. See id. at 16 (citing Gilbert, 861 A.2d at 276-77 ("The question as to whether there was sufficient regularity and frequency so as to cause [the a]ppellant's injury [in a direct evidence case] is a question for the jury.")). As direct evidence, the panel referenced the testimony of the Gregg household neighbor as "mak[ing] clear that both the removal of worn brakes and the installation of new brakes, both of which the decedent purchased from V-J, created airborne dust." See Gregg, No. 3528 EDA 2003, slip op. at 13. Further, the panel distinguished Eckenrod, as representing a case in which the plaintiff relied entirely on evidence of workplace circumstances to establish exposure inferentially. See id. at 12.

Judge Bowes dissented, expressing her disagreement with the majority's reasoning and with Gilbert. According to Judge Bowes, the frequency, regularity, proximity test is appropriately applied by courts at the dispositive motions stage, regardless of whether the evidence of exposure is direct or circumstantial in character. She highlighted Eckenrod's reaffirmance that, in order to survive a motion for summary judgment, every plaintiff, whether relying on direct or circumstantial evidence, must point 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 or the] decedent's disease" by the defendant's product. Gregg, No. 3528 EDA 2003, slip op. at 4 (Bowes, J., dissenting) (quoting Eckenrod, 375 Pa. Super. at 192, 544 A.2d at 53). Judge Bowes took the position that a subsequent reference in Eckenrod, which indicated that plaintiffs who rely solely on circumstantial evidence must show frequent use and regular proximity to the product, was explanatory in nature and should not be construed as relieving plaintiffs who offer direct evidence of the same burden. See id. at 4-5 (citing Eckenrod, 375 Pa. Super. at 192, 544 A.2d at 53). Indeed, the dissent noted that the Superior Court had, on multiple occasions applied the frequency, regularity, proximity criteria in cases in which plaintiffs personally described their exposure to specific asbestos-containing products. See id. at 5 (citing Lonasco v. A-Best Products Co., 757 A.2d 367, 376 (Pa. Super. 2000), and Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 623 (Pa. Super. 1999)). Like the common pleas court, Judge Bowes observed that the much of the testimony proffered by Appellee pertaining to frequency, regularity, and proximity was vague and generalized. Viewing the evidence in the light most favorable to Appellee, Judge Bowes found the deposition testimony indicated that Mr. Gregg installed asbestos-containing brakes purchased from Appellant's store on three occasions over a five-year period, and that he was exposed to airborne fibers for less than thirty minutes each time that he installed new brake shoes. Judge Bowes agreed with the common pleas court that this evidence did not meet the frequency, regularity, proximity test.

On Appellant's petition for allowance of appeal, this Court granted further review, limited to the following issue: In a products liability suit brought against the manufacturer or supplier of a product containing asbestos, to survive summary judgment must the plaintiff show frequent use of, and regular close proximity to, the

product, even if the plaintiff presents direct evidence of inhalation?

Since this is a question of law, our standard of review is de novo and our scope of review is plenary. Notably, in Pennsylvania, the frequency, regularity, proximity analysis has developed in the decisions of Superior Court and has not yet been addressed by this Court.

Presently, Appellant advocates the adoption by this Court of the frequency, regularity, proximity test and its application by the courts at the dispositive motions stage of asbestos product liability litigation. Appellant regards the analysis as a straightforward application of the requirement for plaintiffs to prove substantial-factor causation as an essential element of a negligence or strict liability claim. Appellant traces the history of the frequency, regularity, proximity test to Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), in which a federal court formulated a de minimus rule by which the viability an asbestos product liability claim is assessed according to the frequency of the use of the product and the regularity or extent of the plaintiff's (or decedent's) employment in proximity to the product. See id. at 1162. Appellant highlights that, in Lohrmann, the plaintiff presented evidence that he was exposed to a specific asbestos-containing product ten to fifteen times for a duration of one to eight hours over a thirty-nine year period, which was held to be insufficient to raise an inference that the exposure was a substantial factor in the development of his disease. See id. at 1163. According to Appellant, the frequency, regularity, proximity test has been adopted in a majority of jurisdictions in evaluating whether there is sufficient proof to support a reasonable inference of substantial-factor causation in an asbestos product liability case. See generally Slaughter v. Southern Talc Co., 949 F.2d 167, 171 (5th Cir. 1991) ("The most frequently used test for causation in asbestos cases is the `frequency-regularity-proximity' test announced in Lohrmann[.]").

Consistent with Judge Bowes' position, Appellant also argues that the Superior Court's Eckenrod decision has been misinterpreted to exclude the use of the frequency, regularity, proximity criteria whenever direct evidence of exposure is offered. Appellant urges that their application should not depend on what type of evidence is adduced, but instead, upon whether the evidence, be it direct or circumstantial, creates a genuine issue of material fact concerning the cause of the plaintiff's (or decedent's) disease. Appellant observes that a plaintiff's burden of proof to demonstrate factual and proximate causation does not depend on whether the evidence is direct or circumstantial. Further, Appellant contends that plaintiffs rarely are able to offer evidence that is exclusively direct or circumstantial — most commonly, a plaintiff offers a combination of both categories of evidence. Moreover, Appellant develops that Pennsylvania courts do not place more or less weight on direct versus circumstantial evidence by reason of the character of the evidence alone.[5]

Appellant also advances several policy bases supporting the adoption of the frequency, regularity, proximity test in cases involving either direct or circumstantial evidence, or both. In particular, Appellant believes that the application of any looser test yields unfair results. For example, viewing the circumstances of the present case, Appellant believes that it is unfair for Appellee to hale a peripheral defendant, such as a retailer of automobile parts, into court based on direct evidence of minimal exposure, while ignoring Mr. Gregg's forty-some-year history of occupational exposure to asbestos as asserted in the complaint. See, e.g., Brief for Appellant at 20 ("The plaintiff expected the trial court to turn a blind eye to all of the decedent's occupational exposure in favor of placing liability on a party unlikely to have caused decedent's illness."). According to Appellant, permitting plaintiffs to pursue wholesale liability based on minor or infrequent exposure is out of sync with all reasonable probabilities concerning causation and creates a perverse incentive for plaintiffs to most aggressively pursue those with the least possible culpability. Appellant also complains that the realities of asbestos litigation, in which plaintiffs sue almost every known manufacturer or distributor of asbestos-containing products, places an unfair hardship on parties such as Appellant, a small retailer of a wide variety of products, of which a minimum contained asbestos but have not been sold in decades.

Finally, Appellant criticizes Appellee's reliance on the conclusion in Dr. Spector's supplemental report that non-occupational exposure was a substantial cause of Mr. Gregg's disease, quoting the lead opinion from Summers v. Certainteed Corp., 886 A.2d 240 (Pa. Super. 2005) (equally divided court), authored by Judge Klein, as follows:

Just because a hired expert makes a legal conclusion does not mean that a trial judge has to adopt it if it is not supported by the record and is devoid of common sense. For example, [the plaintiff's liability expert] used the phrase, "Each and every exposure to asbestos has been a substantial contributing factor to the

abnormalities noted." However, suppose an expert said that if one took a bucket of water and dumped it into the ocean, that was a "substantial contributing factor" to the size of the ocean. [The expert's] statement saying every breath is a "substantial contributing factor" is not accurate. If someone walks past a mechanic changing brakes, he or she is exposed to asbestos. If that person worked for a factory making lagging, it can hardly be said that one whiff of the asbestos from the brakes is a "substantial factor" in causing disease. Id. at 244 (emphasis in original). Appellant likens its circumstance to that of the defendant in Chavers v. General Motors Corp., 79 S.W.3d 361 (Ark. 2002) (considering frequency, regularity, and proximity of alleged exposure to asbestos via brake products to conclude that the plaintiff's evidence did not present a jury question), contending that such case is on all fours with the present one.

Appellee, on the other hand, opposes the application of any form of de minimus screening test, particularly in mesothelioma cases. Appellee stresses that mesothelioma is unique among asbestos-caused diseases, in that it can develop after low-dose exposures. See Affidavit of Richard A. Lemen, PhD, dated September 28, 2000 ("There is no safe level of exposure to asbestos below which human beings are not at risk of developing an asbestos disease particularly mesothelioma[;] . . . [m]esothelioma may be caused by slight, transient and short exposures to asbestos and all exposures contribute to the risk of developing mesothelioma."). Thus, Appellee contends that plaintiffs should be permitted to prove causation through any combination of direct and circumstantial evidence of asbestos exposure which may exist, so long as a qualified medical expert renders an opinion that such exposure was a substantial factor in causing the disease. Brief for Appellee at 17 ("the quantification/de minimus issue. . . is a fact-specific issue of medical causation in each case.").

According to Appellee, the Superior Court has largely followed such approach. See, e.g., Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 98, 596 A.2d 203, 210 (Pa. Super. 1991) (affirming an asbestos product liability jury verdict, while highlighting a medical expert's testimony that "even one day's exposure to asbestos dust constituted a `substantial contributing factor'"). Appellee also offers a different perspective from Appellant's concerning the prevailing approach of the courts across jurisdictions, contending the majority refuse to apply a de minimus standard, see, e.g., Purcell v. Asbestos Corp., 959 P.2d 89, 94 (Ore. App. 1998) (rejecting Lohrmann as setting too high a burden for plaintiffs in a mesothelioma case); Horton v. Hartwick Chemical Corp., 653 N.E.2d 1196, 1201 (Ohio 1995) (same, in an asbestosis case), or at least assess regularity, frequency, and proximity in light of the medical evidence of causation, see, e.g., Thacker v. UNR Industries, Inc., 603 N.E.2d 449, 460 (Ill. 1992). Indeed, Appellee contends that Lohrmann is no longer good law in the jurisdiction in which it arose, in light of the Maryland Court of Appeals' decision in Eagle Picher v. Balbos, 604 A.2d 445 (Md. 1992), which demonstrates that medical causation shapes the legal causation question.

To the extent frequency, regularity, and proximity are relevant, Appellee agrees with the Superior Court that the application of the test should be limited to circumstantial evidence cases. Appellee explains that, when only circumstantial evidence is presented, an initial question arises concerning whether the injured party ever came into contact with any asbestos at all; whereas, in a direct evidence case, exposure is not at issue at the dispositive pre-trial motions stage. Under Appellee's approach, the only issue to be resolved in a direct evidence case is whether that asbestos exposure caused the injured person's disease, and causation is demonstrated through the medical testimony establishing the relationship between the exposure and the asbestos-related disease.

Appellee also disputes Appellant's characterizations of Mr. Gregg's automobile maintenance work as "casual" and "recreational" and suggests that a better characterization would be "quasi-occupational." While Appellee recognizes that he was able to identify only a few incidents of Mr. Gregg's exposure concretely, he maintains that the more general references in the testimony are circumstantial evidence that Mr. Gregg performed brake changes with asbestos-containing products from Appellant's store more frequently. Further, Appellee criticizes Appellant's efforts to compare Mr. Gregg's asserted occupational exposure with his exposure while changing brakes, explaining that there is no evidence of occupational exposure. Moreover, Appellee notes that he has filed a motion to amend his complaint to remove the allegations of occupational exposure. Appellee distinguishes the Chavers decision, relied upon by Appellant, as involving actual evidence of substantial occupational exposure to asbestos and weaker evidence of exposure in automobile maintenance activities. As to policy, Appellee asserts that there are no "floodgates of litigation" involving mesothelioma, the occurrence of which has remained about 3,000 cases per year in the United States, which Appellee indicates that courts historically have been able to handle without significant difficulty. Thus, Appellee suggests that there is no reason for this Court to create an additional barrier for victims of the disease and/or their representatives to surmount before their cases can be presented before juries. At the outset, Appellee is correct that the use of the frequency, regularity, proximity analysis arose out of circumstances in which the exposure of the plaintiffs (or their decedents) to the defendants' asbestos-containing products could not be demonstrated directly. In many of these cases, the most that the plaintiffs were able to demonstrate was that the plaintiff worked in a facility, and the defendant's product was at some time used in the same facility. See, e.g., Lohrmann, 782 F.2d at 1162 ("Appellants would have us adopt a rule that if the plaintiff can present any evidence that a company's asbestos-containing product was at the workplace while the plaintiff was at the workplace, a jury question has been established as to whether that product contributed as a proximate cause to the plaintiff's disease."); Eckenrod, 375 Pa. Super. at 192, 544 A.2d at 53 ("The mere fact that appellees' asbestos products came into the facility does not show that the decedent ever breathed these specific asbestos products or that he worked where these asbestos products were delivered."). The foundational cases are therefore distinguishable from the present circumstances, at least to the degree that a witness

described Mr. Gregg, on two or three occasions, breathing dust created when he "scuffed" asbestos-containing brake pads obtained from Appellant with sandpaper.[6]

Like many other courts, however, we believe that the criteria should have broader application in the courts' assessment of the sufficiency of a plaintiff's proofs. See, e.g., Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 492 (6th Cir. 2005) (reflecting that the Sixth Circuit has "permitted evidence of substantial exposure for a substantial period of time to provide a basis for the inference that the product was a substantial factor in causing the injury," but that "`[m]inimal exposure' to a defendant's product is insufficient." (citation omitted)). In this regard, the decision in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992), referenced by both parties, provides helpful guidance concerning the application of the frequency, regularity, proximity factors in asbestos litigation. Tragarz explains that these criteria do not establish a rigid standard with an absolute threshold necessary to support liability. See id. at 420. Rather, they are to be applied in an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficiently significant likelihood that the defendant's product caused his harm, from those in which such likelihood is absent on account of only casual or minimal exposure to the defendant's product. See id. Further, Tragarz suggests that the application of the test should be tailored to the facts and circumstances of the case, such that, for example, its application should become "somewhat less critical" where the plaintiff puts forth specific evidence of exposure to a defendant's product. See Tragarz, 980 F.2d at 421. Similarly, under Tragarz, the frequency and regularity prongs become "somewhat less cumbersome" in cases involving diseases that the plaintiff's competent medical evidence indicates can develop after only minor exposures to asbestos fibers. See id. at 420.

We agree with the Tragarz court's approach and adopt it here. Further, we find that the bright-line distinction that Appellee seeks to draw between direct and circumstantial evidence cases is not warranted, because this distinction is unrelated to the strength of the evidence and is too difficult to apply, since most cases involve some combination of direct and circumstantial evidence.[7]

We recognize that it is common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor in asbestos disease. However, we share Judge Klein's perspective, as expressed in the Summers decision, that such generalized opinions do not suffice to create a jury question in a case where exposure to the defendant's product is de minimus, particularly in the absence of evidence excluding other possible sources of exposure (or in the face of evidence of substantial exposure from other sources). See Summers, 886 A.2d at 244; accord Lindstrom, 424 F.3d at 493 (reasoning that, if such an opinion were permitted to control, the substantial factor test would be rendered meaningless). As Judge Klein explained, one of the difficulties courts face in the mass tort cases arises on account of a willingness on the part of some experts to offer opinions that are not fairly grounded in a reasonable belief concerning the underlying facts and/or opinions that are not couched within accepted scientific methodology. It is worth noting that this phenomenon undisputedly occurred in this case with respect to the defendants sued under an occupational exposure theory. In this regard, Appellee's primary liability expert, Dr. Spector, initially asserted in his report that, based on a review of Mr. Gregg's history, there was an "occupational history of exposure to asbestos" that was the cause of his mesothelioma. Appellee's brief, on the other hand, relates that, in fact, there is no available evidence of any occupational exposure, see Brief for Appellee at 1-2, which is why the liability case has now centered on Appellant.

We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable. Other jurisdictions have considered alternate theories of liability to alleviate the burden. See, e.g., Menne v. Celotex Corp., 861 F.2d 1453, 1464-70 (10th Cir. 1988). See generally Comment, The Threshold Level of Proof of Asbestos Causation: The "Frequency, Regularity and Proximity Test" and a Modified Summers v. Tice Theory of Burden-Shifting, 24 CAP. U. L. REV. 735 (1995).[8] Such theories are not at issue in this case, however, and we do not believe that it is a viable solution to indulge in a fiction that each and every exposure to asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial-factor causation in every "direct-evidence" case. The result, in our view, is to subject defendants to full joint-and-several liability for injuries and fatalities in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm.

In summary, we believe that it is appropriate for courts, at the summary judgment stage, to make a reasoned assessment concerning whether, in 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 the

defendant's product and the asserted injury. We hold, therefore, that the common pleas court did not err in its decision to make this assessment. It remains to be determined on remand whether, in light of Appellee's evidence concerning the frequency, regularity, and proximity of Mr. Gregg's exposure to asbestos-containing products sold by Appellant, the common pleas court correctly determined that a jury issue was not present.

The order of the Superior Court is vacated, and the matter is remanded for further proceedings consistent with this opinion. Appellee's Motion to Amend the Complaint is transferred to the intermediate appellate court, to be addressed in connection with the review on remand.

Jurisdiction is relinquished.

Messrs. Justice Castille, Eakin and Fitzgerald join the opinion.

Mr. Chief Justice Cappy files a dissenting opinion in which Madame Justice Baldwin joins.

Mr. Justice Baer files a dissenting opinion in which Madame Justice Baldwin joins.

DISSENTING OPINION

MR. JUSTICE CAPPY

Because I believe that the Majority's disposition of this matter is little more than a credibility determination, and thus improperly invades the province of the fact finder, I respectfully dissent.

It can be tempting for a court in a summary judgment matter to determine whether it finds a party's evidence persuasive. Yet, the judiciary is forbidden from engaging in such an inquiry at the summary judgment phase. Our function in a summary judgment matter is simply to "view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party." Mountain Village v. Bd. of Supervisors of Longswamp Twp., 874 A.2d 1, 5-6 (Pa. 2005). Credibility determinations are not properly made by a judge at summary judgment as credibility is an issue reserved to the fact finder. See Scalice v. Pennsylvania Employees Benefit Trust Fund, 883 A.2d 429, 432 n.5 (Pa. 2005).

In the matter sub judice, the evidence when taken in the light most favorable to Appellee as nonmoving party establishes that Decedent was exposed to Appellant's asbestos laden product. Furthermore, Appellee offered expert testimony that Decedent's mesothelioma was caused by occupational and nonoccupational exposure to asbestos, and that only the barest amounts of asbestos can cause mesothelioma.[1] This evidence, taken in the light most favorable to Appellee as the nonmoving party, establishes that Decedent was exposed to asbestos via Appellant's product at levels sufficient to cause mesothelioma, the disease which killed Decedent. Clearly, such evidence presents a jury question as to causation for if Appellee's evidence were credited in its entirety, the jury could award relief to Appellee.

The Majority, however, concludes that this evidence does not present a jury question. The Majority does not come to this conclusion by finding that this evidence, when credited in its entirety, would fail to support a jury verdict for Appellee. Rather, it acknowledges the evidence as adduced by Appellee but then finds that not all of Appellee's evidence is worthy of belief. Specifically, the Majority regards the opinion offered by Appellee's scientific expert to be of suspect quality; the Majority apparently cannot square the scientific expert's opinion regarding the causation of asbestosis with the Majority's own views on how asbestosis is caused.[2]

This simply is not the function of summary judgment. Summary judgment is designed to winnow out those matters in which the evidence as adduced by the party bearing the burden of proof, even if that evidence is believed in its entirety, is insufficient to establish the cause of action. In such matters, summary judgment should enter since it is wholly unnecessary to progress to the fact finding crucible of trial. Summary judgment is not, however, the conduit by which the judiciary can make credibility determinations by fiat. Accordingly, I respectfully dissent.

Madame Justice Baldwin joins this dissenting opinion.

DISSENTING OPINION

MR. JUSTICE BAER

Because I agree with Mr. Chief Justice Cappy's conclusion that the Majority is erroneously invading the province of the fact finder, I wholly join him and respectfully dissent. Further, I take issue with the Majority's discussion of expert testimony related to the quantum of exposure necessary for asbestos to become a substantial contributing factor in causing mesothelioma. I am particularly troubled by the majority's reference to Judge Klein's leading opinion in Summers v. Certainteed Corp., 886 A.2d 240 (Pa. Super. 2005) (equally divided court) (discussing the difficulties in assessing the credibility of expert testimony in an asbestos case) and the majority's observation that, "one of the difficulties courts face in the mass tort cases arises on account of a willingness on the part of some experts to offer opinions that are not fairly grounded in a reasonable belief concerning the underlying facts and/or opinions that are not couched within accepted scientific methodology." Maj. Slip Op. at 17.

It appears that the Majority, in expounding on what it labels as "Judge Klein's perspective," paints the entire spectrum of experts with a broad brush of quackery regarding the issuance of their respective opinions. Moreover, this approach suggests that the trial court is obligated to ferret out opinions of arguable scientific merit from those of a dubious nature, and everything in between, even where Appellant never challenged the methodology of Appellee's expert as being outside the accepted scientific methodology of asbestos cases and never requested a Frye hearing (to determine whether the general scientific community has reached a general acceptance of the principles and methodology employed by the expert witness before the trial court will allow the expert to testify regarding his conclusions).[1]

This case is before us on Appellant/Defendant's motion for summary judgment. Of course, we must consequently view the facts in the light most favorable to the Appellee/Plaintiff, who is the non-moving party. See Pa.R.Civ.P. 1035.2; see also Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa. 2002). Viewed in that light, we find that Appellee/Plaintiff has posited that, Dr. Harvey Specter, M.D., a board certified pathologist, confirmed Decedent's diagnosis of mesothelioma. In his supplemental report, Dr. Specter stated that Decedent's exposure to brake linings which contained asbestos substantially contributed to his malignant disease. Additionally, expert affidavits of Dr. James Girard, a chemist; Dr. Arthur Frank, an occupational disease physician; and, Dr. Richard Lamen, an epidemiologist and former deputy director of OSHA, concluded that it is generally accepted that relatively small amounts of asbestos exposure can cause mesothelioma and that regular and frequent exposure need not occur to cause this form of cancer.

Relying on the Tragarz test,[2] the Majority has completely disregarded all of this proffered medical evidence. Tragarz held that when direct evidence of exposure to asbestos cannot be proven, a putative plaintiff must show frequent, regular, and proximate contact with asbestos to state a cause of action. Here, however, Appellee/Plaintiff does not need such circumstantial evidence as he has asserted a sufficient factual basis of direct exposure to overcome summary judgment. Hence, summary judgment should be denied and any challenge to the sufficiency of Appellee/Plaintiff's evidence should occur either at a Frye hearing, as discussed supra, or at trial, through the cross-examination of Appellee/Plaintiff's experts or presentation to a jury of opposing expert views.

Madame Justice Baldwin joins this dissenting opinion.

[1] This case was reassigned to this author.

[2] Summary judgment was also granted in favor of Allied Signal, Inc., and the propriety of this decision is not at issue in the present appeal. [3] It is unclear why the court focused only on Bendix Corporation products in relation to Appellant's potential liability, since Appellee also adduced product identification testimony indicting that Mr. Gregg was also exposed to Raybestos brake products sold by Appellant. [4] The panel also noted that the common pleas court's position on the motion to strike Dr. Spector's supplemental expert report was unclear from the record, and thus, it required clarification on remand.

Judge Montemuro dissented, taking the position that no issue was raised by Appellee concerning the expert report, and the report was untimely and, therefore, should not be considered.

On remand, the common pleas court denied the motion to strike the supplemental expert report.

[5] See, e.g., Commonwealth v. Bricker, 882 A.2d 1008 (Pa. Super. 2005) ("We have held that circumstantial evidence is reviewed by the same standards as direct evidence."); Monaci v. State Horse Racing Comm'n, 717 A.2d 612, 618 (Pa. Cmwlth. 1998) ("When properly proved, circumstantial evidence is entitled to as much weight as direct evidence."). See generally Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 93, 596 A.2d 203, 207 (1991) (explaining that "the nexus between a specific asbestos product and a plaintiff's medical condition may be supplied by a variety of direct and circumstantial evidence.").

[6] While Appellant maintains that Appellee cannot demonstrate that the brake pads contained asbestos, the witness testified that installations that he saw were of Raybestos products, and Appellee has adduced evidence that Raybestos brake products sold in the relevant period contained asbestos.

Testimony that Mr. Gregg also breathed dust while cleaning out the wheel wells of automobiles during the brake-changing process is less direct, since a number of inferences are required to connect the dust to brake products purchased from Appellant. For example, there was no testimony that Mr. Gregg procured brake products exclusively from Appellant's store (indeed, there was evidence that he bought some items from another automobile supply store in which he previously had worked).

[7] For example, although Appellee describes Eckenrod as a case in which the plaintiff had adduced purely circumstantial evidence of exposure, there was in fact direct testimony by co-workers that "Mr. Eckenrod was `exposed to' asbestos products." Eckenrod, 375 Pa. Super. at 192, 544 A.2d at 52. Conversely, in the present case, Appellee concedes that the evidence concerning one essential aspect of his own causation proofs was entirely circumstantial. See Brief for Appellee at 11 ("The evidence that the brakes contained asbestos, though circumstantial, was powerful." (emphasis added)).

[8] Notably, under some of these theories, in recognition of the fact that a defendant may be held liable under less than substantial-factor causation, relief from joint and several liability may be available. See Menne, 861 F.2d at 1468 n.22.

[1] In brief, Appellee claimed that Bendix brakes Decedent had purchased from Appellant contained asbestos fibers. In support of his claim, Appellee produced deposition testimony of two of the Decedent's children. Carolyn Morici ("Morici"), Decedent's daughter, stated that she bought Bendix brakes for Decedent at Appellant's store when she was a child. Deposition of Carolyn Morici at 37 and 39. Morici observed Decedent installing the brakes and that the procedure was dusty. Id. at 73. Appellee also recalled buying auto supplies for Decedent at Appellant's store and observing Decedent perform the dusty task of installing new brakes on the family's automobiles. Deposition of John Andrew Gregg at 93 and 124.

Appellee also adduced the testimony of Charles Schaefer ("Schaefer"), who was a neighbor of Decedent's in the 1950's and 1960's. Schaefer testified that he observed Decedent placing brake shoes in his cars and that the process was dusty. Deposition of Charles Schaefer at 39. Schaefer also testified that the Decedent, to his knowledge, bought his brakes only at V-J. Deposition of Charles Schaefer at 46.

Finally, Appellee produced a supplemental report by his medical expert which opined that all of Decedent's "asbestos exposures both occupational and non-occupational contributed to the development of his malignant mesothelioma." Supplemental Report of Harvey Spector, M.D., 8/20/2001, at 1. This supplemental report specifically noted that the expert had reviewed the Decedent's exposure to asbestos while installing brake linings on his automobile. Id. Another expert stated that "extremely low exposure levels are capable of producing mesothelioma and other malignancies. Both animal and human data exist that show as little as one day of exposure can lead to the development of mesothelioma. . .." Affidavit of Arthur L. Frank, M.D., dated November 5, 2002.

[2] I would caution that a determination of whether a certain amount of a pollutant can bring about an illness is not arrived at via an application of pedestrian common sense. This court has recognized that for such questions, scientific expert testimony is required as "it is generally acknowledged that the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson. " Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978).

[1] See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (setting forth an exclusionary rule of evidence that applies only when a party wishes to introduce novel scientific evidence obtained from the conclusions of an expert scientific witness). We first adopted the Frye test in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977) and more recently reaffirmed it in Grady v. Frito-Lay, 839 A.2d 1038 (Pa. 2003), notwithstanding the United States Supreme Court's departure from Frye in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). [2] Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992).

Sources

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• Pennsylvania asbestos laws
• Pennsylvania asbestos exposure sites