Painter v. Sears, Roebuck and Co., Inc. (2014)

Our plain-English summary of Painter v. Sears, Roebuck and Co., Inc. (Pennsylvania Superior Court, May 27, 2014).

Howard Painter and his wife Sara sued 37 defendants in 2010, alleging he developed mesothelioma from asbestos exposure. He died in 2011, and Sara continued the case as executrix of his estate. The claims against Sears, American Biltrite (Amtico floor tile) and CertainTeed (roofing products) concerned occasional home renovation work from the 1960s to the 1980s, including laying floor tile and roofing. The trial court granted summary judgment to the three companies, finding that a jury could only guess that he used their asbestos-containing products. On appeal, the Superior Court first held the appeal timely. It then affirmed. Mr. Painter named Sears, American Biltrite and CertainTeed only after his lawyer refreshed his memory with a list. He gave no detail on which products he used, how often, or for how long, and he said he did not know whether some tiles contained asbestos. The court held this fell short of the frequency, regularity and proximity that Pennsylvania law requires.

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: May 27, 2014
• Docket: No. 655 EDA 2013
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Pennsylvania

Outcome. 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.

What the court held. To survive summary judgment, a plaintiff must show regular work in physical proximity to the defendant's asbestos-containing product, with frequency, regularity and proximity sufficient for a jury to infer inhalation of its fibers. Vague testimony that a brand was used, without details, leaves a jury to speculate.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Howard Painter: mesothelioma; died

Who	Work	Where	When	Products
Howard Painter	home renovation (non-occupational)		1960s-1980s	floor tile, Sears vinyl asbestos tile, Amtico (American Biltrite)
Howard Painter	home renovation (non-occupational)		1960s-1980s	asbestos paper, felt and millboard, CertainTeed roofing felt

The defendants

• Sears, Roebuck and Co., Inc. (supplier)
• American Biltrite, Inc. (manufacturer)
• Certainteed Corporation (manufacturer)

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.
• 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.
• 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.
• 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.
• 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.

SARA PAINTER, INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF HOWARD PAINTER,

DECEASED, Appellant,

v.

SEARS, ROEBUCK AND CO., INC., AMERICAN BILTRITE, INC., AND CERTAINTEED

CORPORATION, Appellees.

No. 655 EDA 2013.

Filed May 27, 2014.

Superior Court of Pennsylvania.

BEFORE: ALLEN, MUNDY, and FITZGERALD[*], JJ.

NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37

MEMORANDUM BY ALLEN, J.

Sara Painter ("Appellant"), individually and as executrix of the estate of Howard Painter, deceased ("Mr. Painter"), appeals from the trial court's orders granting summary judgment in favor of Sears, Roebuck and Co., Inc., ("Sears"), American Biltrite, Inc., ("ABI"), and Certainteed Corporation, ("Certainteed"). We affirm.

The trial court presented the posture and factual history of this action as follows:

On November 22, 2010, [Appellant] and her late husband, Mr. Painter, commenced suit against thirty-seven (37) defendants, alleging Mr. Painter contracted mesothelioma as a result of his occupational and non-occupational exposure to various asbestos-containing products.

Prior to his death, Mr. Painter was deposed for several days between November 20, 2010 and January 20, 2011. Mr. Painter passed away on February 11, 2011. [Appellant] was appointed executrix of his estate. On August 21, 2012, all Moving Defendants filed their Motions for Summary Judgment, arguing that

[Appellant] failed to produce sufficient evidence of Mr. Painter's exposure to asbestos from their particular product(s). On September 6, 2012, [Appellant] filed her Answers in Opposition to the Motions. All but one (1) Moving Defendant filed replies on September 12, 2012. On November 1-2, 2012, the Court granted all

Moving Defendants' Motions.

On February 22, 2013, [Appellant] filed Notices of Appeals of the Court's Orders. On February 28, 2013, the Court ordered [Appellant] to file and serve concise statements of matters complained of on appeal, pursuant to Pa. R.A.P. 1925(b). On March 8, 2013, [Appellant] filed her 1925(b) Statements. [Appellant] claims the evidence adduced during discovery establishes Mr. Painter was exposed to asbestos fibers shed from

products attributable to each Moving Defendant.

[Appellant's] claims against Moving Defendants Sears, [ABI], Certainteed ... relate to Mr. Painter's occasional non-occupational home renovation work throughout the 1960s-1980s. [Appellant] claims she produced

sufficient evidence Mr. Painter used, and was exposed to respirable asbestos from, floor tile purchased at Moving Defendant Sears' store(s) and/or manufactured by Moving Defendant [ABI] (under the "Amtico"

brand name). [Appellant] also claims Mr. Painter was exposed to asbestos from roofing products

manufactured by Moving Defendant Certainteed.

Trial Court Opinion, 10/2/13, at 1-2.

Initially, we note that ABI challenges the timeliness of this February 22, 2013 appeal because, inter alia, the orders appealed from were issued on November 1-2, 2012, and docketed between November 6-8, 2012. See ABI's Brief at 3, 12-16. Our review of the docket reflects, however, that the trial court completed a trial worksheet noting that the "case [was] settled as

to all non-bankrupt parties except the Manville Fund without prejudice. Case dismissed against Manville Fund without prejudice to be reopened as an arbitration matter." Trial Worksheet, 1/25/13, (emphasis supplied). Appellant filed her notice of appeal on February 22, 2013, within 30 days of the January 25, 2013 order dismissing the Manville Fund. Therefore, we deem this appeal timely. See Pa.R.A.P. 903(a); see also Pa.R.A.P. 341 ("[w]hen more than one claim for relief is presented in an action, ... or when multiple parties are involved, the trial court ... may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims and parties shall not constitute a final order."); Smitley v. Holiday Rambler Corp., 707 A.2d 520, 523-525 (Pa. Super. 1998).

Appellant presents the following issue for our review:

Did the lower court err as a matter of law in failing to view the entire record in the light most favorable to [Appellant as the] non-moving party, ignoring in its entirety the core of [Mr. Painter's] deposition testimony concerning his asbestos exposure, and granting the motion for summary judgment by finding that a jury verdict in favor of [Appellant] would be based on impermissible speculation?

Appellant's Brief at 5.

We recognize:

Our scope of review ... [of summary judgment orders] ... is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law will summary judgment be entered.

Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of his cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Thus a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own conclusions. The appellate Court may disturb the trial court's order only upon an error of law or an abuse of discretion. Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa. Super. 2012) (internal citation omitted).

Appellant contends that the trial court erred in granting summary judgment in favor of Sears, ABI, and Certainteed, because the trial court "ignored the crucial deposition testimony wherein [Mr. Painter] identified [Sears, ABI, and Certainteed] as the manufacturers and suppliers of the asbestos-containing products to which he was exposed." Appellant's Brief at 8. For Appellant to prevail against Sears', ABI's, and Certainteed's motions for summary judgment, the record must show that Mr. Painter "worked, on a regular basis, in physical proximity with the [Sears', ABI's and Certainteed's asbestos-containing] product and that the contact with same was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it." See Gregg v. V-J Auto Parts Co., 943 A.2d 216, 220 (Pa. 2007).

Appellant emphasizes the areas of Mr. Painter's testimony where he testified to either using or being exposed to Sears', ABI's, and Certainteed's asbestos-containing products on numerous occasions. See Appellant's Brief at 14-16; 19-20. However, even drawing all inferences in Mr. Painter's favor from his testimony that he was exposed to asbestos from his handling of Sears', ABI's, and Certainteed's products, the evidence in toto lacks the requisite showing that Mr. Painter's exposure had the "frequency, proximity, and regularity" that would preclude summary judgment. See Gregg, supra, at 220, 226-227; see also Gilbert v. Monsey Products Company, 861 A.2d 275 (Pa. Super. 2004).

Here, the trial court recognized:

In an asbestos action, a plaintiff avoids summary judgment by putting forth evidence he or she (or his or her decedent) frequently and regularly inhaled asbestos fibers shed by the defendant's product. Eckenrod v. GAF Corp., 375 Pa. Super. 187, 191 (Pa. Super. 1988); Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 279 (2007). It is essential the plaintiff identify an asbestos-containing product attributable to each defendant. Id. at 289-90; Linster v. Allied Signal, Inc., 2011 Pa. Super. 86 (Pa. Super. 2011). Stated differently, the plaintiff must put forth sufficient "product identification" evidence for a jury to infer that (a) the plaintiff (or the plaintiff's decedent) most likely used, or was in sufficient proximity to, the particular defendant's product, and (b) said product most likely contained asbestos. Gregg, 596 Pa. 274 at 289-90; Samarin v. GAF Corp., 391 Pa.

Super. 340, 350 (Pa. Super. 1989). Product identification evidence may take the form of deposition

testimony, inter alia. See, Marks v. Tasman, 527 Pa. 132, 135 (1991).

The Superior Court has held that summary judgment is proper where the only product identification testimony is vague, unsubstantiated, and/or mischaracterized with leading questions by counsel. Wilson v. A.P. Green Indus., Inc., 2002 Pa. Super. 294 (Pa. Super. 2002). The Wilson court's holding reflects the long-standing principle of Pennsylvania law that a jury may not be permitted to reach a verdict on the basis of speculation or conjecture. See, Young v. Com. Dept. of Transp., 560 Pa. 373, 376 (2000); Morena v. South Hills Health System, 501 Pa. 634 (1983).

Trial Court Opinion, 10/2/13, at 3.

In applying the foregoing principles to Appellant's record regarding Sears, ABI, and Certainteed, the trial court determined: In this case, [Appellant] relies heavily on Mr. Painter's own testimony in order to identify the products to which he was allegedly exposed. A review of Mr. Painter's testimony reflects that a jury could not conclude, without speculation or conjecture, Mr. Painter was exposed to any asbestos-containing product attributable to any Moving Defendant.

With regard to the floor tile Defendants, Sears and [ABI], [Appellant] put forth evidence that at some point in time, Sears sold, among other vinyl tiles, a product called vinyl asbestos tile which contained asbestos, and some but not all [ABI] floor tiles contained asbestos between 1960 and 1985. However, Mr. Painter's

testimony provides no basis for a jury to reasonably conclude Mr. Painter may have used any of the asbestos floor tiles. The jury is left to guess.

Mr. Painter first recognized Sears and [ABI] as among the brands of tiles he used when his counsel

refreshed his recollection with a list of manufacturers, as follows:

Q: ... Do you recall who manufactured or supplied the floor tile that you used over the years?

A: I believe there was one of Salem, New Jersey. Golly. Barrington (phonetic) or something like that. Q: Okay. Can you think of any others?

A: Not offhand, no.

*****

Q. Can you tell me if looking at that list refreshes your recollection about the names of any of the floor tile that you used over the years?

A. Yes. Kentile and Sears, [ABI] ...

(Ex. C to [Appellant's] Answer to [ABI's] Mot. at 59)

Mr. Painter's additional testimony regarding Sears and [ABI] is very brief and provides little to no detail regarding the types of floor tiles he allegedly used. Mr. Painter's testimony pertaining to Sears tiles is limited to the following:

Q: Okay. And in reading your testimony, sir, is it your recollection that you bought some floor tile from Sears throughout your lifetime?

A: Oh, yes.

*****

Q: ... Did someone else, to your knowledge, purchase floor tile from Sears that you may have installed or help[ed] another person install? Does that make sense to you?

A: Yes. Someone else purchased the material.

Q: Okay. Let's start, who would that someone be? Friend? Family? Coworker?

A: It would have been, let's say, a co-worker.

Q: Okay. And would it have been a co-worker from your time at DuPont or from one of your other jobs? Do you remember?

A: No, sir. I don't recall.

Q. That's okay. How do you recollect that this friend purchased the floor tile from a Sears store?

A: Well, I don't believe I purchased it. I think I would have remembered. But things come in and out of my head so quick.

(Ex. B. to [Appellant's] Answer to Sears' Mot. At 214-215)[.]

Mr. Painter's testimony pertaining to [ABI] tiles is limited to the following:

Q: [D]o you recall any, ever using any products made by a company called [ABI]?

A: [ABI]?

Q: Yes.

A: Yes, ma'am.

Q: And what do you associate with [ABI]?

A: I don't know. I know the name.

Q: You just know the name?

A: Yes.

Q. You can't pin it to any product that you used right now?

A: I can't say that I do, no.

(Ex. B to Pl.'s Answer to ABI/Amtico's Mot. at 249)[.]

A jury could not reasonably conclude from the foregoing testimony that Mr. Painter most likely used

asbestos-containing Sears or [ABI] floor tiles. Mr. Painter was hardly able to remember whether he

purchased Sears floor tiles, let alone recall the type of Sears floor tiles he used. Additionally, Mr. Painter was barely able to associate the [ABI] name with floor tiles, let alone provide any evidence he used asbestos-containing [ABI] floor tiles.

In the same vein, while [Appellant] offered evidence a limited number of Certainteed roofing products contained asbestos in the 1950s-1970s, Mr. Painter's testimony is entirely insufficient to show he used any Certainteed products which contained asbestos. Mr. Painter's entire discussion of

Certainteed is as follows:

Q. ... Do you remember who manufactured the roofing products that you described earlier?

A: No, I don't.

Q. Okay. If you'd flip to the next page and tell me if that refreshes your recollection?

A: Certainteed and Chevron.

Q. And now that you've seen that page, does that refresh your recollection as to what brands of what manufacturers made the roofing products that you previously described?

A: Yes

Q: And who did you use?

A: Certainteed and Chevron.

(Ex. C to [Appellant's] Answer to Certainteed's Mot. at 60 (objections omitted))[.]

Mr. Painter did not offer any details regarding which Certainteed roofing products he used. Therefore, it would be left to a jury to speculate as to whether Mr. Painter used asbestos-containing Certainteed products. Trial Court Opinion, 10/2/13, at 4-6 (italics in original; footnotes omitted).

Based on our review of the record, we agree with the trial court's determination that Sears, ABI, and Certainteed were entitled to summary judgment.

Mr. Painter testified to being "pretty handy" and doing projects "around the house" in his own residences and for his parents. N.T., 11/30/10, at 25. Mr. Painter also "help[ed] the neighbors all the time." Id. Mr. Painter testified that he had laid floor tile in his own residence and in his neighbors' homes. Id. at 28. He testified that the tiles he used in laying floor tiles "had asbestos." Id. at 30. He explained that if he had to "sand a tile" or "smooth a tile" before installing it, the process would create dust which he breathed because he was not wearing a mask. Id. at 29-30. Mr. Painter did not elaborate during this portion of his testimony about what brands or companies manufactured the products he used in these projects, nor did Mr. Painter specifically express the frequency of these projects, nor the amount of time he spent performing the work. When asked about the companies who "manufactured or supplied" the tiles involved in his floor tiling projects, Mr. Painter could only recall "one out of Salem, New Jersey," called "Mannington Mills." Id. at 59. To refresh his recollection of the companies whose floor tiles he used, Mr. Painter was asked by his counsel to review a list. Id. at 57-58. The list, written by Mr. Painter's wife, was based on Mr. Painter's conversation with his counsel in preparation for Mr. Painter's deposition and contained "products [Mr. Painter] associated with [his] asbestos exposure." Id. After "refres[ing] [his] recollection," Mr. Painter testified to using tiles from "Kentile, and Sears, [and] [ABI]," as well as Mannington Mills. Id. at 59. When asked by his counsel if Mr. Painter used "[e]ach of those four brands of floor tiles listed [on the list]" over "the years as previously described," Mr. Painter simply replied, "Yes, I did." Id. at 59-60. Again, Mr. Painter did not elaborate as to frequency or regularity. Mr. Painter additionally did not express how many times he used Kentile and Mannington Mills versus Sears and ABI.

On cross-examination, Mr. Painter testified that he had only personally worked with floor tiles in two of his prior residences. N.T., 12/21/10, at 228, 235. Mr. Painter testified that in the first home where he did floor work, he used "a sheet panel ... not a tile" in the kitchen and upstairs bathroom, and he could not "recall" who "manufactured the sheet material." Id. at 232. Mr. Painter stated he "removed the tile floor in the kitchen" and bathroom of a second residence, and installed a new tile floor in both rooms. Id. at 235. Mr. Painter could not "recall" who "manufactured the [tiles] that [he] removed" from either room, and he did not "know the manufacturer of the ... tile squares that [he] [subsequently] installed" in those rooms. Id. at 235-236. Mr. Painter conceded that the tiles he installed "may or may not have contained asbestos," and he "just d[idn't] know." Id. at 236. While Mr. Painter testified to "flooring work" being done in a third location, Mr. Painter explained that "[s]omebody else did" the kitchen floor and bathroom work. Id. at 237-239. Mr. Painter did not "know" the manufacturers associated with this work. Id.

Mr. Painter additionally testified about doing "roofing work." N.T., 11/30/10, at 30-31. Mr. Painter described using "roofing cement," which came in "a can" and was "wet," and did "not make any dust when it went on." Id. at 31-32. He further testified to using "roofing felt," which came in "rolls" and "had asbestos in it." Id. at 31-32. Mr. Painter did not elaborate about the amount of times that he performed this roofing work involving roofing felt, nor did he express the time that lapsed in

between these projects. Mr. Painter's counsel later asked him about the manufacturers of the "roofing products." Id. at 60. Mr. Painter could not remember who manufactured them. Id. After refreshing his recollection, Mr. Painter testified that "Chevron and Certainteed" were the "manufacturers [which] made the roofing products that [he] previously described[.]" Id. Mr. Painter did not testify about his use of Chevron versus Certainteed, nor the frequency or regularity of the roofing work. Based on our review of Mr. Painter's testimony as described above, we agree with the trial court that Sears, ABI, and Certainteed were entitled to summary judgment. Our agreement recognizes:

[I]t 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.

Gregg, 943 A.2d at 228. Further, we have expressed that "the frequency, regularity, and proximity standards espoused in Eckenrod are subject to nuanced evaluation that vests considerable discretion in the courts on summary judgment." Fisher v. Sexauer, 53 A.3d 771, 776 (Pa. Super. 2012) (affirming the trial court's grant of summary judgment where plaintiff's testimony did not show that he was regularly exposed to asbestos from Sexauer's products, and where plaintiff's testimony "offered only speculation on the nature and extent of his [asbestos] exposure..."). Therefore, consonant with Gregg and Fisher, we do not find that the trial court erred in granting summary judgment to Sears, ABI, and Certainteed. Orders affirmed.

[*] Former Justice specially assigned to the Superior Court.

Sources

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