Wilson v. AP Green Industries, Inc. (2002)

Our plain-English summary of Wilson v. AP Green Industries, Inc. (Pennsylvania Superior Court, September 16, 2002).

Pamela Perry Wilson, administratrix of the estate of Dolly Chase, sued several companies, including Flintkote, in a products liability action. Chase was diagnosed with mesothelioma in May 1998 and died in August 1999. The complaint alleged that Flintkote asbestos-containing products were used near her while she worked at the Philadelphia Naval Shipyard during World War II. To show exposure to Flintkote Fibrex Cement, the estate relied only on the deposition of Josie Usher, who worked with Chase in 1944-45. The trial court granted Flintkote summary judgment for lack of product identification. The Superior Court affirmed. It rejected the argument that a lower standard applies to mesothelioma, which can be caused by small amounts of asbestos, and held that a plaintiff must still show regular work in proximity to the product. Usher could not say she saw Chase or others use Flintkote cement, and her contrary answers to leading questions were inadmissible. Even if admitted, her testimony was too vague and contradictory to create a factual dispute.

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 16, 2002
• Citation: 807 A.2d 922
• Stage: Appeal from summary judgment
• State: Pennsylvania

Outcome. 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.

What the court held. In an asbestos case, including mesothelioma, a plaintiff must show she worked regularly in physical proximity to the defendant's product so that a reasonable inference arises that she inhaled its fibers; vague testimony and answers to improper leading questions do not meet this standard.

Issues decided: Causation, Wrongful Death and Survival, Trial Procedure and Discovery, Product Identification.

Why this case is relevant

In this decision the Pennsylvania Superior Court applied the existing product-identification test from earlier asbestos cases and refused to relax it for mesothelioma. Although mesothelioma can be caused by small amounts of asbestos, the court held that a plaintiff must still show she worked regularly in physical proximity to the defendant's product, so that it is reasonable to infer she inhaled its fibers. It also held that answers to improper leading questions at a deposition were inadmissible and could not defeat summary judgment. A lone witness who contradicted herself could not create a genuine factual dispute.

Later Pennsylvania Superior Court decisions quoted its statement that ideally a plaintiff or witness will testify directly that the plaintiff breathed fibers from the defendant's product. Another Superior Court decision discussed its language on leading questions, on which the trial court in that case had relied heavily. In one later case, both the Pennsylvania Supreme Court and the Superior Court noted that the trial court had relied on it to reject the argument that the frequency, regularity and proximity test does not apply in mesothelioma cases. Federal district courts in Pennsylvania cited it for the exposure and product-identification requirements at summary judgment. One Superior Court decision cited it only for the routine standard for reviewing summary judgment.

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

• Dolly F. Chase: mesothelioma; died

Who	Work	Where	When	Products
Dolly F. Chase	worked at the shipyard during World War II (shipyards and maritime work); worked near others using it	Philadelphia Naval Shipyard, Philadelphia, Pennsylvania	1944-45	asbestos-cement pipe and sheet, Flintkote Fibrex Cement

The defendants

• The Flintkote Company (manufacturer) · its asbestos trust
• A.P. Green Industries, Inc. (manufacturer) · its asbestos trust
• Flexitallic Gasket Co. (manufacturer)
• Union Carbide Corporation (manufacturer)
• Uniroyal, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Andaloro v. Armstrong World Industries, Inc. (Pennsylvania Superior Court, 2002). The Superior Court vacated the judgments because the trial court applied a pro rata setoff for the unsettled Manville Trust claims, remanded for a pro tanto setoff, and otherwise affirmed the rulings against John Crane, Inc. on judgment n.o.v., new trial and remittitur.
• 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.
• 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

26 later decisions in our library cite this one:

• Gregg v. VJ Auto Parts Company (Pennsylvania Supreme Court, Eastern District, 2007). The Pennsylvania Supreme Court vacated the Superior Court's order, which had reversed summary judgment for V-J Auto Parts, held that the trial court did not err in applying the frequency, regularity, proximity assessment, and remanded for further proceedings.
• Anderson v. Consolidated Rail Corporation (Pennsylvania Superior Court, 2023). The Superior Court reversed the summary judgment that the trial court had entered for Consolidated Rail Corporation against William Anderson, and remanded for further proceedings, which may include a Frye hearing.
• Gregg v. VJ Auto Parts Co. (Pennsylvania Superior Court, 2009). On remand from the Pennsylvania Supreme Court, the Superior Court affirmed summary judgment for V-J Auto Parts and denied the estate's motion to amend the complaint.
• Weible v. Allied Signal, Inc. (Pennsylvania Superior Court, 2008). The Superior Court reversed summary judgment for Borg-Warner, Brake & Clutch Co. of Philadelphia and Carlisle and remanded for further proceedings, but affirmed summary judgment for McCord, in the suit by Sara Jane Weible over her husband's mesothelioma.
• Bugosh v. Allen Refractories Co. (Pennsylvania Superior Court, 2007). The Superior Court of Pennsylvania affirmed the $1,400,000 judgment for Judith Bugosh against Taylored Industries, I.U. North America and Surface Combustion, rejecting each defendant's challenges.
• Bugosh v. Allen Refractories Company (Pennsylvania Superior Court, 2007). The Superior Court affirmed the $1,400,000 judgment for the plaintiff widow and estate against Taylored Industries, I.U. North America and Surface Combustion, rejecting each defendant's challenges.
• 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.
• Gilbert v. Monsey Products Company (Pennsylvania Superior Court, 2004). 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).
• Data v. Joy Global Underground Mining (U.S. District Court, Western District of Pennsylvania, 2022). The magistrate judge recommended granting Joy Global Underground Mining's summary judgment motion as to Mr. Data's exposure from being near others' work on the Joy air compressor, and denying it as to his hands-on gasket work on the compressor, so that claim goes forward for the plaintiff.
• Smeal v. Clark Equipment Company (U.S. District Court, Eastern District of Pennsylvania, 2022). The district court denied the summary judgment motions of Clark Equipment Company and Hyster-Yale Group, so the executrix's claims go forward on both exposure and causation.
• Data v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The magistrate judge recommended granting summary judgment on product identification for most moving defendants (including M.S. Jacobs, Flowserve, Armstrong International, William Powell, Clyde Union, IUNA, Atwood, Viking, Dezurik, Alfa Laval, Gardner Denver, Hyster-Yale, BW/IP and Clark), denying it for Honeywell and Air & Liquid Systems, granting it in part and denying it in part for Dana, GE and FMC, and denying Nash's motion without prejudice because of its bankruptcy stay.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted summary judgment for Atwood (Weir Valves & Controls USA) against the estate of Carl Gay because the plaintiff did not show sufficient exposure to Atwood valves.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted Gardner Denver's motion for summary judgment against plaintiff Allisa Gay, executor of Carl Gay's estate, because she did not show he was exposed to asbestos from a Gardner product.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The court granted summary judgment for Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiff Allisa Gay, because the evidence did not show that Carl Gay was exposed to asbestos from a Buffalo pump.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The court granted Hunter Sales Corp.'s motion for summary judgment, ruling against plaintiff Allisa Gay because she did not show that Carl Gay breathed asbestos fibers from Hunter Sales gaskets.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The court granted the Exelon defendants' summary judgment motion on claims about the Limerick Power Station and denied it on claims about the Nine Mile Power Plant, so the estate's claim continues only as to Nine Mile.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted Mueller Steam Specialty's motion for summary judgment because the plaintiff, executor of Carl Gay's estate, did not identify a Mueller Steam product as a cause of his mesothelioma.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted Honeywell's motion for summary judgment, ruling for Honeywell and against the plaintiff estate, because the plaintiff did not show Mr. Gay was exposed to asbestos from a Honeywell product.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted Viking Pump's motion for summary judgment against the estate of Carl Gay, finding no genuine issue that he was exposed to asbestos from a Viking pump.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted Square D/Schneider Electric's motion for summary judgment against the estate of Carl Gay because the plaintiff did not show that the Square D products at issue contained asbestos.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted General Electric's motion for summary judgment because the plaintiff, executor of Carl Gay's estate, did not show he was exposed to asbestos from a GE product with enough frequency, regularity and proximity.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted Yuba Heat Transfer, LLC's motion for summary judgment against plaintiff Allisa Gay, executor of Carl Gay's estate, because she did not show Mr. Gay was exposed to asbestos from a Yuba product.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The court denied Power Piping Co.'s motion for summary judgment, so the estate of Carl Gay, represented by his daughter Allisa Gay, may continue its claim against Power Piping.
• Gay v. AO Smith Corporation (U.S. District Court, Western District of Pennsylvania, 2021). The district court granted summary judgment to Flowserve U.S., Inc. (successor to Durametallic Corp.) because the plaintiff, executor of Carl Gay's estate, did not show he was exposed to asbestos from Durametallic products.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (Delaware Superior Court, 2011). The court granted Georgia-Pacific's motion for summary judgment against Raymond and Sussanah Foucha because they could not show without speculation that Foucha was exposed to asbestos from Georgia-Pacific joint compound.

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.

807 A.2d 922 (2002)

Pamela Perry WILSON, Administratrix of the Estate of Dolly F. Chase, Deceased, Appellant

v.

A.P. GREEN INDUSTRIES, INC., Flexitallic Gasket Co., a/k/a Gasket Holdings, Union Carbide

Corporation, Flintkote Co. and Uniroyal, Inc., Appellees

Argued June 25, 2002.

Filed September 16, 2002.

Superior Court of Pennsylvania.

[*923] Robert E. Paul, Philadelphia, for appellant.

Eric J. Kadish, Philadelphia, for Flinkote Co., for appellee.

Before: LALLY-GREEN, OLSZEWSKI, and POPOVICH, JJ.

OLSZEWSKI, J.:

¶ 1 Pamela Perry Wilson, Administratrix of the Estate of Dolly F. Chase, appeals from the August 31, 2001, order granting The Flintkote Company's (Flintkote) motion for summary judgment. We affirm.

¶ 2 On or about May 20, 1998, Dolly Chase (decedent) was diagnosed with Mesothelioma, a cancer of the lung's inner lining caused by exposure to asbestos, and she died in August of the following year. Appellant commenced a products liability action against numerous companies, including Flintkote, claiming that they manufactured or sold asbestos-containing products, which decedent inhaled and which caused her death. Specifically, the complaint alleges that Flintkote products containing asbestos were used near decedent while she worked at the Philadelphia Naval Shipyard during World War II.

[*924] ¶ 3 In order to establish that decedent was exposed to and breathed in fibers from Flintkote Fibrex Cement, appellant deposed Josie Usher, who worked with decedent between 1944-45. On April 9, 2001, shortly after this deposition was taken, appellee moved for summary judgment on grounds that appellant failed to satisfy the product identification requirement. Appellant opposed this motion relying solely on Ms. Usher's testimony. The trial court granted appellee's motion on August 31, 2001, and this timely appeal followed, in which appellant raises the following questions: 1. Did the lower court abuse its discretion by failing to interpret the evidence of record in the light most favorable to Plaintiff as the non-moving party?

2. Did the lower court err by requiring the Plaintiff to prove regular, frequent and proximate exposure to defendants' asbestos products in a mesothelioma case?

Appellant's brief at 3.

¶ 4 This Court will only overturn an order granting summary judgment where the trial court has "committed an error of law or abused its discretion." Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (2001). Summary judgment is proper where there is "no genuine issue of any material fact as to a necessary element of the cause of action." Pa.R.C.P. 1035.2(1); Murphy, 777 A.2d at 429. In reviewing such a grant, "[w]e must view the record in the light most favorable to the non-moving party, and [resolve] all doubts as to the existence of a genuine issue of material fact ... against the moving party." Feidler v. Morris Coupling Co., 784 A.2d 812, 814 (Pa.Super. 2001) (citation omitted). ¶ 5 We begin by addressing appellant's second issue, concerning the level of proof a plaintiff must satisfy in an asbestos case. In order to succeed on a products liability cause of action, a plaintiff must show that: (1) "his/her injuries were caused by the product of a particular manufacturer or supplier"; and (2) the product was defective. Jobe v. W.P. Metz Refining, 445 Pa.Super. 76, 664 A.2d 1015, 1017 (1995). Establishing product identity in an asbestos case requires a plaintiff to produce evidence that she "inhaled asbestos fibers shed by the specific manufacturer's product." Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52 (1988). Ideally, a plaintiff or a witness will be able to directly testify that plaintiff breathed in

asbestos fibers and that those fibers came from defendant's product. Without such direct evidence, plaintiff must rely upon circumstantial evidence of exposure. Such evidence may not merely demonstrate the "presence of asbestos in the workplace," but must show that plaintiff "worked in the vicinity of the product's use." Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 86 (Pa.Super.2002) (citing Eckenrod, 544 A.2d at 52). Specifically, a plaintiff's evidence of exposure and product identity must show that she "worked, on a regular basis, in physical proximity with the product, and that [her] contact with it was of such a nature as to raise a reasonable inference that [s]he inhaled asbestos fibers that emanated from it." Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 622 (Pa.Super.1999) (citing the frequency, regularity, and proximity standard from Eckenrod, 544 A.2d at 53).

¶ 6 Appellant claims that this standard, which emerged from Eckenrod, does not apply here, because: (1) her decedent developed Mesothelioma; and (2) the standard only applies to circumstantial evidence, not direct evidence. Appellant's Brief at 11. She claims that Josie Usher's testimony provides direct evidence that decedent [*925] inhaled asbestos fibers from appellee's product.

¶ 7 We reject appellant's contention that the Eckenrod standard should not apply to a disease such as Mesothelioma, which can be caused by inhaling small amounts of asbestos. The fact that minor amounts of asbestos may cause this disease has no bearing on the requirement that plaintiff must actually inhale asbestos fibers from the specific manufacturer's product. ¶ 8 At oral argument, appellant pointed to this Court's recent decision in Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa.Super.2002), as support for its contention. In light of other contemporary cases handed down by this Court, we do not read Gutteridge as creating a distinction between asbestos-related cases involving lung cancer and those involving Mesothelioma. In Gutteridge, a panel of this Court emphasized that while most asbestos plaintiffs, like the plaintiff in Eckenrod, develop lung cancer, Mr. Gutteridge developed Mesothelioma, which is "medically attributable" to asbestos exposure. Id. at 193. In setting forth the level of proof needed to survive a summary judgment motion, the panel cited directly to Eckenrod. Id. The Court then stressed that although the plaintiff does not need to show "the specific role played by each fiber within the body[,]" she must prove that she "inhaled asbestos fibers shed by the specific manufacturer's product." Id. This is the same standard that we have articulated in all of our recent asbestos cases involving both lung cancer and Mesothelioma.

¶ 9 In Andaloro, a Mesothelioma case decided two months before Gutteridge, we ruled that in order to satisfy this requirement, "[t]he evidence [of exposure] must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product, and that his contact was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it." Andaloro, 799 A.2d at 86. The mere fact that we did not cite this language in Gutteridge to explain the nature of the exposure required in no way signals an abandonment of this standard. ¶ 10 Our holding in Gutteridge illustrates this fact. We held that the plaintiff presented sufficient evidence of exposure to allow a reasonable person to infer that her decedent inhaled asbestos fibers from the defendant's product. Gutteridge, 804 A.2d at 653-54. In reaching this conclusion, we pointed to the testimony of a co-worker who worked in the same vicinity as decedent for eight years. Id. at 653. He testified that, during that time, he produced dust by sanding asbestos products and that no one who worked there could have avoided inhaling this dust. Id. This evidence demonstrated that the decedent worked in proximity to the defendant's asbestos products on a regular basis and therefore satisfied Eckenrod. ¶ 11 After thoroughly reviewing the evidence here in a light most favorable to appellant, we find it legally insufficient to establish plaintiff's exposure to Flintkote Fibrex Cement. We reject appellant's contention that she presented direct evidence that her decedent inhaled Flintkote asbestos fibers, and that, therefore, she does not need to prove regular and proximate exposure. Contrary to appellant's assertion, Josie Usher's testimony contains no direct evidence that decedent inhaled asbestos manufactured by appellee. She testified that workers used many different cement products around her and decedent, all of which made dust. N.T., 3/21/00, at 140. The following excerpts from this deposition illustrate her inability to identify Flintkote as a product decedent specifically [*926] breathed in, or to which she was specifically exposed: Q.... Where did you see Flintkote cement?

A. In the same place (referring to a previous answer).

Q. Okay. That would have been between the ship and the tool house?

A. That's correct. That is correct.

* * * * * *

Q. And you can't tell us whether or not you saw Ms. Chase use it, is that correct?

A. No, not really.

* * * * * *

Q.... Do you remember men using it in the area where you and Dolly Chase were working?

* * * * * *

A. They were using different materials.... I can't say at that particular time they were using it.

* * * * * *

Q. Did you ever see anybody using that product?

A.... I can say this to you, if it was Flintkote or the other one, at that particular time and at my age, I did not really know that they were using these—they were using the products, but the name on them at that

particular time, I wasn't interested in it.

N.T., 3/21/00, at 133, 62, 137-38, 134-35.

¶ 12 Despite Ms. Usher's obvious inability to remember the use of these products around her or decedent, appellant's counsel mischaracterized her answer and asked two leading questions.[1] The answers she provided were completely opposite the statements she made without prompting just moments earlier. Answers to such inappropriate leading questions are not admissible and may not serve as the basis for surviving a summary judgment motion. Pa.R.E. 611; See also Pascone v. Thomas Jefferson Univ., 357 Pa.Super. 524, 516 A.2d 384, 387 (1986). The trial court did not err, therefore, in refusing to consider this portion of Ms. Usher's deposition.

¶ 13 Since appellant offered no direct evidence that decedent inhaled any asbestos-containing Flintkote product, the court correctly ruled that she needed to satisfy the Eckenrod standard, i.e., that decedent worked in proximity to such a product on a regular basis. Ms. Usher's testimony clearly failed to establish this type of exposure, and summary judgment was proper.

¶ 14 Even if Ms. Usher's answers to counsel's leading questions were admissible, we would rule that her testimony, when taken as a whole, fails to demonstrate that decedent inhaled fibers from Flintkote Fibrex Cement. Ms. Usher stated that, at most, decedent was exposed to dust from appellee's product "at one time or another." N.T., 3/21/00, at 138-39. This testimony is far too vague and unsubstantiated to prove even one instance of exposure to the product, let alone to establish that decedent regularly worked in proximity to it. See Coward, 729 A.2d at 624. The inadequacy of this testimony becomes even clearer when we consider Ms. Usher's previous response that she could not remember anyone using the Flintkote [*927] product around decedent. When a plaintiff's lone witness contradicts herself in this fashion, such testimony cannot establish a genuine issue of material fact.

¶ 15 Order affirmed.

[1] Q. Do you believe—is what you're saying here to me then is that at one time or another during the year people would use this Flintkote Fibrex Cement around you and Dolly Chase? ... [objection]... A. That's what I'm saying. That's what I'm saying. Q. And do you think that this product, this fibrex cement that they were using, made dust? ... [objection] ... A. All of the products that I have stated, all of them, made dust.

Sources

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