Krauss, C. v. Trane US Inc.

J-A12014-14

2014 PA Super 241
COLLEEN M. KRAUSS, EXECUTOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF HENRY M. KRAUSS, : PENNSYLVANIA
:
Appellant :
:
v. :
:
TRANE US INC., f/k/a AMERICAN :
STANDARD, et al; ALLIS-CHALMERS :
CORPORATION; AQUA CHEM, INC., :
d/b/a CLEAVER BROOKS DIVISION, :
INDIVIDUALLY AND SUCCESSOR IN :
INTEREST TO SPRINGFIELD BOILERS; :
AVENTIS CROPSCIENCE USA, INC., :
a/k/a AMCHEM PRODUCTS INC., now :
known as BAYER CROPSCIENCE INC., :
f/k/a BENJAMIN FOSTER CO., c/o :
CORPORATION SERVICES CO.; A.W. :
CHESTERTON CO.; BABCOCK POWER, :
INC., f/k/a BABCOCK BORSIG POWER :
INC., f/k/a D.B. RILEY STOKER :
CORPORATION; BONDEX :
INTERNATIONAL INC., c/o DANIEL J. :
RYAN, ESQUIRE; CRANE COMPANY; :
CROWN CORK AND SEAL COMPANY :
INC.; DURABLE MANUFACTURING :
COMPANY, INC.; ELLIOT :
TURBOMACHINERY COMPANY, a/k/a :
ELLIOT COMPANY; FOSTER WHEELER :
ENERGY CORPORATION; GARLOCK :
SEALING TECHNOLOGIES, LLC.; :
GEORGIA-PACIFIC CORPORATION, :
INDIVIDUALLY AND AS SUCCESSOR :
TO BESTWALL GYPSUM COMPANY; :
GOODRICH CORPORATION; GOULDS :
PUMPS INCORPORATED; GUARDLINE :
INC.; INDUSTRIAL HOLDINGS :
CORPORATION, f/k/a THE :
CARBORUNDUM COMPANY, :
INDIVIDUALLY AND AS SUCCESSOR :
IN INTEREST TO LOCKPORT FELT, A :
DIVISION OF THE CARBORUNDUM :
COMPANY; INGERSOLL RAND :
J-A12014-14

COMPANY; KAISER GYPSUM :
COMPANY, INC.; KCG INC., AS :
SUCCESSOR IN INTEREST TO RUCO; :
METROPOLITAN LIFE INSURANCE :
COMPANY; MURCO WALL PRODUCTS, :
INC.; OAKFABCO, INC., f/k/a :
KEWANEE BOILER CORPORATION; :
OWENS-ILLINOIS INC., INDIVIDUALLY :
AND AS SUCCESSOR IN INTEREST TO :
OWENS-ILLINOIS GLASS COMPANY; :
RAPID-AMERICAN CORPORATION f/k/a :
GLEN ALDENCORPORATION, :
INDIVIDUALLY AND AS SUCCESSOR- :
BY-MERGER TO GLEN ALDEN :
CORPORATION, BRIGGS :
MANUFACTURING CO., PHILIP CAREY :
CORPORATION AND PHILIP CAREY :
MANUFACTURING COMPANY; RPM :
INC., AS SUCCESSOR TO REPUBLIC :
POWDERED METALS, SUCCESSOR TO :
BONDEX; SEPCO CORPORATION; THE :
SHERWIN-WILLIAM COMPANY; T.H. :
AGRICULTURE & NUTRITION LLC.; :
UNION CARBIDE CORPORATION, :
INDIVIDUALLY AND f/k/a UNION :
CARBIDE CHEMICALS AND PLASTIC :
COMPANY, INC.; UNIROYAL HOLDING, :
INC., AS SUCCESSOR TO UNITED :
STATES RUBBER COMPANY; VIACOM, :
INC., INDIVIDUALLY AND AS :
SUCCESSOR-BY-MERGER TO CBS :
CORPORATION, f/k/a WESTINGHOUSE :
ELECTRIC CORPORATION; WICKES :
CORPORATION, INDIVIDUALLY AND :
AS SUCCESSOR BY MERGER TO :
WICKES BOILER CO.; ZURN :
INDUSTRIES INC., a/k/a AND AS :
SUCCESSOR-BY-MERGER TO ERIE :
CITY IRON WORKS; KELLY MOORE :
PAINT COMPANY INC.; BORDEN :
CHEMICAL INC., f/k/a BORDEN :
CHEMICAL COMPANY AND n/k/a :

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HEXIO SPECIALTY CHEMICALS INC., :
PRENTICE HALL CORPORATION; :
CERTAIN-TEED CORPORATION f/k/a :
CERTAINTEED PRODUCTS :
CORPORATION; FORD MOTOR :
COMPANY; FREEPORT-McMORAN INC., :
f/k/a FREEPORT CHEMICAL COMPANY, :
AND SUCCESSOR TO AGRICO INC.; :
THE PEP-BOYS MANNY, MOE & JACK; :
A.P. GREEN a/k/a A.P. GREEN :
REFRACTORIES, INC., f/k/a A.P. :
GREEN REFRACTORIES COMPANY, :
AND A SUBSIDIARY OF ANH :
REFRACTORIES COMPANY; BENJAMIN :
FOSTER COMPANY, A DIVISION OF :
AMCHEM; HARBISON-WALKER, f/k/a :
HARBISON-WALKER REFRACTORIES :
COMPANY AND A SUBSIDIARY OF ANH :
REFRACTORIES COMPANY; KAISER :
ALUMINUM AND CHEMICAL :
CORPORATION, :
: No. 644 EDA 2013
Appellees

Appeal from the Orders Entered January 22 and 23, 2013,
In the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 00726 January Term, 2007.

COLLEEN M. KRAUSS, EXECUTOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF HENRY M. KRAUSS, : PENNSYLVANIA
:
Appellant :
:
v. :
:
CBS CORPORATION, et al; ANCO :
INSULATIONS, INC.; BORDEN :
CHEMICAL INC., f/k/a BORDEN :
CHEMICAL COMPANY AND n/k/a :
HEXION SPECIALTY CHEMICALS, INC., :
PRENTICE HALL CORPORATION; CBS :

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CORPORATION; CERTAIN-TEED :
CORPORATION, f/k/a CERTAINTEED :
PRODUCTS CORPORATION; FORD :
MOTOR COMPANY; FREEPORT- :
McMORAN INC., f/k/a FREEPORT :
CHEMICAL COMPANY AND :
SUCCESSOR TO AGRICO INC.; :
GENERAL ELECTRIC COMPANY; :
GOULDS PUMPS INC.; THE PEP BOYS- :
MANNY, MOE & JACK; TRANE US INC., :
f/k/a AMERICAN STANDARD INC.; :
ZURN INDUSTRIES INC., a/k/a AND :
AS SUCCESSOR-BY-MERGER TO ERIE :
CITY IRON WORKS; A.P. GREEN a/k/a :
A.P. GREEN REFRACTORIES, INC., :
f/k/a A.P. GREEN REFRACTORIES :
COMPANY, AND A SUBSIDIARY OF :
ANH REFRACTORIES COMPANY; :
BENJAMIN FOSTER COMPANY, A :
DIVISION OF AMCHEM; HARBISON :
WALKER f/k/a HARBISON WALKER :
REFRACTORIES COMPANY AND A :
SUBSIDIARY OF ANH REFRACTORIES :
COMPANY; KAISER ALUMINUM AND :
CHEMICAL CORPORATION, :
:
Appellees : No. 671 EDA 2013

Appeal from the Orders Entered January 22 and 23, 2013,
In the Court of Common Pleas of Philadelphia County,
Civil Division, at No. 00212 February Term, 2006.

BEFORE: SHOGAN, STABILE and PLATT, JJ.

OPINION BY SHOGAN, J.: FILED OCTOBER 22, 2014

Appellant, Colleen M. Krauss, Executrix of the Estate of Henry M.

Krauss (“Decedent”), appeals from the orders granting summary judgment

*Retired Senior Judge assigned to the Superior Court.

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in favor of Appellees General Electric Company (“GE”); Georgia-Pacific,

L.L.C; CBS Corporation-Westinghouse (“Westinghouse”); Goulds Pumps,

Inc.; Zurn Industries; and Trane US Inc., f/k/a American Standard

(“American Standard”), (jointly “Appellee Manufacturers”).1 We affirm.

The trial court summarized the factual and procedural history of this

case as follows:

Appellant Colleen M, Krauss, as [Executrix] of the Estate of
Henry M. Krauss, commenced suit against twelve (12)
defendants on February 7, 2006, under the caption Krauss v.
Anco Insulations, Inc., et al, Philadelphia Court of Common Pleas
February Term 2006, No. 212. On January 8, 2007, Appellant
filed a second suit against thirty-seven (37) additional
defendants under the caption Krauss v. Allis Chalmers Corp., et
al, Philadelphia Court of Common Pleas January Term 2007,
No. 726. Appellant filed a Motion to Consolidate the two actions
on February 7, 2011, and the cases were consolidated under the
February Term 2006, No. 212 court term and number by court
Order dated May 13, 2011.

Appellant Colleen M. Krauss contends Appellant’s
decedent, Henry M. Krauss, was employed in the bricklaying
trade, and during the course of his employment, Mr. Krauss
worked at various job sites throughout the state of Louisiana,
including at Borden Chemical in Geimser, Kaiser Aluminum and
Chemical Company in both Baton Rouge and Gramercy, Freeport
Chemical in Convent, AgraCo in Donaldsville, and while in the
employ of John Wayne Smith Masonry in Baton Rouge.
Appellant claims Mr. Krauss also worked at Kirkland Masonry in
Boca Raton, Florida. According to Appellant, Mr. Krauss worked
at these job sites between the years of 1978 and 1983 with each
job varying in length.

1
We note that Appellant also filed an appeal from the decision involving
Foster Wheeler, L.L.C., but subsequently filed an application for leave to
discontinue the appeal as to Foster Wheeler, L.L.C. on December 20, 2013.
This Court granted that application on January 14, 2014.

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Appellant claims Appellant’s decedent was exposed to
asbestos at numerous jobsites from working with and/or around
Appellees’ products, including turbines manufactured by
Appellees General Electric and CBS Corporation (Westinghouse);
boilers manufactured by Appellees Zurn Industries, Foster
Wheeler, LLC and Trane US. Inc. f/k/a American Standard;
pumps manufactured by Appellee Goulds Pumps, Inc., and joint
compound and other spackling and adhesive products
manufactured by Appellee Georgia[-]Pacific, LLC. Appellant
claims while on the job the decedent[,] Mr. Krauss[,] got
asbestos on his clothes and hair and in his lungs, and as a result
he contracted mesothelioma. Appellant’s decedent was not
deposed before his death.

On November 13, 2012, all the Appellees filed Motions for
Summary Judgment. Appellant filed Answers to the Motions for
Summary Judgment of Appellees Georgia-Pacific, LLC; Foster
Wheeler, LLC; CBS Corporation (Westinghouse); Goulds Pumps,
Inc.; Zurn Industries and Trane US, Inc. f/k/a American
Standard on November 30, 2012. Appellant filed an Answer to
the Motion for Summary Judgment of Appellee General Electric
Company on December 7, 2012. On January 16, 2013[, the trial
court] granted summary judgment in favor of Appellee General
Electric Company. On January 19, 2013[, the trial court]
granted summary judgment in favor of Appellees Foster
Wheeler, L.L.C.; Georgia-Pacific, LLC; CBS Corporation
(Westinghouse); Goulds Pumps, Inc.; Zurn Industries and Trane
US Inc. f/k/a American Standard.

On February 21, 2013, Appellant filed [her] Notices of
Appeal of the aforementioned Orders. On February 28, 2013,
[the trial court] issued Orders directing Appellant to file a
Concise Statement of Matters Complained of on Appeal pursuant
to [Pa.R.A.P.] 1925(b). On March 18, 2013, Appellant filed [her]
1925(b) Statements.

Trial Court Opinion, 10/10/13, at 1-3.2

2
Appeal may be taken only from a final order that disposes of all claims and
all parties. Pa.R.A.P. 341(a). The record reflects trial court docket entries
on both dockets, dated January 28, 2013, noting that the cases were settled
as to all remaining non-bankrupt parties, except the Manville Fund, but the

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Appellant presents the following issues for our review:

A. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED ALL SIX MOTIONS FOR SUMMARY JUDGMENT
WHERE THE AFFIDAVIT OF MIKE MORGAN RAISES A
GENUINE ISSUE OF MATERIAL FACT CONCERNING
FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO []
ASBESTOS PRODUCTS OF ALL SIX MANUFACTURERS?

B. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
CBS CORPORATION WHERE THE RECORD REVEALS A
GENUINE ISSUE OF MATERIAL FACT CONCERNING
FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO
ASBESTOS IN TURBINES OF CBS CORPORATION’S
ACKNOWLEDGED PREDECESSOR, WESTINGHOUSE?

C. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
GENERAL ELECTRIC COMPANY WHERE THE RECORD
REVEALS A GENUINE ISSUE OF MATERIAL FACT
CONCERNING FREQUENT, REGULAR AND PROXIMATE
EXPOSURE TO ASBESTOS IN TURBINES OF GENERAL
ELECTRIC COMPANY?

D. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
GEORGIA-PACIFIC WHERE THE RECORD REVEALS A
GENUINE ISSUE OF MATERIAL FACT CONCERNING
EXPOSURE TO GEORGIA-PACIFIC’S ASBESTOS-
CONTAINING PRODUCTS?

case against the Manville Fund was dismissed without prejudice. Appellant
asserts, despite this language, that Appellant and the Manville Fund, in fact,
had settled. “A trial court order declaring a case settled as to all remaining
parties renders prior grants of summary judgment final for Rule 341
purposes, even if the prior orders entered disposed of fewer than all claims
against all parties.” Gutteridge v. A.P. Green Services, Inc., 804 A.2d
643, 650 (Pa. Super. 2002). In this case, all parties are now settled,
bankrupt, or dismissed by grant of summary judgment or otherwise.
Consequently, the grants of summary judgment for the Appellees identified
herein are final orders for appeal purposes and the present appeal is
properly within our jurisdiction. Id. at 650.

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E. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
GOULDS PUMPS WHERE THE RECORD REVEALS A
GENUINE ISSUE OF MATERIAL FACT CONCERNING
FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO
ASBESTOS IN GOULDS PUMPS?

F. DOES THE RECORD REVEAL GENUINE ISSUES OF
MATERIAL FACT WHETHER DEFENDANTS CAN BE HELD
LIABLE FOR THEIR INCLUSION OF THIRD PARTIES’
ASBESTOS-CONTAINING PRODUCTS AS COMPONENTS IN
THEIR OWN PRODUCTS?

G. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
TRANE WHERE THE RECORD REVEALS A GENUINE ISSUE
OF MATERIAL FACT CONCERNING FREQUENT, REGULAR
AND PROXIMATE EXPOSURE TO ASBESTOS IN AMERICAN
STANDARD BOILERS?

H. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
ZURN WHERE THE RECORD REVEALS A GENUINE ISSUE
OF MATERIAL FACT CONCERNING FREQUENT, REGULAR
AND PROXIMATE EXPOSURE TO ASBESTOS IN ZURN
BOILERS?

Appellant’s Brief at 7-11 (verbatim).

An order granting summary judgment is subject to the following scope

and standard of appellate review:

Our standard of review on an appeal from the grant of a
motion for summary judgment is well-settled. A reviewing court
may disturb the order of the trial court only where it is
established that the court committed an error of law or abused
its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving

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party is entitled to relief as a matter of law, summary judgment
may be entered. Where the nonmoving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law. Lastly, we will review 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.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).

Furthermore, our Courts have developed summary judgment

standards specific to asbestos cases. In Eckenrod v. GAF Corp., 544 A.2d

50, 52 (Pa. Super. 1988), this Court set forth the evidence an asbestos

plaintiff must produce to establish a prima facie case sufficient to proceed to

trial:

In order for liability to attach in a products liability action,
plaintiff must establish that the injuries were caused by a
product of the particular manufacturer or supplier. Additionally,
in order for a plaintiff to defeat a motion for summary judgment,
a plaintiff must present evidence to show that he inhaled
asbestos fibers shed by the specific manufacturer’s product.
Therefore, a plaintiff must establish more than the presence of
asbestos in the workplace; he must prove that he worked in the
vicinity of the product’s use. Summary judgment is proper when
the plaintiff has failed to establish that the defendants’ products
were the cause of plaintiff’s injury.

***

Whether direct or circumstantial evidence is relied upon,
our inquiry, under a motion for summary judgment, must be

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J-A12014-14

whether plaintiff has pointed to sufficient material facts in the
record to indicate that there is a genuine issue of material fact
as to the causation of decedent’s disease by the product of each
particular defendant. 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.

Id. at 52-53 (citations omitted).

The Eckenrod “frequency, regularity, proximity” standard for

determining whether a plaintiff has come forward with sufficient evidence to

allow a jury to conclude reasonably that the plaintiff breathed some asbestos

fibers from a defendant’s product originally applied only to consideration of

circumstantial, rather than direct, evidence. See, e.g., Gilbert v. Monsey

Products Co., 861 A.2d 275, 277 (Pa. Super. 2004) (“Because Appellant

provided direct testimony [that he inhaled asbestos fibers from the

defendant’s product], the Eckenrod test was not applicable.”). However,

our Supreme Court later extended the application of the Eckenrod factors

to all evidence of asbestos exposure:

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.

Gregg v. V-J Auto Parts, Company, 943 A.2d 216, 226 (Pa. 2007).

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Additionally, in Gregg, our Supreme Court modified the “frequency,

regularity, proximity” criteria previously enunciated by this Court in

Eckenrod. Specifically, the Supreme Court adopted the approach utilized

by the United States Court of Appeals for the Seventh Circuit in Tragarz v.

Keene Corp., 980 F.2d 411 (7th Cir.1992):

The decision in Tragarz v. Keene Corp., 980 F. 2d 411 (7th
Circ. 1992), . . . provides helpful guidance concerning the
application of the frequency, regularity and proximity factors in
asbestos litigation. Tragarz explains that these criteria do not
establish a rigid standard with an absolute threshold necessary
to support liability. 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.

Gregg, 943 A.2d at 225.

Thus, our Supreme Court disapproved of the application of a rigid

Eckenrod “frequency, regularity, proximity” test in every case, and instead

adopted a new fact-specific sliding scale approach that includes two

important considerations not part of the Eckenrod analysis:

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. Similarly, under Tragarz, the frequency
and regularity prongs become “somewhat less cumbersome” in
cases involving diseases that the plaintiff’s competent medical

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evidence indicates can develop after only minor exposures to
asbestos fibers. [3]

Gregg, 943 A.2d at 225 (citing Tragarz, 980 F.2d at 420-421) (internal

citations omitted).

The Gregg Court also rejected the viability of the “each and every

exposure” or “any breath” theory. It stated:

[W]e 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 ... 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.

Id. at 226–27.

In summarizing its holding, the Gregg Court explained:

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.

Gregg, 943 A.2d at 227.

3
Mesothelioma is “a cancer of the mesothelial tissue surrounding the lung,
which is a rare disease with the exception of those exposed to asbestos.”
Sporio v. W.C.A.B. (Songer Construction), 717 A.2d 525, 527 (Pa.
1998). Mesothelioma “is medically attributable specifically to exposure to
asbestos or asbestine products.” Gutteridge, 804 A.2d at 652.

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In Betz v. Pneumo Abex, LLC, 44 A.3d 27, 30 (Pa. 2012), the

Supreme Court specifically addressed the admissibility of expert opinion of

the “any-exposure” or “any breath” theory of causation, which states, “each

and every fiber of inhaled asbestos is a substantial contributing factor to any

asbestos-related disease.” Id. at 30. The Betz Court rejected the “any

exposure” theory of causation, concluding it was theoretically “in

irreconcilable conflict with itself.” Id. at 56. As the Court explained: “one

cannot simultaneously maintain that a single fiber among millions is

substantially causative, while also conceding that a disease is dose

responsive.”4 Id. Therefore, the Betz Court affirmed the trial court’s

decision to preclude the use of the “any exposure” theory of causation in

asbestos cases. Id. at 58.

Additionally, in Howard v. A.W. Chesterton, Co., 78 A.3d 605 (Pa.

2013) (per curiam) (Howard III), our Supreme Court indicated that the

following principles apply to all asbestos cases involving a dose-responsive

disease: (1) the “theory that each and every exposure, no matter how

small” is not viable to establish a defendant’s liability; (2) proof of de

minimus exposure to a product is insufficient to establish causation; (3) an

expert must make “some reasoned, individualized assessment of a plaintiff’s

or decedent’s exposure history” in opining about substantial-factor causation

4
In Betz, 44 A.3d at 31, the Court noted that all experts agreed that
mesothelioma is a dose-responsive disease.

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E. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
GOULDS PUMPS WHERE THE RECORD REVEALS A
GENUINE ISSUE OF MATERIAL FACT CONCERNING
FREQUENT, REGULAR AND PROXIMATE EXPOSURE TO
ASBESTOS IN GOULDS PUMPS?

F. DOES THE RECORD REVEAL GENUINE ISSUES OF
MATERIAL FACT WHETHER DEFENDANTS CAN BE HELD
LIABLE FOR THEIR INCLUSION OF THIRD PARTIES’
ASBESTOS-CONTAINING PRODUCTS AS COMPONENTS IN
THEIR OWN PRODUCTS?

G. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
TRANE WHERE THE RECORD REVEALS A GENUINE ISSUE
OF MATERIAL FACT CONCERNING FREQUENT, REGULAR
AND PROXIMATE EXPOSURE TO ASBESTOS IN AMERICAN
STANDARD BOILERS?

H. DID THE LOWER COURT ERR AS A MATTER OF LAW WHEN
IT GRANTED THE MOTION FOR SUMMARY JUDGMENT OF
ZURN WHERE THE RECORD REVEALS A GENUINE ISSUE
OF MATERIAL FACT CONCERNING FREQUENT, REGULAR
AND PROXIMATE EXPOSURE TO ASBESTOS IN ZURN
BOILERS?

Appellant’s Brief at 7-11 (verbatim).

An order granting summary judgment is subject to the following scope

and standard of appellate review:

Our standard of review on an appeal from the grant of a
motion for summary judgment is well-settled. A reviewing court
may disturb the order of the trial court only where it is
established that the court committed an error of law or abused
its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving

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party is entitled to relief as a matter of law, summary judgment
may be entered. Where the nonmoving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law. Lastly, we will review 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.

Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008)

(quoting Murphy v. Duquesne University, 777 A.2d 418, 429 (Pa. 2001)).

Furthermore, our Courts have developed summary judgment

standards specific to asbestos cases. In Eckenrod v. GAF Corp., 544 A.2d

50, 52 (Pa. Super. 1988), this Court set forth the evidence an asbestos

plaintiff must produce to establish a prima facie case sufficient to proceed to

trial:

In order for liability to attach in a products liability action,
plaintiff must establish that the injuries were caused by a
product of the particular manufacturer or supplier. Additionally,
in order for a plaintiff to defeat a motion for summary judgment,
a plaintiff must present evidence to show that he inhaled
asbestos fibers shed by the specific manufacturer’s product.
Therefore, a plaintiff must establish more than the presence of
asbestos in the workplace; he must prove that he worked in the
vicinity of the product’s use. Summary judgment is proper when
the plaintiff has failed to establish that the defendants’ products
were the cause of plaintiff’s injury.

***

Whether direct or circumstantial evidence is relied upon,
our inquiry, under a motion for summary judgment, must be

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Gibson v. Workers’ Comp. Appeal Bd. (Armco Stainless & Alloy

Prods.), 861 A.2d 938, 945 (Pa. 2004). Rule 701 of the rules of evidence

further provides:

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the
form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

Pa.R.E. 701.5

In his affidavit, Mr. Morgan boldly professed that he recalled all of

these products being present at the various worksites where he worked with

Decedent over the course of a five-year period, approximately twenty-nine

5
We note that on January 17, 2013, and effective March 18, 2013, the
Pennsylvania Rules of Evidence were rescinded and replaced. As set forth in
the explanatory comments to the new rules, they now

closely follow the format, language, and style of the amended
Federal Rules of Evidence. The goal of the Pennsylvania
Supreme Court’s rescission and replacement of the Pennsylvania
Rules of Evidence was . . . to make its rules more easily
understood and to make the format and terminology more
consistent, but to leave the substantive content unchanged.

Explanatory Comments preceding the Pennsylvania Rules of Evidence, at ¶
2.

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to thirty-four years prior to executing the affidavit. Mr. Morgan’s affidavit,

however, provides no specific evidence that Decedent was exposed to a

product manufactured by a particular manufacturer or supplier at a

particular worksite.

Additionally, the affidavit fails to establish with any certainty that

these products contained asbestos. Mr. Morgan’s affidavit asserts that “all of

the boilers, turbines and pumps” identified in his affidavit were insulated

with asbestos products based on his “knowledge and belief.” It, however,

provides no specific evidence upon which he based his determination that

these boilers, turbines, and pumps were insulated with asbestos products.6

In Gibson, the claimant presented testimony of a co-worker who

testified that he had seen a substance that he “believed” to be asbestos at

the factory where he and the claimant had worked. Gibson, 861 A.2d at

941. The Court determined that such testimony was insufficient to establish

that asbestos existed in the workplace. Id. at 946. In addressing the

shortcoming of the lay-witness testimony, the Court stated:

The admissibility of lay opinion testimony is not without
limit. Given the standard we articulate today for the admission
of lay opinion evidence of a technical nature, we conclude that
the [judge] failed to examine with sufficient rigor whether the
testimony in question was informed by sufficient experience or
specialized knowledge. More particularly, in order to satisfy the

6
Further, although Mr. Morgan’s affidavit asserts that he used joint
compounds and other adhesive products manufactured by Georgia-Pacific, it
makes no claim that these products contained asbestos.

-17-
J-A12014-14

“rationally derived” and helpfulness standards of Rule 701,
Claimant needed to demonstrate that the witness possessed
sufficient experience or specialized knowledge that qualified him
to offer a technical opinion regarding the presence of asbestos in
the workplace. While a lay witness could acquire this additional
insight by either formal education or practical experience, it
appears the witness at issue simply possessed neither.

Actual knowledge and observation on the part of the lay
witness are the essential bases for the reception of the opinion.
Pursuant to Rule 602, a witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. Thus, we
must agree . . . that the record is devoid of substantial evidence
to support a finding of long-term asbestos exposure in the
workplace.

Id. at 948.

Additionally, in Samarin v. GAF Corp., 571 A.2d 398, 404, 409 (Pa.

Super. 1989), this Court held that a witness’s testimony regarding a

material’s high heat application was insufficient to support the conclusion

that the product contained asbestos. We noted that such facts simply

created “an insufficient foundation for a jury to infer by a preponderance of

the evidence that the heat resistant products used . . . contained asbestos.”

Id. at 403. Similarly, in Bushless v. GAF Corp., 585 A.2d 496, 503 (Pa.

Super. 1990), we held that a statement that a person knew a product

contained asbestos from his years of experience and because of the

product’s ability to withstand high temperatures was insufficient to create an

issue of material fact that the product contained asbestos. Conversely, in

Harahan v. AC & S, Inc., 816 A.2d 296, 298 (Pa. Super. 2003), the lay

-18-
J-A12014-14

opinion of a co-worker credibly established the presence of asbestos in the

workplace through personal knowledge where the co-worker testified that he

knew that the product contained asbestos because the product was labeled

as containing asbestos.

Mr. Morgan’s statements in his affidavit that the boilers, turbines, and

pumps contained asbestos are not based on his actual knowledge, as is

required by Pa.R.E. 701 and relevant case law. Instead, Mr. Morgan’s

affidavit reflects only his presumption and belief that these multiple products

contained asbestos. Such statements are insufficient to show that there

exists a genuine issue of fact as to the existence of asbestos in these

products. Gibson, 861 A.2d at 948; Samarin, 571 A.2d at 404; Bushless,

585 A.2d at 503.

Additionally, such statements do not present competent evidence for

the jury because it is speculative. A plaintiff cannot survive summary

judgment when mere speculation would be required for the jury to find in

plaintiff’s favor. Juliano v. Johns-Manville Corp., 611 A.2d 238, 239 (Pa.

Super. 1992) (stating that “[i]n the absence of sufficient evidence

demonstrating that plaintiff worked with or near the asbestos materials of a

particular defendant, a jury cannot find, except by speculation, that it was a

defendant’s product which caused plaintiff’s injury. Speculation, however, is

an inadequate basis for recovery.”). A jury is not permitted to find that it

-19-
J-A12014-14

was a defendant’s product that caused the plaintiff’s injury based solely

upon speculation and conjecture; “there must be evidence upon which

logically its conclusion must be based.” Farnese v. Southeastern

Pennsylvania Transp. Authority, 487 A.2d 887, 890 (Pa. Super. 1985).

“In fact, the trial court has a duty to prevent questions from going to the

jury which would require it to reach a verdict based on conjecture, surmise,

guess or speculation.” Id. at 890. Additionally, a party is not entitled to an

inference of fact that amounts merely to a guess or conjecture. Flaherty

v. Pennsylvania Railroad Co., 231 A.2d 179, 180 (Pa. 1967).

Thus, because Mr. Morgan’s affidavit is based solely on speculation and

conjecture, it is insufficient as a basis upon which Appellant’s case can

survive summary judgment. It fails to establish a genuine issue of material

fact as to the presence of a specific manufacturer’s product at a specific

worksite where Decedent worked, and fails to establish that asbestos was

present in those products in the various worksites. Appellant is not entitled

to an inference of fact based merely on Mr. Morgan’s unsubstantiated claims.

Flaherty, 231 A.2d at 180.

Furthermore, Mr. Morgan’s affidavit does not meet the “frequency,

regularity, proximity” test required by Eckenrod and Gregg. In the

affidavit itself, Mr. Morgan does not identify the length of time that he and

Decedent were exposed to the alleged asbestos-containing products at each

-20-
J-A12014-14

worksite. Instead, the affidavit states generally that “each of these jobs

lasted approximately one week or longer.” Moreover, Mr. Morgan does not

identify the proximity to the alleged asbestos-containing products with which

Decedent worked. Mr. Morgan’s affidavit is insufficient to establish a causal

connection between any of the individual Appellee Manufacturer’s products

and Decedent’s disease. Thus, we conclude that Mr. Morgan’s affidavit, in

and of itself, does not create a genuine issue of material fact precluding

entry of summary judgment. Accordingly, we review the claims and

additional evidence Appellant presents regarding each named Appellee

Manufacturer.

We first consider Appellant’s claims as to Westinghouse.

Westinghouse submitted a motion for summary judgment on the basis that

Appellant failed to present any evidence that Decedent was exposed to

asbestos from any products or equipment made, sold, supplied or specified

by Westinghouse. CBS Corporation (Westinghouse) Motion for Summary

Judgment, 11/13/12, at 3. Alternatively, it argued, that any claimed

exposure to a Westinghouse product was insufficient to have caused

Decedent’s alleged injuries. Id.

In her response to Westinghouse’s motion for summary judgment,

Appellant argued that summary judgment was inappropriate as there were

disputed issues of material fact. Plaintiff’s Response to CBS Corporation’s

-21-
J-A12014-14

(Westinghouse) Motion for Summary Judgment, 11/30/12, at 3. Appellant

maintained that, pursuant to Eckenrod and Gregg, she had established

Decedent’s proximal, regular, and frequent exposure to asbestos-containing

turbines manufactured by Westinghouse, compelling denial of the motion for

summary judgment. Id. In support of her claim, Appellant attached the

following documentation to her response: 1) “Exhibit A”, the affidavit of

Mike Morgan; 2) “Exhibit B”, excerpts from the deposition of Mike Morgan;

and 3) “Exhibit C”, excerpted answers to interrogatories from an unrelated

case filed against Westinghouse.

We have set forth and addressed the affidavit of Mike Morgan,

identified as “Exhibit A,” previously and concluded that such affidavit fails to

establish that Decedent was exposed to Westinghouse turbines containing

asbestos. Thus, we shall consider Appellant’s additional evidence.

Attached as “Exhibit B,” is an excerpt of the transcript from the

deposition of Mike Morgan. Plaintiff’s Response to CBS Corporation’s

(Westinghouse) Motion for Summary Judgment, 11/30/12, “Exhibit B.” In

that deposition, Mr. Morgan was asked if he had worked with Decedent at

any sites where there was a Westinghouse turbine. Id. at 64. Mr. Morgan

indicated that they both worked at AgraCo in 1978 and 1979, at which site

there were Westinghouse turbines. Id. Mr. Morgan testified that there were

three turbines, all three of which were manufactured by Westinghouse. Id.

-22-
J-A12014-14

at 71. The following exchange took place when Mr. Morgan was asked

whether he had knowledge that the Westinghouse turbines at the AgraCo

plant contained asbestos:

[Counsel]: Do you have any knowledge that the Westinghouse
turbines at the AgraCo plant contained asbestos?

[Mr. Morgan]: Contains suspicious?

[Counsel]: Contained asbestos.

[Mr. Morgan]: I’m sorry.

[Counsel]: That’s okay.

[Mr. Morgan]: No, I’m not aware of that.

[Counsel]: You have no knowledge of that?

[Mr. Morgan]: No.

Id. at 71.

Mr. Morgan stated that he and Decedent worked at the AgraCo site for

approximately three weeks in 1978 and for approximately two weeks in

1979. Plaintiff’s Response to CBS Corporation’s (Westinghouse) Motion for

Summary Judgment, 11/30/12, “Exhibit B” at 65. Additionally, Mr. Morgan

testified that the closest he and Decedent got to the turbines was about

twenty-five to thirty feet when entering or exiting the pump tank. Id. at 86-

87. Mr. Morgan explained that “we never actually got right up next to one of

them.” Id. at 87. Mr. Morgan further testified to the atmosphere, twenty-

-23-
J-A12014-14

five to thirty feet from the turbines, as being “whatever the weather was like

outside. You know, it was normal.” Id.

“Exhibit C” includes answers to interrogatories, completed by

Westinghouse, in an unrelated case.7 The relevant interrogatories and

answers state as follows:

B.4.a. Are or have any of defendant’s predecessors,
affiliates, subsidiaries, or parent corporations engaged in the
mining, sale and distribution of asbestos and/or asbestos fiber
and/or asbestos containing insulation products? lf so, state the
name of each entity, describe the nature of the involvement that
each entity has or has had in the mining, distribution or sale of
these products and materials, and set forth the inclusive dates
each was involved in each aspect of this business.

ANSWER:

No, as to asbestos and asbestos fiber. As to ‘‘asbestos
containing insulation products,” the plaintiff has not defined that
term. Westinghouse understands that term to mean a product
whose sole or predominant purpose is to provide protection
and/or insulation from extremely high temperatures. Subject to
that understanding, only blankets associated with steam turbines
qualify as such a material. Westinghouse sold these blankets
between approximately 1930 and approximately 1960 as to
some turbines it sold. Thereafter, such blankets were made,
sold or furnished by others.

“Exhibit C,” at 6.

B.14 Has your company, and/or its subsidiaries or
affiliates ever manufactured or distributed asbestos containing
products?

7
As noted, these answers to interrogatories were provided in an unrelated
case. We make no determination as to the admissibility of these responses
at trial.

-24-
J-A12014-14

to thirty-four years prior to executing the affidavit. Mr. Morgan’s affidavit,

however, provides no specific evidence that Decedent was exposed to a

product manufactured by a particular manufacturer or supplier at a

particular worksite.

Additionally, the affidavit fails to establish with any certainty that

these products contained asbestos. Mr. Morgan’s affidavit asserts that “all of

the boilers, turbines and pumps” identified in his affidavit were insulated

with asbestos products based on his “knowledge and belief.” It, however,

provides no specific evidence upon which he based his determination that

these boilers, turbines, and pumps were insulated with asbestos products.6

In Gibson, the claimant presented testimony of a co-worker who

testified that he had seen a substance that he “believed” to be asbestos at

the factory where he and the claimant had worked. Gibson, 861 A.2d at

941. The Court determined that such testimony was insufficient to establish

that asbestos existed in the workplace. Id. at 946. In addressing the

shortcoming of the lay-witness testimony, the Court stated:

The admissibility of lay opinion testimony is not without
limit. Given the standard we articulate today for the admission
of lay opinion evidence of a technical nature, we conclude that
the [judge] failed to examine with sufficient rigor whether the
testimony in question was informed by sufficient experience or
specialized knowledge. More particularly, in order to satisfy the

6
Further, although Mr. Morgan’s affidavit asserts that he used joint
compounds and other adhesive products manufactured by Georgia-Pacific, it
makes no claim that these products contained asbestos.

-17-
J-A12014-14

“rationally derived” and helpfulness standards of Rule 701,
Claimant needed to demonstrate that the witness possessed
sufficient experience or specialized knowledge that qualified him
to offer a technical opinion regarding the presence of asbestos in
the workplace. While a lay witness could acquire this additional
insight by either formal education or practical experience, it
appears the witness at issue simply possessed neither.

Actual knowledge and observation on the part of the lay
witness are the essential bases for the reception of the opinion.
Pursuant to Rule 602, a witness may not testify to a matter
unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. Thus, we
must agree . . . that the record is devoid of substantial evidence
to support a finding of long-term asbestos exposure in the
workplace.

Id. at 948.

Additionally, in Samarin v. GAF Corp., 571 A.2d 398, 404, 409 (Pa.

Super. 1989), this Court held that a witness’s testimony regarding a

material’s high heat application was insufficient to support the conclusion

that the product contained asbestos. We noted that such facts simply

created “an insufficient foundation for a jury to infer by a preponderance of

the evidence that the heat resistant products used . . . contained asbestos.”

Id. at 403. Similarly, in Bushless v. GAF Corp., 585 A.2d 496, 503 (Pa.

Super. 1990), we held that a statement that a person knew a product

contained asbestos from his years of experience and because of the

product’s ability to withstand high temperatures was insufficient to create an

issue of material fact that the product contained asbestos. Conversely, in

Harahan v. AC & S, Inc., 816 A.2d 296, 298 (Pa. Super. 2003), the lay

-18-
J-A12014-14

opinion of a co-worker credibly established the presence of asbestos in the

workplace through personal knowledge where the co-worker testified that he

knew that the product contained asbestos because the product was labeled

as containing asbestos.

Mr. Morgan’s statements in his affidavit that the boilers, turbines, and

pumps contained asbestos are not based on his actual knowledge, as is

required by Pa.R.E. 701 and relevant case law. Instead, Mr. Morgan’s

affidavit reflects only his presumption and belief that these multiple products

contained asbestos. Such statements are insufficient to show that there

exists a genuine issue of fact as to the existence of asbestos in these

products. Gibson, 861 A.2d at 948; Samarin, 571 A.2d at 404; Bushless,

585 A.2d at 503.

Additionally, such statements do not present competent evidence for

the jury because it is speculative. A plaintiff cannot survive summary

judgment when mere speculation would be required for the jury to find in

plaintiff’s favor. Juliano v. Johns-Manville Corp., 611 A.2d 238, 239 (Pa.

Super. 1992) (stating that “[i]n the absence of sufficient evidence

demonstrating that plaintiff worked with or near the asbestos materials of a

particular defendant, a jury cannot find, except by speculation, that it was a

defendant’s product which caused plaintiff’s injury. Speculation, however, is

an inadequate basis for recovery.”). A jury is not permitted to find that it

-19-
J-A12014-14

was a defendant’s product that caused the plaintiff’s injury based solely

upon speculation and conjecture; “there must be evidence upon which

logically its conclusion must be based.” Farnese v. Southeastern

Pennsylvania Transp. Authority, 487 A.2d 887, 890 (Pa. Super. 1985).

“In fact, the trial court has a duty to prevent questions from going to the

jury which would require it to reach a verdict based on conjecture, surmise,

guess or speculation.” Id. at 890. Additionally, a party is not entitled to an

inference of fact that amounts merely to a guess or conjecture. Flaherty

v. Pennsylvania Railroad Co., 231 A.2d 179, 180 (Pa. 1967).

Thus, because Mr. Morgan’s affidavit is based solely on speculation and

conjecture, it is insufficient as a basis upon which Appellant’s case can

survive summary judgment. It fails to establish a genuine issue of material

fact as to the presence of a specific manufacturer’s product at a specific

worksite where Decedent worked, and fails to establish that asbestos was

present in those products in the various worksites. Appellant is not entitled

to an inference of fact based merely on Mr. Morgan’s unsubstantiated claims.

Flaherty, 231 A.2d at 180.

Furthermore, Mr. Morgan’s affidavit does not meet the “frequency,

regularity, proximity” test required by Eckenrod and Gregg. In the

affidavit itself, Mr. Morgan does not identify the length of time that he and

Decedent were exposed to the alleged asbestos-containing products at each

-20-
J-A12014-14

worksite. Instead, the affidavit states generally that “each of these jobs

lasted approximately one week or longer.” Moreover, Mr. Morgan does not

identify the proximity to the alleged asbestos-containing products with which

Decedent worked. Mr. Morgan’s affidavit is insufficient to establish a causal

connection between any of the individual Appellee Manufacturer’s products

and Decedent’s disease. Thus, we conclude that Mr. Morgan’s affidavit, in

and of itself, does not create a genuine issue of material fact precluding

entry of summary judgment. Accordingly, we review the claims and

additional evidence Appellant presents regarding each named Appellee

Manufacturer.

We first consider Appellant’s claims as to Westinghouse.

Westinghouse submitted a motion for summary judgment on the basis that

Appellant failed to present any evidence that Decedent was exposed to

asbestos from any products or equipment made, sold, supplied or specified

by Westinghouse. CBS Corporation (Westinghouse) Motion for Summary

Judgment, 11/13/12, at 3. Alternatively, it argued, that any claimed

exposure to a Westinghouse product was insufficient to have caused

Decedent’s alleged injuries. Id.

In her response to Westinghouse’s motion for summary judgment,

Appellant argued that summary judgment was inappropriate as there were

disputed issues of material fact. Plaintiff’s Response to CBS Corporation’s

-21-
J-A12014-14

(Westinghouse) Motion for Summary Judgment, 11/30/12, at 3. Appellant

maintained that, pursuant to Eckenrod and Gregg, she had established

Decedent’s proximal, regular, and frequent exposure to asbestos-containing

turbines manufactured by Westinghouse, compelling denial of the motion for

summary judgment. Id. In support of her claim, Appellant attached the

following documentation to her response: 1) “Exhibit A”, the affidavit of

Mike Morgan; 2) “Exhibit B”, excerpts from the deposition of Mike Morgan;

and 3) “Exhibit C”, excerpted answers to interrogatories from an unrelated

case filed against Westinghouse.

We have set forth and addressed the affidavit of Mike Morgan,

identified as “Exhibit A,” previously and concluded that such affidavit fails to

establish that Decedent was exposed to Westinghouse turbines containing

asbestos. Thus, we shall consider Appellant’s additional evidence.

Attached as “Exhibit B,” is an excerpt of the transcript from the

deposition of Mike Morgan. Plaintiff’s Response to CBS Corporation’s

(Westinghouse) Motion for Summary Judgment, 11/30/12, “Exhibit B.” In

that deposition, Mr. Morgan was asked if he had worked with Decedent at

any sites where there was a Westinghouse turbine. Id. at 64. Mr. Morgan

indicated that they both worked at AgraCo in 1978 and 1979, at which site

there were Westinghouse turbines. Id. Mr. Morgan testified that there were

three turbines, all three of which were manufactured by Westinghouse. Id.

-22-
J-A12014-14

at 71. The following exchange took place when Mr. Morgan was asked

whether he had knowledge that the Westinghouse turbines at the AgraCo

plant contained asbestos:

[Counsel]: Do you have any knowledge that the Westinghouse
turbines at the AgraCo plant contained asbestos?

[Mr. Morgan]: Contains suspicious?

[Counsel]: Contained asbestos.

[Mr. Morgan]: I’m sorry.

[Counsel]: That’s okay.

[Mr. Morgan]: No, I’m not aware of that.

[Counsel]: You have no knowledge of that?

[Mr. Morgan]: No.

Id. at 71.

Mr. Morgan stated that he and Decedent worked at the AgraCo site for

approximately three weeks in 1978 and for approximately two weeks in

1979. Plaintiff’s Response to CBS Corporation’s (Westinghouse) Motion for

Summary Judgment, 11/30/12, “Exhibit B” at 65. Additionally, Mr. Morgan

testified that the closest he and Decedent got to the turbines was about

twenty-five to thirty feet when entering or exiting the pump tank. Id. at 86-

87. Mr. Morgan explained that “we never actually got right up next to one of

them.” Id. at 87. Mr. Morgan further testified to the atmosphere, twenty-

-23-
J-A12014-14

[Mr. Krauss]: The whole time and I just don’t know.

[Counsel]: And what anything [sic] that came from the turbine
was made of, again, you personally don’t know?

[Mr. Krauss]: Right.

[Counsel]: And you have no knowledge whether it was -- what
it was, whether anything there had asbestos or didn’t have
asbestos, did you, on that piece of equipment?

[Mr. Krauss]: I did not know, no.

[Counsel]: So, in terms of whether any asbestos was shed by
this turbine or this piece of equipment that you associate with
my client, without guessing or speculating, you don’t know?

[Mr. Krauss]: I don’t know.

[Counsel]: So, you can’t say without guessing or speculation
that you were ever exposed to any dust from any piece of
General Electric equipment; can you?

[Mr. Krauss]: No. All I know it was dusty down there.

[Counsel]: In that basement?

[Mr. Krauss]: Yeah.

[Counsel]: But you can’t attribute it to that particular piece of
equipment?

[Mr. Kraus]: Right. I just know it was dusty down there
and I couldn’t wait to get the wall up to get out of there.

[Counsel]: Gotcha. And I take it you never saw the word
“asbestos” associated with that piece of equipment from GE?

[Mr. Krauss]: No.

-32-
J-A12014-14

[Counsel]: You never saw any writing that told you what was in
there one way or another?

[Mr. Krauss]: No.

[Counsel]: And you never had any training from your father or
from the union or from any other source that there was any
asbestos whatsoever associated with that equipment; did you?

[Mr. Krauss]: No.

General Electric Company’s (“GE”) Motion for Summary Judgment,

11/13/12, “Exhibit 2,” at 174-176 (emphasis added).

Thus, David Krauss’s deposition testimony reveals that he had no

knowledge that the GE turbine contained asbestos, in contradiction to his

“belief,” as stated in his affidavit. He stated that he could not recall if there

was any insulation on the turbine. Additionally, during his deposition, David

Krauss was unable to affirmatively identify GE turbines as the source of the

dust. Thus, Appellant has not presented an issue of material fact as to the

existence of asbestos on a GE turbine at the Boca Raton site.

In her appellate brief, Appellant acknowledges that this deposition

testimony undercuts David Krauss’s affidavit. Appellant’s Brief at 44.

Appellant maintains, however, that the contradictions in David Krauss’s

affidavit and deposition testimony create an issue of material fact,

precluding entry of judgment. Id. at 44-45. Additionally Appellant asserts

that these discrepancies are remedied by GE’s answers to interrogatories

and specifications. Id. We cannot agree.

-33-
J-A12014-14

First, as addressed previously in the context of discrepancies between

the affidavit and deposition testimony of Mike Morgan, there is no case law

supporting Appellant’s claim that contradiction in a single witness’s

testimony creates an issue of material fact precluding entry of summary

judgment. The cases cited by Appellant are not controlling in this matter

because those cases concern a contradiction in testimony between several

witnesses that creates a genuine issue of material fact. In fact, this Court

has encountered scenarios where contradictions in a single witness’s

testimony occur, yet they do not create genuine issues of material fact

defeating summary judgment. In Stephens v. Paris Cleaners, Inc., 885

A.2d 59, 65-66 (Pa. Super. 2005), contradictions existed between claimant’s

affidavit and deposition testimony regarding product identification. This

Court affirmed the trial court’s entry of summary judgment; these

contradictions did not create a genuine issue of material fact defeating

summary judgment. Id. at 65, 72. Furthermore, we note that this Court

has chosen not to believe apparently fabricated affidavits where the

deposition testimony shows to the contrary. Id. at 65.

We next address Appellant’s claim that the discrepancies in David

Krauss’s affidavit are remedied, or bolstered, by GE’s answers to

interrogatories and specifications. Appellant attached “Exhibit E,” which

consists of GE’s answers to interrogatories from an unrelated case that was

-34-
J-A12014-14

litigated in 1994, to her response.9 In answers to queries as to whether GE

ever manufactured or distributed asbestos-containing products, GE provided

the following response:

GE objects to this interrogatory on the grounds that it is
overly broad, unduly burdensome, harassing, vague, ambiguous
and seeks information that is irrelevant and not reasonably
calculated to lead to the discovery of admissible evidence.
Without waiving any specific or general objections, GE states
that it is not now, nor has it ever been, a miner, miller, supplier,
importer, processor, distributor, marketer or seller of raw
asbestos fiber. GE further states that for a period of time prior
to 1980, WCBD was engaged in the manufacture of electrical
wire and cable, a small percentage of which contained
encapsulated chrysotile. GE states that it ceased manufacturing
encapsulated chrysotile-containing wire and cable by 1980.

“Exhibit E,” at 13-14. GE also provided the following information in response

to an unidentified interrogatory:

GE objects to this Interrogatory as it is directed to the asbestos
mining/manufacturing community of which GE was not a part.
GE further objects to this Interrogatory as plaintiffs have failed
to identify with any degree of particularity any TBO asbestos-
containing products to which exposure is alleged. Without
waiving said objections, TBO sold steam-turbine generators to
power generating companies in New Jersey, but defendant does
not consider steam-turbine generators to be within the definition
of “asbestos-containing product.” However, steam-turbine
generators call for, as both original and replacement parts,
certain vendor-supplied items comprised in part of asbestos-
containing products.

“Exhibit E,” at 5 (numbered internally within the exhibit as no page number

is provided on the document).

9
Again we note that we are not addressing the admissibility of such evidence
at trial.

-35-
J-A12014-14

We cannot agree that these answers to interrogatories create an issue

of material fact as to the existence of asbestos in the GE turbines allegedly

at Decedent’s worksites. In the first answer, GE acknowledges that what

appears to be an undefined subsidiary “engaged in the manufacture of

electrical wire and cable, a small percentage of which contained

encapsulated chrysotile.” In this case, there has been no claim that

Decedent was exposed to electrical wire or cable containing asbestos

manufactured by GE. Moreover, it does not appear that GE manufactured

this cable and wire, but instead, it was manufactured by “WCBD.” 10 The

answer also states that a small percentage of these products contained

encapsulated chrysotile. Thus, even if David Krauss and Decedent were

exposed to such products, there is no guarantee, indeed, no evidence, that

those products would have been, in fact, the small percentage of products

that contained encapsulated chrysotile.

Furthermore, with regard to the second outlined answer to

interrogatory, GE acknowledged that “TBO,” and not GE, sold “steam-turbine

generators.”11 Additionally, as stated, these steam-turbine generators were

not considered “asbestos-containing products.”

10
Appellant attached only a few pages from the answers to interrogatories
and this term is not defined in the pages provided.

11
The page attached does not define the term “TBO.”

-36-
J-A12014-14

Additionally, the answer indicates that these turbines were sold to

power-generating companies in New Jersey. There is no evidence linking

these turbines to the Decedent’s worksites. See Plaintiff’s Response to

General Electric Company’s Motion for Summary Judgment, 12/7/12,

“Exhibit C,” Affidavit of David Krauss (stating that David Krauss and

Decedent were exposed to GE turbines while employed by John Wayne

Smith Masonry in Baton Rouge, Louisiana). Thus, these responses to

interrogatories fail to establish a genuine issue of material fact that

asbestos-containing GE turbines were at the worksite where he and

Decedent worked.

Finally, Appellant attached “Exhibit F” to her response. “Exhibit F”

consists of two pages of diagrams, the first is entitled, “Application of type A

plastic insulation to typical turbine valve,” and the second is entitled,

“Application of all plastic or sprayed on turbine shell and horizontal flange,”

and both are dated April 1960. Plaintiff’s Response to General Electric

Company’s Motion for Summary Judgment, 12/7/12, “Exhibit F”. In her

response to GE’s motion for summary judgment, Appellant maintains that

this exhibit provides evidence that GE specifications for its turbines called for

the use of asbestos containing insulation. Id. at 5. Appellant also contends

that this exhibit establishes that GE turbines were manufactured and sold

with asbestos. Id. at 7. We disagree.

-37-
J-A12014-14

A review of the first diagram reveals several labels, including one

reading “Type F asbestos cloth * .” Plaintiff’s Response to General Electric

Company’s Motion For Summary Judgment, 12/7/12, “Exhibit F”, at 1.

Several of the labels include the asterisk (*) symbol. Id. A key on the left

side of the diagram indicates that the asterisk denotes “material supplied by

insulation contractor.” Id. Thus, it does not appear that the asbestos cloth,

or other materials, were manufactured or supplied by GE.

On the second diagram there are references to the use of asbestos

paper. Plaintiff’s Response to General Electric Company’s Motion for

Summary Judgment, 12/7/12, “Exhibit F”, at 2. These references to

asbestos paper also were marked with an asterisk, indicating “material

supplied by insulation contractor.” Id. Thus, the asbestos paper was not

manufactured or supplied by GE.

Moreover, we note that Appellant has failed to establish that these are

diagrams for the GE turbines that were allegedly at Decedent’s worksite.

Appellant fails to ever identify the source of these diagrams. The diagrams

themselves are dated April 1960, and Appellant has failed to establish their

relevance to the GE turbines allegedly at Decedent’s worksites. Accordingly,

we cannot agree that these answers to interrogatories support Appellant’s

claim that the turbines at Decedent’s worksite were asbestos-containing

equipment manufactured by GE.

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Thus, Appellant has failed to establish that GE products containing

asbestos were present at the worksites. Because Appellant has failed to

create an issue of material fact establishing that Decedent was exposed to

asbestos-containing GE products, the “frequency, regularity, proximity”

analysis is not triggered. Accordingly, the trial court properly entered

summary judgment in favor of GE.

Next, we address Appellant’s claim regarding Georgia-Pacific.

Georgia-Pacific filed a motion for summary judgment on the basis that

Appellant failed to establish that Georgia-Pacific had manufactured a product

from which Decedent was exposed to asbestos. Georgia-Pacific LLC’s Motion

for Summary Judgment, 11/13/12, at 3. Georgia-Pacific also contends that

because there was no evidence provided upon which a jury could reasonably

conclude that any Georgia-Pacific product used by Decedent contained

asbestos, there is no need to perform the “frequency, regularity, proximity”

analysis. Appellee Georgia-Pacific’s Brief at 13.

Appellant argues that the record reveals a genuine issue of material

fact concerning Appellant’s exposure to Georgia-Pacific’s asbestos-containing

products. Appellant’s Brief at 46. Appellant maintains that the David Krauss

affidavit and excerpts from his deposition, the Mike Morgan Affidavit and

deposition testimony, and Georgia-Pacific’s interrogatory answers establish

this exposure. Id. Appellant asserts that:

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[Mr. Krauss]: The whole time and I just don’t know.

[Counsel]: And what anything [sic] that came from the turbine
was made of, again, you personally don’t know?

[Mr. Krauss]: Right.

[Counsel]: And you have no knowledge whether it was -- what
it was, whether anything there had asbestos or didn’t have
asbestos, did you, on that piece of equipment?

[Mr. Krauss]: I did not know, no.

[Counsel]: So, in terms of whether any asbestos was shed by
this turbine or this piece of equipment that you associate with
my client, without guessing or speculating, you don’t know?

[Mr. Krauss]: I don’t know.

[Counsel]: So, you can’t say without guessing or speculation
that you were ever exposed to any dust from any piece of
General Electric equipment; can you?

[Mr. Krauss]: No. All I know it was dusty down there.

[Counsel]: In that basement?

[Mr. Krauss]: Yeah.

[Counsel]: But you can’t attribute it to that particular piece of
equipment?

[Mr. Kraus]: Right. I just know it was dusty down there
and I couldn’t wait to get the wall up to get out of there.

[Counsel]: Gotcha. And I take it you never saw the word
“asbestos” associated with that piece of equipment from GE?

[Mr. Krauss]: No.

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[Counsel]: You never saw any writing that told you what was in
there one way or another?

[Mr. Krauss]: No.

[Counsel]: And you never had any training from your father or
from the union or from any other source that there was any
asbestos whatsoever associated with that equipment; did you?

[Mr. Krauss]: No.

General Electric Company’s (“GE”) Motion for Summary Judgment,

11/13/12, “Exhibit 2,” at 174-176 (emphasis added).

Thus, David Krauss’s deposition testimony reveals that he had no

knowledge that the GE turbine contained asbestos, in contradiction to his

“belief,” as stated in his affidavit. He stated that he could not recall if there

was any insulation on the turbine. Additionally, during his deposition, David

Krauss was unable to affirmatively identify GE turbines as the source of the

dust. Thus, Appellant has not presented an issue of material fact as to the

existence of asbestos on a GE turbine at the Boca Raton site.

In her appellate brief, Appellant acknowledges that this deposition

testimony undercuts David Krauss’s affidavit. Appellant’s Brief at 44.

Appellant maintains, however, that the contradictions in David Krauss’s

affidavit and deposition testimony create an issue of material fact,

precluding entry of judgment. Id. at 44-45. Additionally Appellant asserts

that these discrepancies are remedied by GE’s answers to interrogatories

and specifications. Id. We cannot agree.

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First, as addressed previously in the context of discrepancies between

the affidavit and deposition testimony of Mike Morgan, there is no case law

supporting Appellant’s claim that contradiction in a single witness’s

testimony creates an issue of material fact precluding entry of summary

judgment. The cases cited by Appellant are not controlling in this matter

because those cases concern a contradiction in testimony between several

witnesses that creates a genuine issue of material fact. In fact, this Court

has encountered scenarios where contradictions in a single witness’s

testimony occur, yet they do not create genuine issues of material fact

defeating summary judgment. In Stephens v. Paris Cleaners, Inc., 885

A.2d 59, 65-66 (Pa. Super. 2005), contradictions existed between claimant’s

affidavit and deposition testimony regarding product identification. This

Court affirmed the trial court’s entry of summary judgment; these

contradictions did not create a genuine issue of material fact defeating

summary judgment. Id. at 65, 72. Furthermore, we note that this Court

has chosen not to believe apparently fabricated affidavits where the

deposition testimony shows to the contrary. Id. at 65.

We next address Appellant’s claim that the discrepancies in David

Krauss’s affidavit are remedied, or bolstered, by GE’s answers to

interrogatories and specifications. Appellant attached “Exhibit E,” which

consists of GE’s answers to interrogatories from an unrelated case that was

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litigated in 1994, to her response.9 In answers to queries as to whether GE

ever manufactured or distributed asbestos-containing products, GE provided

the following response:

GE objects to this interrogatory on the grounds that it is
overly broad, unduly burdensome, harassing, vague, ambiguous
and seeks information that is irrelevant and not reasonably
calculated to lead to the discovery of admissible evidence.
Without waiving any specific or general objections, GE states
that it is not now, nor has it ever been, a miner, miller, supplier,
importer, processor, distributor, marketer or seller of raw
asbestos fiber. GE further states that for a period of time prior
to 1980, WCBD was engaged in the manufacture of electrical
wire and cable, a small percentage of which contained
encapsulated chrysotile. GE states that it ceased manufacturing
encapsulated chrysotile-containing wire and cable by 1980.

“Exhibit E,” at 13-14. GE also provided the following information in response

to an unidentified interrogatory:

GE objects to this Interrogatory as it is directed to the asbestos
mining/manufacturing community of which GE was not a part.
GE further objects to this Interrogatory as plaintiffs have failed
to identify with any degree of particularity any TBO asbestos-
containing products to which exposure is alleged. Without
waiving said objections, TBO sold steam-turbine generators to
power generating companies in New Jersey, but defendant does
not consider steam-turbine generators to be within the definition
of “asbestos-containing product.” However, steam-turbine
generators call for, as both original and replacement parts,
certain vendor-supplied items comprised in part of asbestos-
containing products.

“Exhibit E,” at 5 (numbered internally within the exhibit as no page number

is provided on the document).

9
Again we note that we are not addressing the admissibility of such evidence
at trial.

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We cannot agree that these answers to interrogatories create an issue

of material fact as to the existence of asbestos in the GE turbines allegedly

at Decedent’s worksites. In the first answer, GE acknowledges that what

appears to be an undefined subsidiary “engaged in the manufacture of

electrical wire and cable, a small percentage of which contained

encapsulated chrysotile.” In this case, there has been no claim that

Decedent was exposed to electrical wire or cable containing asbestos

manufactured by GE. Moreover, it does not appear that GE manufactured

this cable and wire, but instead, it was manufactured by “WCBD.” 10 The

answer also states that a small percentage of these products contained

encapsulated chrysotile. Thus, even if David Krauss and Decedent were

exposed to such products, there is no guarantee, indeed, no evidence, that

those products would have been, in fact, the small percentage of products

that contained encapsulated chrysotile.

Furthermore, with regard to the second outlined answer to

interrogatory, GE acknowledged that “TBO,” and not GE, sold “steam-turbine

generators.”11 Additionally, as stated, these steam-turbine generators were

not considered “asbestos-containing products.”

10
Appellant attached only a few pages from the answers to interrogatories
and this term is not defined in the pages provided.

11
The page attached does not define the term “TBO.”

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Additionally, the answer indicates that these turbines were sold to

power-generating companies in New Jersey. There is no evidence linking

these turbines to the Decedent’s worksites. See Plaintiff’s Response to

General Electric Company’s Motion for Summary Judgment, 12/7/12,

“Exhibit C,” Affidavit of David Krauss (stating that David Krauss and

Decedent were exposed to GE turbines while employed by John Wayne

Smith Masonry in Baton Rouge, Louisiana). Thus, these responses to

interrogatories fail to establish a genuine issue of material fact that

asbestos-containing GE turbines were at the worksite where he and

Decedent worked.

Finally, Appellant attached “Exhibit F” to her response. “Exhibit F”

consists of two pages of diagrams, the first is entitled, “Application of type A

plastic insulation to typical turbine valve,” and the second is entitled,

“Application of all plastic or sprayed on turbine shell and horizontal flange,”

and both are dated April 1960. Plaintiff’s Response to General Electric

Company’s Motion for Summary Judgment, 12/7/12, “Exhibit F”. In her

response to GE’s motion for summary judgment, Appellant maintains that

this exhibit provides evidence that GE specifications for its turbines called for

the use of asbestos containing insulation. Id. at 5. Appellant also contends

that this exhibit establishes that GE turbines were manufactured and sold

with asbestos. Id. at 7. We disagree.

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A review of the first diagram reveals several labels, including one

reading “Type F asbestos cloth * .” Plaintiff’s Response to General Electric

Company’s Motion For Summary Judgment, 12/7/12, “Exhibit F”, at 1.

Several of the labels include the asterisk (*) symbol. Id. A key on the left

side of the diagram indicates that the asterisk denotes “material supplied by

insulation contractor.” Id. Thus, it does not appear that the asbestos cloth,

or other materials, were manufactured or supplied by GE.

On the second diagram there are references to the use of asbestos

paper. Plaintiff’s Response to General Electric Company’s Motion for

Summary Judgment, 12/7/12, “Exhibit F”, at 2. These references to

asbestos paper also were marked with an asterisk, indicating “material

supplied by insulation contractor.” Id. Thus, the asbestos paper was not

manufactured or supplied by GE.

Moreover, we note that Appellant has failed to establish that these are

diagrams for the GE turbines that were allegedly at Decedent’s worksite.

Appellant fails to ever identify the source of these diagrams. The diagrams

themselves are dated April 1960, and Appellant has failed to establish their

relevance to the GE turbines allegedly at Decedent’s worksites. Accordingly,

we cannot agree that these answers to interrogatories support Appellant’s

claim that the turbines at Decedent’s worksite were asbestos-containing

equipment manufactured by GE.

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Thus, Appellant has failed to establish that GE products containing

asbestos were present at the worksites. Because Appellant has failed to

create an issue of material fact establishing that Decedent was exposed to

asbestos-containing GE products, the “frequency, regularity, proximity”

analysis is not triggered. Accordingly, the trial court properly entered

summary judgment in favor of GE.

Next, we address Appellant’s claim regarding Georgia-Pacific.

Georgia-Pacific filed a motion for summary judgment on the basis that

Appellant failed to establish that Georgia-Pacific had manufactured a product

from which Decedent was exposed to asbestos. Georgia-Pacific LLC’s Motion

for Summary Judgment, 11/13/12, at 3. Georgia-Pacific also contends that

because there was no evidence provided upon which a jury could reasonably

conclude that any Georgia-Pacific product used by Decedent contained

asbestos, there is no need to perform the “frequency, regularity, proximity”

analysis. Appellee Georgia-Pacific’s Brief at 13.

Appellant argues that the record reveals a genuine issue of material

fact concerning Appellant’s exposure to Georgia-Pacific’s asbestos-containing

products. Appellant’s Brief at 46. Appellant maintains that the David Krauss

affidavit and excerpts from his deposition, the Mike Morgan Affidavit and

deposition testimony, and Georgia-Pacific’s interrogatory answers establish

this exposure. Id. Appellant asserts that:

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the Krauss affidavit establishes that Georgia-Pacific joint
compound and other adhesive products contained asbestos when
he worked with his father from 1976 to 1978 and in 1981:
‘[t]he above-mentioned products contained asbestos to the best
of my knowledge and belief.’

Id. at 47. Appellant further argues that the answers to interrogatories

reveal Georgia-Pacific’s admission that it manufactured products with

asbestos until 1977. Id.

In support of Appellant’s response to Georgia-Pacific’s motion for

summary judgment, she attached the following documents, as referenced

previously: “Exhibit A,” affidavit of Mike Morgan; “Exhibit B,” excerpt of

deposition testimony of Mike Morgan; “Exhibit C,” affidavit of David Krauss;

“Exhibit D,” excerpts from deposition testimony of David Krauss; and

“Exhibit E,” interrogatory responses from Appellee Georgia-Pacific.

As explained previously, due to its speculative and vague nature,

“Exhibit A,” Affidavit of Mike Morgan, does not establish that Decedent was

exposed to asbestos-containing products manufactured by Appellee Georgia-

Pacific. Moreover, Mr. Morgan’s allegation that Decedent was exposed to

asbestos-containing products and equipment stated: “All of the boilers,

turbines and pumps were insulated with heat-resistant asbestos products

to the best of my knowledge and belief.” “Exhibit A,” ¶8 (emphasis added).

There is no allegation that the Georgia-Pacific compound contained asbestos.

As such, the affidavit fails to establish that Decedent was exposed to

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J-A12014-14

asbestos-containing products manufactured by Appellee Georgia-Pacific.

Additionally, such affidavit fails to establish the “frequency, regularity,

proximity” requirements.

The excerpt of the Mike Morgan deposition testimony reflects the

following exchange:

[Counsel]: Now, you did speak a little bit about Georgia[ - ]
Pacific, and I’m reading where it says: There were a number of
products manufactured by Georgia[-]Pacific, including joint
compound and other adhesive products.

This is in that document that you sent. Is that an accurate
statement or is not an accurate statement?

***

[Mr. Morgan]: Yes, it is accurate. I have seen these
products. I don’t necessarily know what they are used for or
what they do, but I have seen them.

[Counsel]: And where did you see them, if you recall, sir?

[Mr. Morgan]: Possibly on job sites.

[Counsel]: Do you remember anything about the logo of a
Georgia[-]Pacific product? Do you know what I mean by logo?

***

[Mr. Morgan]: No.

[Counsel]: If you had seen it, do you remember seeing it in
either a package or a can?

***

[Mr. Morgan]: Name the product again, please.

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J-A12014-14

[Counsel]: It would be Georgia[-]Pacific joint compound.

[Mr. Morgan]: No. I probably have seen that at Lowes or
Home Depot. I believe it’s sheetrock finishing material. They
call it sheetrock mud.

[Counsel]: Are you saying, sir, that you and [Decedent] did not
either use or were around people at the job sites that used that
product; is that what you’re saying?

***

[Mr. Morgan]: That’s correct. Yeah, we didn’t work around it.
You know, people that were hanging sheetrock or finishing it,
you know, no. We always worked outside of a building.
Sheetrock people work on the inside.

[Counsel]: So, are you saying you weren’t around it in the
inside?

***

[Mr. Morgan]: Yes, I’m saying that.

Plaintiff’s Response to Georgia-Pacific’s Motion For Summary Judgment,

“Exhibit B,” at 90-93.

As outlined above, Mike Morgan’s testimony failed to establish that he

and Decedent were exposed to joint compound manufactured by Appellee

Georgia-Pacific. In fact, Mike Morgan could not identify a job site at which

he had seen these products, indicating instead that he “probably” saw it at

Lowes or Home Depot. Furthermore, Mr. Morgan testified that if this joint

compound was used at any of the worksites where Decedent worked, such

product would be used inside, by the “sheetrock people.” He and Decedent,

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J-A12014-14

he explained, always worked on the outside of a building. Thus, Mr.

Morgan’s testimony fails to establish that Decedent was exposed to Georgia-

Pacific’s compound and makes no mention of that product containing

asbestos.

Attached as “Exhibit C” is the affidavit of David Krauss. As outlined

previously, the speculative and vague nature of this affidavit is insufficient to

establish that Decedent was exposed to Georgia-Pacific’s joint compound or

that the product contained asbestos.

Appellant also attached portions of David Krauss’s deposition

testimony as “Exhibit D.” This excerpt reveals that David Krauss went to

work with his father, Decedent, in the summer of 1981 for Kirkland Masonry

in Fort Lauderdale, Florida. Plaintiff’s Response to Georgia-Pacific’s Motion

for Summary Judgment, 11/30/12, “Exhibit D,” at 18-20. At that time, Mr.

Krauss testified to using Georgia-Pacific spackling. Id. at 19. Mr. Krauss

also testified that the compound was contained in five-gallon buckets. Id. at

23. He did not provide testimony regarding his knowledge of whether the

compound contained asbestos.

Georgia-Pacific’s motion for summary judgment includes additional

portions of David Krauss’s testimony not revealed by Appellant. Georgia-

Pacific LLC’s Motion for Summary Judgment, 11/13/12, “Exhibit A.” A review

of that excerpt reflects the following. David Krauss testified that the

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J-A12014-14

manufacturer of the spackling compound used at the worksite where he

worked in 1976 was Georgia-Pacific. Id. at 129. According to Mr. Krauss’s

affidavit, he worked at job sites in Baton Rouge, Louisiana, from 1976 to

1978. Plaintiff’s Response to Georgia-Pacific’s Motion for Summary

Judgment, 11/30/12, “Exhibit C,” at ¶ 2. Mr. Krauss testified that he saw

two five-gallon buckets at the worksite. Georgia-Pacific’s LLC’s Motion for

Summary Judgment, 11/13/12, “Exhibit A,” at 130. He described the

buckets as being white, having blue writing, and the “GP” logo on them. Id.

When David Krauss was asked whether he had any knowledge that the

compound contained asbestos, he responded that he did not have any such

knowledge. Id. at 132-133. He also testified that he did not see anything

on the product itself to indicate that it contained asbestos. Id. at 133, 140.

Mr. Krauss also testified that he worked at sites in Fort Lauderdale in

1981. Georgia-Pacific’s LLC’s Motion for Summary Judgment, 11/13/12,

“Exhibit A,” at 150-151. Mr. Krauss testified that Georgia-Pacific’s spackling

compound was used at these sites. Id. at 153. He stated that he had no

knowledge that this product contained asbestos. Id. at 155. He again

testified that he saw nothing on the product itself to indicate that it

contained asbestos. Id.

While viewing the evidence in a light most favorable to Appellant, we

conclude that David Krauss’s deposition testimony established that Georgia-

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J-A12014-14

Pacific’s compound was located at the jobsites. There is no evidence,

however, that any of the identified compounds contained asbestos.

Attached as “Exhibit E” is an unidentified, apparent excerpt from an

answer to interrogatories. Plaintiff’s Response to Georgia-Pacific’s Motion for

Summary Judgment, 11/30/12, “Exhibit E.” Appellant identifies this

document as Georgia-Pacific’s response to interrogatories. Appellant

maintains that in these answers to interrogatories, Georgia-Pacific admitted

to selling and manufacturing joint compound that contained asbestos, and

directs our attention to four sub-parts of the answers. Plaintiff’s Response to

Georgia-Pacific’s Motion for Summary Judgment, 11/30/12, at 6.

The referred to answers to interrogatories are set forth as follows:

ALL PURPOSE JOINT COMPOUND

Georgia-Pacific first placed All Purpose Joint Compound on
the market for national distribution in 1967. Prior to that time,
All Purpose Joint Compound may have been available for sale in
limited areas. Georgia-Pacific first introduced asbestos-free All
Purpose Joint Compound in 1973. The availability of asbestos-
free and asbestos-containing formulations may have varied from
state to state during the years 1973-1977. The last year that
Georgia-Pacific manufactured asbestos-containing All Purpose
Joint Compound was 1977. Georgia-Pacific continues to sell
asbestos-free All Purpose Joint Compound. The product is a
white or off-white powder used in wallboard construction to
finish walls and ceilings. This product could not withstand high
temperatures, moisture or excessive vibration. For these
reasons, use of this product in industrial conditions or in the
maritime industry was neither recommended nor forseeable,
and, indeed, would have constituted a misuse of the product. All
Purpose Joint Compound was packaged in bags. All Purpose
Compound contained 0-7% chrysotile fibers.

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J-A12014-14

Plaintiff’s Response to Georgia-Pacific’s Motion for Summary Judgment,

11/30/12, “Exhibit E,” at 12-13, subpart 1.

JOINT COMPOUND

Bestwall first sold “Joint Compound,” also sold as Joint
System, Joint System Cement, and Joint System Compound, in
1956, and Georgia-Pacific continued to manufacture the product
after it acquired Bestwall in 1965. Information suggests that
after January 1975, though perhaps as early as 1973, this
product was no longer manufactured with asbestos as a
constituent ingredient. The availability of asbestos-free and
asbestos-containing formulations may have varied from state to
state during these years. The product as a dry white or off-
white powder used in wallboard construction to finish walls and
ceilings. This product could not withstand high temperatures,
moisture or excessive vibration. For these reasons, use of this
product in industrial conditions was neither recommended nor
foreseeable and, indeed, would have constituted a misuse of the
product. This product was packaged in bags and boxes. Joint
Compound contained 0-6% chrysotile fibers.

Id., “Exhibit E,” at 14-15, subpart 5.

SPACKLING COMPOUND

Bestwall began selling Spackling Compound in 1956, and
Georgia-Pacific continued to manufacture Spackling Compound
after it acquired Bestwall in 1965, until 1970 or 1971. The
product was a dry white or off-white powder used to patch or
repair walls and ceilings. This product could not withstand high
temperatures, moisture or excessive vibration. For these
reasons, use of this product in industrial conditions or in the
maritime industry was neither recommended nor forseeable and,
indeed, would have constituted a misuse of the product.
Spackling Compound was packaged in bags or boxes. Spackling
Compound contained 5.5% chrysotile fibers.

Id., “Exhibit E,” p. 17, subpart 11.

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J-A12014-14

TRIPLE DUTY JOINT COMPOUND

Georgia-Pacific has sold Triple Duty Joint Compound under
the following brand/trade names: Triple Duty Joint Compound,
Triple Duty Wallboard Joint Compound, and Triple Duty Joint
Compound-Vinyl Based Adhesive. Georgia-Pacific first sold Triple
Duty Joint Compound in 1965. Georgia-Pacific introduced
asbestos-free Triple Duty Joint Compound in 1973. The
availability of asbestos-free and asbestos-containing
formulations may have varied from state to state during the
years 1973-1977. The product is a dry white or off-white
powder used in wallboard construction to finish walls and
ceilings. This product could not withstand high temperatures,
moisture or excessive vibration. For these reasons, use of this
product in industrial conditions or in the maritime industry was
neither recommended nor forseeable and, indeed, would have
constituted a misuse of the product. Triple Duty Joint Compound
was packaged in bags. Triple Duty Joint Compound contained 0-
7% chrysotile fibers.

Id., “Exhibit E,” at 19, subpart 15.

We first note that these answers to interrogatories do not establish

that any of the products containing asbestos were at the jobsites where

Decedent worked. Additionally, the answers establish that Georgia-Pacific

introduced into the market asbestos-free joint compound in 1973 and that

the last Georgia-Pacific compounds containing asbestos were manufactured

in 1977. In fact, the spackling compound was not made after 1970 or 1971.

Thus, there is no evidence that the compounds at the worksite where

Decedent worked in 1976 through 1978 and in 1981 contained asbestos.

Appellant maintains that merely because Georgia-Pacific stopped

manufacturing asbestos-containing products in 1977 does not mean that it

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J-A12014-14

stopped selling its inventory of those products in 1977, or that wholesalers

stopped supplying contractors with those products. Appellant avers that

accordingly, these products could have been sold in 1978 or even later.

While we agree that this theory is possible, such speculation is insufficient to

establish that Decedent was exposed to asbestos-containing products

manufactured by Georgia-Pacific. Juliano, 611 A.2d at 239 (“A plaintiff

cannot survive summary judgment when mere speculation would be

required for the jury to find in plaintiff’s favor”).

Furthermore, Mr. Krauss testified that he and Decedent worked on

industrial projects, and these compounds, according to the answers to

interrogatories provided by Appellant, were not intended for use in industrial

conditions. Additionally, the answers establish that these compounds were

packaged in bags and boxes. David Krauss testified that the Georgia-Pacific

compounds he saw at the worksites were in five-gallon buckets. Thus, we

cannot agree that the answers to interrogatories create a genuine issue of

material fact as to the existence of asbestos-containing products

manufactured by Georgia-Pacific at Decedent’s worksites.

Because Appellant has failed to provide any evidence upon which a

jury reasonably could conclude that Decedent was exposed to asbestos-

containing products manufactured by Georgia-Pacific, we need not conduct

the “frequency, regularity, proximity” analysis. As Appellant has failed to

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J-A12014-14

establish any causal connection between a Georgia-Pacific asbestos-

containing product and Decedent’s mesothelioma, the trial court properly

granted Georgia-Pacific’s motion for summary judgment.

Appellant’s next claim is that the trial court erred as a matter of law in

granting the motion for summary judgment of Goulds Pumps where the

record reveals a genuine issue of material fact concerning frequent, regular,

and proximate exposure to asbestos in Goulds Pumps. Appellant’s Brief at

9, 49. Appellee Goulds Pumps filed its motion for summary judgment on the

basis that Appellant failed to offer evidence that Decedent was exposed to

asbestos from any products manufactured, supplied, or distributed by

Goulds Pumps. Motion for Summary Judgment on Behalf of Defendant,

Goulds Pumps, Inc., re: Insufficient Product Identification, 11/13/12, at 3.

Furthermore, Goulds Pumps contends that Appellant has failed to present

evidence that Decedent was exposed on a frequent basis to asbestos-

containing products supplied or manufactured by Goulds Pumps. Id.

Appellant argues that a material issue of fact existed as to Decedent’s

exposure to asbestos-containing pumps manufactured and sold by Goulds

Pumps. In support of that claim, Appellant maintains that the record

establishes that Decedent worked at facilities where there were large

industrial pumps manufactured by Goulds Pumps. Appellant’s Brief at 50.

Appellant maintains that Decedent was around Goulds Pumps’ pumps during

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“turnarounds,” when the pumps were taken apart and repairs were done on

them. Id. Appellant also asserts that Decedent was near these pumps

when they were operating. Id. at 50-51. The pumps were allegedly

insulated with asbestos products and a great deal of visible dust was

created, getting on Decedent’s hair and in his lungs. Id. at 50. Appellant

maintains that the jobs lasted approximately one week or longer. Id. In

attempting to establish her claim, Appellant attached the following

documentation to her response to Goulds Pumps’ motion for summary

judgment: “Exhibit A,” affidavit of Mike Morgan; “Exhibit B,” excerpt from

the deposition testimony of Mike Morgan; “Exhibit C,” excerpt from the

deposition testimony of Peter Same; “Exhibit D,” excerpt from deposition

testimony of Robert McGowan; “Exhibit E,” excerpt from the deposition

testimony of E. Barry Bradshaw. Plaintiff’s Response to Goulds Pumps

Motion for Summary Judgment, 11/30/12.

For reasons discussed at length previously, we conclude that the

affidavit of Mike Morgan is insufficient to establish that asbestos-containing

pumps sold and manufactured by Goulds Pumps were at Decedent’s

worksites. Thus, the affidavit does not establish a genuine issue of material

fact defeating summary judgment.

Appellant also relies on the deposition testimony of Mr. Morgan. A

review of this testimony reflects the following exchange:

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[Counsel]: In terms of any experience with pumps, did you or
[Decedent] ever personally work on any pumps?

[Mr. Morgan]: No. We never physically worked on any
pumps, no.

[Counsel]: You mentioned a name of a company, Goulds
Pumps, in your statement. Is that just something that you’re
familiar with, but don’t really have any knowledge about whether
[Decedent] was exposed to asbestos from that pump?

[Mr. Morgan]: Correct. I’m familiar with Goulds pumps. You
know, they are everywhere in these plants.

[Counsel]: But you don’t have any firsthand knowledge as to
whether [Decedent] was exposed to any asbestos from any
Goulds pumps; do you?

[Mr. Morgan]: No.

Plaintiff’s Response to Goulds Pumps Motion for Summary Judgment,

11/30/12, “Exhibit B,” at 55-56.

This exchange fails to establish that there was asbestos in these

pumps or that Decedent was exposed to asbestos from these pumps. Thus,

there is no genuine issue of material fact that Decedent was exposed to

asbestos from a Goulds Pumps product.

Mr. Morgan provided additional testimony regarding his and

Decedent’s exposure to Goulds Pumps’ pumps at various jobsites. The

remainder of the testimony pertained to the frequency, regularity, and

proximity of exposure to these pumps.

[Counsel]: Were you and [Decedent] ever around a Goulds
pump during a turnaround?

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[Mr. Morgan]: I’m sure we were. You know, I don’t
remember the exact day or anything, but I’m sure we were.

[Counsel]: Do you recall, and I’m not asking you a specific day,
were you ever around a Goulds pump during turnaround when
the Goulds pumps were being worked on?

[Mr. Morgan]: Yes. . . . They take them apart and do the
repairs on them and, you know, get them all leveled back up,
you know, maybe disconnect pipes from them. You know, that’s
constantly going on. That’s part of the turnaround.

[Counsel]: During that process, the turnaround, when they were
working, others, not you or [Decedent], working on the Goulds
pumps, would you ever have occasion to be near them?

[Mr. Morgan]: Yes, I’m sure we have. You know, sometimes
you are going from one place to the other, maybe from our tool
shed to the job site itself. I’m sure you are going to have walk
passed [sic] them. You’re going to have to get close to them
sometimes.

[Counsel]: When you and [Decedent] would get close to the
Goulds pumps, during this process at the turnaround, would the
atmosphere around the pump be dusty?

[Defense Counsel]: Objections; form.

[Defense Counsel]: Objection; lack of foundation, vague.

[Mr. Morgan]: Not to my knowledge.

***

[Counsel]: You had mentioned Goulds pumps before. Were
there other pumps also or were there primarily Goulds pumps
that you saw at these sites?

[Mr. Morgan]: There’s different pumps. I know I had seen
General Electric pumps. I’ve seen one pump I think it was
Poulean.

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***

[Counsel]: Were any of these pumps functioning when you and
[Decedent] walked by them?

[Mr. Morgan]: Yes. If you walk through a live unit, yes.

***

[Counsel]: Were you and [Decedent] ever around a Goulds
pump when one of the workers was changing the gasket
material?

***

[Mr. Morgan]: I don’t recall specifically, but, you know, I’m
sure we walked passed [sic] them, you know, on our way back
and forth to where we were working at. I’m sure we walked
passed [sic] them.

***

[Counsel]: Now, during that process, when the workers would,
in fact, be working on the packing at the Goulds pumps, during
that particular process did you note that the area near where the
packing was, that they are removing and replacing, was more
dusty than when it was not being worked on?

***

[Mr. Morgan]: I never really noticed anything like that.

Plaintiff’s Response to Goulds Pumps Motion for Summary Judgment,

11/30/12, “Exhibit B,” at 94-101.12

12
While several objections were made during the deposition testimony, this
Court has held that when ruling on a motion for summary judgment, where
no trial ruling was made on an objection during deposition testimony, there

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We note that Mr. Morgan testified that he and Decedent never worked

on pumps. Mr. Morgan testified that he was “familiar” with the name

“Goulds Pumps” and then made the blanket statement that they are

“everywhere” in these plants. He further testified that he had no knowledge

that Decedent had been exposed to asbestos as a result of one of these

Goulds Pumps’ pumps. His testimony reveals that he saw many pumps,

manufactured by different companies.

Additionally, Mr. Morgan’s testimony reveals that he simply presumes

that he and Decedent were around a Goulds Pumps pump despite not being

able to remember specifics about those times. He testified that he and

Decedent walked by the pumps when the pumps were operational and

during turnarounds. Additionally, there is no testimony regarding the

frequency, regularity, or proximity to these pumps during either the

turnaround or while they were operational. He testified that it was not more

dusty once the pumps were being worked on during a turnaround. Mr.

Morgan’s testimony is extremely vague and speculative as to his and

Decedent’s exposure to a Goulds Pumps pump.

Mr. Morgan’s deposition testimony has not established that Decedent

was exposed to asbestos from a Goulds Pumps pump, or that Decedent was

exposed to a Goulds Pumps pump with the required frequency, regularity

is no reason not to consider the answer. Weible v. Allied Signal, Inc.,
963 A.2d 521, 533-534 (Pa. Super. 2008).

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and proximity. Thus, no material issue of fact exists to defeat judgment

based on this exhibit.

Appellant’s next three exhibits, “Exhibit C,” “Exhibit D,” and “Exhibit

E,” consist of deposition testimony excerpts from former employees of

Goulds Pumps, taken in unrelated cases. Appellant contends that this

testimony reveals that Goulds Pumps used asbestos in several of its

products, including in gaskets, pump parts, and packing boxes. Plaintiff’s

Response to Goulds Pumps Motion for Summary Judgment, 11/30/12, at 5-

6.

A review of these deposition testimony excerpts reveals that these

individuals testified that Goulds Pumps had manufactured and sold products

containing asbestos. The deposition of the individual in “Exhibit D” was

taken in 1995 in an unrelated case, and the deposition of the individual in

“Exhibit E” was taken in 2002. The testimony, however, does not establish

that these products were sold to or located at any of the jobsites where

Decedent worked.

In reviewing the evidence Appellant presented in an attempt to defeat

Goulds Pumps’ motion for summary judgment, we cannot conclude that

Appellant has established a genuine issue of material fact that asbestos-

containing Goulds Pumps’ products caused Appellant’s mesothelioma.

Viewing the evidence of record in the light most favorable to Appellant, we

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can conclude that Goulds Pumps’ pumps contained asbestos, based on the

testimony of the three former Goulds Pumps’ employees’ testimony.13

Appellant has not presented sufficient evidence, however, to establish

a genuine issue of material fact as to the presence of Goulds Pumps’ pumps

at the Decedent’s worksites. Nor has Appellant established that the pumps

containing asbestos were located at Decedent’s worksites. Additionally,

Appellant has not presented sufficient evidence establishing Decedent’s

frequent, regular and proximal exposure to Goulds Pumps’ pumps or that

Decedent inhaled asbestos fibers from a Goulds Pumps product.

Accordingly, the trial court properly granted Goulds Pumps’ motion for

summary judgment.

In her next issue, Appellant claims that the record reveals a genuine

issue of material fact as to whether Appellees Goulds Pumps, American

Standard, and Zurn can be “held liable for their inclusion within their own

products of asbestos-containing products manufactured by third parties.”

Appellant’s Brief at 53. Appellant asserts that Appellees are liable for

products they sold which contained asbestos-containing components. Id. at

13
As noted, we are mindful that these depositions were taken, not as part of
this case, but rather, in the context of three separate unrelated cases. We
shall not consider at this point whether these excerpts are admissible at trial
for purposes of establishing that the products actually contained asbestos.
At the summary judgment stage of proceedings, however, we are taking the
averments presented by Appellant as true and viewing them in the light
most favorable to Appellant pursuant to the required standard of review.
Shepard, 948 A.2d at 856.

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J-A12014-14

56. As a result, Appellant avers that the trial court erred in granting

summary judgment in favor of those parties. Id.

Despite alleging that these three Appellee companies are liable for

products they manufactured and sold that contained asbestos-containing

components, Appellant fails to identify with specificity the products and

asbestos-containing components at issue. We shall not assume the burden

of searching through the lengthy briefs and voluminous record in an attempt

to guess at the products and components to which Appellant is referring.

“This Court will not act as counsel and will not develop arguments on behalf

of an appellant.” Irwin Union Nat. Bank and Trust Co. v. Famous, 4

A.3d 1099, 1103 (Pa. Super. 2010). It is not this Court’s responsibility to

comb through the record seeking the factual underpinnings of a claim. Id.

When deficiencies in a brief hinder our ability to conduct meaningful

appellate review, we may dismiss the appeal entirely or find certain issues to

be waived. Id.; Pa.R.A.P. 2101. Because Appellant failed to clarify the

specifics of her component-parts liability claims, we find this claim to be

waived. Pa.R.A.P. 2101.

Additionally, the trial court provided the following analysis regarding

this claim:

[T]his Court did not reach the issue of whether or not the
aforesaid Appellees were liable for asbestos-containing parts of
their respective products, as Appellant failed to establish a prima
facie case against those Appellees. Specifically, Appellant has

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not presented sufficient evidence specifically placing Appellant’s
[Decedent] in proximity to the aforesaid Appellees’ products. In
addition, Appellant has not produced sufficient evidence that the
aforesaid Appellees’ products at the work sites of Appellant’s
[D]ecedent contained asbestos during the time [D]ecedent
worked there, or that Appellant’s [D]ecedent inhaled asbestos
fibers from those products. Therefore . . . [the] granting of the
aforesaid Appellees’ Motion for Summary Judgment was proper.

Trial Court Opinion, 10/10/13, at 9.

We agree. Thus, even if Appellant had developed her claim with

sufficient specificity regarding the components at issue so that appellate

review of the claims was possible, the trial court properly granted the related

motions for summary judgment.

In her next claim, Appellant maintains that the record reveals a

genuine issue of material fact concerning Decedent’s frequent, regular, and

proximate exposure to asbestos in American Standard boilers. Appellant’s

Brief at 56. American Standard filed a motion for summary judgment on the

grounds that Appellant failed to offer admissible evidence that Decedent was

exposed to asbestos from any products manufactured, supplied or

distributed by American Standard. Motion for Summary Judgment on Behalf

of Defendant, Trane US Inc. f/k/a American Standard re: Insufficient Product

Identification, 11/13/12, at 1.

Appellant maintains that the Mike Morgan Affidavit itself satisfies the

Eckenrod/Gregg standard, defeating summary judgment. Appellant’s Brief

at 57. Appellant further maintains that the answers to interrogatories

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provided by American Standard support the affidavit of Mike Morgan that the

boilers contained asbestos. In her response to American Standard’s motion

for summary judgment, Appellant attached the affidavit of Mr. Morgan, as

“Exhibit A”; deposition testimony transcript excerpt of Mike Morgan, as

“Exhibit B”; and the interrogatory answers provided by American Standard in

an unrelated case, as “Exhibit C”. Plaintiff’s Response to Trane US Inc. f/k/a

American Standard’s Motion for Summary Judgment, 11/30/12, “Exhibit A”,

“Exhibit B”, and “Exhibit C”.

As explained previously, contrary to Appellant’s claim, the Morgan

affidavit does not itself satisfy the Eckenrod/Gregg standard. Moreover,

the Morgan affidavit fails to establish that American Standard’s boilers were

present at Decedent’s worksites, for reasons outlined thoroughly above.

The excerpt of Mike Morgan’s deposition testimony at “Exhibit B”

reflects the following testimony pertaining to American Standard boilers:

[Counsel]: Now, I’m just going to go a little further with this
affidavit that was referenced. Paragraph number three says: At
our job sites there were boilers manufactured by American
Standard, Foster-Wheeler and Zurn.

Is that an accurate statement?

[Defense Counsel]: Objection; asked and answered.

[Mr. Morgan]: Yes.

[Counsel]: Do you know where the American Standard, Foster-
Wheeler and Zurn boilers were in those job sites, or do you just

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J-A12014-14

know that they were at one of those job sites or two of those job
sites?

[Defense Counsel]: Objection to form.

[Defense Counsel]: Objection; compound.

[Mr. Morgan]: I don’t know exactly where each one of them
was, but I know they were there because you can see them,
they are everywhere.

[Counsel]: When you say you can see them, I think you may
have referenced this before, but what made you say that you
were able to identify these boilers?

[Mr. Morgan]: A lot of them have a tag, it’s a metal tag that’s
actually fastened to the boiler itself and they are usually above
the manways. So, you know, they open a door to a manway
and you go to cut the brick out of them and you can’t miss them.

[Counsel]: And was that true with all three of those boilers that
you have identified?

[Defense Counsel]: Objection.

[Mr. Morgan]: Yes.

***

[Counsel]: And my question goes to rope gaskets for a minute.
Did you and [Decedent] become exposed to those asbestos rope
gaskets that you testified to?

[Defense Counsel]: Objections; asked and answered.

[Mr. Morgan]: Yes.

***

[Counsel]: And how were you exposed to it? . . . [B]oth of you.

[Defense Counsel]: Objection.

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J-A12014-14

[Mr. Morgan]: There was [sic] two different ways. One way is
when they removed the steel door, right on the other [side] of
that steel door is an asbestos rope gasket, so we were exposed
that way, and then once you cut the brick out, the opening, it
creates a suction on the inside of the boiler. You go inside the
boiler, you know, do what you are supposed to do in there,
maybe go in and do an inspection or whatever, and anything
that’s dropped from up above on the outside is going to be
sucked into this hole, to the opening, the manway, and it gets
inside the boiler, I mean, you’re going to breathe it.

[Counsel]: Would that include dust and other debris from the
boiler and the rope gaskets?

[Mr. Morgan]: Yes.

***

[Counsel]: And would [Decedent] breathe that in?

[Mr. Morgan]: Yes.

Plaintiff’s Response to Trane US Inc. f/k/a American Standard’s Motion for

Summary Judgment, 11/30/12, “Exhibit B,” at 79-82.

Without any specificity, Mr. Morgan testified that American Standard

boilers were one of three types of boilers at his worksites. He does not

identify a specific worksite where the American Standard boiler was placed.

He stated that he knew they were there because “they were everywhere.”

Moreover, he fails to provide any evidence that he and Decedent were

exposed to asbestos from an American Standard boiler. Additionally,

although Appellant discusses how he and Decedent could be exposed to the

gasket, there is no testimony, at least none provided in this excerpt, as to

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the frequency, regularity and proximity to the alleged asbestos-containing

gasket.

A review “Exhibit C” reflects a document that contains a caption, “In

Re: New York City Asbestos Litigation,” in New York State Supreme Court.

There is no date on this document. It further indicates that it is “American

Standard Inc.’s amended supplemental response to plaintiff’s first standard

set of liability interrogatories and request for production of documents.”

Plaintiff’s Response to Trane US Inc. f/k/a American Standard’s Motion for

Summary Judgment, 11/30/12, “Exhibit C,” at 1. After the cover sheet, the

document begins with page 14. Id.

Appellant maintains that these answers to interrogatories establish

that American Standard confirmed its purchase, as subsidiaries, of

companies which produced boilers that contained asbestos. Plaintiff’s

Response to Trane US Inc. f/k/a American Standard’s Motion for Summary

Judgment, 11/30/12, at 4. Appellant also maintains that in these responses,

American Standard confirms that it manufactured boilers which contained

asbestos. Id. at 5.

A review of the responses to interrogatories reflects the following

relevant, though lengthy, response:

Response to Interrogatory No. 9

American Standard incorporates herein its Preliminary
Statement and General Objections set forth above.

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