J-A27009-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES FLOYD, JR., EXECUTOR OF THE IN THE SUPERIOR COURT OF
ESTATE OF JAMES C. FLOYD, SR., PENNSYLVANIA
DECEASED,
Appellant
v.
ASTENJOHNSON, INC.
No. 3663 EDA 2015
Appeal from the Order October 28, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): No. 3992, January Term, 2013
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J. *
MEMORANDUM BY PANELLA, J. FILED JANUARY 19, 2017
Appellant, James Floyd, Jr., as Executor of the Estate of James C.
Floyd, Sr., Deceased, appeals from the order entered in the Philadelphia
County Court of Common Pleas, which entered summary judgment in favor
of Appellee, AstenJohnson, Inc. We affirm.
The trial court summarized the relevant facts and procedural history as
follows.
[Appellant] commenced this suit against forty-five (45)
defendants on February 1, 2013. [Appellant] alleged James
Floyd, Sr. [“Decedent”] contracted [m]esothelioma through his
exposure to various asbestos-containing products while
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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employed at Sun Oil from 1939 to 1951 and at Scott Paper from
1951 to 1984.
[Appellee] is the successor-in-interest to Asten-Hill
Manufacturing Co. (1932-1977) and Asten Group, Inc. (1977-
1994). Both companies manufactured dryer felts and fabrics
used on paper making machines. [Appellee] admits that until
1980, some but not all of the felts manufactured by [Appellee]
contained asbestos and claims it ceased manufacturing
asbestos-containing felts and fabrics in 1980. [Decedent] was
not deposed in this case. His son, Appellant, was deposed on
July 24, 2015, and testified that he worked at Scott Paper with
his father from 1977 to 1984.
On August 15, 2015, [Appellee] filed its [m]otion for
[s]ummary [j]udgment, arguing [Appellant] could not show
[Decedent] was ever exposed to an asbestos-containing
[Appellee] product. [Appellant] claimed [Appellant’s] testimony,
combined with the testimony of other Scott Paper employees
deposed in previously unrelated cases, showed [Decedent] was
exposed to dust from asbestos-containing [Appellee’s] dryer
felts.
On October 28, 2015, the [lower court] granted
[Appellee’s] motion, finding [Appellant] failed to produce
sufficient evidence Decedent inhaled asbestos from [Appellee’s]
dryer felts. On November 17, 2015 the matter settled as to all
remaining non-bankrupt parties.
Trial Court Opinion, filed 4/28/16, at 1-2 (unpaginated opinion) (internal
citations to the record omitted). Appellant filed a timely notice of appeal.
On appeal, Appellant raises the following issue for our review.
1. DID THE LOWER COURT ERR WHEN IT RULED THAT THERE
WAS NO GENUINE ISSUE OF MATERIAL FACT AS TO
[DECEDENT’S] EXPOSURE TO ASBESTOS WHILE WORKING
WITH ASBESTOS DRYER FELTS MANUFACTURED BY
[APPELLEE]?
Appellant’s Brief, at 4.
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Specifically, Appellant argues that he presented sufficient evidence,
through the depositions of Appellant and former Scott Paper employees,
Albin Koronkiewicz and James Golden, from which a reasonable jury could
infer that Decedent’s mesothelioma was caused by his exposure to
[Appellee’s] asbestos-containing dryer felts. See id., at 11-12. Further,
Appellant argues that the trial court’s failure to conclude that the deposition
testimony of Koronkiewicz provided a genuine issue of material fact that,
during the time Decedent worked at Scott Paper, [Appellee’s] dryer felts
contained asbestos which released particles into the air, violates the binding
precedent of Wright v. Allied Signal, Inc., 963 A.2d 511 (Pa. Super.
2008). See id., at 11.
Appellee counters that the Court’s finding in Wright, that
Koronkiewicz’s deposition testimony provided a genuine issue of material
fact sufficient to survive summary judgment, is not binding precedent in this
case. See Appellee’s Brief, at 14-15. Specifically, Appellee contends that the
Wright Court’s finding that Koronkiewicz’s testimony created a genuine
issue of fact hinged upon Koronkiewicz’s identification of plaintiff as a person
who was exposed to the asbestos dust. And that testimony, according to
Appellee, is simply not present here. See id.
We review a challenge to the entry of summary judgment as follows.
[We] 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
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judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
states that where there is no genuine issue of material fact and
the moving 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 nonmoving party, and
all doubts as to the existence of a genuine issue of material fact
must be resolved against the moving party.
E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)
(citation omitted).
Further, we apply specific standards to motions for summary judgment
involving claims of asbestos-related injuries.
[I]n 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.
Krauss v. Trane U.S. Inc., 104 A.3d 556, 563 (Pa. Super. 2014) (citing
Eckenrod v. GAF Corp., 544 A.2d 50, 52 (Pa. Super. 1988)).
In order to determine whether plaintiff has provided sufficient evidence
that defendant’s products were the cause of plaintiff’s injuries, our courts
apply the “frequency, regularity, proximity standard.” Gregg v. V-J Auto
Parts, Company, 943 A.2d 216, 226 (Pa. 2007). This standard, originally
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set forth in Eckenrod, requires a plaintiff attempting to defeat a motion for
summary judgment to present evidence concerning “the frequency of use of
the product and the regularity of plaintiff’s employment in proximity
thereto.” 544 A.2d at 53. The trial court, in evaluating this evidence
concerning frequency, regularity and proximity of exposure, must then make
a reasoned assessment of whether a jury would be justified in making “the
necessary inference of a sufficient causal connection between the
defendant’s product and the asserted injury.” Gregg, 943 A.2d at 227.
In order to make this assessment the trial court must not apply the
criteria of frequency, regularity and proximity as a “rigid standard with an
absolute threshold necessary to support liability.” Id. at 225.
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 causal or minimal
exposure to the defendant’s product. [A]pplication 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, … the frequency
and regularity prongs become somewhat less cumbersome in
cases involving diseases that the plaintiff’s competent medical
evidence indicates can develop after only minor exposures to
asbestos fibers.
Sterling v. P & H Mining Equipment, 113 A.3d 1277, 1281 (Pa. Super.
2015) (citing Gregg, 943 A.2d at 225).
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Instantly, the trial court found the evidence in this case analogous to
the evidence produced in Sterling, and therefore reasoned as follows.
In this case, [Appellant] was entitled to summary
judgment. The only testimony that mentions or even
contemplates [Decedent’s work] was [Appellant’s] deposition.
[Appellant] was employed at Scott Paper from 1977 to 1994 as a
process lab supervisor.
[Appellant’s] testimony establishes [Decedent] replaced
dryer felts approximately twice a year, and it was a “dusty job.”
[Appellant] could only say the dust came from the mills, he could
not say more specifically where it came from or its contents.
[Appellant] never testified the felts he saw his father work with
were manufactured or supplied by [Appellee], nor could he say
the felts contained asbestos.
This testimony is insufficient to show (1) the dryer felt
Decedent worked with was an [Appellee] felt; (2) Decedent
inhaled dust from any of the felts; (3) the felts Decedent worked
with contained asbestos. Since none of the other depositions
supplied by [Appellant] mention Decedent, [Appellant] has failed
to provide any sufficient evidence establishing [Decedent]
inhaled dust from an [Appellee] product, let alone on a regular
and frequent basis.
[Appellant] also supplied in its answer the deposition of
Albin Koronkiewicz from two unrelated asbestos cases involving
Koronkiewicz’s co-wrokers and other employees of Scott Paper;
The Wright case and the Norton case. Koronkiewicz testified as
far as he knew, he thought the felts were made of asbestos. He
testified the felts at Scott Paper were made by Appellee, Albany,
and possibly a third manufacturer he could not recall. He
testified Ray Wright would visit the paper plant on occasion, and
there was no way for him to avoid breathing dust from Appellee
felts.
In Koronkiewicz’s testimony for the Norton case, he
testified all of the asbestos felts he opened from the [19]50’s to
[the 19]70’s were [Appellee] asbestos felts.
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[Appellant] also supplied the deposition testimony of
[Appellee] [c]orporate [r]epresentative David McCann and an
interrogatory answer from [Appellee] to show the asbestos
content of the [Appellee] felts. McCann testified in 1971 some
[Appellee] felts contained asbestos, and some did not. Through
Interrogortories, [Appellee] stated, “[s]ome of the dryer fetls
and fabrics were woven, in part, using chrysotile (asbestos)-
containing yarn[.]”
*****
While Koronkiewicz’s testimony establishes some
[Appellee] felts at Scott Paper, it would still be speculative to
conclude the felts Decedent and Koronkiewicz worked with were
the same brand, just because both men worked at the same
plant. [Appellant] has produced no evidence [] Decedent worked
with, or was exposed to dust from, any product manufactured by
[Appellee].
Even if assumed some of the felts [] Decedent worked with
were [Appellee’s], further speculation would be required to
establish those felts contained asbestos. Even more speculation
would be required to establish he was exposed to dust from
[Appellee’s] [f]elts on a regular and frequent basis.
Trial Court Opinion, 4/28/16, at 7-9 (unpaginated opinion) (internal citations
to the record omitted).
Our review of the record supports the trial court’s conclusion that this
case is analogous to Sterling, as well as its subsequent analysis of the
evidence. See 113 A.3d at 1277. In Sterling, we held that summary
judgment is proper in an asbestos case where plaintiff’s only evidence
consists of plaintiff’s personal belief that dust contains asbestos and the
testimony of co-workers who were unable to note the frequency, regularity,
or proximity of plaintiff’s alleged exposure to asbestos. See id., at 1282-
1283.
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Here, while Appellee conceded in answers to interrogatories that it
produced and sold asbestos-containing dryer felt during the period Decedent
worked at Scott Paper, this admission is insufficient to conclude that
Appellee even sold asbestos-containing dryer felts to Scott Paper, let alone
that Decedent encountered these dryer felts. Further, Appellant was only
able to provide evidence that Decedent worked in dusty conditions with the
dryer felts, but conceded that he was unable to identify the source of the
dust, the brand of the dryer felts, and whether or not the dryer felts
contained asbestos. Thus, as the Court found in Sterling, the only evidence
presented concerning Decedent’s tenure at Scott Paper failed to contain any
information concerning Decedent’s frequency, regularity, or proximity to
Appellee’s asbestos-containing dryer felts. See id., at 1282.
Moreover, despite Appellant’s contention, we are not required to
regard the finding in Wright as binding precedent, as Koronkiewicz’s
deposition testimony was credited in Wright mainly because Koronkiewicz
was able to identify Wright as a person who worked frequently in close
proximity to an asbestos-containing product. See 963 A.2d at 519. Here, by
contrast, Koronkiewicz’s deposition testimony cannot be treated in the same
way as it was in Wright because Koronkiewicz never identifies Decedent as
a person having exposure to Appellee’s asbestos-containing dryer felts.
Thus, because the deposition testimony Appellant provides of other Scott
Paper employees provides no information regarding the frequency,
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regularity, or proximity of Decedent’s alleged exposure to asbestos in
Appellee’s dryer felts, we find that Appellant failed to adduce sufficient
evidence to support the inference that Decedent inhaled asbestos from
Appellee’s dryer felts. Therefore, the trial court properly entered summary
judgment in favor of Appellee.
Order affirmed.
Judge Lazarus joins the memorandum.
Justice Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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