J. A23018/11
2011 PA Super 230
MARGARET HOWARD AND ROBERT :
HOWARD,
CO-EXECUTORS
OF
THE :
ESTATE OF JOHN C. RAVERT, DECEASED, :
:
Appellants
:
:
v.
:
:
A.W. CHESTERTON COMPANY, ACE
HARDWARE CORP., MONSEY PRODUCTS
CORP., PECORA CORPORATION, AND
UNION CARBIDE CORPORATION,
Appellees
IN THE SUPERIOR COURT OF
PENNSYLVANIA
:
:
:
:
:
:
No. 2978 EDA 2010
Appeal from the Judgment entered October 5, 2010
in the Court of Common Pleas of Philadelphia County Civil Division
at June Term, 2007, No. 202
BEFORE: LAZARUS, MUNDY, and FREEDBERG, JJ.
OPINION BY MUNDY, J.:
Filed: October 28, 2011
Appellants, Margaret Howard and Robert Howard, co-executors of the
estate of John C. Ravert (Ravert), deceased, and plaintiffs in the underlying
asbestos mass tort litigation, appeal from the judgment entered October 5,
2010, in favor of defendants/Appellees, A.W. Chesterton Co. (Chesterton),
ACE Hardware Corp. (ACE), Monsey Products Corp. (Monsey), Pecora
Corporation (Pecora), and Union Carbide Corporation (Union Carbide).
Judgment, relative to Appellees, was entered after the trial court granted
their respective motions for summary judgment. We vacate the judgment,
J. A23018/11
reverse the orders granting summary judgment in favor of each Appellee,
and remand for further proceedings.
The trial court summarized the procedural history of this case as
follows.
[Appellants][1] commenced this Asbestos Mass
Tort action alleging that Decedent John C. Ravert
contracted mesothelioma as a result of his
occupational exposure to asbestos products.
On
March 25, 2008, ACE, Chesterton, Monsey, and
Pecora filed for summary judgment. On March 27,
2008, Union Carbide filed for summary judgment. On
April 11, 2008, [Appellants] filed a response to each
of the motions. Pecora replied on April 13, 2008.
ACE, Chesterton, and Monsey replied on April 16,
2008. Union Carbide replied on April 18, 2008.
[Appellants’] counter replies were filed for Union
Carbide on April 23, 2008; for Pecora on April 24,
2008; and for ACE, Chesterton, and Monsey on April
28, 2008. Replies to [Appellants’] counter replies
were filed on April 28, 2008 by ACE (as a
sur[-]reply); April 30, 2008 by Monsey; and May 6,
2008 by Chesterton. All of [Appellees’] motions
asserted lack of sufficient product identification as
required by Ekenrod v. GAF Corp., 544 A.2d 50
(Pa. Super. 1988) and its progeny.
After careful review of the motions, responses,
replies, and sur-reply, [the trial c]ourt granted
summary judgment in favor of each of the
[Appellees]
and
dismissed
with
prejudice
[Appellants’] claims on May 14, 2008. The case was
then removed by remaining Defendants Weil McClain
and Goodyear to the United States District Court for
the Eastern District of Pennsylvania on May 20,
2008. On May 30, 2008, [Appellants] timely filed
1
The instant action was commenced by Ravert who subsequently died on
September 18, 2007, whereupon his executors were substituted as plaintiffs
in the case. Certified Record (C.R.) at 76.
2
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appeals from the orders granting summary judgment
to [Appellees].
On July 1, 2008, in response to [the trial
c]ourt’s order, [Appellants] filed their Concise
Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. §1925(b). [The trial c]ourt
issued its Opinion [on] August 6, 2008.
On October 1, 2009, the Pennsylvania Superior
Court
ruled
that
[Appellants’]
appeal
was
interlocutory because there were still two remaining
defendants in the case; therefore the order was not
a final, appealable order. By Order dated November
12, 2009, the Honorable Eduardo Robreno remanded
the case back to the trial court finding that the
removal to federal court was improper because there
were no grounds to invoke federal subject matter
jurisdiction under 28 U.S.C. §1332.
On September 10, 2010, [Appellants] settled
with all remaining defendants prior to trial.
Thereafter [Appellants] petitioned the Superior Court
to reinstate the appeal initially filed May 30, 2008
(1731 EDA 2008).
The Superior Court denied
[Appellants’] petition on [sic] reinstate the previous
appeal, however [Appellants] filed a new appeal on
October 8, 2010 (2978 EDA 2010). [Appellants]
[filed] a subsequent Concise Statement of Errors
Complained of on Appeal.
Trial Court Opinion, 3/24/11, at 1-3; C.R. at supplemental record (citation
omitted).
Appellant raises the following questions for our review.
I. Did the lower court commit an error of law
when it failed to apply correctly Pennsylvania
Supreme Court precedent of Gregg v. V-J Auto,
Inc, 943 A.2d 216 (Pa. 2007)?
II. Did the lower court commit an error of law
by requiring [Appellants] to prove that Mr. Ravert
3
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was exposed to visible dust rather than to respirable
dust?
III. Did the lower court err at summary
judgment when it when it [sic] failed to rule that
there were genuine issues of material facts as to Mr.
Ravert’s exposure to Appellees’ asbestos products
because it did not properly apply the precedents of
Summers v. CertainTeed Corp., 997 A.2d 1152
(Pa. 2010) and Hicks v. Dana Corporation, 984
A.2d 943 (Pa. Super. 2009), appeal denied 2011 Pa.
LEXIS 660 (Pa. 2011)?
Apellants’ Brief at 6.2
Our Supreme Court has recently reiterated the principles that must
guide our inquiry in this appeal.
As has been oft declared by this Court,
“summary judgment is appropriate only in those
cases where the record clearly demonstrates that
there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter
of law.” Atcovitz v. Gulph Mills Tennis Club,
Inc., 571 Pa. 580, 812 A.2d 1218, 1221 (2002); Pa.
R.C.P. No. 1035.2(1). When considering a motion
for summary judgment, the trial court must take all
facts of record and reasonable inferences therefrom
in a light most favorable to the non-moving party.
Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928
A.2d 186, 195 (2007). In so doing, the trial court
must resolve all doubts as to the existence of a
genuine issue of material fact against the moving
party, and, thus, may only grant summary judgment
“where the right to such judgment is clear and free
from all doubt.” Id. On appellate review, then,
an appellate court may reverse a grant of
summary judgment if there has been an error
of law or an abuse of discretion. But the issue
2
Chesterton did not file a brief in this appeal.
4
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as to whether there are no genuine issues as
to any material fact presents a question of law,
and therefore, on that question our standard of
review is de novo. This means we need not
defer to the determinations made by the lower
tribunals.
Weaver v. Lancaster Newspapers, Inc., 592 Pa.
458, 926 A.2d 899, 902-03 (2007) (internal citations
omitted). To the extent that this Court must resolve
a question of law, we shall review the grant of
summary judgment in the context of the entire
record. Id. at 903.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).
In their respective motions for summary judgment, Appellees claimed
Appellants had failed to adequately establish that Ravert was exposed to and
inhaled asbestos fibers as a result of his use of Appellees’ products under the
frequency, regularity and proximity test of Ekenrod, supra, and its
progeny.
The asbestos-containing products at issue, as testified to by
Ravert in his various videotaped depositions, include: for Chesterton, string
packing used to seal pumps; for ACE, roof coating and roof cement; for
Monsey, roof coating and roof cement; for Pecora, furnace cement; and for
Union Carbide, powdered asbestos that Ravert mixed to seal furnaces.
Appellants’ three issues pertaining to the motions filed by Chesterton,
ACE, Monsey, and Pecora present interrelated issues. We consequently will
discuss them together.
Appellants’ broad contention is that the trial court
misapplied the standard it was required to follow when considering
Appellees’ motions for summary judgment in three ways.
5
Appellant first
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contends the trial court erred by misinterpreting a plaintiff’s burden to
establish regular, frequent, and proximate exposure to asbestos from a
defendant’s product under prevailing case law in a mesothelioma case. “The
lower court erroneously interpreted Gregg as requiring the same regularity,
frequency and proximity in all asbestos cases, regardless of the injured
party’s disease. In so doing, it ignored the fact that Gregg was following
Tragarz [v. Keene Corp., 980 F.2d 411 (7th Cir.1992)], which held that in
such diseases as mesothelioma, a small amount of asbestos exposure can
cause mesothelioma.” Appellant’s Brief at 16-17. Appellant next contends
the trial court erred by finding Ravert’s factual admissions about an absence
of visible asbestos-containing dust were equivalent to admissions of an
absence of invisible respirable asbestos fibers.
“[Appellants’] expert
affidavits, along with the testimony of defense witnesses Drs. Sawyer,
Roggli, and Krebs, all stated that asbestos fibers are not necessarily visible
to the naked eye. Thus, it was an error of law for the lower court to equate
visible dust with respirable dust.” Id. at 18. Finally, Appellant alleges the
trial court erred by discounting the relevance of his experts’ affidavits in
establishing a genuine issue of material fact relative to Ravert’s exposure to
asbestos from Appellees’ products.
“Since Mr. Ravert used Chesterton
asbestos packing, as well as Ace, Monsey and Pecora asbestos cements, it
was error to say that the affidavits addressing the use of asbestos products
and these types of products in particular, were not relevant to whether there
6
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was a genuine issue of material fact as to the issue of whether [Appellees’]
asbestos products were causes-in-fact of Mr. Ravert’s mesothelioma.” Id. at
20.
Relying chiefly on portions of Ravert’s deposition, the trial court
concluded Ravert’s admissions that he did not see any “dust” when using
Appellees’ products precluded a finding that a material issue of fact existed
relative to Ravert’s exposure to asbestos from those products.
Decedent, John Ravert was deposed by all
[Appellees] on June 25-27, 2007 and July 17-18,
2007. His deposition testimony fails to establish that
[Ravert] was exposed to asbestos fibers or asbestos
dust shed from working with [Appellees’] products
with the frequency, regularity, and proximity
required under Pennsylvania law.1
1
The terms “dust” and “fibers” are used interchangeably as they
are microscopic and cannot generally be seen with the naked
eye.
Trial Court Opinion, 3/24/11, at 4 (footnote in original).
We agree with Appellant that the trial court failed to interpret the
evidence in a light most favorable to the nonmoving party. Rather, the trial
court engaged in an inappropriate weighing of the evidence, and the
inferences to be drawn therefrom, to conclude that no genuine issue of
material fact existed relative to Ravert’s exposure to respirable asbestos
fibers from Appellees’ products.
With respect to the standard applied by the trial court in evaluating
Appellants’ burden in an asbestos product liability case under Eckenrod,
7
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supra, and its progeny, we note the following recent articulation of the
standard by this Court.
In Pennsylvania, a plaintiff who suffers an asbestos
related injury is not required to establish the specific
role played by each individual asbestos fiber within
the body; nor must the plaintiff quantify the specific
level or duration of his asbestos exposure. Instead,
in order to make out a prima facie case, it is well
established that the plaintiff must present evidence
that he inhaled some asbestos fibers shed by the
specific manufacturer’s product.
In assessing a
plaintiff’s evidence, Pennsylvania courts employ the
frequency, regularity and proximity test.
The frequency, regularity and proximity test is
not a rigid test with an absolute threshold necessary
to support liability. Gregg v. V–J Auto Parts Co.,
596 Pa. 274, 943 A.2d 216, 225 (2007). Rather,
application of the test should be tailored to the facts
and circumstances of the case; 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 less
cumbersome when dealing with cases involving
diseases, like mesothelioma, which can develop
after only minor exposures to asbestos fibers.
Linster v. Allied Signal, Inc., 21 A.3d 220, 223-224 (Pa. Super. 2011)
(emphasis added).
In its 1925(a) opinion, the trial court described the test it followed in
reviewing Appellees’ motions for summary judgment as follows.
Our Superior Court in Eckenrod vs. GAF Corp., 544
A.2d 50 (Pa. Super. 1988), set forth the elements
necessary to prove a prima facie case of asbestos
liability:
8
J. A23018/11
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 the plaintiff’s
injury.
Id. at 52 (internal citations omitted).
Further, our Supreme Court in Gregg v. VJ
Auto Parts, Co., 943 A.2d 216 (Pa. 2007), recently
reiterated the duty of a lower court when reviewing
an asbestos motion for summary [judgment] based
on product identification:
… [W]e 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
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.
Id. at 30.
Trial Court Opinion, 3/24/11, at 4.
Significantly, the trial court does not cite nor apparently follow the
qualifying principles first expressed in Gregg, supra, and reiterated in
9
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Linster, supra, regarding the flexibility of a plaintiff’s burden as tailored to
each specific case.
Accordingly, Appellant alleges “[t]he [trial] court
erroneously interpreted Gregg as requiring the same regularity, frequency
and proximity in all asbestos cases, regardless of the injured party’s
disease.”
Appellant’s brief at 17.
We agree.
By applying the Ekenrod
standard without adapting it to the particular circumstances of this case,
including Ravert’s diagnosis of mesothelioma, we conclude the trial court
erred.
It remains for us to determine if the alleged deficiencies in Appellants’
case, relied on by the trial court in granting the summary judgment motions,
are sufficient to uphold the trial court’s determination under the proper
standard.
We turn, therefore, to the trial court’s reliance on purported
admissions contained in Ravert’s deposition testimony. The trial court cited
the following excerpts of Ravert’s deposition testimony in reaching its
decision.
In connection with Chesterton products, Appellant testified as follows.
Q
There wasn’t any dust created in that process:
was there?
A
No. There was dust from the people walking in
the basement.
Chesterton’s Motion for Summary Judgment, Exhibit A, N.T., Deposition of
John Ravert, 7/17/07, at 281; C.R. at 97.
In connection with ACE products, Appellant testified as follows.
10
J. A23018/11
Q
When you would purchase the roof coat, can you explain
how you would use the roof coat?
A
How I used the roof coat?
Q
Yes.
MR. PAUL: You're talking about
the Ace one?
MS. ADAMS: Yes, yes.
THE WITNESS: Well, the first thing I would do
is I would bring it up to the roof. The second thing is
I would pry it open, then I would take and put it over
the spot to renew the spot that was damaged.
BY MS. ADAMS:
Q
And what type of tool would you use to put it
over the spot?
A
You could use a brush or you can use a mop,
or -- you know, either one. I usually used a mop, an
old mop to spread it around. But we would leave it
on the roof and they would dry out, so you couldn't
use them anymore.
Q
When you were applying the roof coat, was
there any type of dust generated in that process?
A
Just cleaning the roof where you were going to
put it down. You got that dust in there.
Q
But no dust from the roof coat itself?
A
No. It was a liquid, now.
can get dust from a liquid.
I don’t believe you
Q
Now, as for the roofing cement, can you tell
me how you used the roofing cement?
A
Well, say downstairs there would be a leak and
we couldn’t find the leak up there, so I would get
down on my knees and hands and keep going over
11
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the spot where it was leaking. Basically where -just about the spot where it was leaking until I found
it, then I would take and put the roof cement down
over that and a piece of gauze and then another
coating of roof cement.
Q
And how would you apply the roof cement?
A
With a trowel.
Q
And was any dust generated when you were
using the roof cement?
A
No.
ACE’s Motion for Summary Judgment, Exhibit B, N.T., Deposition of John
Ravert, 7/18/07, at 604-605; C.R. at 122.
In connection with Monsey products, Appellant testified as follows.
Q
How about the roof coating, how long –
A
The roof coating would be two days and it
would be perfectly dry depending if it had a lot of
bubbles and get some of the bubbles and stuff like
that.
Q
Was there any dust involved in the application
of either the cement or the coating?
A
They were a liquid, they didn’t have dust. But
cleaning off the roof, you know, the old dust from
the tar paper.
Q
Was there any dust involved in the application
of the tar paper?
A
No.
Monsey’s Motion for Summary Judgment, Exhibit A, N.T., Deposition of John
Ravert, 7/18/07, at 502; C.R. at 95.
12
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In connection with Pecora products, Appellant testified as follows.
Q
Sir, from the description of applying this
product, either by hand or with a trowel, this would
not be considered a dusty application; would it?
A
No –
MR. PAUL: What you guys are talking about -my question is, because it's a definitional question,
what do you mean by “dusty”? I object to the form.
THE WITNESS: He’s objecting to –
MR. PAUL: I’m objecting to the form. The
question is, I’m not sure that you and he used the
term “dusty” in the same way, so I would like him to
define what he means by it or –
THE WITNESS: Can you define what you mean
by “dusty”?
BY MR. HADDEN:
Q
Do you understand my question, sir?
A
You just asked me if it was a dusty product.
Q
The application, putting this product onto the
furnaces, that was not, in your mind, a dusty
application; was it?
A
No, no.
Pecora’s Motion for Summary Judgment, Exhibit A, N.T., Deposition of John
Ravert, 6/27/07, at 333-334; C.R. at 98.
Indeed the trial court, in its 1925(a) opinion, indicated “[t]he terms
‘dust’ and ‘fibers’ are used interchangeably as they are microscopic and
cannot generally be seen with the naked eye.” Trial Court Opinion, 3/24/11,
13
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at 4, n.1. However, no such equivalency between the terms was expressed
or implied in the questions posed to Ravert or in his responses.
We note
that nowhere in the deposition transcript is the term “dust” defined.
Neither, in the context of the questions posed to Ravert, is a meaning other
than its common usage stated or implied. We conclude the trial court erred
to the extent it equated Ravert’s responses about the dustiness of the
various products or their application with an admission that no Asbestos
fibers were inhaled from those products or applications.
In doing so the
trial court did not construe the testimony in the light most favorable to the
nonmoving party and imposed its own inferences on the evidence when an
alternate inference, that no visible dust was inhaled, was possible.
Appellants sought to establish that Ravert, nevertheless inhaled
invisible asbestos fibers from his contact, use and application of Appellee’s
products through the use of expert affidavits and exhibits.
Ravert testified
to his use of and proximity to the various products at different times
throughout his years of employment.
See generally Deposition of John
Ravert, 6/27/07, 7/17-18/07; C.R. at 95, 97, 98, 122.
To support an
inference that the use and proximity described could result in inhalation of
asbestos fibers from those products, Appellants proffered a number of
expert affidavits and reports.
These include the following excerpts from
affidavits attached to Appellants’ answers to the various motions for
summary judgment.
14
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11
Any witness herein who testifies that when he
or a coworker handled the asbestos gaskets,
packing, welding rods, brake linings or even
cement products, that he did not see asbestos
or other airborne fibers, was exposed to and
inhaled without his knowledge, millions of
asbestos fibers.
12
Any gasket, packing, brake lining, welding rod
or cement manufacturer who argues that there
was no exposure to asbestos dust from its
product: because a witness testified that he did
not see any dust is making a false argument.
These products release asbestos fibers in their
ordinary and intended use.
Appellants’ Answers to Appellees’ Motions for Summary Judgment, Exhibit,
11/16/06 Affidavit of James Gerard, Ph.D.; C.R. at 130-140.
18. The encapsulation of asbestos-containing
materials does not prevent individuals from being
exposed to asbestos fibers in a manner that can
cause disease as the encapsulation is never 100%
and various factors cause the encapsulation to break
apart, such as heat, fracture, friction, or abrasion.
Also, initially moist asbestos-containing materials
can dry out and subsequently release diseasecausing asbestos fibers. The encapsulation is often
damaged in the operations described in this
paragraph, releasing asbestos fibers under such
circumstances.
…
21. Taken together, it is my opinion, to a reasonable
degree of medical certainty, that exposure to
asbestos from gaskets and/or packing materials
and/or welding rod or brake linings or cement can
substantially contribute to cause the development of
asbestos-related diseases and did so in this or any
other gasket, brake lining or welding rod case where
the exposures are determined to exist.
15
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22. In the instant matter there was sufficient
exposure to asbestos from gaskets, packing, brake
linings, welding rods or cement and/or other
products to determine that such exposure was a
substantial contributing factor in causing the disease.
Appellants’ Answers to Appellees’ Motions for Summary Judgment, Exhibit,
2/26/07 Affidavit of Arthur Frank, M.D.; C.R. at 130-140.
The trial court discounted this evidence as follows.
Now burdened with [Ravert’s] testimony which
cannot support its claims, [Appellants] go on to
engage in a deconstruction of this testimonial
evidence and create an artificial record which
attempts to dehor [Ravert’s] observation denying the
existence of asbestos dust. They submitted seven
exhibits along with their Response to the Motion for
Summary Judgment alleging that roof cement
products dried quickly enough so as to see asbestos
dust. [Appellants] also submitted several affidavits,
pretrial examinations, and news articles in an
attempt to support their claims that respirable fibers
were present. However much of this information is
irrelevant to this case in general and ACE
specifically.
The simple fact remains that
[Appellants’] attempt to impeach [Ravert] fails
because [Ravert] testified that he never inhaled dust
from ACE roofing materials. Clearly, [Appellants]
cannot meet the Ekenrod test.
Trial Court Opinion, 3/24/11, at 6 (citations to record omitted).
We recognize, as pointed out by Appellees, that our Supreme Court
in Gregg noted that “one of the difficulties courts face in the mass tort cases
arises on account of a willingness on the part of some experts to offer
opinions that are not fairly grounded in a reasonable belief concerning the
underlying facts and/or opinions that are not couched within accepted
16
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scientific methodology.”
Gregg, supra at 226.
Our Supreme Court
concluded, “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.” Id. at 227.
Appellees justify the trial court’s position by questioning the validity of
the opinions advanced in Appellants’ submissions. For example, ACE argued
in its appellate brief that
neither of the expert affidavits relied upon by
[Appellants] in this matter define a methodology in
their decision making or even cite to any scientific
studies or articles conducted on roofing products
which would support the conclusions made in their
affidavits. These affidavits are merely compilations
of
generic,
non-case
specific,
self-serving,
generalized opinions that have no basis in scientific
fact and are not sufficient to meet the threshold
causation requirement and survive summary
judgment. Consequently, the lower court acted well
within its discretion in determining that they were
insufficient to meet the competency and reliability
requirements to overcome summary judgment.
ACE’s Brief at 20.
We note that such a restrictive reading of Gregg has been qualified
when dealing with diseases such as mesothelioma.
As we construe these arguments, the medical
opinion that “each and every breath” contributed to
cause Mr. Hicks’ disease should be rejected as a
17
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matter of law because it would allow plaintiffs to
recover after establishing exposure to only very
small amounts of asbestos fibers as opposed to a
substantial number of fibers. We believe this is an
overly expansive reading of the holding in Gregg.
We note, as the Tragarz court made clear,
the substantial factor test is not concerned
with the quantity of the injury-producing agent
or force but rather with its legal significance.
… Where there is competent evidence that one
or a de minimis number of asbestos fibers can
cause injury, a jury may conclude the fibers
were a substantial factor in causing a plaintiff’s
injury.
Tragarz, 980 F.2d at 421 (quoting Wehmeier v.
UNR Industries, Inc., 213 Ill.App.3d 6, 31, 157
Ill.Dec. 251, 572 N.E.2d 320 (Ill.App.Ct. 4th
Dist.1991)).
Estate of Hicks v. Dana Companies, LLC, 984 A.2d 943, 957 (Pa. Super.
2009), appeal denied, 19 A.3d 1051 (Pa. 2010), appeal denied, 19 A.3d
1052 (Pa. 2010).
“We do not read Gregg as precluding an expert from
opining that Mr. Hicks’ mesothelioma resulted from the cumulative effect of
repeated, low-level exposures over a forty-year work history.” Id. at 959.
Instantly, the trial court does not elaborate on its dismissiveness
toward Appellants’ expert exhibits and affidavits other than to refer back to
Ravert’s statements relative to “dust” in the application of Appellees’
products.
This is not the “reasoned assessment” contemplated by Gregg,
and we conclude the trial court’s determination that no genuine issue of
material fact existed relative to Ravert’s exposure to asbestos from
Appellees’ products was erroneous.
18
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We turn now to the summary judgment granted to Union Carbide. The
trial court based its grant of Union Carbide’s summary judgment motion on
testimony from Ravert it deemed precluded the possibility he was exposed
to Union Carbide’s product.
The trial court cited the following portions of
Ravert’s testimony.
Q
What’s your date of birth?
A
May 16, 1946.
…
Q
And what was your first job, sir?
A
My first job was at Bee Fuel Oil Company.
Q
What did you do for Bee Fuel?
A
For Bee Fuel Oil Company?
Q
Yes. What type of work did you do?
A
When I first stated [sic], I worked there in the
summer, just —
Q
How old were you?
A
I was fourteen.
Q
So, we’re talking
something like that?
A
about
1950
—
1960,
Yeah, something like that.
Union Carbide’s Motion for Summary Judgment, Exhibit A, N.T., Deposition
of John Ravert, 7/18/07, at 11-12; C.R. at 128.
Q
sir?
What period of time did you work for Bee Fuel,
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A
Like I said, from fourteen almost until I was
sixteen, almost.
Id. at 15.
Q
Okay. With the bags of asbestos?
A
No, we didn’t use asbestos.
cement that contained asbestos.
We used the
Q
The Union Carbide bag that we just spoke
about, those bags you recall from Bee Fuel Oil
Company; is that correct?
A
Yes.
Q
Okay. And that’s the only place you recall
them from; is that correct?
A
Yes. Gypsum Company, too, we used.
was two.
MR. PAUL:
Carbide.
There
She only asked about Union
THE WITNESS: Oh, Union Carbide. Yeah, but
I told her before this.
Appellants’ Response to Union Carbide’s Motion for Summary Judgment,
Exhibit A, N.T., Deposition of John Ravert, 7/18/07, at 555-556; C.R. at
140.3
The trial court noted that affidavits submitted by Union Carbide
asserted that the product allegedly used by Ravert during his employment at
Bee Fuel Company was not manufactured until 1963, after Ravert ended his
3
Ravert stated in his 2007 complaint that he worked for Bee Fuel from
1962-1964.
20
J. A23018/11
employment at Bee Fuel Company.
“Plaintiff’s tacit approval of [Union
Carbide’s] assertion that [it] did not manufacture the bags of asbestos
[Ravert] remembers until 1963 is enough to resolve doubt that there exists
any material fact.” Trial Court Opinion, 3/24/11, at 12.
Appellant counters that
[Appellants] made no such tacit approval, as the
[trial] court conflated statements on several different
products to ignore and reject evidence that favored
the moving party.
Mr. Ravert testified about
asbestos powder, [the affidavit submitted by Union
Carbide] Calidra fiber, and [Appellants’] response
refers to another type of product, “pastes and
cements[”] for high temperature uses in steel plants,
and attached evidence of Union Carbide’s use of
asbestos “in the field”, i.e., outside its plants. It is
not unreasonable to infer that Union Carbide
distributed asbestos cement, since it certainly used
asbestos cement in the years prior to Mr. Ravert’s
employment with Bee Fuel, or that Mr. Ravert erred
in his recollection of time periods.
Appellants’ Brief at 24 (emphasis in original) (citations omitted).
After a
review of the entire record, we conclude a genuine issue of material fact
exists relative to Ravert’s exposure to asbestos from a Union Carbide
product. In so concluding, we are mindful of the rule in Borough of NantyGlo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932), that an
affidavit from a corporate witness cannot serve as a ground for granting
summary judgment when contradictory evidence exists.
Instantly, Ravert
gave a detailed description of his use of an asbestos powder from bags
labeled “Union Carbide” while mixing cement when employed at Bee Fuel
21
J. A23018/11
Company.
The reliability of Ravert’s recollections is an issue for a jury.
Consequently, we conclude the trial court’s grant of summary judgment for
Union Carbide on the basis of a credibility determination of Ravert’s
testimony and Union Carbide’s affidavits was error.
For all the foregoing reasons, we reverse the orders granting
Appellees’ motions for summary judgment, vacate the judgment in favor of
Appellees, and remand for further proceedings.
Orders reversed.
Judgment vacated.
relinquished.
22
Case remanded.
Jurisdiction
