Pennsylvania Appellate Court Decision

On October 22, 2014, the Superior Court of Pennsylvania issued an opinion in Krauss v. Trane US Inc., et al., 2014 PA Super 241, which reaffirms several principles of Pennsylvania law important to defendants in asbestos litigation. In a seventy-page opinion, Justices Shogan, Stabile and Platt discussed the application and interpretation of governing precedent, and affirmed the trial court's grant of summary judgment to several defendants. This opinion bolsters several legal principles governing the admissibility of plaintiffs' evidence offered to defeat summary judgment.

In summary, the Court found that the Eckenrod "frequency, regularity, proximity" exposure test applies to both circumstantial and direct evidence and provides useful guidance in distinguishing cases where the likelihood of harmful exposure "is absent on account of only casual or minimal exposure to the defendant's product." Gregg v. V-J Auto Parts Company, 943 A.2d 216, 225 (citing Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992). Summary judgment motions enable the court to determine whether plaintiffs' evidence creates a genuine issue of fact - that is, a factual inference - which is not based upon de minimus exposure. The Court approvingly cited Gregg's rejection of the "fiction that each and every breath of asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial factor-causation." Full joint and several liability should not be imposed "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." Gregg, 943 A.2d 216, at 226 -27. Experts must make "some reasoned, individualized assessment of a plaintiff's or decedent's exposure history" to support opinions regarding substantial causation. Howard v. A.W. Chesterton, Co. 78 A.3d 605, 608 (Pa. 2013).

 The Court reiterated that lay witness opinions are subject to scrutiny under Pa RCP 701 requiring (in order to be admissible) that the lay opinions are

(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.

The Court found that the lower court properly rejected the supporting affidavits of witnesses that did not establish, on the basis of personal knowledge, that products in issue contained asbestos, or that the decedent was exposed to asbestos from particular products. In all, this decision is a welcome addition to the arsenal of authority available to defense counsel moving for summary judgment in appropriate Pennsylvania asbestos cases.

 

In the long-anticipated Fayer/Mystrena decision issued April 23, 2014, the Appellate Division held that an equipment manufacturer has a duty to warn that replacement component parts may contain asbestos. The Court found the imposition of such a duty to be "reasonable, practical and feasible." However, it rejected plaintiffs' argument that causation may be proved by the likelihood that defendant's equipment may have been used with asbestos-containing replacement parts, in the absence of proof that such parts were actually used and that plaintiff was actually exposed to them.

 

Plaintiffs had appealed from orders granting summary judgment to defendant Goulds' Pumps dismissing their claims with prejudice. The claims arose from plaintiffs' allegations that they contracted asbestos-related diseases as a result of their exposure to asbestos contained in component parts of pumps manufactured by Goulds.

 

The replacement of component parts was found to be part of regular maintenance. It was also found that the foreseeable market for replacement parts, for at least part of plaintiff's exposure period, was dominated by asbestos-containing parts.  Therefore, it was reasonably foreseeable at the time the Goulds'  pumps were placed into the marketplace that original gaskets and packing would be regularly replaced with gaskets and packing that contained asbestos.   In the Court's view, a warning given at the time of the initial sale would ensure that this information was available to be considered in subsequent decisions regarding the choice of replacement parts and any additional safeguards for workers who made the replacements. 

 

Plaintiffs must prove exposure to the asbestos from those specific replacement products frequently, on a regular basis, and with sufficient proximity so as to demonstrate the requisite causal connection between the exposure and plaintiffs' illnesses. To satisfy the standard, expert proof would usually be required to establish, even inferentially, that the exposures caused or exacerbated plaintiffs' eventual injuries.  This proof would be in addition to the expert proof of the asbestos-related injury itself.  Plaintiffs must still present evidence of sufficient exposure supported by appropriate expert testimony such that the exposure would cause disease.

 

In New Jersey, equipment manufacturers now have a duty to warn regarding replacement parts where there is proof that it is reasonably foreseeable that asbestos-containing replacement parts would have been used. Equipment manufacturers will likely turn their focus to developing evidence either that it was not foreseeable that their products would be used with asbestos-containing replacement parts, or that a plaintiff is unable to identify the manufacturers or seller of the replacement parts and that there is insufficient evidence of a plaintiff's exposure to friable asbestos from a replacement part.

 

The opinion has at least two potential and significant consequences.  First, plaintiffs with cases against equipment manufacturers will now develop appropriate facts as to the manufacturer's knowledge of the marketplace for replacement parts.  If they prove that the replacement parts likely contained asbestos, they may seek partial summary judgment as to liability for breach of the duty to warn and without the need for expert testimony.  Second, plaintiffs must be specific as to their personal exposure to replacement parts.  They cannot rely on being in the same area without evidence of "frequency, regularity and proximity" of exposure.

 

If you have any questions regarding this decision, feel free to contact Joel Clark  at 973-822-1110.

Blakely Obtains No-Cause in NYCAL Trial
On Tuesday March 18th jury verdicts were rendered in the Harry Brown and Patrick McCloskey matters.  These cases were venued in the New York County Asbestos Litigation ("NYCAL").  McGivney & Kluger client Mario & DiBono was defended by M&K Partner Marvin Blakely and Jeffrey Feegan of Cullen & Dykman.
 
The jury in these cases awarded Brown's estate $2.5 million for past pain and suffering and $1 million for loss of consortium-a total of $3.5 million. Mario & DiBono was levied 0% liability. Despite the fact that our client was found negligent and caused plaintiff to be exposed to asbestos, Mario & DiBono was not held to be a substantial contributing factor in plaintiff's injuries. As to McCloskey, the jury awarded his estate $4 million for past pain and suffering and $2 million for loss of consortium-a total of $6 million.  Mario & DiBono was found to be reckless and was assigned 25% of the verdict.
 
These cases were part of Weitz & Luxenberg's April 2013 In Extremis trial cluster. Both matters were tried jointly before Justice Jaffe. Plaintiffs were represented by Dan Craft, Michael Fanelli, and Phan Alvarado of Weitz & Luxenberg.  Jury selection commenced the first week of November 2013. Parties began their closing statements on Friday, March 7th and the jury was charged on March 10th.
 
Con Edison, sued due to their ownership of numerous powerhouses, The Port Authority, Tishman, and Mario & DiBono were the only remaining defendants in both matters. The Brown matter involved a deceased seventy-four (74) year old mesothelioma claimant with approximately fifteen (15) months of pain and suffering. Mr. Brown alleged exposure to asbestos during his career as an insulator at various construction and powerhouse sites throughout the New York metropolitan area. At his discovery deposition, plaintiff identified twenty-two (22) entities that contributed to his exposure to asbestos. The McCloskey matter involved a deceased sixty-nine (69) year old mesothelioma plaintiff with sixteen (16) months of pain and suffering. Akin to Mr. Brown, Mr. McCloskey alleged exposure to asbestos throughout his career as a steamfitter; he identified forty-six (46) potentially culpable entities at his discovery deposition.
 
The central work site litigated by plaintiffs' counsel in both matters was the initial construction of the World Trade Center, which was owned by the Port Authority. Tishman served as the general contractor/construction agent and Mario & DiBono was the primary fireproofing contractor at this location. The use of asbestos at this site, especially spray fireproofing, was the subject of numerous reports in the print and television media. The product was ultimately banned by New York City's EPA in the Spring of 1970, after thirty-four (34) citations were issued to seven (7) sites using asbestos-containing spray fireproofing to construct skyscrapers in Manhattan. The World Trade Center received three (3) of these citations.
 
Overall, we believe these verdicts are a welcome departure from the inflated NYCAL verdicts in recent years. Just one year ago, a NYCAL jury awarded a deceased mesothelioma claimant $35 million in the Peraica matter. Accordingly verdicts of $3.5 million and $6 million are very favorable for the NYCAL defense bar. This is  further amplified by: 1) the fact that these verdicts will be significantly reduced after all set offs are calculated; and 2) Mario & DiBono received a No-Cause award in the Brown matter. It is our hope that these cases will not only pave the way for lower verdicts in future trials, but also serve to drive down settlement demands from the various plaintiffs' counsel in the NYCAL as well.
 
Please do not hesitate to contact M&K Partner Kerryann Cook should you have any questions.
 

It has been officially announced that Chief Justice Stuart Rabner  signed an Order, effective March 1, 2014, assigning all New Jersey asbestos matters to Judge Ana Viscomi in Middlesex County, replacing Judge Vincent LeBlon.  Judge  Viscomi served as the Special Master for several years in the 1990s and then served as an Administrative Law Judge for a number of years before her elevation to the state court bench on March 5, 2012. Judge Viscomi was in the Family Division since September 2012.  She has her B.A. from the University of Maryland and her J.D from New York Law School. 

Judge LeBlon will hear asbestos motions through March 14, 2014.  Judge Viscomi will hear all asbestos motions beginning with the March 28, 2014 return date.   Officially, trials which are scheduled to begin February 24, 2014 will continue to be handled by Judge LeBlon. Thereafter, the Special Master will be conducting trial calls for cases listed in March 2014.  Beginning in April 2014, Judge Viscomi will handle trial calls for all cases with trial dates thereafter.  For the sake of continuity, Judge LeBlon’s law clerk will be re-assigned to Judge Viscomi.   There is discussion about using Judge LeBlon and Judge Philip Paley as  ‘backup’ judges for asbestos matters when needed. 

We are told that the Special Master and the asbestos staff are preparing a new trial list through June 2014.  The plan appears to be to list for trial all cases with 2008 and 2009 docket numbers, as well as all cases, regardless of filing date, where plaintiff is alive and has an asbestos-related malignancy.  It  remains to be seen the extent to which this plan will be implemented and whether any new trial dates will effectively become ‘control dates’ for case management conferences where the Special Master will attempt to set shorter/more demanding schedules to encourage settlements and/or clear the docket of cases that are not significant ‘trial threats.’

Judge Viscomi has let it be known that she considers dialogue between the bench and bar very important.  She is strongly considering re-energizing the Asbestos Advisory Committee, which has met infrequently over the last several years and which her predecessors did not regularly utilize.  She has requested that members of the asbestos bar decide amongst themselves who should be on it with three attorneys to represent the plaintiffs’ bar and five from the defense bar.  Her Honor suggests that members be selected based on the numbers and types of cases being tried.  For example, defense members should include firms with clients comprising premises, friction and talc defendants, and membership may be extended to include electrical products and fertilizer manufacturers for future meetings.  The group may be enlarged if needed.   Counsel are to submit suggested membership to the Court and the Special Master by Friday, April 11.

Judge Viscomi will continue all current practices and procedures for now. Her Honor has said she will consider changes going forward with input from the bar.  She is interested in evaluating the methodology and effectiveness of selecting cases for the present “trial ready” list.   It has been suggested that she would go back to not having a separate “trial ready” list and going back to the "old" system of having a calendar call for the asbestos docket.   Her Honor is also evaluating the pretrial preparation process instituted by Judge LeBlon and will be looking for input from the bar accordingly.

During her time as the Special Master, Judge Viscomi had a reputation of pushing matters towards settlement.  Given Judge Viscomi’s lack of civil trial experience and her absence from the asbestos litigation for a number of years, we do not believe that she will issue any groundbreaking decisions until she develops a comfort level with the litigation and the issues. She is also not bound to follow Judge LeBlon’s or Judge McCormick’s decisions but may look to them for guidance.   The comments related above suggest that Her Honor is nonetheless willing to chart her own course administratively and consider new proposals.

In comparison to his predecessor, Judge McCormick, Judge LeBlon’s rulings demonstrated a willingness to give greater consideration to defensive arguments on matters of causation and product identification.  Consequently, His Honor appeared more willing to grant summary judgment to defendants.  As Judge Viscomi’s judicial experience has solely been in the Family Division, it remains to be seen whether Her Honor will continue those positions or chart her own course.   While her tenure as the Special Master suggests a more plaintiff-oriented approach, that was developed in the settlement arena and not with respect to substantive issues. Judge LeBlon did follow Judge McCormick’s lead in granting certain defense motions under the bare metal/component part defense, and it will be interesting to see whether Judge Viscomi continues on that path.  Judge LeBlon is apparently looking to wrap-up his motion calendar of reserved decisions, included several motions regarding the bare metal defense.

 

NYCAL Update

February 18, 2014

As of late, there have been a number of New York City Asbestos Litigation (“NYCAL”) related cases wherein defendants have been denied summary judgment in cases involving defendants whom have claimed to have not manufactured the type of product identified by plaintiff.  As an example, in Cantolino v. A.O. Smith, et al (Index No. 190211/12), defendant Baxter Healthcare (“Scientific Products”) moved for summary judgment based upon several grounds, one being it did not manufacture many of the products identified by plaintiff. In support of this contention, Scientific Products submitted the affidavit of a corporate representative who had reviewed the company’s catalogs.  The court, however, noted that defendant did not submit any of the documents upon which the affiant based his statements.  Notably, in a footnote, the court stated “As this court has held many times, unsupported and uncross-examined statements by a corporate representative are generally insufficient to form the basis of a summary judgment motion.” See Zuckerman v. City of NY, 49 NY2d 557 (1980), Republic Nat. Bank of NY v. Luis Winston, Inc.,107 AD2d 581 (1st Dep’t 1985).

Due to the court’s trend in denying motions supported solely by corporate representative affidavits, it became apparent the court expected movants to submit underlying documents (catalogues, marketing materials, MSDS sheets, etc) along with corporate representative testimony to support their motions. As a result, a number of defendants began doing so.  In response to these revamped efforts, the court has now begun to further discredit defendant’s supporting materials. As an example, Justice Heitler recently denied defendant Rheem’s motion for summary judgment in the Zimmerman matter. During his deposition, Plaintiff identified Rheem water heaters as a source of his exposure to asbestos. Rheem argued the insulation associated with the water heaters was fiberglass, and not asbestos.  In support of its motion, Rheem submitted the affidavit of a corporate representative whose conclusions were supported by two (2) catalogs. The court held, the catalogs were undated and, as such “would only invite speculation” to assume the water heaters depicted in the catalogs were the same as identified by plaintiff. Further, it was “questionable” whether the catalogs represented “the totality” of Rheem’s water heaters available during the course of plaintiff’s career.

Fortunately, Justice Heitler has continued somewhat of a trend of granting summary judgment to non-product defendants (i.e. contractors).  In Dolan v A.O. Smith, et al, plaintiff identified Gerosa, represented by McGivney & Kluger, as a contractor that removed and transported transformers to his Con Edison repair shop from 1963 through 1979. Plaintiff claimed he was exposed to asbestos from Gerosa employees who brushed dust and debris off the top of the transformers while rigging for removal. Plaintiff’s counsel failed to address any duty to warn issues and instead argued Gerosa breached its duty of care. In this regard, plaintiff’s counsel Wilentz Goldman reasoned that Gerosa assumed a duty of care to third persons from Con Edison.  Counsel further argued, citing to a lead poisoning case, Gerosa exacerbated a dangerous condition.  The court held that Gerosa “only provided rigging and transportation services, nothing more.”  Further, Gerosa’s actions "had nothing to do with” the installation, removal or application of asbestos.  As such, Gerosa’s actions cannot be said to have created or exacerbated a dangerous condition.  More importantly, the court noted “mere disturbance of dust that had settled on surfaces….cannot render Gerosa liable for plaintiff’s exposures.” Id.

On the trial judge front, there have been some significant changes.  Justice Heitler announced that Justice Silver will no longer be assigned new asbestos trials.  However, Justice Silver will finish the cases already assigned to his courtroom.  As you may recall, Justice Silver was first anointed as an asbestos trial judge in early 2013.

In addition, Justice Saliann Scarpulla will no longer receive asbestos cases for trial.  As with Justice Silver, Justice Scarpulla will continue her current case assignments until final disposition.  Lastly, Justice Cynthia S. Kern has been designated as a new asbestos trial judge in the NYCAL.  Justice Kern was elected to the Civil Court bench in 1999 and has resided over both criminal and civil cases.  Immediately prior to being elected as a Civil Court Judge, she spent eight (8) years working as the principal law clerk for Supreme Court Justice Joan B. Lobis.  Prior to working with Judge Lobis, she spent over six (6) years working as a litigator in the state and federal courts.  She received her law degree cum laude from New York University School of Law in 1985, graduating order of the coif.  Justice Kern has been extensively involved in bar association activities and community activities during her legal career, including a year as the president of the Lesbian and Gay Law Association of Greater New York.  Justice Kern has no prior asbestos-related experience.