The Pennsylvania Superior Court recently issued two decisions that present challenges to defendants in prevailing at summary judgment in asbestos cases.
In Korol v. Warren Pump, the Superior Court held that the plaintiff presented sufficient evidence to overcome summary judgment.[i] This lawsuit alleged that the decedent, Thomas Korol, developed mesothelioma from exposure to asbestos while working onboard the U.S.S. Dahlgren as a fireman and fireman’s apprentice from 1961 to 1963.[ii] Mr. Korol was never deposed but relied on the testimony of three coworkers from the U.S. Navy.[iii] Two of the coworkers testified that they did not specifically remember Mr. Korol from their time aboard the U.S.S. Dahlgren.[iv] The third coworker testified he worked with Mr. Korol for a “short time” in the fireroom on the U.S.S. Dahlgren.[v] He never actually saw Mr. Korol removing gaskets from pumps but testified that if someone were a fireman, they would have removed gaskets.[vi]
A pump manufacturer (Warren) and a valve manufacturer (Crane) moved for summary judgment, arguing that none of the testimony from the decedent’s coworkers established that they saw the decedent work on their products or saw anyone else work on their products in the vicinity of the decedent.[vii]
The Superior Court held that, given the totality of the evidence, the plaintiff presented sufficient evidence of asbestos exposure to overcome summary judgment.[viii] The Court reasoned that the following record evidence was sufficient to create genuine issues of material fact: the decedent worked as a fireman and fireman’s apprentice in the firerooms and engine rooms on the U.S.S. Dahlgren for 28 months; one coworker testified he worked with the decedent for a “short time” in the fireroom of the U.S.S. Dahlgren; those rooms contained valves manufactured by Crane and pumps manufactured by Warren; in those rooms, sailors often removed and replaced asbestos gaskets and packing on pumps and valves by scraping the gaskets from the metal surfaces; this scraping created dust that was released into the air; the confines of the firerooms and engine rooms were extremely tight; and, because of the close quarters, anyone who worked in the firerooms and engine rooms would have been very close to someone scraping a gasket or would, himself, have been scraping a gasket.[ix]
In Mullen v. American Circuit Breaker Corporation, the Superior Court held that testimony by the decedent’s coworker that the rope gasket “looked like standard asbestos rope,” combined with his personal experience with asbestos, was sufficient to overcome summary judgment.[x] This lawsuit alleged that the decedent, James Myers, contracted mesothelioma during his time working at Sunbeam Equipment Corporation from 1967 to 2017.[xi] Mr. Myers was never deposed but relied on the testimony of numerous coworkers from Sunbeam.[xii]
George Carl, one of the decedent’s coworkers, testified there were Firecheck safety valves at Sunbeam that contained rope gasket.[xiii] This rope gasket sometimes had to be replaced, which created dust.[xiv] He testified this rope gasket material “looked like standard asbestos rope,” and based on his personal experience, the gaskets used in the Firecheck valves looked like asbestos.[xv] Mr. Carl never saw any documentation that the rope contained asbestos.[xvi] He testified that the decedent was in his vicinity while he worked with the gaskets and rope on the Firecheck safety valves.[xvii]
The Superior Court held that the plaintiff presented sufficient evidence to overcome summary judgment and that the facts sufficiently identified Firecheck valves as well as the frequency, regularity, and proximity of the decedent’s exposure to them.[xviii]
These two recent Superior Court decisions raise new challenges for defendants in winning summary judgment motions in asbestos cases in Pennsylvania. Korol suggests that summary judgment can be denied despite testimony that a coworker did not personally see the plaintiff performing work on a specific manufacturer’s product, if the totality of the evidence creates a material issue of fact as to the regularity of the plaintiff’s contact with a defendant’s product. Mullen suggests that testimony that a product looked like asbestos, combined with personal experience with asbestos, can create sufficient evidence to overcome summary judgment.
[i] Korol v. Aurora Pump Company, 2023 WL 1980858 (Pa Super. Feb. 14, 2023).
[ii] Id. at *1.
[iv] Id. at *2.
[v] Id. at *1.
[vii] Id. at *2.
[viii] Id. at *6.
[x] Mullen v. American Circuit Breaker Corporation, 2023 WL 2770765 (Pa. Super. April 4, 2023).
[xi] Id. at *1.
[xiii] Id. at *6.
[xvi] Id. at 1.
[xvii] Id. at 6.
[xviii] Id. at 7.
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