Opinion
2:19-CV-00879-MJH
01-07-2022
MICHAEL DATA, DARLENE DATA, EXECUTRIX OF THE ESTATE OF MICHAEL DATA, DECEASED, AND DARLENE DATA IN HER OWN RIGHT; Plaintiffs, v. JOY GLOBAL UNDERGROUND MINING, et al., Defendants.
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, CHIEF UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
This civil action was initiated in the Court of Common Pleas of Allegheny County, Pennsylvania by Plaintiff Darlene Data and was removed to this court by certain Defendants on July 22, 2019. Plaintiff asserts state law tort claims related to asbestos exposure against the Defendants. The court has jurisdiction under 28 U.S.C. §§ 1333 and 1367.
Before the Court for consideration is Joy Global Underground Mining's motion for summary judgment (ECF No. 1041). The motion is fully briefed and ripe for consideration. Brief in Support (ECF No. 1043); Response Brief (ECF No. 1144); Reply Brief (ECF No. 1166). For the reasons that follow, it is respectfully recommended that the motion be granted in part and denied in part.
II. REPORT
a. Background
Decedent Michael Data (“Mr. Data”) served in the United States Navy from June 1969 until March 1973, including aboard the USS Newport News (CA-148). After his discharge he worked at the Crane Company foundry in New Castle, Pennsylvania from July 1973 until August 1974. After this, he worked at Mesta Machine in New Castle, Pennsylvania from October 1974 to June 1982. Finally, he worked at the West Pittsburgh Power Station in New Castle, Pennsylvania from November 1983 to October 2009. During a portion of his time of military service and employment, Mr. Data was exposed to asbestos dust and fibers resulting in him developing mesothelioma beginning in 2018 and was eventually diagnosed with the disease in January 2019. Mr. Data died from complications of mesothelioma on February 6, 2020. Plaintiff Darlene Data (“Plaintiff” or “Mrs. Data”) brings this suit on behalf of Mr. Data, as executrix of his estate, and on behalf of herself as Mr. Data's spouse. Mrs. Data maintains that the remaining Defendants engaged in the mining, milling, manufacturing, distributing, supplying, selling, using, recommended using, installing and/or removing asbestos materials and other dangerous ingredients and products which caused Mr. Data to contract mesothelioma and resulted in his death. Mrs. Data seeks damages for the injuries Mr. Data sustained because of his exposure to asbestos and for his wrongful death.
The presently pending motion for summary judgment relates to whether discovery has revealed evidence identifying each Defendants' contributions to Plaintiffs' claims, referred to as “product identification” motions. Therefore, only the facts specific to that analysis will be addressed.
b. Standard of Review
The standard for assessing a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is well settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. Cty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant's favor on that issue. Id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.' ” Matsushita Elec. Indus. Co., 475 U.S. at 587 (citing Huston, 568 F.3d at 104).
A plaintiff may not, however, rely only on his complaint to defeat a summary judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.”). Allegations made with no evidentiary support may be disregarded. Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000).
c. Discussion
Product Identification/Causation under Pennsylvania law
Generally, a plaintiff in a products liability action under Pennsylvania law is required to show that he was exposed to a defective product manufactured or sold by a defendant and that exposure was a substantial factor in causing the plaintiff's injury. Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216, 224-26 (2007).
Pennsylvania courts have recognized the difficulties facing plaintiffs bringing asbestos-related litigation “where they have unquestionably suffered harm on account of a disease having a long latency period and must prove specific causation under prevailing Pennsylvania law which may be insurmountable.” Rost v. Ford Motor Co., 637 Pa. 625, 151 A.3d 1032, 1043 (2016) (internal quotation marks and citations omitted). Nevertheless, the plaintiff in an asbestos case “must present sufficient evidence establishing product identification to survive a summary judgment motion.” Kardos v. Armstrong Pumps, Inc., 2019 Pa. Super. 324, 222 A.3d 393, 399 (2019) (citing Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50, 52 (1988)). A plaintiff does so when he provides evidence that his injuries “were caused by a product of a particular manufacturer or supplier.” Vanaman v. DAP, Inc., 2009 Pa. Super. 27, 966 A.2d 603, 607 (2009) (en banc). “In other words, the plaintiff must present some evidence that he inhaled asbestos fibers shed by the specific manufacturer's product.” Kardos, 222 A.3d at 399 (citing Gutteridge v. A.P. Green Servs., Inc., 2002 Pa. Super. 198, 804 A.2d 643, 652 (2002)). The plaintiff must do more than show the mere presence of asbestos in the workplace, he must prove he worked in the vicinity of a specific manufacturer's product. Kardos, 222 A.3d at 399.
To evaluate product identification/causation evidence, Pennsylvania courts apply the “frequency, regularity, and proximity” test established in Eckenrod. Gregg, 596 Pa. at 292. This requires courts to “make a reasoned assessment of whether, in light of the evidence on the frequency, regularity, and proximity of a plaintiff's alleged exposure, a jury could draw a sufficient causal connection between the defendant's product and the asserted injury.” Kardos, 222 A.3d at 399 (citations omitted). A court must determine “whether [a] plaintiff has pointed to sufficient material fact as to the causation of [his] disease by the product of each particular defendant.” Vanaman, 966 A.2d 607. The “frequency, regularity, and proximity” test “is not a rigid test that sets an absolute threshold required to support liability. . . . Rather, courts should apply [the test] in an evaluative fashion, in a way tailored to the facts and circumstances of the case.” Kardos, 222 A.3d at 400 (citing Linster v. Allied Signal, Inc., 2011 Pa. Super. 86, 21 A.3d 220, 224 (2011)). “Ideally, a plaintiff or witness will be able to directly testify that plaintiff breathed in asbestos fibers and that those fibers came from defendant's product. Without such direct evidence, plaintiff must rely upon circumstantial evidence of exposure.” Wilson v. A.P. Green Indus., Inc., 2002 Pa. Super. 294, 807 A.2d 922, 923 (2002). If a Plaintiff relies on circumstantial evidence, he must show that he “worked in the vicinity of the product's use” and not merely show the “presence of asbestos in the workplace.” Andaloro v. Armstrong World Indus., Inc., 2002 Pa. Super. 112, 799 A.2d 71, 86 (2002) (citing Eckenrod, 544 A.2d at 52). “Specifically, a plaintiff's evidence of exposure and product identity must show that she ‘worked, on a regular basis, in physical proximity with the product, and that [her] contact with it was of such a nature as to raise a reasonable inference that [s]he inhaled asbestos fibers that emanated from it.'” Wilson, 807 A.2d at 923 (quoting Coward v. Owens-Corning Fiberglas Corp., 1999 Pa. Super. 82, 729 A.2d 614, 622 (1999) (citing the frequency, regularity, and proximity standard from Eckenrod, 544 A.2d at 53)).
The court should apply a “less stringent” test where the plaintiff produces direct evidence of exposure to a particular defendant's product and applicable here, in cases involving mesothelioma, the frequency and regularity requirements should be “less cumbersome.” Kardos, 222 A.3d at 400 (citing Linster, 21 A.3d at 224). Nevertheless, a plaintiff cannot survive summary judgment if a jury would need to speculate to find in plaintiff's favor. Kardos, 222 A.3d at 400 (citing Krauss v. Trane U.S. Inc., 2014 Pa. Super. 241, 104 A.3d 556, 568 (2014). Ultimately, “in asbestos products liability cases, evidence of ‘frequent, regular, and proximate' exposures to the defendant's product creates a question of fact for the jury to decide.” Rost, 151 A.3d at 1050.
Joy Global Underground Mining's Motion for Summary Judgment
Plaintiff alleges that Joy Global Underground Mining (“Joy”) is liable for Mr. Data's injuries because it manufactured air compressors that used gaskets that contained asbestos packing and replacement packing that Mr. Data is alleged to have been exposed to while working at the West Pittsburgh Power Station. The parties do not dispute that Pennsylvania law applies.
1. Defendant's Arguments
Joy argues that Mr. Data scraped off and installed gaskets on a Joy air compressor that were manufactured by entities other than Joy, so it is not responsible for products it neither manufactured nor supplied. (ECF No. 1043 at 4). Joy further argues that Mr. Data could not testify whether the gaskets he removed and replaced on the Joy air compressor in fact contained asbestos and there is no evidence establishing that Powerite or Garlock gaskets that Mr. Data used on the Joy air compressors contained asbestos. Joy also argues that to the extent that Plaintiff alleges that he was exposed to asbestos by being in the general vicinity when others performed repairs with which he was not helping, there is not enough evidence of asbestos exposure.
2. Plaintiff's Arguments
Plaintiff contends that she has identified sufficient product identification evidence showing the necessary frequency, regularity and proximity to survive summary judgment. In support of this assertion, she points to the following evidence which is summarized in pertinent part:
• Joy admitted in discovery responses in a previous asbestos case that it manufactured and sold industrial equipment that was shipped from the factory with asbestos-containing gaskets (ECF No. 1143-3 at 7).
• Joy's corporate representative Roger Finnamore testified in a previous asbestos case that up to the late 1980s that asbestos gaskets and packing were used on Joy air compressors and Joy sold replacement asbestos component parts for Joy compressors and recommended a routine maintenance program for Joy compressors that included the replacement of asbestos gaskets. (ECF No. 1144-4 at pp. 68-70, 123-130).
• Pennsylvania Power, the owner and operator of the West Pittsburgh Power Station at the time of Mr. Data's employment, provided documents indicating that at least one Joy air compressor was installed at the West Pittsburgh Power Station in 1979. (ECF No. 999, Ex. R pp. 1120-1917).
• Mr. Data testified that from 1983-1988 he periodically assisted the maintenance department by scraping off old gaskets with a scraper and pneumatic brush and replaced them which created dust that he breathed. (ECF No. 999, Ex. C pp. 61-62). He recalled working with Garlock, Powerite and Victor brand gaskets at the plant. (Id. at 67). He testified that he would perform this gasket work on three air compressors at the plant and recalled one of those air compressors was manufactured by Joy. (Id. at 70-73). He testified that he was in the vicinity when others performed work on the air compressors, and handled gaskets that he believed contained asbestos when he assisted with maintenance of the Joy air compressor. (Id. at 70-72). He testified that the Joy compressor underwent maintenance a “couple times” a year, and that he assisted in the maintenance of the Joy compressor repair approximately once a year in which he would scrape approximately ten flange gaskets and would remove gaskets on other parts of the Joy compressor. (ECF No. 999, Ex. E pp. 77-79). He testified that the gaskets he installed and removed from the Joy air compressor were mostly Powerite-brand, and some were Garlock-brand. (Id. at 79). He testified that he was required to cut new gaskets to fit the Joy compressor which each took approximately a half an hour to complete, and to remove the old gaskets from the Joy compressor he used a scraper, wire brush and pneumatic wire brush which each took approximately forty-five minutes to complete. (Id. at 80-81). He testified that he was around the Joy compressor when it was being repaired a few times a year when he did not assist in the replacement of gaskets. Id. at 83). He testified that he sometimes worked a few feet away from Jack Shaw, a maintenance worker who repaired equipment including
pumps. (ECF No. 999 Ex. C at pp. 86-87).
• Jack Shaw testified in a previous asbestos case that he used asbestos rope and gaskets almost every day in which he would remove the old packing with hand tools and grinders which created dust, would replace the packing with new packing he got from the storeroom labeled “asbestos” and cut and formed new packing which created dust. (Id. at 52-56; ECF No. 999 Ex. P p. 84). Mr. Shaw also testified that he observed the word “asbestos” written on packaging of new gaskets he received from the storeroom. (ECF No. 999 Ex. 0 p. 58; Ex. P pp.83-84; Ex. Q p. 169).
• Argo Packing Company corporate representative Thomas J. Hemphill testified in a previous asbestos case that Argo sold asbestos-containing sheet gaskets under the brand “Powerite” and admitted that all Powerite-brand gaskets contained 80% asbestos from 1959 through the 1980s. (ECF No. 1144-2 at pp. 9-10, 49, 50-51).
• Frank Parker, CIH, authored an expert report in which he stated that handling asbestos-containing packing and gaskets in the ordinary performance of maintenance duties and being a bystander or in a work area where others are disturbing asbestos containing materials even if the worker has not handled the product containing asbestos, and even if the exposure is relatively light, elevates the risk of developing mesothelioma. (ECF No. 999 Ex. U pp. 19-22; 25).
3. Defendant's Reply
Joy replies that because it has been established that the Joy air compressor was installed at the power plant in 1979 and because it underwent regular and annual maintenance, Mr. Data did not encounter the air compressor's original parts because he began working at the plant in 1983. (ECF No. 1166 at 2).
4. Analysis
Viewing the evidence in the light most favorable to Plaintiff, there is enough evidence to overcome summary judgment on product identification for Mr. Data's “hands-on” exposure to Joy air compressors, but not with respect to Mr. Data's claim that he was exposed by being in the vicinity of general work others performed on Joy air compressors.
As to Mr. Data's “hands-on” exposure, Plaintiff provides evidence that a Joy air compressor was at the plant while Mr. Data worked there and that it was manufactured and used asbestos-containing gaskets and packing through the late 1980s. Mr. Data testified that between 1983 and 1988 he was present during the maintenance of the Joy air compressor and scraped off old gaskets with a scraper and brush and would cut new gaskets out of asbestos material which would create dust that he would breathe. He testified that he did this at least once a year and on at least ten gaskets on the Joy air compressor, and it would take him approximately 30 minutes to cut a new gasket and 45 minutes to scrape out the old gasket. Plaintiff offers expert testimony that this typical installation and maintenance of gasket products generates respirable fibers which can lead to mesothelioma, even if the exposure is relatively light.
As to Joy's argument that Mr. Data could not provide direct testimony that the Joy air compressor used asbestos gasket materials and it should be entitled to summary judgment by virtue of that testimony alone, an individual exposed to asbestos does not need to directly testify he knew the product he was exposed to contained asbestos where there is other competent evidence showing the product contained asbestos. Plaintiff has proffered other evidence, i.e., Joy's own admission through its corporate representative Roger Finnamore, that its product contained asbestos gaskets and packing during the time frame that Mr. Data performed work on those parts, which could lead a reasonable jury to believe that the Joy air compressor gaskets Mr. Data encountered had asbestos-containing products that created dust that Mr. Data breathed.
As to Joy's argument that the evidence only shows that Mr. Data was exposed to asbestos gaskets manufactured by third parties and not parts original to the Joy air compressor, this argument is rejected because under Pennsylvania law, a manufacturer can be responsible for asbestos exposure where a manufacturer “places its product into the stream of commence with an asbestos-containing component part already installed (or accompanying the product) always has a duty to warn of asbestos-related hazards associated with aftermarket replacement component parts of that type.” Schwartz v. Abex Corp., 106 F.Supp.3d 626, 664 (E.D. Pa. 2015). Joy corporate representative Roger Finnamore testified that its air compressors were manufactured with asbestos-containing gaskets and required asbestos containing replacement gaskets and therefore had a duty to warn of asbestos-related hazards associated with aftermarket replacement gaskets.
As to Plaintiff's claim that Mr. Data was exposed to asbestos by being 20 feet away from the Joy air compressor as others performed maintenance on it, Plaintiff has not offered any evidence that the maintenance performed by others created respirable asbestos fibers that he breathed. The mere presence of asbestos in the workplace does not raise a reasonable inference that Mr. Data inhaled asbestos attributable to that product.
Considering all the evidence, a reasonable jury could believe that the Joy air compressor that Mr. Data performed hands-on maintenance on had asbestos-containing products that created dust that Mr. Data breathed and caused or contributed to his injuries. By contrast, there is not sufficient evidence that would allow a jury to reasonably believe that Plaintiff was exposed to respirable asbestos fibers created by others performing maintenance on the Joy air compressor.
5. Recommendation
Accordingly, it is respectfully recommended that Joy's motion for summary judgment (ECF No. 1041) be granted in part with respect to Plaintiff's claim that Mr. Data was exposed to asbestos by virtue of his proximity to the Joy air compressor and denied in part with respect to Plaintiff's claim that Mr. Data was exposed to asbestos related to his hands-on maintenance of the Joy air compressor.
a. Conclusion
Based on the foregoing, under 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72, and the Local Rules for Magistrates, the parties have until January 21, 2022 to file objections to this report and recommendation. Each party's objections shall not exceed seven pages. Unless Ordered otherwise by the District Judge, responses to objections are due fourteen days after objections are filed. Failure to file timely objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).