IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`WILLIAM C. KOWASIC, an individual,
`
`CIVIL DIVISION - ASBESTOS
`
`Plaintiff,
`
`GB. No. 02-11458
`
`v.
`
`ABB, INC., et al.,
`
`- Defendants.
`
`DEFENDANT CRANE CO.’S MOTION
`FOR SUMMARY JUDGMENT
`
`' Filed on behalf of Defendant Crane Cor
`(with respect to named Defendant
`“Crane Valve Group")
`V
`
`Counsel of Record for’this Party:
`
`Nicholas P. Vari, Esq.
`Pa. l.D. # 59033
`
`l. Cottle, Esq.
`Eric R.
`Pa. l.D. # 78152
`
`K&L GATES LLP
`
`Firm No. 148
`
`Henry W. Oliver Building
`535 Smithfield Street
`
`Pittsburgh, Pennsylvania 15222
`(412) 355-6500
`
`
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`GB. No. 02-11458
`
`WILLIAM C. KOWASIC, an individual,
`
`Plaintiff,
`
`V.
`
`ABB, INC, et 3|”
`
`GB. No. 02-11458
`
`Defendants.
`
`DEFENDANT CRANE CO.’S MOTION FOR SUMMARY JUDGMENT
`
`Defendant Crane Co. hereby moves this Court to grant summary
`
`judgment in its favor as to each and every count of Plaintiff’s Complaint.
`
`1.
`
`Plaintiff has filed a Complaint alleging that William C. Kowasic
`
`developed asbestosis as a result of his alleged exposure to asbestos while employed as
`
`a steelworker at USX Clairton Works and Wheeling Pitt from 1963 to 2003.
`
`2.
`
`The record of this case, however, fails to indicate that Crane Co.
`
`manufactured and/or supplied any asbestos—containing product which Mr. Kowasic
`
`worked in proximity of and was regularly and frequently exposed to during his
`
`employment history.
`
`3.
`
`Indeed, Plaintiff has failed to provide any evidence whatsoever
`
`identifying Crane Co. as the manufacturer or supplier of any product, much less any
`
`asbestos-containing product, that Mr. Kowasic used or to which he may have been
`
`exposed during his employment history.
`
`4.
`
`Mr. Kowasic was deposed in this matter on Thursday, March 20,
`
`2008, and he failed to identify any product manufactured or supplied by Crane Co.,
`
`

`

`G.D. No. 02—11458
`
`asbestos-containing or otherwise, to which he was exposed during hiswork history.1
`
`Thus, there is no testimony concerning his personal exposure to any Crane Co.
`
`products. Moreover, Plaintiff has failed to come forward with any witnesses to support
`
`the allegations in the Complaint.
`
`5.
`
`Specifically, Plaintiff has failed to produce the testimony of any co-
`
`worker asserting that Mr. Kowasic worked with or around any Crane Co. product,
`
`asbestos—containing or otherwise, during his career.
`
`'Further, Plaintiff failed to identify
`
`Crane Co. as the manufacturer of any product, asbestos—containing or otherwise, to
`
`which Mr. Kowasic may have been exposed.
`
`6.
`
`Summary judgment based upon insufficient product identification is
`
`appropriate where there is no evidence to show that a plaintiff worked regularly and
`
`frequently in the vicinity of asbestos-containing products supplied and/or manufactured
`
`by a particular defendant. E Gregg v. V~J Auto Parts, Inc, 943 A.2d 216, 225-227
`
`(Pa. 2007) (adopting and extending Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544
`
`A.2d 50 (1988) to cases that involve both direct and circumstantial evidence of
`
`exposure to asbestos products).
`
`7.
`
`Therefore, because Plaintiff has failed to produce any evidence to
`
`support the claim that Mr. Kowasic worked in proximity of and was regularly and
`
`frequently exposed to any asbestos-containing Crane Co. product, the well-established
`
`law of Pennsylvania provides that there are no genuine issues of material fact for trial.
`
`gag Bushless v. GAF Corp., 401 Pa. Super. 351, 585 A.2d 496 (1990) appeal guashed,
`
`In order to reduce the volume of paper filed with the Court, Crane Co. has not attached copies of
`1
`any deposition transcripts to its summary judgment motions.
`If necessary, Crane Co. will file these
`transcripts upon request.
`
`

`

`GD. No. 02-11458
`
`532 Pa. 605, 616 A.2d 1375 (1992); Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544
`
`A.2d 50 (1988); Samarin v. GAF Corp., 391 Pa. Super. 340, 571 A.2d1398 (1989)
`
`
`aggeal denied 524 Pa. 624, 575 A.2d 66 (1990).
`
`r
`
`8.
`
`The Superior Court re—affirmed the Eckenrod standard in Wilson v.
`
`
`A.P. Green Industries inc, 2002 Pa. Super. 294, 807 A.2d 922 (2002). The Court in
`
`
`Wilson stated that “a plaintiff’s evidence of exposure and product identity must show
`
`that (s)he ‘worked, on a regular basis, in physical proximity with the product, and that
`
`(his) contact with it was of such a nature as to raise a reasonable inference that (s)he
`
`inhaled asbestos fibers that emanated from it.’” i_d; at 924 (citations omitted).
`9.
`Additionally, in 2007, the Supreme Court of Pennsylvania adopted
`
`and extended the Eckenrod standard, holding that, at the summary judgment stage,
`
`courts must make a “reasoned assessment concerning whether, in light of the evidence
`
`concerning the frequency, regularity, and proximity of a plaintiff’s/decedent’s exposure,
`a jury would be entitled to make the necessary inference...
`giegg, 943 A.2d at 227.
`
`Recently, the Courts of Common Pleas of Lycoming County, lndiana County, and Butler
`
`County have granted Crane Co’s motions for summary judgment because of the lack of
`
`any evidence showing that the plaintiff worked in the vicinity of an asbestos-containing
`
`product manufactured by Crane Co.2 Accordingly, in the absence of competent
`
`evidence of record establishing that Mr. Kowasic worked in proximity of and was
`
`regularly and frequently exposed to any asbestos-containing Crane Co. product, the
`
`2
`
`S_ee Emom Copenhaver, et al. v. Ford Motor 00., et al., No. 06—00983 (Court of Common Pleas
`Lycoming County,Pa. filed July 7, 2008) (granting Crane Co.’s motion for summary'judgment where
`plaintiffs failed to establish sufficient product identification); Ronald Lee Grosch, et al. v. Aalborg
`
`industries inc. et al., No. 11581 CD 2006 (Court of Common Pleas lndiana County, Pa. filed Aug. 16,
`2007) (same); Charles Dillaman et al. v. Allied Glove Corporation, et al. A. D. No. 06— 11193 (Court of
`Common Pleas Butler County, Pa. fled Aug. 7, 2007) (same). Copies of these opinions are attached
`hereto as Exhibits‘A’ “"B and‘'"C respectively.
`
`

`

`GD. No. 02—11458
`
`well-established law of Pennsylvania compels the entry of summary judgment in Crane
`
`Co.’s favor.
`
`WHEREFORE, Crane Co. respectfully requests this Court to enter an
`
`Order, in the form of the Order attached hereto, granting summary judgment in its favor
`
`and against Plaintiff and all other parties and dismissing with prejudice the Complaint as
`
`well as any and all cross claims as to Crane Co.
`
`Dated: July 23, 2008
`
`Respectfully Submitted,
`
`ls/ Eric R.l. Cottle
`
`Nicholas P. Vari
`
`Pa. ID. 59033
`
`Eric R. l. Cottle
`
`Pa. ID. 78152
`
`.
`K&L GATES LLP
`Henry W. Oliver Building
`535 Smithfield Street
`
`Pittsburgh, PA 15222
`
`Attorneys for Defendant Crane Co.
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`WILLIAM C. KOWASIC, an individual,
`
`Plaintiff,
`
`V.
`
`ABB, INC” et 3|”
`
`G.D. No. 02-11458
`
`Defendants.
`
`ORDER OF COURT GRANTING sugMARY JUDGMENT
`AND NOW, this % day of
`
`, 200$? upon
`
`consideration of the Motion for Summary Judgment of Crane Co. based upon William C.
`
`Kowasic’s lack of exposure to its products, it is
`
`y ORDERED, ADJUDGED, and
`
`
`
`DECREED that said Motion is G
`
`ED and Plaintiff’s Complaint and any and all
`
`
`
`
`cross claims are hereb
`
`ismissed with prejudice as to Crane Co.
`
`
`
`

`

`IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PA -
`
`3%
`' (
`
`a“ ,
`5
`:CIVIL ACTION
`JANET COPENHAVER, Executrix of the
`:‘2 1 E .
`Estate of EMORY COPENHAVER, deceased:
`g;§§
`- and JANET E COPENHAVER, in her own :
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`
`Plaintiffs
`
`_.
`
`.
`
`-
`
`vs.
`
`'
`
`.
`
`.
`
`FORD MOTOR COMPANY, et a1,
`Defendants
`
`'
`
`OPINION AND ORDER
`
`Plaintiffs have filed an action for damages against numerous Defendants
`
`alleging injuries sustained by Emory Copenhaver (hereinafler “Mr. Copenhaver”) as a
`
`result of alleged exposure to asbestos—containing products during the course of his ‘
`
`lifetime. . All Defendants not released from this lawsuit by Plaintiffs have filed
`respective Motions for Summary Judgment with the Court. Specifically, Motions have
`
`been filed by the following Defendants: Allied Glove Corporation; Honeywell
`International, Inc., the successor in interest to Allied Signal, Inc., the successor in
`
`interest to the Bendix Corporation (hereinafter “Allied Signal”); Crane Company, Inc.;
`
`Fayjan Tool Sales, Co.; Ford Motor Company; Goulds Pumps, Inc; Industrial Holdings
`
`‘ Corp. f/k/a The Carborundurn Company (hereinafter “Carbomndum”l; SL Gobain-
`
`Abrasives, Inc., successor—in—interest to Norton Company (hereinafter “Norton”); CBS
`
`Corporation, flit/a Viacom Inc., successor by merger to CBS Corporation, f/k/a .
`Westinghouse Electric Corporation (hereinafier “WestinghouSe”) and Lindberg.
`
`Prior-
`
`to oral argument, this Court was advised that the Plaintiffs were withdrawing their
`
`opposition to Motions for Summary Judgment filed by Defendants Fayjan Tool Sales,
`l
`
`l
`
`
`
`

`

`Company and Ford Motor Company. This OpiniOn addresses the motions raised by the '
`
`remaining Defendants.
`
`Pennsylvania Rule of Civil Procedure 1035,2(1) provides that a party may move
`for summary judgment ‘havhenever there is no genuine issue ofany material fact as to a
`
`necessary element ofthe cause of action...” Pa.R..C.P. 1035.2(2) further provides that a
`party may move for summaryjudgment when “an adverse party who will bear the
`burden ofproofat trial has failed to produce evidence of facts essential to the cause of
`
`action or defense which in a jury trial would require the issues to be submitted to a ,
`jury.” Once a motionfiifor summaryjudgment is made, the non-moving party may not
`simply rest upon the mere allegations or denials in his or her pleadings, but is required -
`to set forth specific facts showing that there is a genuine issue for trial. Pa.R.C.P.
`1035.3. “Thus, once the motion for: summary judgment has been properly supported,
`
`.
`
`the burden is upon the non—movant to disclose evidence that is the basis for his or her
`
`argument resisting summary judgmen .” Samarain v. GAF Corporation, 571 A.2d 398,
` 402 (Pa.Super. 1989) (citing Roland v. Kravco Inc. 513 A.2d 1029, 1034 tPa.Super.
`1986)).
`I.
`
`In asbestos-related litigation, the plaintiffhas the burden of establishing not only
`that a particular defendant's asbestos-containing products were used at the plaintiff's
`job sites, but that the plaintiffworked in close proximity to the product at the time of its
`
`use. The plaintiffmust establish exposure on a regular, frequent and proximate basis.
`Eckenrod v. GAF Com, 544 A.2d :50 (1988), appeal denied, 520 Pa. 605, 533 A.2d 968
`
`
`(1988). Additionally, in Eckenrod supra, the Court held:
`
`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. Berkebz'le v. Brantljg Helicopter Cora, 462 Pa 83,
`337 A.2d 893 (1975). 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
`- ‘plaintifi‘ 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. ..Sumrnary -
`.-
`judgrnent is proper when the plaintiff has failed to establish that the defendants’. .
`products were the cause of the plaintiff’s injury.” 1Q at 52. (Emphasis added).
`
`.-
`
`'
`
`Recently, the Pennsylvania supreme Court reviewed the standard established-by.
`
`Eckenrod in Gregg v. VJ. Auto Parts Company, 943 A.2d 216 (Pa. 2007). ‘_1np(_3_r§gg,
`
`- supra, the estate of Mr. Greggxfiled suit pursuant to Mr. Gregg’s death dueto his .
`
`-
`
`'
`
`- exposure to asbestos~containing products and resultant pleural mesothelioma. The
`plaintiffs averred that Mr. Gregg was exposed to asbestos throughout his forty—year
`history‘of employment as a cable splicer and line man, his employment over a four—year
`period as a gas station attendant, a three year period in which he served in the US.
`
`Navy and additionally, pursuant to brake and clutch installations performed by Mr.
`
`Gregg throughout his lifetime. The Supreme Court held that it is appropriate for courts
`
`at the summary judgment stage to assess plaintiff’s evidence of exposure to a
`
`defendant‘s asbestos-containing products to determine whether the evidence meets the
`
`regular, frequent and proximate requirements developed in Eckenrod and other Superior
`
`Court decisions. The Supreme Court held that a trial court essentially has a gatekeeper
`role at the summary judgment level to assess plaintiff’s quantum ofevidence and has
`
`the ability to grant summary judgment where there is only evidence of de minimus
`
`product exposure and therefore no substantial factor evidence. In reaching its decision,
`
`the Supreme Court held:
`
`In summary, we believe 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 theldefendant’s
`product and the asserted injury. 1d, at 227.
`Additionally, the Court found that opinions by plaintiffs’ experts that eaéh and every .‘
`exposure to asbestos is a substantial contributing factor to an asbestos—related disease
`
`I_c_l_. at 226-7.
`are not basedion accepted scientific methodology.
`Here, in responding to Defendants’ variousmotions for summaryjudgment, the
`Plaintiffs rely upon affidavits by Dr. Joseph Guth, Dr. John Dement, Dr. Jerrold
`‘ Abraham and Dr. David Larnan for thepropositions that asbestos-contairung-products
`.shed fibers that drift, and that “every asbestos exposure, hOWever briefor tn'vial as it
`may appear is significant inasmuch as it contributed to the cumulative disease
`
`producing ‘dose’ of asbestos.” Larnan Summ. J. Aff. 1] 3, Exhibit 4.
`
`As set forth above, the Supreme Court in gegg evaluated the adequacy of
`
`expert testimony in creating issues of fact for the jury. The court’s analysis was as
`
`follows:
`
`1'
`
`Finally, Appellant criticizes Appellee’ s reliance on the conclusion in Dr.
`Spector’ s supplemental report that non~occupational exposureWas a substantial
`cause of Mr Gregg’ 5 disease, quoting the lead opinion from summers v.
`Certainteed Cog}, 2005 Pa.Super. 302, 886 A.2d 240 (Pa.Super. 2005)(equally
`divided court), authored by Judge Klein, as follows:
`
`Just because a hired expert makes a legal conclusion does not mean that
`a trial judge has to adopt it ifIt is not supported by the record and1s
`devoid of common sense. For example, [the plaintiff’s liability expert]
`used the phrase, ‘Each and every exposure to asbestoslhas been a
`substantial contributing factor to the abnormalities noted.” However,
`suppose an expert said that if one took a bucket of water and dumped it
`into the ocean, that was a ‘substantial' contributing factor’ to the size of
`the ocean. [The expert’s] statement saying every breath is a ‘substantial.
`contributing factor’ is not accurate. If someone walks past a mechanic
`changing brakes, he or she is exposed to asbestos. If that person worked
`for a factory making lagging, it can hardly be said that one whiff of the.
`
`

`

`asbestos from the brakes is a ‘substantial factor’ in causing disease. 1;
`at 244 (emphasis in original).
`
`',*'
`
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`
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`
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`"We recognize that it is common for plaintiffs to submit expert affidavits
`attesting that any exposure to asbestos, no matter how minimal, is a substantial
`Contributing'factor in asbestos disease. However, we share Judge Klein’s -
`perspective, as expressed in the Summers decision, that such generalized
`opinions do not suffice to create a jury question in a case where exposure .to
`the defendant’s product is de minimus, particularly in the absence of
`.
`evidence excluding other possible sources of exposure (or in the face of
`evidence of substantial exposure from other sources). . ..We appreciate the .
`difficulties facing plaintiffs in this and similar settings, where they have
`‘
`unquestionably suffered harm on account ofa disease having a long latency.
`' period and must bear a burden of proving-specific causation under prevailing '
`Pennsylvania law which may be insurmountable. ...however, we do not believe
`that it is a viable solution to indulge in a fiction that each and every exposure to
`asbestos, no matter how minimal in relation to other exposures, implicates a fact
`issue concerning substantial-factor causation in every “direct—evidence” case.
`Gregg, supra, at 223, 226-7. (Emphasis added).
`
`,
`
`_
`
`Pursuant to Q_r_egg, supra, this Court finds that the opinions relied upon by Plaintiffs’ ,
`
`experts are generalized opinions, and accordingly, do not suffice to defeat Defendants’
`
`claims for summary judgment.
`
`. Furthermore, although each ofDefendant’s individual motions will be viewed
`
`independently in light of thespecific evidence presented by the parties, this Court notes
`
`that rather than excluding “other possible sources of exposure,” many possible sources
`
`of asbestos exposure have been alleged by the Plaintiffs. This further limits the
`
`affidavits effect in creating a potential jury issue. Additionally, Mr. Copenhaver’s own
`
`testimony establishes asbestos exposure in additional ways unrelated to all of the named
`
`Defendants involved in this action. This testimony is as follows:
`
`You mentioned your boyhood home in Beccaria, Pennsylvania, how was
`Q:
`that home heated, sir?
`
`..
`
`
`
`

`

`,
`
`_ A:
`
`Coal.
`
`Looking back now with everything you know and looking back to when
`Q:
`you were there, do you believe you Were exposed to any asbestos in the house?
`
`I'A:
`
`‘ NojI don’t think so‘.
`
`‘ Do you recall any remodeling projects or additions of any kind of
`Q:
`construction being done at the house anytime you were there? _
`
`A?
`
`No, I don’t think so. ’
`
`, Do you'recall any remodeling projects or additions or any kind of
`Q:
`‘ construction being done at the house anytime you were there?
`
`oeoaoeoao,a’
`
`' Well, they did put a new' furnace in.
`
`Okay. Do you believe that that exposed you to asbestos in any way?
`
`No, they had asbestos around the pipes at the seams.
`
`At your home?
`
`Hot air.
`
`' This is at your house in Beccaria'!
`
`Yeah.
`
`Okay. This is on the hot water pipes, you’re saying?
`
`It wasn’t the hot water pipes, it was the air, hot air.
`
`I Forced hot air, okay.
`
`(Emory Copenhaver Dep. 40:1-24, June 29, 2006).
`ThePlaintifftestified that he was also exposed to asbestos-containing products
`
`while in the United States Navy. This testimony was as follows:
`
`Okay. Let me ask you this, sir, this is a case that you brought on
`Q:
`asbestos exposure overall for your life, and just to knock out the Navy time, was
`there any exposure that you think you had to any products that contained
`asbestos during your Navy service?
`
`

`

`Well, there were pipes in theengine room overhead and I had to paint
`A:
`these pipes which were all covered with asbestos.
`'
`
`’ (Emory Copenhaver Dep. 22:12-19, June 29, 2006).
`' Mr. Copenhaver additionally testified that he was exposed to asbestos whent-he .
`plumbers atAVCO Lycoming, where he was employed, removed and replaced the.
`.
`insulation on pipes when theyrepaired leaks. This testimony wasas follows:
`Q:
`What about when you became a set—up man, this would be about 1954
`until you retired, about 1986?
`A:
`Yeah.
`
`Now, for that period of time, that’s a lot of time, do you believe you
`Q:
`were eXposed to any asbestos at Avco during that period when you were a set—up
`man?
`
`A:
`
`Q:
`
`Not that I know of: I mean, I was in the same area
`
`Sure.
`
`A:
`the air.
`
`And I don’t know of any asbestos other than that on the pipes way up in
`‘
`
`=1:
`
`*
`
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`
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`
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`
`a:
`
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`
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`
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`
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`
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`
`=1:
`
`Did you know that the materials that were covering thepipes at that time
`Q:
`contained asbestos?
`
`No, I didn’t.
`
`Do you know that now for certain?
`
`Yeah.
`
`How do you know that now?
`
`F?I.Q?.’IQ?.>
`
`Well, from observing— from being down there. They tore out all that
`asbestos
`
`(Emory Copenhaver Dep. 36:12-22;l33:18-25; June 29, 2006‘).
`
`

`

`Mr. Cepenhaver observed plumbers perfonning pipe repair work inVolving '
`”insulation approitimately 50 times. (Emory Copenhaver Dep. 13525—8, lime 29, 2006); .-
`'
`‘- Being mindful ofthe Supreme Court’s mandate to “make a reasOned
`
`- assessment” ofplaintiffs’ quantum of evidence'as to 'each Defendant, this Court has
`
`”reviewed the record and considered carefully the'testimony cited in Plaintiffs’ opposing
`
`brief to determine if there is-“a sufficient causal connection between the defendant’s
`
`product and the asserted injury.” gregg, supra, at 30.
`
`‘Allied Glove Corporation
`I
`Defendant, Allied Glove Corporation, manufactures gloves. Plaintiff asserts that
`Mr. Copenhaver contracted mesothelioma as a result ofalleged exposure to asbestos~
`
`containing gloves during his 36 years of employment at AVCO Lycoming. In opposing
`Defendant, Allied Glove Corporation’s Motion for Summary Judgment, Plaintiffs rely
`upon the deposition testimony ofAVCO employees, Charles Blank, Biert Haag and
`
`Dean Lehman. Mr. Blank’s testimony was as follows:
`
`'A
`
`Do you believe you were exposed to asbestos—containing products as a
`Q:
`result of unloading things fiom the furnace?
`
`A:
`
`Well, the only thing is you used asbestos gloves.
`
`(Charles Blank Dep. 12220-4, May 23, 2007).
`
`Mr. Blank’s testimony regarding the glove manufacturer was as folloWs:
`
`Q:
`
`A
`
`Do you know who manufactured those gloves?
`
`‘
`
`No, I don’t know.
`
`Q:
`
`- Do you know who —~ where they bought those gloves? -
`
`A
`
`No, I don’t.
`
`

`

`(Charles Blank Dep. 12:25—13z4, May 23, 2007).
`
`Dean Lehman similarly testified:
`
`Mr. Lehman, I want to ask you a little bit about the gloves. Do you have
`Q:
`any personal knowledgethat.the-gloves that you recall seeing at AVCO
`-
`contained asbestos?
`‘
`
`I don’t know if they contained asbestos. I surmise they contained
`A:
`asbestos due to the fact that they used them on such hot heat;
`,
`
`Q:
`
`So, it’s simply antassumption on your part based on their application?
`
`An assumption on my party because the heat was, like, 12— to 1400
`A:
`degrees, and I know an ordinary glove won’t take that.
`'
`
`,
`
`Q:
`
`A: I
`
`Understood. Did you ever see any packaging for these gloves?
`
`No.
`
`Did you ever see any information that identified the gloves as asbestos-
`Q:
`containing?
`'
`
`A:
`
`No.
`
`(Dean Lehman Dep. 78:14-79:8, Feb. 27, 2008).
`
`‘
`
`The testimony of Bert Haag included the following:
`
`. Any other products come to mind for your time at Avco that might have
`Q:
`contained asbestos that we haven’t already talked about?
`
`A:
`
`'
`
`. Yes.
`
`Q:
`
`A:
`
`4:
`
`Q:
`
`A
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`Okay.
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`Heat treat gloves.
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`Did you ever see Mr. Copenhaver use any heat treat gloves?
`
`No.
`
`Did you ever see anybody handle any heat treat gloves in Mr.
`Q:
`Copenhaver’ 8 presence?
`
`

`

`A:
`
`at
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`Not knowingly, no.
`
`at
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`Q:
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`- Do you know who made or Sold those heat treat gloves? .
`
`-
`
`A:
`
`At that time, no.
`
`‘ Okay How about as you look back, do you know who made or sold
`Q:
`those gloves thatyou handle?
`
`‘
`
`I
`
`3
`
`~" I can’t even tell you who I-ordered the gloves from, but it was one ofthe
`~. -A:'.
`supply houses that we ordered them fi‘om, but I do not know the manufacturer.
`
`‘
`
`(Bert Haag Dep. 43:7—44:22, July 17, 2007).
`
`When further questioned regarding the gloves, Mr. Haag testified:
`
`' Throughout the course of your career, as I understand it, you, on
`Q:
`' occasion, were required to wear gloves Do you know the name brand or
`manufacturer of any of the gloves that you wore?
`
`A:
`
`No, I do not
`
`Throughout the course of your career, did you ever become familiar with
`Q:
`a company by the name of Allied?
`'
`
`A:
`
`Q:
`
`Yes, I’ve heard cf Allied.
`
`How did you hear of that company?
`
`1
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`A:
`
`mention it.
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`Well, when people would ask for Allied Gloves, I guess, now that you
`
`'
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`,
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`(Bert Haag Dep. 70:22-71 :3, July 17, 2007).
`
`In reviewing the testimony of AVCO employees, this Court finds that although
`
`Plaintiffs have presented evidence that gloves were used in the AVCO Lycoming
`
`facility, perhaps gloves containing asbestos, the Plaintiffhas failed to identify Allied ’
`
`Glove as the manufacturer or supplier of asbestos-containing gloves used or worn by
`
`Mr. Copenhaver. In evaluating the testimony of these three fact witnesses, this court
`
`10
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`

`

`notes that although Dean Lehman testified that the gloves used were asbestos—
`
`containing based upon their heat—resistant quality, the court in Samarain‘v. GAF '
`
`Corporation, 571 A.2d 398 (Pa.Super. 1989) held as follows:
`
`Our next inquiry is whether tradesman may testify as to whether a product
`contained asbestos based on the fact that the product can withstand high
`temperatures and/or that tradesman may have told them that the product
`contained asbestos.
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`
`'- Certairfly, one inference that may be drawn from these facts is that the heat
`resistant products contained the heat resistant substance asbestos. However,
`without more facts, it is not reasonable for the trial court to infer that these
`products must have contained asbestos because they were heat resistant. The .
`same facts could lead to the inference that the heat resistant products contained
`other heat resistant materials. . .Id; at 403—4.
`
`~
`
`Although Mr. Blank testified that gloves used at AVCO Lycorning contained asbestos,
`
`he was unable to identify the manufacturer or supplier of the asbestos—containing
`
`gloves. Although Mr. Haag also believed that gloves contained asbestos, he was
`
`similarly unable to identify the manufacturer of the gloves when directly questioned,
`
`and although he testified he had heard the name Allied in connection with Allied
`
`Gloves, he did not testify Allied Glove manufactured asbestos-containing gloves, or that
`
`Mr. C'openhaver had ever been in contact with asbestos-containing gloves manufactured
`
`by Allied Glove. To the contrary, Mr. Haag clearly testified that henever saw Mr.
`
`Copenhaver using the heat treat gloves that he associated with asbestos nor saw anyone
`
`handle asbestos-containing gloves in Mr. Copenhaver’s presence.
`
`Accordingly, this Court finds that the Plaintiffs have failed to produce sufficient
`
`, evidence that Mr. Copenhaver ever worked with or around any asbestos—containing
`
`product manufactured by Allied Glove Corporation at anytime during his career at
`
`AVCO Lycoming, let alone with any type of frequency, regularity and proximity as
`
`11
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`

`

`required by Eckenrod- and its progeny. As such, Allied Glove Corporation is entitled to
`
`- summary judgment as a matter of law.
`
`.
`
`Allied Signal
`
`Plaintiffs’ claims against Defendant, Allied Signal, relate to brake changes made“
`on Mr. Copenhaver’s personal-vehiclesbetween the 19403 and 1974. Mr. Copenhaver-fs
`testimony as to Allied Signal included the fact that he installed Bendix brakes on one
`' vehicle, a 1949 Ford, and possibly on a second vehicle, a 1964 or 1974 Dodge.- This
`
`- specific testimony was as follows:
`
`~
`
`Q . And do you know who made or sold the brakes that you installed, the
`new brakes, on this ’49 Ford?
`
`-
`
`A:
`
`I think it was Bendix.
`
`(Emory Copenhaver Dep. 52:1—3, June 29, 2006).
`
`Mr. ‘Copenhaver additionally testified:
`
`Well, other than these vehicles you told me about, do any others come to
`Q:
`mind that you changed brakes on?
`
`*
`
`A:
`
`Q:
`
`A:
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`
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`
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`
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`
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`I had a Dodge. I bought it new and I changed the brakes on that.
`
`You said it was either a ’64‘ or ’74?
`
`Yeah.
`
`.
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`Do you remember the brand of the replacement brakes you used on this
`Q:
`vehicle?
`
`A:
`
`Q:
`
`A:
`
`Bendix.
`
`Okay. Is that more of a guess or do you recall that?
`
`Pardon?
`
`12
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`

`

`Q:
`
`A:
`
`Is that a guess that it was Bendix or could it have been something else?
`
`No, it was brakes.
`
`Replacement brakes, yeah, I just said do you know for Sute that Bendix
`Q:~
`was the brand of thereplaCement brakes or could it have been some other brand
`' of replacement brakes?
`
`Well, it could have been, but as far as I can remember, that was what his
`A:
`shelf line was.
`I mean, he had others there, but he generally looked it up in the '
`Bendix book.
`
`-
`
`.
`
`(Emory Copenhaver Dep. 64:4—18; 6631—17,- June 29, 2006).
`
`Mr. Copenhaver’s testimony regarding other brake changes made was as follows:
`
`And was it on that 1949 Ford brakeJob that you recall seeing those
`Q:
`Bendix— or buying those Bendix boxes?
`
`A:
`
`Yeah.
`
`Do you recall buying those Bendix boxes for any of the other cars that
`Q:
`we talked about?
`
`A:
`
`No. They probably was all the same, but I don’t —-
`
`(Emory Copenahaver Dep, 983—10, June 29, 2006).
`
`Although Plaintiffs also assert that Mr. Copenhaver was exposed to asbestos
`
`whenfiling new brakes, Mr. Copenhaver’s testimony on this issue was as follows:
`
`Do you remember if you had to file the brakes on that brake job on the
`Q:
`1949 Ford?
`.
`
`A:
`
`:1:
`
`Oh, I don’t know.
`
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`
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`
`And just so that I’m clear, that’s the only time that you can remember
`Q:
`going into Jake’s and buying Bendix brakes specifically, is that correct?
`
`13
`
`

`

`Well, I remember that box once. I don’t know whether they was all like
`A:
`that, ldon’t know:
`'
`'
`-
`‘
`'
`'
`.
`
`(Emory Copenhaver Dep. 9922—21).
`
`Defendant, Allied Signal, has admitted in Answers to lnterrogaton'es filed in
`
`. another asbestos case that its Bendix brake linings and brake block contained asbestos
`
`‘ until 1988. (See Pl.’s Response to Various Dcf.’s Mot. for Summ. J., Ex.’s C41 and C—
`
`2). Plaintiffs assert that Mr. Copenhaver contracted mesothelioma as a result ofalleged
`
`exposure to asbestos released from these two occasions. In evaluating the “frequency, .
`
`.
`
`regularity, proximity factors in asbestos litigation,” the'Supreme Court in Gregg, supra,
`
`noted:
`
`'
`
`[T]hey 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 likelihood is absent on account of only casual or minimal exposure to
`the defendant’s product.” id; at 225.
`
`In reaching its decision in Gregg, supra, the Supreme Court additionally noted:
`
`Like many other courts. . .we believe that the criteria should have broader
`applicationin the courts’ assessment of the sufficiency of a plaintiff s proofs.
`See, e.g., Lindstrom v. A—C Product Liability TrusL 424 F.3d 488, 492 (6th Cir.
`2005)(retlecting that the Sixth Circuit has ‘perrnitted evidence of substantial
`exposure for a substantial period of time to provide a basis for the inference that ‘
`the product was a substantial factor in causing the injury,’ but that ‘[m]inimal
`exposure to a defendant’s product is insufficient.’ (citation omitted).
`Li. at 225. (Emphasis added).
`
`Because Plaintiffs’ evidence establishes exposure on one, possibly two
`
`occasions to Defendant’s product, this Court finds that such exposure was merely
`
`“casual” or “minima ,” especially in light of‘Mr. Copenhaver’s-own testimony
`
`regarding other exposures to asbestos-containing products. Accordingly, in light of
`
`such infrequent, minimal usage, Plaintiffs are clearly unable to establish “fiequency,
`
`l4
`
`

`

`regularity and proximity” as required by Eckenrod and Qggg. Accordingly, Defendant,
`Allied Signal, is entitled to summary judgment as a matter oflaw.
`-
`
`Crane Co, Inc. and Goulds Pumps, Inc.
`.
`- Plaintiffs’ claims as to Crane Co.,‘1nc. and Goulds Pumps, lnc..relate to valves
`
`and pumps. Plaintiffs claim that Mr. Copenhaver developed mesothelioma as a result of
`
`~ his exposure to asbestos-containing valves'and pumps, including rope packing and
`gasket material, used at AVCO Lycoming. In opposing summaryjudgment, Plaintiffs
`
`rely upon the deposition testimony of Bert Bag and Ron Fullerton. The testimony of
`
`Mr. Haag as to valves and pumps used at AVCO Lycoming was as follows:
`
`Okay All right. Other than that, do you believe you handled any other
`Q:
`products that contained asbestos?
`
`A:
`
`I could have.
`
`Q:
`
`A:
`
`:1:
`
`Anything you can tell me about here?
`
`Pump valve replacement kits, valve packing material. Could have.
`
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`
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`
`A couple times today you’ve talked about pumps First off, do you know
`’ Q:
`the brand name manufacturer or supplier of any of the pumps?
`
`‘ There was Gould, Crane. To the best of my recollection, those two was
`A:
`basically. . ..
`‘
`
`(Bert Haag Dep. 32:17-23;55:9-13, July 17, 2007).
`
`. And you mentioned another product, valves, at one point. Do you know
`Q:
`the brand name, manufacturer, or supplier of any of the valves?
`
`A:
`
`Crane, Gould. They were