IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`JEFFREY J. LUKACS, Executor of
`the Estate of JOHN ROBERT
`LUKACS, deceased,
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`Plaintiffs,
`VS.
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`AJAX MAGNETHERMIC
`CORPORATION, et al.,
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`Defendants.
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`CIVIL DIVISION - ASBESTOS
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`No. 13-024060
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`BRIEF IN SUPPORT OF MOTION FOR
`SUMMARY JUDGMENT
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`Filed on behalf of:
`Ajax Magnethermic Corporation
`Counsel of Record for this Party:
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`Patrick A. Hewitt, Esquire
`PA LD. #39179
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`William J. Witte, Esq.
`P.A.LD. #76317
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`RILEY, HEWITT, WITTE & ROMANO, P.C.
`650 Washington Road, Suite 300
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`Pittsburgh, PA 15228
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`(412) 341-9300
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`Firm #987
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`) CIVIL DIVISION - ASBESTOS
`
`JEFFREY J. LUKACS, Executor of the )
`Estate of JOHN ROBERT LUKACS, ) No. 13-024060
`deceased,
`)
`Plaintiffs, )
`)
`VS. )
`)
`AJAX MAGNETHERMIC )
`CORPORATION, et al., )
`Defendants.
`BRIEF IN SUPPORT OF
`
`MOTION FOR SUMMARY JUDGMENT
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`AND NOW comes defendant, Ajax Magnethermic Corporation, by its attorneys, Riley,
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`Hewitt Witte & Romano, P.C., and files its Brief in Support of Motion for Summary Judgment as
`follows:
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`A. FACTS
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`1. Plaintiffs’ allege that John Robert Lukacs, was exposed to products containing
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`asbestos during his employment at Carnegie Illinois at the Homestead plant as a crane follower from
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`the Summer of 1947 to 4/1948. From 6/1950 to 7/1951 he worked at US Steel Irvin works as a
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`laborer and crane follower. Plaintiff then worked as a laborer for Fisher Body Metal Stamping Plant
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`in West Mifflin (plaintiff cannot recall specific dates). From 1/1953 to 12/1985 he worked at US
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`Steel, Homestead as a laborer, hooker, burner/scarfer. Throughout the course of discovery, neither
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`the plaintiff, nor any witness has identified a specific occasion of an exposure to a asbestos-
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`containing product(s) manufactured and/or supplied by this defendant that would have contributed to
`Mr. Lukacs alleged asbestos-related injury, or otherwise provided evidence that would meet the
`criteria of regularity, frequency and proximity established by Eckenrod and its progeny; as such,
`there is no material issue of fact relative thereto. In light of the fact that plaintiff has failed to
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`produce any evidence of such an exposure, this defendant is entitled to summary judgment as a
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`matter of law.
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`B. ARGUMENT
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`Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories
`and admissions filed show there is no genuine issue of material fact and that the moving party is
`entitled to judgment as a matter of law. Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak,
`517 Pa. 522, 539 A.2d 357 (1988); Gabovitz v. State Auto Insurance Association, 362 Pa. Super. 17,
`523 A.2d 403 (1987, alloc. denied, 516 Pa. 634, 533 A.2d 92 (1987); Williams v. Pilgrim Life
`Insurance Co., 306 Pa. Super. 170, 452 A.2d 269 (1982); Pa.R.Civ.P. Rule 1035(b), 42 Pa.C.S. The
`mere existence of some alleged factual dispute between the parties will not defeat an otherwise
`properly supported motion for summary judgment. The requirement is that there be no genuine issue
`of material fact. Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.
`2d 202 (1986). Only disputes over facts that might affect the outcome of the suit under governing
`law will properly preclude entry of summary judgment. Factual disputes that are irrelevant or
`unnecessary will not be counted. /d 477 U.S. at 258. There is no issue for trial unless there is
`sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If
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`evidence is merely colorable or is not significantly probative, summary judgment may be granted.
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`Id 477 U.S. at 249-250.
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`In order for liability to attach in a products liability action, plaintiff must establish that the
`injuries were caused by a product of a particular manufacturer or supplier. Berkebile v. Brantly
`Helicopter Corp., 462 Pa. 83,337 A.2d 893 (1975). Dornon v. Johnston, 421 Pa. 58,218 A.2d 808,
`809 (1966). See also Maliszewki v. Rendon, 374 Pa. Super. 109, A.2d 170 (1988), alloc. denied, 520
`Pa. 617, 554 A.2d 510 (1989). For an asbestos personal injury plaintiff to defeat a summary
`judgment motion, he must present evidence to show that he inhaled asbestos fibers shed by the
`specific manufacturer’s products. Eckenrodv. GAF Corporation, 375 Pa. Super. 187, 544 A.2d 50,
`52 (1988), alloc. denied, 520 Pa. 605, 553 A.2d 968 (1988). The plaintiff must prove more than the
`presence of asbestos in the workplace. There must be proof that the worker worked in the vicinity of
`the product’s use. /d. The exposure can be proven either by showing that the plaintiff worked with
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`the asbestos-containing products himself or that he worked in the vicinity of them. Richard v.
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`Raymark Industries, Inc., 660 F.Supp. 599, 601 (E.D. Pa. 1987).
`The Court in Eckenrod, supra. stated:
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`The mere fact that appellees’ asbestos products came into the facility does
`not show that the decedent ever breathed these specific asbestos products or
`that he worked where these asbestos products were delivered. Pongrac,
`supra; see also Wible, supra. Whether direct or circumstantial evidence is
`relied upon, our inquiry, under a motion for summary judgment, must be
`whether plaintiff has pointed to sufficient material facts in the record to
`indicate that there is a genuine issue of material fact as to the causation of
`decedent’s disease by the product of each particular defendant. Schmide v.
`Johns-Manville Corp., No. 80-3339 Slip op. (D.Md. November 30, 1982).
`Whether a plaintiff could successfully get to the jury or defeat a motion for
`summary judgment by showing circumstantial evidence depends upon the
`frequency of the use of the product and the regularity of plaintiff's
`employment in proximity thereto. /d. 544 A.2d at 53.
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`The Eckenrod standard was applied in the 1989 Superior Court case of Samarin v. GAF
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`Corp., 391 Pa. Super. 340, 571 A.2d 398 (1989); alloc. denied, 524 Pa. 624 A.2d 66 (1990). In
`Samarin, the Superior Court ruled in favor of the defendant-manufacturers on three evidentiary
`issues. First, the court ruled that the appellant-workers' list of co-workers and asbestos product; that
`they used were not sufficient to defeat the motion for summary judgment. Second, mere testimony
`by tradesmen that they believed the products contained asbestos based on its ability to withstand high
`temperatures was hearsay and ruled inadmissable. Third, the plaintiffs failed to provide sufficient
`evidence to show that the plaintiff had regular and frequent exposure to asbestos products. The mere
`presence of a product in a facility did not establish that any person breathed it. Samarin, 571 A.2d at
`407.
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`In meeting their burden, plaintiff may not rely on evidence which is conjectural in nature.
`Mere guesses and conjecture cannot be substituted for legal proof. Waldronv. Metropolitan Life Ins.
`Co., 347 Pa. 257,31 A.2d 902, 903 (1943). The burden of proof resting on plaintiffs in civil actions
`cannot be met by conjecture. /d. at 904. A party is not entitled to an inference of fact which
`amounts to merely a guess or conjecture. Farnese v. Southeastern Pennsylvania Transportation
`Authority, 338 Pa. Super. 130, 487 A.2d 887, 890 (1985). Even where a party is entitled to the
`benefit of every reasonable inference of fact, he is not entitled to inferences which amount merely to
`a guess or conjecture. Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83, 231 A.2d 179, 180
`(1967); Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864 (1961).
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`In the case of Wilsonv. A.P. Green, 2002 Pa. Super. 294, 807 A.2d 922 (2002), the Superior
`Court of Pennsylvania affirmed the Court of Common Pleas of Philadelphia County granting a
`manufacturer’'s motion for summary judgment. Plaintiff's complaint had alleged that Flintkote
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`products were used near the plaintiff while she worked at the Philadelphia Naval Shipyard during
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`World War Il and, to prove same, she provided testimony of a co-worker who allegedly worked with
`her for a brief period of time in the 1940s. The issues on appeal were: (1) whether the lower court
`abused its discretion by failing to interpret the evidence in a light most favorable to the plaintiffas a
`non-moving party; and (2) whether the lower court erred by requiring the plaintiff to prove regular,
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`frequent, and proximate exposure to defendant's asbestos products in a Mesothelioma case. The
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`court held the following:
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`(1) In order to succeed on a products liability action, a plaintiff must
`show that: (1) “his/her injuries were caused by the product of a
`particular mfg. or supplier”; and (2) the product was defective. (Citing
`Jobe v. W.P. Metz Refining, 445 Pa. Super. 187, 664 A.2d 1015, 1017
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`(1995));
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`(2) A plaintiff must produce evidence that he or she “inhaled asbestos
`fibers shed by the specific mfg’s product.” (Citing Eckenrod),
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`(3) Ideally, the plaintiff should have direct evidence of breathing in
`asbestos fibers from a specific product; otherwise, the plaintiff must
`rely on circumstantial evidence. It may not merely demonstrate the
`“presence of asbestos in the workplace,” but must show that the
`plaintiff “worked in the vicinity of the product’s use.” (Citing
`Andoloro v. Armstrong World Indus., Inc., 799 A.2d 71, 86 (Pa.
`Super. 2002) and Eckenrod);
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`(4) The plaintiff’s evidence must show regularity and physical proximity
`to raise a reasonable inference that he or she inhaled asbestos fibers
`that emanated from it. (Citing Coward v. Owens-Corning Fiberglas
`Corp., 29 A.2d 614, 622 (Pa. Super. 1999));
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`(5) Eckenrod principles do apply to a mesothelioma case, and the
`important aspect is that a “plaintiff must actually inhale asbestos
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`fibers from the specific manufacturer’s product”; and
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`(6) A co-worker's responses during his deposition to inappropriate
`leading questions that mischaracterized prior responses were not
`admissible as summary judgment evidence. (Citing Pa.R.E. 611 and
`Pascone v. Thomas Jefferson Univ., 357 Pa. Super. 524, 516 A.2d
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`384, 387 (1986)).
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`Finally, the most recent relevant statement of the law was announced by the Supreme
`Court of Pennsylvania in the case of Gregg v. V.J. Auto Parts, Inc., --- A.2d ----, 2007 WL 4557811
`(Pa.), essentially instructs the courts in Pennsylvania to expand the application of the Eckenrod
`criteria to more than just circumstantial evidence. In other words, even where a plaintiff provides
`direct evidence of alleged exposures, that evidence is still required to meet the criteria of regularity,
`frequency and proximity established by Eckenrod.
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`Through discovery to date, plaintiffs’ have not identified a specific occasion of an exposure
`to an asbestos-containing product(s) manufactured and/or supplied by this defendant or otherwise
`provided evidence that would meet the criteria of regularity, frequency and proximity established by
`Eckenrod and its progeny.
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`28 Summary judgment based on lack of De Minimus Esposure
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`Incorporating and not waiving all of the aforementioned, the defendant, Ajax
`Magnethermic Corporation, reserves the right to raise a De Minimus exposure argument should
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`further discovery warrant.
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`C. CONCLUSION
`Under Rule 1035 of the Pennsylvania Rules of Civil Procedure, summary judgment is proper
`when there are no genuine issues of material fact to be tried and, thus, the moving party is entitled to
`Jjudgment as a matter of law. 42 Pa. C.S. § 1035(b). Plaintiffs’ have not produced sufficient
`evidence of his exposure to an asbestos-containing product(s) of this defendant. Accordingly, there
`is no material issue of fact to be tried as to this defendant and summary judgment must be granted.
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`For the reasons above cited, this defendant is entitled to summary judgment as to all claims and
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`crossclaims asserted against it
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`Dated: March 10, 2015
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`Respectfully submitted,
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`By: _/s/ William J_Witte
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`William J. Witte, Esquire
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`RILEY, HEWITT, WITTE & ROMANOQ, P.C.
`650 Washington Road, Suite 300
`Pittsburgh, PA 15228
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`(412) 341-9300
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`Attorney for Ajax Magnethermic Corporatio
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`CERTIFICATE OF SERVICE
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`I'hereby certify that a true and correct copy of the foregoing Brief in Support of Motion for
`Summary Judgment was sent by first-class, United States mail, postage prepaid, this 10" day of
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`March, 2015 to plaintiff's counsel as follows:
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`Janice M. Savinis, Esquire
`Savinis, D’ Amico & Kane, P.C.
`Suite 3626, Gulf Tower
`Pittsburgh, PA 15219
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`ALL KNOWN DEFENSE COUNSEL OF RECORD SERVED VIA E-MAIL.
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`/s/ William J. Witte
`William J. Witte, Esquire
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