IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`Plaintiffs,
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`BERNARD ALLEN AND DOROTHY ALLEN,
`HIS WIFE,
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`ARMSTRONG PUMPS, INC., et al.
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`Defendants.
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`v.
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`CIVIL DIVISION - ASBESTOS
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`G.D. No. 14-003266
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`MOTION FOR SUMMARY JUDGMENT
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`Filed on behalf of Defendant
`Armstrong Pumps, Inc.
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`Counsel of record for this party:
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`Adam J. Warhola, Esquire
`PA I.D. # 201065
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`Timothy J. Chiappetta, Esquire
`PA I.D. #206477
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`DICKIE, MCCAMEY & CHILCOTE, P.C.
`Firm #067
`Two PPG Place, Suite 400
`Pittsburgh, PA 15222-5402
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`(412) 281-7272
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`JURY TRIAL DEMANDED
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`Plaintiffs,
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`v.
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`CIVIL DIVISION - ASBESTOS
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`G.D. 14-003266
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`BERNARD ALLEN AND DOROTHY ALLEN,
`HIS WIFE,
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`ARMSTRONG PUMPS, INC., et al.,
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`Defendants.
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`ARMSTRONG PUMPS, INC.’S
`MOTION FOR SUMMARY JUDGMENT
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`Defendant, Armstrong Pumps, Inc.’s (“Armstrong Pumps”) through its attorneys,
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`Dickie, McCamey & Chilcote, P.C. and pursuant to the Court’s Scheduling Order, sets forth
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`the following Motion for Summary Judgment:
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`1.
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`The Plaintiff commenced this action by filing a Complaint in Civil
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`Action alleging exposure to asbestos-containing products manufactured, supplied or
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`distributed by Armstrong Pumps, among others.
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`2.
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`Plaintiff was allegedly exposed to asbestos while employed at J&L
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`Steel, Hazelwood, from 1958 to 1993.
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`3.
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`To date there has been no evidence produced which demonstrates
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`that Plaintiff was exposed to any asbestos products manufactured, supplied, and/or
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`distributed by Armstrong Pumps.
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`4.
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`There is no genuine issue of material fact regarding Plaintiff’s alleged
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`exposure to any asbestos products manufactured, supplied or distributed by Armstrong
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`Pumps; therefore, Armstrong Pumps is entitled to judgment in its favor as a matter of law.
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`WHEREFORE, Defendant, Armstrong Pumps, Inc., respectfully requests this
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`Honorable Court to grant its Motion for Summary Judgment as to Plaintiff’s claims and any
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`cross-claim with prejudice.
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`Respectfully submitted,
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`Dickie, McCamey & Chilcote, P.C.
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`By /s/ Timothy J. Chiappetta
`Adam J. Warhola, Esquire
`Timothy J. Chiappetta, Esquire
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`Attorneys for Defendant,
`Armstrong Pumps, Inc.
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`Plaintiffs,
`
`
`
`v.
`
`
`
`CIVIL DIVISION - ASBESTOS
`
`G.D. 14-003266
`
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`BERNARD ALLEN AND DOROTHY ALLEN,
`HIS WIFE,
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`ARMSTRONG PUMPS, INC., et al.,
`
`
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`
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`Defendants.
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`BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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`AND NOW, comes the Defendant, Armstrong Pumps, Inc., by and through its counsel,
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`Dickie, McCamey & Chilcote, P.C., and files the following Brief in Support of Motion for
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`Summary Judgment, averring in support thereof as follows:
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`STATEMENT OF FACTS
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`The Plaintiff in this case commenced this action alleging that he was exposed to
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`asbestos-containing products manufactured, distributed, supplied or
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`installed by,
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`Armstrong Pumps, Inc., among other defendants. To date, no evidence has been produced
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`to show that the Plaintiff was exposed to any asbestos-containing products manufactured,
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`distributed, supplied or installed by Armstrong Pumps, Inc.
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`The record developed thus far in this case lacks any identification of this Defendant
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`as a manufacturer or supplier of products which allegedly injured Plaintiff. As a result of
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`this complete lack of evidence of product identification, this Defendant, Armstrong Pumps,
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`Inc., has now come forward with this Motion for Summary Judgment.
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`ARGUMENT
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`ARMSTRONG PUMPS DID NOT SUPPLY ANY ASBESTOS-CONTAINING
`PRODUCT THAT WAS A CAUSE OF PLAINTIFF’S INJURY
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`For a Defendant manufacturer and/or supplier to be liable in a products liability
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`case, the Plaintiff must prove, among other factors, that the alleged injuries were
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`proximately caused by the use of or exposure to the defendant’s products. See, Celotex
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`Corp. v. Catrett, 477 U.S. 317, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986); Burnside v. Abbott
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`Laboratories, 351 Pa.Super. 264, 274, 505 A.2d 973, 978 (1985) (citing Prosser & Keeton,
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`Torts § 41, at 262 (5th Ed. 1984); Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 337
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`A.2d 893 (1975). As stated in Wetzel v. Eaton Corp., 62 F.R.D. 22, 28 (D. Miss. 1972), “The
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`universally recognized doctrine requires that the allegedly defective products be identified
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`as having emanated from, or being charged to, the one sought to be held liable.” See also,
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`Bilk v. Abbott Dairies, Inc., 147 Pa. Super. 39, 23 A.2d 432 (1941) and cases cited at
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`Annotation: Identity of Manufacturer of Defective Part, 51 A.L.R. 3d 1344, 1351. It is well
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`settled in Pennsylvania that when there is no proof as to the identity of the manufacturer of
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`a product, there can be no recovery under either a negligence or strict liability theory.
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`Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 495 A.2d 963 (1985), Kamosky v.
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`Owens-Illinois Glass Co., 89 F.Supp. 561 (M.D. Pa. 1950), aff’d per curiam, 185 F.2d 674 (3d
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`Cir. 1950).
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`In Kamosky, supra, the Court considered whether plaintiffs presented substantial
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`evidence from which the jury might have found that the product involved in the accident
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`was manufactured, produced or in any way handled or processed by the defendant. Under
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`the facts of that case, it appeared that the Defendant, Owens-Illinois Glass Company
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`supplied 6,900 quart bottles to a particular brewery during the years 1941 through 1946.
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`Total purchases of such bottles during that period amounted to 7,071 gross. Although it
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`would appear that Owens-Illinois Glass Company had supplied approximately 97% of all
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`quart beer bottles purchased by the brewery during that time, the Court ruled that the
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`simple statistical probability that a bottle which exploded and injured the Plaintiff was
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`manufactured by Owens-Illinois was insufficient to establish the plaintiff’s case against
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`Owens-Illinois Glass Company. Kamosky, 98 F.Supp. at 562. “Such was clearly not
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`substantial evidence from which the jury, without guessing, might find that Owens-Illinois
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`did manufacture, produce, handle or process the bottle which exploded. Under these
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`circumstances, it was the duty of the Court to direct a verdict for the defendant . . . .” Id. at
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`563.
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`In the case of Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 495 A.2d
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`963 (1985), the plaintiff could not identify the particular manufacturer of a tire and rim
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`assembly which allegedly caused his injury. Plaintiff’s Complaint set forth counts in
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`negligence, strict liability and various innovative theories of liability such as concert of
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`action, market share liability and/or industry-wide liability. The Superior Court held that
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`plaintiff’s count in negligence must fail relying upon the general rule requiring
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`identification of the defendant as the manufacturer or seller of a particular offending
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`product before the plaintiff’s injuries could be found to be proximately caused by the
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`negligence of the defendant. “Absent such identification, there can be no allegations of
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`duty, breach of duty or legal causation, and hence, there can be no liability.” Cummins, 495
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`A.2d at 967-8 (citing Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978)). In dealing with
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`Plaintiff’s allegations of strict liability, the Court stated:
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`Section 402(A) of the Restatement (Second) of Torts (1977), adopted
`in Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966),
`establishes the strict liability of one who sells any product in a
`defective condition unreasonably dangerous to the user or consumer.
`In order to state a cause of action for strict liability in tort, a plaintiff
`must allege a sale or other commercial transfer of a product by the
`Defendant.
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`Viewing the Complaint most favorably to appellant, we once again
`find appellant’s failure to identify the offending product as a fatal
`deficiency to his claim.
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`Cummins, 495 A.2d at 968.
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`The same fundamental principles of product identification have also been developed
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`in Pennsylvania for cases alleging liability for asbestos-related injuries. It is clear that the
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`mere presence of a defendant’s products at a job site where plaintiff worked is insufficient
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`to establish liability. In the case of Pongrac v. Consol. Rail Corp., 632 F.Supp. 126 (E.D. Pa.
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`1985), the plaintiff worked at a railroad facility, alleged in his complaint that he was
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`exposed to asbestos products, and that this exposure had caused him to suffer pulmonary
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`damage. Id. at 127. Numerous defendants were named in that case on the basis that they
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`had manufactured and/or supplied asbestos products to which the plaintiff had been
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`exposed. John Crane, Inc., one of the defendants in that case, filed a motion for summary
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`judgment on the basis that plaintiff could not establish a causal link between exposure to
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`its products and his alleged disease and, in support thereof, relied upon plaintiff’s Answers
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`to Interrogatories. Id. Those Answers to Interrogatories indicated that the plaintiff had
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`been exposed to numerous asbestos products throughout his work tenure, but his
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`investigation was continuing with regard to specific products to which he may have been
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`exposed. Id. In concluding that the defendant was entitled to summary judgment, the
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`District Court cited and relied upon the case of Anastasi v. Pacor, Inc., May Term, 1978,
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`No. 6251, Asb. Lit. Rep., March 25, 1983, p. 6,399 (Pa. C.P. Phila. March 8, 1983), affirmed,
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`503 A.2d 444 (1986), wherein the Court of Common Pleas overturned the jury verdict
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`against a manufacturer of asbestos products, stating that although there was evidence that
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`the manufacturer supplied products to the Plaintiff-decedent’s work place, there was no
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`showing of where in the shipyard the decedent worked or the asbestos was used. Id. at
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`6,401. The Court in Anastasi framed the pertinent issue as follows:
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`However, another significant question remains. Was the evidence
`sufficient to show that Frank Anastasi came into contact with anything
`other than a de minimis amount of asbestos made by or delivered by
`Defendant Pacor during his employment at the Navy yard?
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`The Court went on to note that:
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`The mere fact that some Pacor asbestos came into the yard does not
`show that Frank Anastasi ever breathed the Pacor asbestos, that he
`ever worked in a compartment on a ship where Pacor asbestos was
`used, that he ever worked on a ship where Pacor asbestos was seen,
`or that he ever worked on a ship where Pacor was seen on the dock
`next to the ship. The mere fact that Frank Anastasi worked in the
`Navy yard, and some Pacor asbestos also was delivered to the Navy
`yard for use some place in the yard is insufficient to show that any
`Pacor asbestos came in contact with Frank Anastasi.
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`Anastasi, at p. 6,401.
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`The Pongrac and Anastasi cases were cited by the Pennsylvania Superior Court in its
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`opinion affirming the grant of summary judgment in favor of defendant, asbestos
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`manufacturers, in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988). In
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`Eckenrod, the Superior Court granted summary judgment because plaintiff failed to present
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`evidence linking plaintiff with exposure to defendants’ products. Plaintiff argued that a
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`material issue of fact existed because records indicated, inter alia, that defendant A-Best’s
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`asbestos gloves were sold to the facility where plaintiff was employed. The Superior Court
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`rejected this argument holding:
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`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. 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.
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`Eckenrod, 544 A.2d at 53 (emphasis added). The Eckenrod Court, also, held:
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`We acknowledge that the facts establish that the decedent on occasion
`was exposed to asbestos; there is no evidence, however, as to the
`regularity or nature of decedent’s contact with asbestos. Moreover,
`there is no testimony establishing that Mr. Eckenrod worked with
`asbestos supplied and/or manufactured by Porter or A-Best or any of
`the other appellees. The mere fact that appellees’ asbestos products
`came into the facility does not show that the decedent ever breathed
`the specific asbestos products or that he worked where these asbestos
`products were delivered.
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`Eckenrod, 544 A.2d at 53.
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`In the case of Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989), the
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`Pennsylvania Superior Court panel reaffirmed the Eckenrod holding. Furthermore, the
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`Court in Samarin clarified Eckenrod by interpreting what evidence can and cannot be
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`sufficient to avoid a motion for summary judgment for lack of product identification.
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`Significantly, the Samarin Court noted the Eckenrod holding that a plaintiff’s “occasional
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`presence” at a location where defendant’s products are located is not sufficient to avoid a
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`motion for summary judgment. Id. at 404-5. The Samarin Court further followed the
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`Eckenrod decision by holding that the mere presence of defendant’s products at the job site
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`is not sufficient for purposes of product identification; rather, it must be shown that there
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`is a causal connection between the presence of defendant’s products and plaintiff’s alleged
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`injuries. Id. at 404. Thus, the record must provide sufficient evidence of the regularity and
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`nature of a plaintiff’s exposure to a defendant’s product as well as plaintiff’s proximity
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`thereto. Id.
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`The Court in Samarin clarified that plaintiffs have the burden of proof and must
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`come forward with evidence such as co-worker testimony which establishes a relationship
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`between the co-worker and plaintiff sufficient to show significant exposure to defendant’s
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`products in accordance with the nature, regularity and proximity requirements of Eckenrod
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`mentioned above. Id. at 404-5. Finally, co-worker testimony that defendant’s products
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`contained asbestos is not sufficient to avoid a summary judgment motion if that testimony
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`is based on (1) hearsay from other co-workers, or (2) the co-workers’ belief that because
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`the product withstood high temperatures it “must have” contained asbestos. Id. at 403.
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`Most recently, in Howard v. A.W. Chesterton Co., 78 A.3d 605 (Pa. 2013)(per curium),
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`the Supreme Court of Pennsylvania reaffirmed several of the above-mentioned and well-
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`established precepts with respect to substantial factor causation in dose-responsive
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`disease cases. Specifically, the Supreme Court of Pennsylvania reiterated that bare proof of
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`some deminimus exposure to a defendant’s product is insufficient to establish substantial-
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`factor causation in cases involving dose-responsive diseases. Id. at 608.
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`The facts of the instant action are similar to those presented in previous
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`Pennsylvania and Federal Court appellate cases. In this case, Plaintiffs have failed to prove
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`that Plaintiff was exposed to asbestos-containing products of this Defendant with the
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`regularity, frequency and proximity required under Pennsylvania law. Without such
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`essential proof, Plaintiffs’ case must fail due to a lack of causation evidence.
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`CONCLUSION
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`For the above-stated reasons, summary judgment should be entered in favor of
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`Armstrong Pumps, Inc., with prejudice the claims of Plaintiff as well as any cross claims.
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`Respectfully submitted,
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`Dickie, McCamey & Chilcote, P.C.
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`By /s/ Timothy J. Chiappetta
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`Adam J. Warhola, Esq.
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`Timothy J. Chiappetta, Esq.
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`Attorneys for Defendant,
`Armstrong Pumps, Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing Motion for Summary
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`Judgment and Brief in Support thereof and Proposed Order of Court was mailed to
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`Plaintiffs’ counsel of record and notice of the filing of same was served on all other counsel
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`of record by electronic mail, this 15th day of May, 2014.
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`DICKIE, McCAMEY & CHILCOTE, P.C.
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`By /s/ Timothy J. Chiappetta
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`Adam J. Warhola, Esq.
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`Timothy J. Chiappetta, Esq.
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`Attorneys for Defendant,
`Armstrong Pumps, Inc.
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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`Plaintiffs,
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`
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`v.
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`
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`CIVIL DIVISION - ASBESTOS
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`G.D. 14-003266
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`BERNARD ALLEN AND DOROTHY ALLEN,
`HIS WIFE,
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`ARMSTRONG PUMPS, INC., et al.,
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`Defendants.
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`ORDER OF COURT
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`AND NOW, this _______ day of ________________, 2014, upon consideration of the
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`foregoing Motion for Summary Judgment filed on behalf of Defendant, ARMSTRONG
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`PUMPS, INC., to dismiss all claims and cross claims with prejudice, it is hereby ORDERED,
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`ADJUDGED and DECREED that said Motion to dismiss the Plaintiffs’ claims and any cross
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`claim against ARMSTRONG PUMPS, INC., is _________________________.
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`BY THE COURT:
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`_________________________________________________, J.
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