IN THE COURT OF COMMON PLEAS
`OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`KENNETH GOODRUM and MARGIE CIVIL DIVISION — ASBESTOS
`GOODRUM, his wife,
`
`Plaintiffs, No. GD-17-008641
`
`V.
`CROSBY VALVE, LLC’S MOTION FOR
`CROSBY VALVE, LLC, et al., SUMMARY JUDGMENT BASED ON
`
`LACK OF PRODUCT IDENTIFICATION
`Defendants.
`
`Filed on behalf of Defendant, Crosby Valve,
`LLC
`
`Counsel of Record for This Party:
`
`JOSEPH W. SELEP, ESQUIRE
`Pa. L.D. 43710
`
`ADAM S. AUCHEY, ESQUIRE
`Pa. L.D. 206412
`
`ZIMMER KUNZ, PLLC
`310 Grant Street, Suite 3000
`JURY TRIAL DEMANDED Pittsburgh, PA 15219
`
`(412) 281-8000
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`IN THE COURT OF COMMON PLEAS
`OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`KENNETH GOODRUM and MARGIE CIVIL DIVISION — ASBESTOS
`GOODRUM, his wife,
`
`Plaintiffs, No. GD-17-008641
`V.
`
`CROSBY VALVE, LLC, et al.,
`
`Defendants.
`
`DEFENDANT CROSBY VALVE, LLC’S MOTION FOR SUMMARY JUDGMENT
`BASED ON LACK OF PRODUCT IDENTIFICATION
`
`AND NOW comes the Defendant, Crosby Valve, LLC (“Crosby”), by and through its
`attorneys of record herein, and files this Motion for Summary Judgment Based on Lack of Product
`Identification and, in support thereof, avers as follows:
`
`1. The within action was initially commenced by Complaint on or about June 12,
`2017. The Complaint alleges that Kenneth Goodrum was exposed to asbestos-containing products
`and materials allegedly mined, milled, manufactured, fabricated, supplied, and/or sold by the
`named defendants and that Mr. Goodrum developed lung cancer as a result of exposure to the
`asbestos-containing products and materials.
`
`2. Plaintiffs allege that Mr. Goodrum was exposed to asbestos during portions of his
`employment at U.S. Steel - Clairton from 1964 to 2003. See Complaint, 9 37, 38.
`
`3. Plaintiffs added Crosby, among other defendants, as a party to this matter by
`Amended Complaint on or about September 25, 2017.
`
`4. Mr. Goodrum has not been deposed in this matter.
`
`5. There have been no depositions taken in this matter to date.
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`6. Plaintiffs have not produced any written discovery demonstrating that Crosby was
`the manufacturer and/or supplier of any asbestos-containing products to which Mr. Goodrum was
`exposed at any time set forth in the Complaint.
`
`7. Accordingly, Plaintiffs have not provided any competent evidence identifying
`Crosby as the manufacturer and/or supplier of any asbestos-containing products to which Mr.
`Goodrum was exposed at any time set forth in the Complaint.
`
`8. Since there has been no identification of Crosby or its products as a source of any
`asbestos exposure that allegedly caused injury to Plaintiffs, Crosby is entitled to summary
`judgment as a matter of law.
`
`0. Contemporaneous with the filing of this Motion, Defendant files its Brief in Support
`and incorporates the same as if set forth fully herein, at length.
`
`WHEREFORE, Defendant Crosby Valve, LLC respectfully requests this Honorable Court
`enter summary judgment in its favor against all parties as to Plaintiffs’ claims and as to all cross-
`claims.
`
`Respectfully submitted,
`
`ZIMMER KUNZ, PLLC
`
`/s/ Joseph W. Selep
`/s/ Adam S. Auchey
`
`Joseph W. Selep, Esquire
`Adam S. Auchey, Esquire
`Counsel for Defendant, Crosby Valve, LLC
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`IN THE COURT OF COMMON PLEAS
`OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`KENNETH GOODRUM and MARGIE CIVIL DIVISION — ASBESTOS
`GOODRUM, his wife,
`Plaintiffs, No. GD-17-008641
`V.
`CROSBY VALVE, LLC, et al., BRIEF IN SUPPORT OF CROSBY
`VALVE, LLC’S MOTION FOR
`Defendants. SUMMARY JUDGMENT BASED ON
`
`LACK OF PRODUCT IDENTIFICATION
`
`Filed on behalf of Defendant, Crosby Valve,
`LLC
`
`Counsel of Record for This Party:
`
`JOSEPH W. SELEP, ESQUIRE
`Pa. L.D. 43710
`
`ADAM S. AUCHEY, ESQUIRE
`Pa. L.D. 206412
`
`ZIMMER KUNZ, PLLC
`310 Grant Street, Suite 3000
`Pittsburgh, PA 15219
`
`(412) 281-8000
`
`JURY TRIAL DEMANDED
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`IN THE COURT OF COMMON PLEAS
`OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`KENNETH GOODRUM and MARGIE CIVIL DIVISION — ASBESTOS
`GOODRUM, his wife,
`No. GD-17-008641
`Plaintiffs,
`
`V.
`CROSBY VALVE, LLC, et al.,
`Defendants.
`
`BRIEF IN SUPPORT OF DEFENDANT CROSBY VALVE, LLC’S MOTION FOR
`SUMMARY JUDGMENT BASED ON LACK OF PRODUCT IDENTIFICATION
`
`AND NOW comes the Defendant, Crosby Valve, LLC (“Crosby”), by and through its
`attorneys of record herein, and files the within Brief in Support of its Motion for Summary
`Judgment Based on Lack of Product Identification, averring as follows:
`
`L. Summary of Facts and Procedural History
`
`Plaintiffs filed their initial Complaint in this matter on or about June 12, 2017, alleging
`that Kenneth Goodrum was exposed to asbestos-containing products and materials allegedly
`mined, milled, manufactured, fabricated, supplied, and/or sold by the named defendants.
`Plaintiffs contend that Mr. Goodrum developed lung cancer as a result of exposure to the
`asbestos-containing products and materials.
`
`Plaintiffs contend that Mr. Goodrum was exposed to asbestos during portions of his
`employment with U.S. Steel — Clairton from 1964 through 2003. See Complaint, 99 37, 38.
`
`Plaintiffs added additional defendants, including Crosby, to this matter by Amended
`Complaint on or about September 25, 2017.
`
`Mr. Goodrum has not been deposed in this matter.
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`There have no depositions in this matter to date. Moreover, Plaintiffs have not produced
`any written discovery demonstrating that Crosby was the manufacturer and/or supplier of any
`asbestos-containing products to which Mr. Goodrum was exposed at any time set forth in the
`Complaint.
`
`Accordingly, Plaintiffs have failed to provide any competent evidence identifying Crosby
`as the manufacturer and/or supplier of any asbestos-containing products to which Mr. Goodrum
`was exposed at any time set forth in the Complaint.
`
`II. Legal Argument
`
`Based on the evidence produced to date, Crosby asserts that it is entitled to summary
`judgment under well-settled Pennsylvania law.
`
`A. Standard of Review
`
`With respect to asbestos cases, the Supreme Court of Pennsylvania has stated that “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 the defendant’s product and the asserted injury.”
`
`Gregg v. V-J Auto Parts, Co., 943 A.2d 216, 227 (Pa. 2007). “[C]ourts in Pennsylvania have
`been consistent in requiring the plaintiff to produce evidence that he frequently and regularly
`used, or worked in sufficient proximity to, a specific defendant’s asbestos-containing product,
`and that he inhaled asbestos fibers shed therefrom in order to overcome a motion for summary
`judgment.” Id. at 219. Plaintiffs cannot simply rest on allegations to survive a motion for
`
`summary judgment.
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`B. Plaintiffs Have Failed to Establish Exposure of Plaintiff to a Product of
`Crosby with the Requisite Frequency, Proximity, and Regularity to Survive
`Summary Judgment Under Pennsylvania Law
`The Eckenrod case makes clear that the mere presence of a Crosby product in proximity
`to Plaintiff is insufficient to demonstrate causation:
`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. 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, plaintiff 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. Summary judgment
`is proper when the plaintiff has failed to establish that the defendant’s
`products were the cause of plaintiff’s injuries.
`
`Eckenrod v. GAF Corp., 544 A.2d 50, 52-53 (Pa. Super. 1988), alloc. denied, 553 A.2d 963 (Pa.
`
`1988).
`
`In Eckenrod, the Superior Court established the product identification burden that a
`plaintiff claiming exposure to asbestos-containing products must meet in order to overcome a
`motion for summary judgment. /d. A plaintiff may defeat a motion for summary judgment only
`by showing the elements of regularity, frequency and proximity. /d.; see also Junge v. Garlock
`Inc., 629 A.2d 1027 (Pa. 1993). That is to say, Plaintiff must demonstrate that he was regularly
`employed in close proximity to an area where asbestos products manufactured by a particular
`defendant were frequently used. See Eckenrod, 544 A.2d at 53.
`
`In Wilson v. A.P. Green Industries, Inc., the Pennsylvania Superior Court upheld the
`standards of frequency, regularity and proximity established in Eckenrod and further reiterated
`that: “[plaintiff’s] evidence may not merely demonstrate the ‘presence of asbestos in the
`
`workplace,” but must show that plaintiff ‘worked in the vicinity of the product’s use.”” Wilson
`
`v. A.P. Green Ind., Inc., 807 A.2d 922, 924 (Pa. Super. 2002) (citing Andalaro v. Armstrong
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`World Ind., 799 A.2d 71, 86 (Pa. Super. 2002)). The mere presence of a defendant’s product at
`plaintiff’s work site is insufficient to prove causation as to that defendant. Fiffick v. GAF Corp.,
`603 A.2d 208, 211 (Pa. Super. 1992).
`
`The Pennsylvania Superior Court has further held that the Eckenrod standard applies to
`not only asbestosis claims, but also lung cancer and mesothelioma claims. In Wilson, the
`plaintiff’s decedent contracted mesothelioma which plaintiff alleged was a result of decedent’s
`exposure to asbestos containing products manufactured by the Flintkote Company. 807 A.2d
`922 at 925-927. To support the claim against Flintkote, the plaintiff offered the testimony of
`Josie Usher who stated that workers at the shipyard used many different cement products around
`her and the decedent, all of which created dust. /d. While Ms. Usher identified Flintkote as the
`manufacturer of one of those cements, she was unable to provide direct evidence that the
`decedent specifically breathed in or was exposed to the Flintkote cement. /d. On this basis,
`Flintkote filed a motion for summary judgment and argued that the Eckenrod standard was not
`met since the plaintiff was required to demonstrate not only the presence of asbestos in the work
`place, but also that the decedent worked in the vicinity of the products. /d. The plaintiff
`countered by arguing that the Eckenrod standard did not apply in this case because the decedent
`developed mesothelioma and that the standard only applied to circumstantial evidence, not
`direct evidence. Id. Plaintiff claimed that Ms. Usher’s testimony provided direct evidence of the Flintkote
`product being present at the shipyard — all that was required. 7d.
`
`The Superior Court rejected the plaintiff’s argument in Wilson and found that plaintiff
`offered no direct evidence that the decedent inhaled any asbestos-containing Flintkote product;
`and thus, needed to satisfy the Eckenrod standard regardless of the decedent’s disease process.
`Id. Moreover, the Court held that Ms. Usher’s testimony that the decedent was exposed to dust
`
`from Flintkote’s product “at one time or another” was too vague and unsubstantiated to prove
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`that decedent regularly worked in proximity to the Flintkote product as required under the
`
`Eckenrod standard. Id. As such, the trial court’s grant of summary judgment was affirmed. /d.
`
`In the present case, there is no evidence that Mr. Goodrum was ever exposed to any dust
`from any asbestos-containing product of Crosby, much less that any such exposure took place
`on a frequent and regular basis. Thus, applying the Eckenrod standard to the facts in this case,
`Plaintiffs’ claims fail and Crosby is entitled to judgment as a matter of law.
`
`III. Conclusion
`
`For the foregoing reasons, Defendant Crosby Valve, LLC respectfully requests that this
`Honorable Court enter summary judgment in its favor against all parties as to Plaintiffs’ claims
`and as to all cross-claims.
`
`Respectfully submitted,
`
`ZIMMER KUNZ, PLLC
`
`/s/ Joseph W. Selep
`/s/ Adam S. Auchey
`Joseph W. Selep, Esquire
`Adam S. Auchey, Esquire
`
`Counsel for Defendant, Crosby Valve,
`LLC
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that I have this 11" day of January, 2018, served a true and correct copy
`of the foregoing Motion for Summary Judgment and Brief in Support Thereof on the following
`counsel of record via U.S. first class mail, and notice of service of same on all defense counsel of
`record via email transmission:
`
`David P. Chervenick, Esquire
`Cori J. Kapusta, Esquire
`GOLDBERG, PERSKY & WHITE, PC
`11 Stanwix Street, Suite 1800
`Pittsburgh, PA 15222
`Counsel for Plaintiffs
`
`Respectfully submitted,
`
`ZIMMER KUNZ, PLLC
`
`/s/ Joseph W. Selep
`/s/ Adam S. Auchey
`
`Joseph W. Selep, Esquire
`Adam S. Auchey, Esquire
`
`Counsel for Defendant, Crosby Valve,
`LLC
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`IN THE COURT OF COMMON PLEAS
`OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`KENNETH GOODRUM and MARGIE CIVIL DIVISION — ASBESTOS
`GOODRUM, his wife,
`
`Plaintiffs, No. GD-17-008641
`V.
`CROSBY VALVE, LLC, et al.,
`
`Defendants.
`
`ORDER OF COURT
`
`AND NOW, this day of , 2018, upon consideration of Defendant
`
`Crosby Valve, LLC’s Motion for Summary Judgment, the Motion is hereby GRANTED.
`Summary judgment is entered in favor of Defendant, Crosby Valve, LLC, and against Plaintiffs.
`Plaintiffs’ Complaint (and any amendments), and as to all cross-claims, against Crosby Valve,
`
`LLC is hereby dismissed, with prejudice.
`
`BY THE COURT:
`
`01548473.DOCX 1820-0078
`
`
`
`
`
`
`
`
`