`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`
`vs.
`
`
`
`AK STEEL CORPORATION, et. al.,
`
`
`
`Plaintiffs,
`
`
`
`Defendants.
`
`BILLY JOE WAUHOP and
`ADELLA WAUHOP;
`
`
`
`
`
`
`
`
`
`
`
`
`
`CIVIL DIVISION
`
`No.: GD 18-016332
`
`Code: – 012 – Asbestos
`
`PLAINTIFFS’ AMENDED RESPONSE IN
`OPPOSITION TO MOTIONS FOR
`SUMMARY JUDGMENT BASED UPON
`(1) LACK OF DUTY AND (2) LACK OF
`EVIDENCE OF CAUSATION BY
`DEFENDANT BELDEN HOLDING &
`ACQUISITION COMPANY, INC.
`
`Filed on behalf of Plaintiffs
`
`Counsel of Record for this Party:
`
`Craig E. Coleman, Esq.
`Pa. I.D. No. 39391
`
`CAROSELLI BEACHLER & COLEMAN
`LLC
`Firm No. 589
`20 Stanwix Street, Suite 700
`Pittsburgh, PA 15222
`(412) 391-9860
` Email: ccoleman@cbmclaw.com
`
`DEAN OMAR BRANHAM SHIRLEY, LLP
`302 N. Market Street, Suite 300
`Dallas, Texas 75202
`Ethan A. Horn, Esq.
`(Admitted Pro Hac Vice)
`(214) 722-5990
`(214) 722-5991 (Fax)
`Email: ehorn@dobslegal.com
`
`JURY TRIAL DEMANDED
`
`
`
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`
`CIVIL DIVISION
`
`No.: GD 18-016332
`
`
`
`
`
`
`
`
`
`
`
`BILLY JOE WAUHOP and ADELLA
`WAUHOP,
`
`
`vs.
`
`
`
`AK STEEL CORPORATION, et. al.
`
`
`
`Plaintiffs,
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`LIST OF EXHIBITS
`
`
`
`Ex. 1 – Deposition of Mr. Wauhop, Vol. I (February 22, 2019)
`Ex. 2 – Deposition of Mr. Wauhop, Vol. II (February 25, 2019)
`Ex. 3 – Deposition of George Buszinski, Burke v, The Gage Company, Commonwealth of
`Pennsylvania, Allegheny County Case No.GD 99-13360, (March 23, 2000)
`Ex. 4- Defendant Johns-Manville Products Corporation’s Answer to Plaintiff’s First Set of
`Interrogatories served in Lopez, et al., v. Armstrong Cork Company, et al., Southern District of
`Florida, Miami Division Case No. 75-1365-Civ-JLK (March 19, 1976)
`Ex. 5- Report of Dr. Arnold Brody (October 21, 2019)
`Ex. 6- Report of Dr. Brent Staggs (including Affidavit) (April 3, 2019)
`Ex. 7-Report of Dr. Edwin Holstein (October 17, 2019)
`
`
`
`
`

`

`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
`
`CIVIL DIVISION
`
`No.: GD 18-016332
`
`
`
`
`
`
`
`
`
`
`
`BILLY JOE WAUHOP and ADELLA
`WAUHOP,
`
`
`Plaintiffs,
`
`
`
`
`
`
`vs.
`
`
`
`AK STEEL CORPORATION, et. al.
`
`
`
`Defendants.
`
`
`
`
`PLAINTIFFS’ AMENDED RESPONSE IN OPPOSITION TO
`MOTIONS FOR SUMMARY JUDGMENT BASED ON LACK OF DUTY AND LACK
`OF EVIDENCE OF CAUSATION OF DEFENDANT BELDEN HOLDING &
`ACQUISITION COMPANY, INC.
`
`
`
`AND NOW, come the Plaintiffs Billy Joe Wauhop and his wife Adella Wauhop by and
`
`through their attorneys, Caroselli Beachler & Coleman and Dean Omar Branham Shirley, LLP,
`
`and file the following Amended Response to Motion for Summary Judgment filed by Belden
`
`Holding & Acquisition Company, Inc. (“Belden Holding” or “Defendant”).
`
`I.
`
`INTRODUCTION
`
`
`
`Plaintiffs Billy Joe Wauhop and his wife Adella filed suit against Defendant after he was
`
`diagnosed with mesothelioma in August 2018. Ex. 1, Deposition of Billy Joe Wauhop, Vol. I,
`
`2/22/19. Mr. Wauhop, while working for another company, worked at Defendant’s premise for
`
`approximately a week and a half. Throughout that time, he was regularly exposed asbestos-
`
`containing materials, including asbestos-containing refractory materials, used in kilns and
`
`furnaces. Belden Holding moves for summary judgment arguing that, (1) as a premise owner, it
`
`owed no duty to Mr. Wauhop and (2) Plaintiffs have failed to present sufficient evidence of
`
`causation. For the reasons expressed herein, summary judgment must be denied.
`
`Belden Holding owed a duty to Mr. Wauhop and it breached that duty. Mr. Wauhop, as the
`
`employee of an independent contractor, qualifies as a “business invitee.” As a business invitee,
`
`
`
`1
`
`

`

`Belden Holding owed him the duty of protecting him against known (or knowable) hazards on its
`
`property. Plaintiffs set forth evidence establishing that Belden Holding, after hiring a company
`
`who used asbestos-containing materials, could have discovered that the products used by the
`
`contractors on its premise contained asbestos. As this was a knowable hazard present on Belden
`
`Holding’s premise, Belden Holding owed Mr. Wauhop to protect him from the asbestos hazard on
`
`its premise. The facts here are just as strong as those in Gutteridge and other decisions which
`
`finding a premise owner breached a duty to a business invitee.
`
`Plaintiffs’ evidence demonstrates that Mr. Wauhop’s regular exposure to refractory
`
`materials used in the kilns and furnaces at Belden Holding’s premise constituted a substantial
`
`factor in the development of his mesothelioma. Plaintiffs submit (a) Mr. Wauhop’s testimony
`
`demonstrating exposure, (b) Dr. Brent Staggs’ report confirming Mr. Wauhop’s diagnosis and a
`
`discussion on the specific causation in this matter, (c) Dr. Brody’s report on general causation and
`
`(e) Dr. Holstein’s report on specific causation. Dr. Staggs’ opinion follows Dr. Frank’s opinion in
`
`Rost. He does not hold the opinion that every asbestos fiber is a substantial factor. After reviewing
`
`the exposure information and a variety of scientific evidence, Dr. Staggs opines that Mr. Wauhop’s
`
`exposures at Belden Holding were of a level sufficient to cause mesothelioma, and therefore
`
`significant and a substantial contributing factor.
`
`II.
`
`STATEMENT OF FACTS
`
`A. Mr. Wauhop was exposed to asbestos attributable to Belden Holding.
`
`
`
`Billy Joe Wauhop was born and raised in West Virginia and came to Pennsylvania to start
`
`his first job out of college in May 1965. Ex. 1 at 19:9-16. Straight out of college in 1965, Mr.
`
`Wauhop went to work at Swindell-Dressler in Pittsburgh. Id. at 23:15-22. From June 1965 to
`
`November 1966, Mr. Wauhop worked as an engineer for Swindell-Dressler. Id. at 24:11-13.
`
`
`
`2
`
`

`

`Swindell Dressler was in the business of making industrial furnaces, or kilns, for the brick and
`
`ceramic industries. Id. at 25:12-21. Mr. Wauhop was sent by Swindell-Dressler to inspect work
`
`being done for customers at various locations. Id. at 30:17-24.
`
`One of the places where Mr. Wauhop was sent while working for Swindell-Dressler is
`
`Belden Brick in Sugar Creek, Ohio. Id. at 33:14-24. Mr. Wauhop estimated he was on site at
`
`Belden Brick for up to ten visits. Ex. 2, Wauhop Dep. Vol. II (Feb. 25, 2019) at 301:7-14. The
`
`facility was brand-new and just being built. Id. at 263:5-7. They were building a tunnel kiln at the
`
`same time that they were doing the installing track for the kennel cars, the track hauling system,
`
`and the dryer. Id. at 40:8-24. Mr. Wauhop explained that the kiln car staging equipment was at
`
`Belden Brick and he was there to look at it and answer any questions while it was being installed;
`
`he also worked in the soft mill dryer there. Id. at 32:3-9.
`
`
`
`Mr. Wauhop did this work for Belden Brick when he was working for Swindell-Dressler.
`
`Id. at 33:14-24. Mr. Wauhop explained that most of his work was to design the wall itself of a kiln,
`
`or the roof arch or size the fans. Id. at 42:25-43:17. From learning based on previous calculations
`
`and using those same heat transmissions, Mr. Wauhop knew that Sil-o-cel was the powder on the
`
`ceiling, and that Super X was used against the walls on the kiln at a lower temperature. Id. He
`
`understands that Sil-o-cel powder used for the roof and the sidewalls, the asbestos caulking around
`
`the burners and expansion joints and any other place around a door or a site tube contained
`
`asbestos. Ex. 2 at 302:11-21.
`
`
`
`It was Mr. Wauhop’s job to design the kiln at Belden Brick; he explained that there was a
`
`problem with space and a limit on the size of the building to give the kiln production, so he came
`
`up with a design that was not the original design. Ex. 1 at 34:16-24. The kiln was massive,
`
`approximately 300 or 350 feet long and 11 feet high inside the arch. Id. at 48:4-11. The interior of
`
`
`
`3
`
`

`

`the kiln was insulated with 9 to 15 inches of fire brick, with gaps filled with Sil-o-cel powder. Id.
`
`at 48:21-49:6. Mr. Wauhop testified that during the 18 months he worked for Swindell-Dressler,
`
`which is when he worked at Belden Brick, he believed he was exposed to asbestos dust from the
`
`kilns. Id. at 152:21-153:7.
`
`
`
`At no time while Mr. Wauhop was an employee of Swindell-Dressler, including while he
`
`was working at Belden Brick, was he ever warned about the hazards associated with asbestos. Id.
`
`at 36:4-11.
`
`
`
`Swindell-Dressler’s corporate representative admitted that block insulation that could have
`
`contained asbestos was used in the kilns. Ex. 3, Deposition of George Buszinski (3/23/00), 41:29-
`
`42:18. In particular, the specifications for the kilns called for Johns-Manville Super X block
`
`insulation. Id. at 42:19-21. According to Johns-Manville, its Johns-Manville Super X block
`
`insulation contained asbestos during that time frame when Mr. Wauhop worked around it. Ex. 4,
`
`Defendant Johns-Manville Products Corporation’s Answer
`
`to Plaintiff’s First Set of
`
`Interrogatories, at Exhibit A. The asbestos-containing Johns-Manville Super X block insulation
`
`that was used in the kilns would have consisted of 72 feet of block insulation straight back through
`
`the entire kiln plus 120 feet of block insulation straight through. Ex. 3 at 44:25-45:5.
`
`
`
`Asbestos-containing cement also could have been used on the elbows of duct work with
`
`the kilns. Id. at 53:20-54:3. Further, transite board used with the kilns were exposed. Id. at 56:1-
`
`57:2. According to Johns Manville, its transite board contained asbestos during that time frame
`
`when Mr. Wauhop worked around it. Ex. 4, Defendant Johns-Manville Products Corporation’s
`
`Answer to Plaintiff’s First Set of Interrogatories, at Exhibit A.
`
`B. Mr. Wauhop’s exposure to asbestos while working on Belden Holding’s premise was
`a substantial factor in the development of Mr. Wauhop’s mesothelioma.
`
`Dr. Arnold Brody submitted his expert report on general causation issues. Ex. 5, Report of
`
`
`
`4
`
`

`

`Dr. Arnold Brody, 10/21/19. He is a world-renowned cell biologist and experimental pathologist.
`
`He has extensive experience and participated in peer-reviewed, published animal studies, tissue
`
`studies and other experiments to examine how asbestos causes disease. Dr. Brody provides
`
`information as to how asbestos is inhaled, overcomes the body’s defenses mechanisms, reaches
`
`the target cells, interacts with the target cells, causes genetic errors, results in genetic mutations
`
`and ultimately causes mesothelioma. He opines that the universal consensus is that all forms of
`
`asbestos can cause mesothelioma and the disease is a dose-responsive and cumulative disease.
`
`Brent C. Staggs, M.D., Plaintiffs’ causation expert reviewed Mr. Wauhop’s medical
`
`records and pathology materials, and work history concerning asbestos exposure. Ex. 6, Report of
`
`Brent C. Staggs, M.D. (Apr. 3, 2019) and Affidavit (Apr. 15, 2016), at 1. Mr. Wauhop was
`
`diagnosed with malignant mesothelioma on September 4, 2018. Id. at 2. Dr. Staggs found that the
`
`exposure history of Mr. Wauhop provided to him identified a significant history of asbestos
`
`exposure. Id. at 4. Moreover, Mr. Wauhop developed malignant mesothelioma after an appropriate
`
`latency period following his first known exposures to asbestos. Id. Based on the information
`
`available to him, Dr. Staggs described Mr. Wauhop’s exposure as follows:
`
`Mr. Wauhop worked as a mechanical engineer for various employers at various
`premises from approximately 1965 to present. His employers included Swindell
`Dressler from 1965 through 1967 and 11 months as a maintenance engineer for
`DuPont in 1967. From 1968 until 1969, Mr. Wauhop worked as a mechanical
`engineer for Koppers Inc. it is believed that from 1965 through present he worked
`as a mechanical engineer at the following sites, including but not limited to: Armco
`Steel in Butler, Pennsylvania; Belden Brick Company in Sugarcreek, Ohio;
`Bethlehem Steel in Bethlehem, Pennsylvania; DuPont Belle Plant in Belle, West
`Virginia; Hall China in East Liverpool, Ohio; Jones & Laughlin Steel Mill in
`Aliquippa, Pennsylvania; and Swindell Dressler Research Facility in Pittsburgh,
`Pennsylvania. While employed at these various job sites, Mr. Wauhop was
`reportedly exposed to and inhaled asbestos dust and asbestos fibers.
`
`Importantly, Dr. Staggs explained that mesothelioma is considered to be a signal tumor,
`
`5
`
`
`Id.
`
`
`
`
`

`

`signaling prior exposure to asbestos. Id. at p. 4. He went on to explain that “[s]cientifically and
`
`medically speaking, it is not one asbestos fiber or one exposure, to the exclusion of other exposures
`
`that causes a person’s mesothelioma.” Id. at 4. Further, “[m]esothelioma is caused by the totality
`
`of asbestos exposures, often called cumulative dose, that an individual is exposed to over his or
`
`her lifetime, taking into account an appropriate latency period.” Id. at 4. Notably, “[a]
`
`mesothelioma occurs only after repeated exposure to asbestos over time.” Id.
`
`Just as Dr. Brody notes, Dr. Staggs also offered the consensus opinion that all forms of
`
`asbestos can and do cause mesothelioma. Id. at p. 8. Dr. Staggs cited the epidemiologic evidence
`
`showing a causal association between all forms of asbestos and mesothelioma. Id. Dr. Staggs cited
`
`the other evidence that all forms of asbestos can cause mesothelioma, including animal studies,
`
`cell studies, molecular studies, case reports and asbestos tissue burden studies. As expressed in his
`
`report, the consensus opinion is that all forms of asbestos can cause mesothelioma: the IARC,
`
`OSHA, EPA, NIOSH, ATSDR, the Helsinki Consensus Report and every other scientific body
`
`devoted to human health all reach the same conclusion. Id. at p. 8, 5-6. He additionally recognizes
`
`the consensus opinion that there is no known level below which asbestos exposure cannot cause
`
`mesothelioma, as expressed in numerous peer-reviewed publications and scientific bodies (EPA,
`
`OSHA, NIOSH, WHO, IARC, USPHS, etc.). Id. at p. 11.
`
`To determine whether a particular individual’s mesothelioma can be attributed to asbestos,
`
`Dr. Staggs follows the Helsinki Consensus Report, cited in his affidavit as one of many sources
`
`upon which he relies. Under the Helsinki Consensus Report, a documented history of significant
`
`asbestos exposure is sufficient to attribute a mesothelioma to asbestos exposure. Dr. Staggs
`
`evaluated Mr. Wauhop’s exposure history, reviewing his testimony, and the industrial hygiene
`
`literature. From his review, he found that Mr. Wauhop had a significant history of asbestos
`
`
`
`6
`
`

`

`exposure.
`
`Dr. Staggs recognizes the consensus view that mesothelioma is a dose-responsive disease.
`
`Id. at p. 10, ¶ 5. He cites epidemiological evidence showing the dose-responsive relationship
`
`between exposure and incidence of mesothelioma. He observes other forms of evidence showing
`
`that the greater the dose, the more asbestos fibers overcome the body’s defense mechanisms, the
`
`more asbestos fibers reach the target cells and the more likely genetic mutations leading to
`
`mesothelioma form. Likewise, Dr. Staggs considers the inverse relationship between the dose of
`
`asbestos exposure and the latency period between exposure and onset of mesothelioma. He cites
`
`peer-reviewed scientific literature expressing this principle. Dr. Staggs therefore recognizes that,
`
`because (a) the greater the exposure, the greater the risk of developing disease and (b) the greater
`
`the exposure, the faster the induction of mesothelioma, each significant incremental exposure plays
`
`a role in the causation of mesothelioma.
`
`Dr. Staggs specifically denies that he expresses the opinion that each asbestos fiber
`
`constitutes a substantial contributing factor in the development of mesothelioma. Instead, he only
`
`expresses the opinion that “significant exposures” may constitute a substantial factor. Notably, Dr.
`
`Staggs states:
`
`When I review an individual’s exposure to asbestos and evaluate the causation of
`disease, as I have done in this case, I do not state that any contributor to the
`cumulative dose, no matter how small, is a significant factor to the development of
`mesothelioma. Rather, I review, evaluate, and consider the information available to
`me about an individual’s identified exposures to asbestos, and only after that review
`will I consider causation and attribution of the asbestos exposures.
`
`Id. at p. 5.
`
`
` Dr. Staggs sets forth his considerations for whether he classifies a particular exposure as
`
`significant and causative. He compares the exposure to whether such exposures in other settings
`
`have been shown to cause disease. In so doing, Dr. Staggs evaluates the nature, level, duration,
`
`
`
`7
`
`

`

`proximity and frequency of exposure.
`
`Dr. Holstein confirmed Mr. Wauhop’s diagnosis of mesothelioma after reviewing the
`
`relevant medical records and Mr. Wauhop’s deposition testimony. Ex. 7, Report of Edwin
`
`Holstein, M.D., 10/17/19. He noted that the records showed pleural plaques, a marker of
`
`substantial asbestos exposure. Id. at pp. 1-2. Ultimately, Dr. Holstein opined that Mr. Wauhop’s
`
`“multiple asbestos exposures . . . cumulatively constituted the direct and sole cause of his pleural
`
`plaque, as well as his biphasic malignant pleural mesothelioma.” Id. at p. 4.
`
`III.
`
`LAW AND ARGUMENT
`
`A.
`
`Defendant cannot meet its burden under the summary judgment standard.
`
`“‘The . . . mission of the summary judgment procedure is to pierce the pleadings and to
`
`assess the proof in order to see whether there is a genuine need for trial.’” Curran v. Philadelphia
`
`Newspapers, Inc., 497 Pa. 163, 177, 439 A.2d 652, 658 (1981) (quoting Phaff v. Gerner, 451 Pa.
`
`146, 151, 303 A.2d 826, 829 (1973)). “A motion for summary judgment will only be granted if
`
`there is no genuine issue concerning any material fact, and the moving party is entitled to judgment
`
`as a matter of law.” Karoly v. Mancuso, 619 Pa. 486, 65 A.3d 301, 308–09 (Pa. 2013). Summary
`
`judgment is proper if (1) there is no genuine issue of any material fact as to a necessary element
`
`of the cause of action or defense which could be established by additional discovery or expert
`
`report, or (2) after completion of discovery relevant to motion, an adverse party who would bear
`
`the burden of proof at trial fails to produce evidence of facts essential to cause of action or defense
`
`which in jury trial would require issues to be submitted to the jury. Pa. R.C.P. 1035.2(2). In
`
`considering a motion for summary judgment, the record is viewed in the light most favorable to
`
`the non-movant, and all doubts as to whether a genuine issue exists must be resolved against the
`
`movant. Karoly, at 309. Oral testimony of the movant or its witnesses, i.e., affidavits or
`
`
`
`8
`
`

`

`depositions, even if uncontroverted, is generally insufficient to establish the absence of a genuine
`
`issue of material fact, see id., see also Pa. R.C.P. 1035.2 note (citing Penn Center House, Inc. v.
`
`Hoffman, 520 Pa. 171, 553 A.2d 900 (Pa. 1989); Borough of Nanty–Glo v. Am. Sur. Co. of New
`
`York, 309 Pa. 236, 163 A. 523 (Pa. 1932)).
`
`B.
`
`
`
`
`
`Belden Holding is liable for its own negligence in exposing Billy Wauhop to asbestos
`while he was on its premise.
`
`1. Belden Holding owed Mr. Wauhop, a business invitee, the highest duty owed to
`land entrants under Pennsylvania law.
`
`Mr. Wauhop qualifies as a “business invitee.” A “business invitee” is a person who is
`
`invited to enter or remain on the land of another for a purpose directly or indirectly connected with
`
`business dealings with the possessor of the land. Charlie v. Erie Ins. Exchange, 100 A.3d 244, 253
`
`(Pa. Super. 2014); Emge v. Hagosky, 712 A.2d 315, 317 (Pa. Super. 1998); see also Restatement
`
`(Second) of Torts § 332(3) (1965). Employees of independent contractors working on the premises
`
`qualify as business invitees. Wombacher v. Greater Johnstown School Dist., 20 A.3d 1240 (Pa.
`
`Commw. 2011); Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 63 (Pa. Super. 2006). Mr.
`
`Wauhop was an employee of independent contractor Swindell Dressler who was hired by Belden
`
`Holding. Thus, Mr. Wauhop fits within the definition of a “business invitee.” The duty owed to a
`
`business invitee is the highest duty owed to any entrant upon land. Charlie, 100 A.3d at 253; Emge,
`
`712 A.2d at 317. This duty is an affirmative duty. Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super.
`
`2015) (“affirmative duty”); Charlie, 100 A.3d at 253 (“affirmative duty”).
`
`2. Belden Holding breached its duty to Mr. Wauhop, a business invitee.
`
`a. Belden Holding breached its duty to protect business invitees like Mr. Wauhop
`against known or knowable dangers.
`
`A landowner’s affirmative duty requires it to protect not only against dangers which the
`
`landowner knows but also against those that, with reasonable care, it might discover. McCreery v.
`
`
`
`9
`
`

`

`Westmoreland Farm Bureau Co-op Association, 357 Pa. 567, 570, 55 A.2d 399, 400
`
`(1947); Cagey v. Commonwealth, 179 A.3d 458, 466 (Pa. Super. 2018). Business invitees enter
`
`the landowner’s premises with an implied assurance of preparation and reasonable care for his
`
`protection and safety while he is there. Treadway v. Ebert Motor Company, 292 Pa. Super. 41, 51,
`
`436 A.2d 994, 999 (1981).
`
`Belden Holding failed to protect against the dangers it knew about (or could have known
`
`about) on its premises. McCreery, 55 A.2d at 400; Cagey v. Commonwealth, 179 A.3d at 466.
`
`Belden Holding knew the use asbestos – specifically the use of asbestos-containing insulation and
`
`refractory materials (which was used around Mr. Wauhop) – posed a substantial health hazard.
`
`Belden Holding has failed to advance any reason why it could not have learned of the asbestos
`
`being used in the products and equipment on its premises or why it should be absolved from its
`
`duty to protect business invitees.
`
`b. Belden Holding breached its duty to (a) protect against reasonably anticipated
`acts of third parties and (b) supervise the methods of independent contractors.
`
`First, Pennsylvania law has long recognized that landowners owe a duty to protect against
`
`reasonably anticipated negligent acts of third parties. Restatement (Second) of Torts § 344 cmt. f
`
`(1965). Landowners like Belden Holding owe an additional duty to business invitees to exercise
`
`reasonable care to discover the negligent acts, or the likelihood of negligent acts, by third persons
`
`and to warn or otherwise protect its business invitees. Engstrom v. Huntley, 345 Pa. 10, 26 A.2d
`
`461 (1942); Restatement (Second) of Torts § 344 (1965).1 They must take reasonable precautions
`
`against harmful third-party conduct that might be reasonably anticipated. Feld v. Merriam, 506 Pa.
`
`
`1 Likewise, a landowner owes a duty to exercise reasonable care to prevent third persons from
`creating an unreasonable risk of harm to others, if the possessor (a) knows, or has reason to know,
`that he has the ability to control the third person and (b) knows, or should know, of the necessity
`and opportunity for exercising control. Slyer v. City of Reading, 360 Pa. 212, 215-16, 61 A.2d 382,
`384 (1948); Restatement (Second) of Torts § 318 (1965).
`
`
`
`10
`
`

`

`383, 390-91, 485 A.2d 742, 745 (1984); Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96,
`
`103 (Pa. Super. 2017). The Second Restatement states that landowners in such circumstances may
`
`be subject to liability for harm caused by the negligent acts of third persons when the landowner
`
`failed to exercise reasonable care to (a) discover that such acts are being done or likely being done
`
`or (b) give warning adequate to enable the visitors to avoid the harm. Id., citing Restatement
`
`(Second) of Torts § 344 (1965).
`
`Second, Pennsylvania law requires landowners to exercise reasonably careful supervision
`
`of the appliances and methods of an independent contractor whom it employed on upon the land
`
`an activity directly or indirectly connected with the business use thereof. Glass v. Freeman, 430
`
`Pa. 21, 28-29, 240 A.2d 825, 829 (1968); Smith v. Lit Brothers, 174 Pa. Super. 102, 100 A.2d 390
`
`(1953); Restatement (Second) of Torts § 344, comment c (1965). A landowner is subject to liability
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`for the failure to exercise reasonable care to secure the use of reasonably safe equipment and
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`methods by an independent contractor or concessionaire employed or permitted to carry upon land
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`in furtherance of the possessor’s business use thereof.” Engstrom v. Huntley, 345 Pa. 10, 13, 26
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`A.2d 461, 463 (1942).
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`Here, Belden Holding failed to (1) protect against the reasonably anticipated acts of third
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`parties (other trades knocking off thermal insulation, gaskets and/or packing) and (2) exercise
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`reasonably careful supervision of the appliances and methods of an independent contractor. Belden
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`Holding knew, or at least reasonably anticipated, that others might cut and mix insulation without
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`taking control measures (otherwise it would not need to warn and instruct its own employees
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`regarding the same). Similarly, Belden Holding failed to supervise those on its premises to warn
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`business invitees and instruct them to perform such work with the proper safeguards.
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`3. Alternatively, summary judgment must be denied under Gutteridge.
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`In Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa. Super. 2002), the decedent
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`alleged he was exposed to asbestos-containing products at the premises of PECO Energy Company
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`(PECO). The court first noted that, as an independent contractor working on PECO’s premises,
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`the decedent qualified as a “business invitee.” Id. at 655. Because he qualified as a business invitee,
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`the court set forth the standard of liability against a landowner:
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`A possessor of land is subject to liability for physical harm caused
`to his invitees by a condition on the land if, but only if, he:
`
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`(a) knows or by exercise of reasonable care would discover
`the condition, and should realize that it involves an
`unreasonable risk of harm to such invitees;
`(b) should expect that they will not discover or realize the
`danger, or will fail to protect themselves against it, and
`(c) fails to exercise reasonable care to protect them against
`the danger.
`
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`Id. at 655-56. The test articulated in Gutteridge remains the test applicable today. See, e.g.,
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`Marshall v. Brown’s IA, LLC, 213 A.3d 263, 270 (Pa. Super. 2019).
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`In Gutteridge, the plaintiffs alleged the “peculiar risk” and “special knowledge” exceptions
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`applied. Gutteridge, 804 A.2d at 656-57. Under that exception, the question was whether (a) the
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`landowner possessed superior knowledge concerning the existence of asbestos contamination on
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`the site and (b) the landowner was in a better position to appreciate the danger posed by the
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`asbestos contamination. Id. at 658. The plaintiff introduced evidence from three coworkers on the
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`premises, describing the decedent’s work with and around asbestos-containing products on the
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`premises. Id. at 658-59. The workers described not wearing any masks until the 1980s. Id. Plaintiffs
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`introduced evidence that (a) the scientific literature indicated as early as 1935 that asbestos posed
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`workplace hazards, (b) Pennsylvania bulletins alerted public utilities (like PECO) of asbestos
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`hazards by 1960 and (c) asbestos poses a hazard even if not invisible to the naked eye. Id. at 660.
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`By contrast, the defendant introduced no evidence regarding the decedent’s employer’s
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`knowledge. On these facts, the court found an issue of fact existed. Id.
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`a. Plaintiffs satisfy the three-part test under Gutteridge.
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`First, Belden Holding knew, or through the exercise of reasonable care, could have
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`
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`discovered that asbestos was being used on its premises. Not only in the refractory materials
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`installed and being replaced on the kiln, but in the thermal insulation being used on the piping
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`associated with the kilns or on piping through the facility in general. Belden Holding made no
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`effort to discover these things—things it could have easily discovered.
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`Second, Belden Holding, as the owner of the premise, should have expected that Mr.
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`Wauhop would not have discovered the presence of asbestos being used on the premise and would
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`have failed to protect himself against it.
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`
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`Third, Belden Holding failed to exercise reasonable care. Belden Holding has failed to
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`present evidence that it took any steps to ensure that contractors or other business invitees on its
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`premise were informed that asbestos was being used in various placed on the premise and that
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`repeated and/or prolonged exposures to asbestos-laden dust could cause cancer.
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`C.
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`Belden Holding’s argument regarding sophisticated user lack merit.
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`Belden Holding implies that its duty to warn business invitees like Mr. Wauhop becomes
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`discharged because Mr. Wauhop’s employer was, allegedly, a sophisticated intermediary remains
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`without legal support. This defense has not been recognized under Pennsylvania law. In Phillips
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`v. A.P. Green Refractories Company, 428 Pa. Super. 167, 630 A.2d 874 (1993), a case involving
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`the development of silicosis, the Superior Court found this defense viable in negligence and strict
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`liability actions. This case was subsequently affirmed on appeal, but the Supreme Court did not
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`address the adoption of the “sophisticated user” defense to these actions. It noted that the
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`discussion of this defense by the Superior Court had been mere dicta, as the majority of the
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`Superior Court had already determined that the appellee could not be held strictly liable as a matter
`
`of law. See id. at 542 Pa. 124, 665 A.2d 1167, 1170 at fn. 3 (1995). This issue has not been
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`revisited. Regardless of the status of this defense in Pennsylvania, there is no evidence which
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`justifies its utilization in the cases at bar. Accordingly, Belden Holding must be precluded from
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`asserting this defense at trial.
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`Even if Pennsylvania law recognized such a defense, it remains unsupported by the facts.
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`Belden Holding has failed to present any evidence that Mr. Wauhop’s knowledge or that of his
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`employer was far superior to that of Belden Holding—especially regarding the use of asbestos on
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`its premise and the hazards associated with repeated asbestos exposure. Neither fact alone supports
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`that the conclusion that Mr. Wauhop or his employer qualify as “sophisticated intermediaries.”
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`D. Mr. Wauhop’s exposure to asbestos while on Belden Holding’s premise was a
`substantial factor in the development of his mesothelioma.
`
`1.
`
`The Rost decision set the standard for causation in Pennsylvania.
`
`
`Rost v. Ford Motor Company, 637 Pa. 625, 151 A.3d 1032 (Pa. 2016) set forth the
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`prevailing standard for causation in asbestos cases. In Rost, the plaintiffs obtained a verdict against
`
`Ford Motor Company for Mr. Rost’s three months working as an automotive parts man (followed
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`by thirty years working in an industrial setting). Rost, 637 Pa. at 633-36. The plaintiffs called two
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`experts on causation: Dr. Brody and Dr. Frank. Id. at 636. Dr. Brody testified on general causation
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`issues: on how all forms of asbestos can and do cause mesothelioma. Id. at 636-37. Dr. Frank
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`likewise testified that all forms of asbestos can cause mesothelioma, citing epidemiological,
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`biological, animal, tissue studies and case reports demonstrating that chrysotile asbestos can cause
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`mesothelioma. Id. at 637. Dr. Frank observed that relatively low levels of asbestos exposure can
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`cause mesothelioma, citing epidemiological studies, case reports and other evidence. Id. at 637-
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`39. He cited industrial hygiene data showing the levels of exposure from using brakes, including
`
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`exposures of 17 f/cc and some up to 60 feet away. Id. at 638-39. Dr. Frank recognized that
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`mesothelioma is a dose-responsive disease: as the dose increases, the likelihood of disease
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`increases. Id. at 637. While Dr. Frank acknowledged the scientific concept that all asbestos
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`exposures contribute to the cumulative dose and the disease, he did not opine that all asbestos
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`exposures are a substantial factor. Id. at 637-38. Instead, he was given a detailed hypothetical that
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`tracked the exposure information in the case, including exposures to asbestos from other sources
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`besides Ford. Id. at 639-40. Dr. Frank opined that the sum total of Mr. Rost’s asbestos exposures
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`over the three-month period at Ford constituted a substantial contributing factor to the development
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`of his mesothelioma. Id.
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`The Supreme Court discussed the standard for causation in asb