IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
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` CIVIL DIVISION
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`RICHARD LOUIS HUGHES and DONNA
`GRACE HUGHES, his wife,
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`Plaintiffs,
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`v.
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`84 LUMBER COMPANY, et al.,
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`Defendants.
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` Case No.: GD 21-008251
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`
` The Honorable Judge Regan
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` MOTION FOR SUMMARY
`JUDGMENT AND BRIEF IN
`SUPPORT THEREOF
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`Filed on behalf of Defendant
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` CONWED CORPORATION
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` Counsel of Record for this Party:
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` Richard L. Walker, II, Esquire
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`Pa. I.D. #35286
` Christopher S. Arnold, Esquire
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`Pa. I.D. #319354
` Katherine A. Lowery, Esquire
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`Pa. I.D. #312186
` Matthew J. Doz, Esquire
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`Pa. I.D. #86135
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` KELLEY JASONS McGOWAN SPINELLI
`HANNA & REBER, LLP
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`
` Gulf Tower Building, Suite 2701
`707 Grant Street
`Pittsburgh, PA 15219
`(412) 434-6577
`
`1818 Market Street, Suite 3205
`Philadelphia, PA 19103
`(215) 854-0658
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`

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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
` CIVIL DIVISION
`
`RICHARD LOUIS HUGHES and DONNA
`GRACE HUGHES, his wife,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`84 LUMBER COMPANY, et al.,
`
`
`Defendants.
`
`
`
`
`
` Case No.: GD 21-008251
`
`
`
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`
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`MOTION FOR SUMMARY JUDGMENT
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`AND NOW, comes the Defendant, Conwed Corporation (hereinafter “Conwed”) by and through
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`its attorneys, Kelley Jasons McGowan Spinelli Hanna & Reber, LLP, and files the following Motion for
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`Summary Judgment, averring in support thereof as follows:
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`1.
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`Plaintiffs filed this action against various Defendants, including Conwed, alleging
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`Plaintiff-Husband sustained injuries resulting from exposure to asbestos-containing products allegedly
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`furnished by various Defendants, including Conwed.
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`2.
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`In this action, Plaintiffs allege Plaintiff-Husband worked with or was exposed to
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`asbestos-containing products allegedly manufactured and/or supplied by the Defendants, including
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`Conwed, during the scope of his employment at Accra-Matics in Old Forge, Pennsylvania from 1964 to
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`1965; US Textiles in Scranton, Pennsylvania from 1965 to 1967; and various commercial and residential
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`sites while working as a self-employed contractor. Plaintiffs further allege Plaintiff-Husband was
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`exposed to asbestos dust while doing personal automotive repair from 1964 through the late 1970s.
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`3.
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`4.
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`Defendant Conwed denies the Plaintiff-Husband was exposed to any Conwed product.
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`Discovery has failed to establish the Plaintiff-Husband was exposed to any Conwed
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`product or any product of Conwed was the cause of his alleged injuries.
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`5.
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`To date, Plaintiffs have failed to produce any evidence whatsoever establishing Plaintiff-
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`Husband’s exposure to or inhalation of asbestos fibers shed by a Conwed product. The mere presence of
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`asbestos in the work place is insufficient to establish liability against Defendant Conwed.
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`6.
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`As there is no genuine issue as to any material fact concerning the claims against
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`Conwed, this Defendant is entitled to summary judgment as a matter of law as to all claims against it.
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`WHEREFORE, Conwed Corporation requests this Honorable Court to grant summary judgment
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`in its favor.
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`Respectfully submitted,
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`KELLEY JASONS MCGOWAN
`SPINELLI HANNA & REBER, LLP
`
`BY:/s/ Katherine A. Lowery
`Richard L. Walker, II, Esquire
`Christopher S. Arnold, Esquire
`Katherine A. Lowery, Esquire
`Matthew J. Doz, Esquire
`
`Attorneys for Defendant,
`Conwed Corporation
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`2
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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
` CIVIL DIVISION
`
`RICHARD LOUIS HUGHES and DONNA
`GRACE HUGHES, his wife,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`84 LUMBER COMPANY, et al.,
`
`
`Defendants.
`
`
`
` Case No.: GD 21-008251
`
`
`
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`BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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`AND NOW, comes Conwed Corporation (hereinafter “Conwed”) by and through its attorneys,
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`Kelley Jasons McGowan Spinelli Hanna & Reber, LLP, and files the following Brief in Support of
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`Motion for Summary Judgment, averring in support thereof as follows:
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`I. STATEMENT OF FACTS
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`Plaintiffs have filed this action against the various defendants, including Conwed, alleging
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`Plaintiff-Husband suffered injuries as a result of the use and handling of asbestos-containing products
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`allegedly furnished by defendants, including Conwed.
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`In this action, Plaintiffs allege Plaintiff-Husband worked with or was exposed to asbestos-
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`containing products manufactured and/or supplied by the Defendants, including Conwed, scope of his
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`employment at Accra-Matics in Old Forge, Pennsylvania from 1964 to 1965; US Textiles in Scranton,
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`Pennsylvania from 1965 to 1967; and various commercial and residential sites while working as a self-
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`employed contractor. Plaintiffs further allege Plaintiff-Husband was exposed to asbestos dust while
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`doing personal automotive repair from 1964 through the late 1970s.
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`Conwed denies Plaintiff-Husband was exposed to any of their products. Discovery has failed to
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`establish he was exposed to any product manufactured and/or supplied by Conwed, on any regular,
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`3
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`

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`and/or frequent basis, or any product manufactured and/or supplied by Conwed was the cause of
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`Plaintiff-Husband’s alleged injuries.
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`To date, discovery has produced no evidence demonstrating Plaintiff-Husband was exposed to
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`any products allegedly manufactured, distributed, or supplied by Conwed. Therefore, summary
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`judgment should be granted in favor of this Defendant.
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`II. ARGUMENT
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`Pennsylvania Rule of Civil Procedure 1035.2(1) provides a party may move for summary judgment
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`“whenever there is no genuine issue of any material fact as to a necessary element of the cause of action.”
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`Rule 1035.2 further provides a party may move for summary judgment when “an adverse party who will
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`bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or
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`defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(2); see
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`also Mariscotti v. Tinari, 485 A.2d 56 (Pa. Super. 1984). The moving party has the burden to demonstrate
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`the absence of any genuine issue of material fact. Hower v. Whitmark Associates, 538 A.2d 524 (Pa. Super.
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`1988). The moving party may discharge this burden of proof by demonstrating if the case proceeded to trial,
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`there would be no competent evidence to support a judgment for his opponent. Community Medical
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`Services v. Local 2665, 437 A.2d 23 (Pa. Super. 1981).
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`In order for a plaintiff to prevail, Pennsylvania law requires a plaintiff demonstrate not only a
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`particular defendant’s asbestos-containing products were used at the plaintiff’s job sites, but the plaintiff
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`worked in close vicinity to the product at the time of its use. The plaintiff must establish exposure on a
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`regular, frequent, and proximate basis. Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988); accord
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`Samarin v. GAF Corp., 571 A.2d 398 (Pa. Super. 1989).
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`Pennsylvania courts have consistently rejected asbestos exposure claims where the record lacks
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`competent proof the products at issue actually contained asbestos. See Gibson v. Workers Compensation
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`4
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`Appeal Board, 861 A.2d 38 (Pa. 2004); Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014);
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`Bushless v. GAF Corp., 585 A.2d 496, 503 (Pa. Super. 1990); Samarin, 571 A.2d at 403-04. The clear rule
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`which has emerged is in order to withstand a summary judgment motion, an asbestos plaintiff needs to
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`establish asbestos content of a product by personal knowledge or some other competent form of proof.
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`In Gibson v. Workers Compensation Appeal Board, the Supreme Court rejected the testimony of a
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`co-worker who “believed” a product contained asbestos. In order to be admissible lay witness testimony
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`and comport with Rule 701 of the Pennsylvania Rules of Evidence, the witness’ opinion needs to be based
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`on actual knowledge and observation on the part of the lay witness. 861 A.2d at 948.
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`Thus in Samarin v. GAF Corp., the Pennsylvania Superior Court held a worker’s “inference” a
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`particular product contained asbestos because the product was used for high heat applications was
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`insufficient, as a matter of law, to create a fact issue regarding asbestos content. 571 A.2d at 398. Such facts
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`did not create a sufficient foundation for a jury to infer heat resistant products contained asbestos. Id.
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`Likewise, statements by a witness who was told products contained asbestos are inadmissible hearsay and
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`cannot be relied upon to defeat summary judgment. Id. at 403. Similarly, in Bushless v. GAF Corp., the
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`Superior Court held testimony concerning a product’s heat resistance qualities, or the fact other tradesman
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`referred to the product as asbestos, was insufficient to defeat a defendant’s summary judgment motion. 585
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`A.2d 496.
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`More recently, in Krauss v. Trane U.S., Inc., the Superior Court concluded the presumption by a
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`witness in an affidavit that a product contains asbestos does not create a genuine issue of material fact. 104
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`A.3d at 568. The court held statements of this nature are not competent evidence because they are not based
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`on actual knowledge and are speculative. Speculation cannot form the basis for a jury’s findings. Id. (citing
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`Juliano v. Johns-Manville Corp., 611 A.2d 238, 239 (Pa. Super. 1992)).
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`5
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`Even if Plaintiff is able to establish by competent evidence asbestos is in the workplace, the
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`Superior Court in Eckenrod v. GAP Corp. held “a plaintiff must establish more than the presence of
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`asbestos in the workplace.” 544 A.2d at 53. “[T]he mere presence of a product in the facility does not
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`establish that any particular person breathed it.” Samarin, 571 A.2d at 407 (citing Eckenrod, 544 A.2d 50).
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`The Eckenrod Court specifically stated “in order for a plaintiff to defeat a motion for summary judgment, a
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`plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s
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`product.” 544 A.2d at 52 (citations omitted) (emphasis added).
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`The Pennsylvania Supreme Court in Gregg v. V.J. Auto Parts Co., 943 A.2d 216 (Pa. 2007), held it
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`is appropriate for courts at the summary judgment stage to assess plaintiff’s evidence of exposure to a
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`defendant’s asbestos-containing products to determine whether the evidence meets the regular, frequent and
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`proximate requirements developed in Eckenrod and other Superior Court decisions. The Court in Gregg
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`held a trial court does have a gatekeeper role at the summary judgment level to assess plaintiff’s quantum of
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`evidence and has the ability to grant summary judgment where there is only evidence of de minimis product
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`exposure and therefore no substantial factor evidence. The Court stated:
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`In summary, we believe that it is appropriate for courts, at the summary judgment stage, to make a
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`reasoned assessment concerning whether, in light of the evidence concerning frequency, regularity, and
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`proximity of a plaintiff’s/decedent’s asserted exposure, a jury would be entitled to make the necessary
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`inference of a sufficient causal connection between the defendant’s product and the asserted injury.
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`Id. at 227. In reaching this decision, the Court found opinions by plaintiffs’ experts each and every
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`exposure to asbestos is a substantial contributing factor to an asbestos-related disease are not based on
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`accepted scientific methodology. Id.
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`The Pennsylvania Supreme Court’s decision in Betz v. Pneumo Abex, 44 A.3d 27 (Pa. 2012),
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`further reinforces the regular, frequent, and proximate exposure requirements set forth in Eckenrod and
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`Gregg. The Supreme Court held the trial court did not abuse its discretion in finding that plaintiffs’ “each
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`and every exposure” theory did not comply with Pennsylvania law and could not withstand analysis under
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`Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Betz, 44 A.3d at 55-58. In doing so, the Supreme
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`Court effectively agreed with the defendants’ position the “each and every exposure” theory is
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`fundamentally inconsistent with substantial factor causation since the former obviates the latter by
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`converting proof of the very smallest exposure into causation. The Court’s opinion in Betz is consistent
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`with the Gregg decision, which rejected the “each and every exposure” opinion as a means to circumvent
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`the frequency, regularity, and proximity asbestos exposure threshold as to each defendant. The Supreme
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`Court in Betz determined plaintiffs’ expert’s testimony, that the potency of the asbestos to which an
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`individual is exposed and the intensity and duration of exposure are all factors that need to be considered in
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`estimating the relative effects of different exposures, was in irreconcilable conflict with plaintiffs’ “each and
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`every exposure” theory. 44 A.3d at 55-56. The Betz Court went on to quote excerpts from the Gregg
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`decision stating “we do not believe that it is a viable solution to indulge in the fiction that each and every
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`exposure to asbestos, no manner how minimal in relation to other exposures, implicates a fact issue
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`concerning substantial factor causation in every ‘direct evidence’ case.” 44 A.3d at 56-57 (quoting Gregg,
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`943 A.2d at 226-27).
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`The Superior Court in Nelson v. Airco Welders Supply, 107 A.3d 146 (Pa. Super. 2014), also
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`rejected the each and every exposure theory. The Superior Court in Nelson ordered a new trial, finding the
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`plaintiff’s expert testimony to be inadmissible. The Superior Court found the guidance of the Supreme
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`Court in the Betz decision to be “dispositive.” Id. at 155. Plaintiff’s expert’s opinion in Nelson, that each
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`incremental exposure to asbestos above background levels was causative, was found to be inadmissible
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`because Dr. Daniel DuPont could not offer testimony to establish the impact of a specific product’s
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`incremental exposure above background levels of exposure. The Nelson court noted Dr. DuPont’s opinion
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`7
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`was there are various levels of background exposure to asbestos depending on location. Despite the varying
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`levels of exposure, Dr. DuPont testified any additional exposure above background was non-negligible and
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`therefore a substantial contributing factor. See id. at 156-58. Because Dr. DuPont could not establish the
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`“Appellant’s products were a substantial factor in causing Nelson’s disease,” his testimony as to causation
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`was held to be inadmissible by the Superior Court. Id. at 158.
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`More recently in Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016), the Supreme Court set forth
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`two fundamental precepts:
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`Together, Gregg and Betz establish two basic precepts important to resolution of the issues
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`presented here. First, expert testimony based upon the notion that “each and every breath” of asbestos is
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`substantially causative of mesothelioma will not suffice to create a jury question on the issue of substantial
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`factor causation. Second, to create a jury question, a plaintiff must adduce evidence that exposure to
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`defendant’s asbestos-containing product was sufficiently “frequent, regular, and proximate” to support a
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`jury’s finding that defendant’s product was substantially causative of the disease.
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`Rost, 151 A.3d at 1044 (footnote omitted). Although the Court in Rost found Dr. Arthur Frank’s
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`opinion to be admissible, the decision was rooted in the governing principles set forth in Gregg and Betz
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`regarding substantial factor causation. The Court held that Dr. Frank’s opinion was based on evidence of
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`plaintiff’s regular, frequent, and proximate exposure to asbestos from Ford products. Furthermore,
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`although the Court characterized its own opinion in Howard v. A.W. Chesterton Co., 78 A.3d 605 (Pa.
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`2013) (finding summary judgment is a means to address cases where there is only de minimis exposure to a
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`defendant’s product, which is insufficient to establish substantial factor causation for dose responsive
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`diseases), as lacking precedential value, the Court, in effect, followed the same reasoning here. Rost, 151
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`A.3d at 1044 n.6. Namely, the Court found, conversely, Dr. Frank’s opinion was admissible because rather
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`than relying on evidence of de minimis exposure to the product at issue to demonstrate substantial
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`8
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`causation, Dr. Frank opined the totality of Rost's exposures to asbestos over a three month period at Smith
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`Motors, standing alone, was sufficient to have caused his disease. Id. at 1052-53.
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`Therefore, Conwed is entitled to summary judgment unless Plaintiffs cite specific facts showing
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`there is a genuine issue for trial; specifically, Plaintiffs must produce admissible evidence establishing
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`Plaintiff-Husband was exposed to a Conwed asbestos-containing product on a regular, frequent, and
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`proximate basis. Under this analysis, Plaintiffs have failed to meet their burden of establishing evidence of
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`exposure sufficient to meet the frequency, regularity, and proximity prongs of the Eckenrod test and,
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`therefore, Conwed is entitled to summary judgment as a matter of law.
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`III. CONCLUSION
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`Plaintiffs have failed to meet the requirements under Pennsylvania law necessary to assert a
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`cause of action against this defendant. Additionally, Plaintiffs have failed to identify this defendant as
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`the manufacturer, supplier, distributor, or contractor relating to any asbestos-containing products to
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`which Plaintiffs claim Plaintiff-Husband was exposed. For these reasons, Plaintiffs’ claims as to this
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`defendant fail and Defendant Conwed Corporation’s Motion for Summary Judgment should be granted.
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`Respectfully submitted,
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`KELLEY JASONS MCGOWAN
`SPINELLI HANNA & REBER, LLP
`
`BY:/s/ Katherine A. Lowery
`Richard L. Walker, II, Esquire
`Christopher S. Arnold, Esquire
`Katherine A. Lowery, Esquire
`Matthew J. Doz, Esquire
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`Attorneys for Defendant,
`Conwed Corporation
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`9
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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
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`SUMMARY JUDGMENT was served this 15th day of March, 2022, on the following
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`Plaintiffs’ counsel of record via electronic mail, with notice of service of the same provided to
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`all defense counsel of record by electronic mail.
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`Michael J. D’Amico, Esq.
`D’Amico Law Offices
`310 Grant Street
`Suite 825
`Pittsburgh, PA 15219
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`KELLEY JASONS MCGOWAN
`SPINELLI HANNA & REBER, LLP
`
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`BY:/s/ Katherine A. Lowery
`Katherine A. Lowery, Esquire
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`Attorney for Defendant,
`Conwed Corporation
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`

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`IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
`
` CIVIL DIVISION
`
`RICHARD LOUIS HUGHES and DONNA
`GRACE HUGHES, his wife,
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`84 LUMBER COMPANY, et al.,
`
`
`Defendants.
`
`
`
` Case No.: GD 21-008251
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`
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`ORDER OF COURT
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`AND NOW, to-wit, this ____ day of _____________, 2022, upon consideration of the
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`foregoing Motion for Summary Judgment, it is hereby ORDERED, ADJUDGED and DECREED
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`that the Motion for Summary Judgment of Defendant Conwed Corporation is GRANTED.
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`Plaintiffs’ Complaint, all Co-Defendants’ Crossclaims, and any and all other claims against
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`Conwed Corporation are dismissed with prejudice.
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`DATE:
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`BY THE COURT:
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`The Honorable Daniel D. Regan
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`, J
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`