Fisher v. Sexauer
53 A.3d 771
Pa. Super. Ct.2012Background
- Fisher, individually and as executrix, sued Sexauer, Kentile, and Pécora for decedent Sidney Fisher’s asbestos-related death.
- Decedent was a 77-year-old longtime plumber with ~50 years around asbestos-containing materials; alleged exposure from Sexauer packing, Kentile vinyl asbestos tile, and Pécora furnace cement.
- Decedent smoked heavily in youth but had quit for decades before his death in December 2006; diagnosis was small-cell carcinoma, not mesothelioma.
- After discovery, defendants moved for summary judgment arguing decedent’s deposition failed to meet Eckenrod frequency/regularity/proximity standard for actionable asbestos exposure.
- Trial court granted summary judgment, held decedent’s testimony did not show regular exposure to any defendant’s product.
- The court and this court emphasize a nuanced, fact-specific application of Eckenrod and related standards, with limited reliance on expert Girard due to mesothelioma context not present here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred in viewing evidence | Fisher argues court failed to view inferences favorably and ignored evidence of regular exposure. | Defendants contend evidence insufficient to meet Eckenrod threshold for regular exposure. | No reversible error; evidence fails to meet threshold for regular exposure. |
| Whether Kentile exposure raises material fact | Fisher contends extended Kentile tile work caused significant exposure to asbestos. | Kentile exposure evidence is speculative and attenuated; no identifiable asbestos concentration. | No triable issue; Kentile exposure insufficient. |
| Whether Pécora exposure raises material fact | Fisher asserts Red Devil cement use created exposure; testimony shows possible dust. | Wet application prevented fiber release; testimony shows speculative dust exposure. | No triable issue; no evidence of respirable asbestos exposure. |
Key Cases Cited
- Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988) (threshold exposure standard for asbestos products)
- Samarin v. GAF Corp., 571 A.2d 398 (Pa. Super. 1989) (proximity principle for exposure inference)
- Junge v. Garlock, Inc., 629 A.2d 1027 (Pa. Super. 1993) (no need to prove precise fiber counts or lengths)
- Andaloro v. Armstrong World Industries, Inc., 799 A.2d 71 (Pa. Super. 2002) (limits on strict proof of exposure; proximity not always required)
- Gregg v. V-J Auto Parts Co., 943 A.2d 216 (Pa. 2007) (apply Eckenrod factors with discretion; disease context influences likelihood of exposure)
- Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992) (explaination that factors are evaluative, case-tailored for causation likelihood)
- Basile v. H&R Block, Inc., 777 A.2d 95 (Pa. Super. 2001) (summary judgment standard; record must show undisputed facts or insufficient evidence)
- Ertel v. Patriot-News Co., 674 A.2d 1038 (Pa. 1996) ( governs standard of review for summary judgment)
- Howard v. A.W. Chesterton Co., 31 A.3d 974 (Pa. Super. 2011) (mesothelioma exposure relaxation; limited applicability when disease is not mesothelioma)