Lead Opinion
The question presented concerns the appropriate application of the “frequency, regularity, proximity” criteria in asbestos product liability litigation.
John I. Gregg, Jr. (“Mr. Gregg”) died in March 1998. A year later, his son, Appellee John Andrew Gregg, as executor for his father’s estate, filed a product liability complaint naming more than seventy defendants and alleging civil liability on their part for Mr. Gregg’s death due to his exposure to asbestos-containing products and resultant pleural mesothelioma, a cancer of the lining of the lungs. Appellee averred that Mr. Gregg was exposed to asbestos throughout a forty-year history of employment with telecommunications companies as a cable splicer and line man; over a four-year period in which he worked as a gas station attendant; and during a three-year period while serving in the United States Navy. The complaint also alleged that, throughout his lifetime, Mr. Gregg installed and removed brake linings and clutches on cars and trucks, and that he was exposed to asbestos in these activities
Despite the assertions in the complaint concerning occupational exposure to asbestos, according to Appellee, he was unable to adduce any evidence to support them. Consequently, the action was settled and/or dismissed with regard to all defendants other than Appellant,
After the deadline for discovery passed, Appellant filed a motion for summary judgment, asserting that Appellee could not prove that Mr. Gregg was exposed to an asbestos-containing product purchased at Appellant’s store with sufficient frequency and regularity to meet the test set forth in Eckenrod, v. GAF Corp.,
In response, Appellee argued that his deposition testimony, and that of his sister and a neighbor of the Gregg household in the 1960 to 1965 timeframe, sufficiently established Mr. Gregg’s exposure to asbestos-containing brake products sold by Appellant. Further, Appellee furnished a modified version of Dr. Spector’s report, in which the pathologist revised his opinion to attribute Mr. Gregg’s disease to “occupational and non-occupational” asbestos exposures, indicating that the change resulted from his review of the depositions of the product identification witnesses. Appellee also submitted documents attributable to Allied Signal, Inc. and Raybestos-Manhatten, Inc., supporting the claim that the brake products manufactured by these companies (or their predecessors) in the 1950s and 1960s time frame contained asbestos. Further, Appellee relied on expert affidavits of a chemist, an occupational disease physician, and an epidemiologist to establish that mesothelioma may be caused by even a small exposure to asbestos.
Upon receiving the Appellee’s response and the supplemental report, Appellant filed a motion to strike the supplemental report and to preclude Appellee from relying upon it at trial. Appellant argued that the supplemental report was untimely, in that it was not produced until after the deadline for expert reports had passed, and that the report was prejudicial, since the case was scheduled to go to trial in two weeks.
The common pleas court (per Judge Tereshko) granted summary judgment in Appellant’s favor, on the ground that Appellee’s product identification testimony was inadequate.
Appellee appealed to the Superior Court, and a three-judge panel vacated the common pleas court’s order and remanded in an unpublished opinion. See Gregg v. A.P. Green Industries, Inc., slip op.
On remand, the common pleas court (per Judge Ackerman) again found the record insufficient to meet the requirements of the frequency, regularity, and proximity analysis. Gregg v. V-J Auto Parts, Inc., No. 003888 March Term 1999, slip op. (C.P.Phila. Dec.2, 2003). The court highlighted that Appellee did not remember specific parts purchased from Appellant’s store; Appellee’s sister had no knowledge concerning whether products purchased from Appellant’s store contained
This court is mindful that there is no requirement that plaintiff must prove how many asbestos fibers one must inhale necessary to a determination of causation; however, evidence of exposure must demonstrate that the plaintiff worked, on a regular basis, in physical proximity with the product and that his contact with same was of such nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it. See Junge v. Garlock,427 Pa.Super. 592 ,629 A.2d 1027 (1993); Samarin v. GAF Corp.,391 Pa.Super. 340 ,571 A.2d 398 (1989); Eckenrod. The fact that plaintiffs supplemental medical expert opined that Mr. Gregg’s occupational exposure and his non-occupational exposure from performing brake jobs both contributed to his mesothelioma, this is non determinative since our case law requires the plaintiff to produce sufficient evidence of regular and frequent exposure to asbestos products supplied by the defendant. It is acknowledged that decedent was exposed to asbestos sometime during his lifetime, and that exposure caused his illness, but there is insufficient evidence that links his asbestos exposure to the defendant in this matter.
Id. at 5. Finally, the court relied on Wilson v. A.P. Green Industries, Inc.,
On further appeal, initially, a different Superior Court panel affirmed, finding that the common pleas court correctly determined that Appellee’s product identification evidence was insufficient to create a jury issue. See Gregg v. V-J Auto Parts Co., No. 3528 EDA 2003, slip op. (Pa.Super. Jul. 22, 2004). On Appellee’s motion for reconsideration, however, the panel withdrew its initial opinion, and, in a subsequent one, it reversed the common pleas court’s summary judgment order. See Gregg v. V-J Auto Parts Co., No. 3528 EDA 2003, slip op.,
Judge Bowes dissented, expressing her disagreement with the majority’s reasoning and with Gilbert. According to Judge Bowes, the frequency, regularity, proximity test is appropriately applied by courts at the dispositive motions stage, regardless of whether the evidence of exposure is direct or circumstantial in character. She highlighted Eckenrod’s reaffirmance that, in order to survive a motion for summary judgment, every plaintiff, whether relying on direct or circumstantial evidence, must point to “sufficient material facts in the record to indicate that there is a genuine issue of material fact as to the causation of [the plaintiffs or the] decedent’s disease” by the defendant’s product. Gregg, No. 3528 EDA 2003, slip op. at 4 (Bowes, J., dissenting) (quoting Eckenrod,
On Appellant’s petition for allowance of appeal, this Court granted further review, limited to the following issue:
In a products liability suit brought against the manufacturer or supplier of a product containing asbestos, to survive summary judgment must the plaintiff show frequent use of, and regular close proximity to, the product, even if the plaintiff presents direct evidence of inhalation?
Since this is a question of law, our standard of review is de novo and our scope of review is plenary. Notably, in Pennsylvania, the frequency, regularity, proximity analysis has developed in the decisions of Superior Court and has not yet been addressed by this Court.
Presently, Appellant advocates the adoption by this Court of the frequency, regularity, proximity test and its application by
Consistent with Judge Bowes’ position, Appellant also argues that the Superior Court’s Eckenrod decision has been misinterpreted to exclude the use of the frequency, regularity, proximity criteria whenever direct evidence of exposure is offered. Appellant urges that their application should not depend on what type of evidence is adduced, but instead, upon whether the evidence, be it direct or circumstantial, creates a genuine issue of material fact concerning the cause of the plaintiffs (or decedent’s) disease. Appellant observes that a plaintiff’s burden of proof to demonstrate factual and proximate causation does not depend on whether the evidence is direct or circumstantial. Further, Appellant contends that plaintiffs rarely are able to offer evidence that is exclusively direct or circumstantial — most commonly, a plaintiff offers a combination of both categories of evidence. Moreover, Appellant develops that Pennsylvania courts do not place more or less weight on direct versus circumstantial evidence by reason of the character of the evidence alone.
Appellant also advances several policy bases supporting the adoption of the frequency, regularity, proximity test in cases involving either direct or circumstantial evidence, or both. In particular, Appellant believes that the application of any looser test yields unfair results. For example, viewing the circumstances of the present case, Appellant believes that it is unfair for Appellee to hale a peripheral defendant, such as a retailer of automobile parts, into court based on direct evidence of minimal exposure, while ignoring Mr. Gregg’s forty-some-year history of occupational exposure to asbestos as asserted in the complaint.
Finally, Appellant criticizes Appellee’s reliance on the conclusion in Dr. Spector’s supplemental report that non-oecupational exposure was a substantial cause of Mr. Gregg’s disease, quoting the lead opinion from Summers v. Certainteed Corp.,
Just because a hired expert makes a legal conclusion does not mean that a trial judge has to adopt it if it is not supported by the record and is devoid of common sense. For example, [the plaintiffs liability expert] used the phrase, “Each and every exposure to asbestos has been a substantial contributing factor to the abnormalities noted.” However, suppose an expert said that if one took a bucket of water and dumped it into the ocean, that was a “substantial contributing factor” to the size of the ocean. [The expert’s] statement saying every breath is a “substantial contributing factor” is not accurate. If someone walks past a mechanic changing brakes, he or she is exposed to asbestos. If that person worked for a factory making lagging, it can hardly be said that one whiff of the asbestos from the brakes is a “substantial factor” in causing disease.
Id. at 244 (emphasis in original). Appellant likens its circumstance to that of the defendant in Chavers v. General Motors Corp.,
Appellee, on the other hand, opposes the application of any form of de minimus screening test, particularly in mesothelioma cases. Appellee stresses that mesothelioma is unique among asbestos-caused diseases, in that it can develop after low-dose exposures. See Affidavit of Richard A. Lemen, Ph.D., dated September 28, 2000 (“There is no safe level of exposure to asbestos below which human beings are not at risk of developing an asbestos disease particularly mesothelioma[;] ... [mjesothelioma may be caused by slight, transient and short exposures to asbestos and all exposures contribute to the risk of developing mesothelioma.”). Thus, Appellee contends that plaintiffs should be permitted to prove causation through any combination of direct and circumstantial evidence of asbestos exposure which may exist, so long as a qualified medical expert renders an opinion that such exposure was a substantial factor in causing the disease. Brief for Appellee at 17 (“the quantification/efe minimus issue ... is a fact-specific issue of medical causation in each case.”).
According to Appellee, the Superior Court has largely followed such approach. See, e.g., Lilley v. Johns-Manville Corp.,
To the extent frequency, regularity, and proximity are relevant, Appellee agrees with the Superior Court that the application of the test should be limited to circumstantial evidence cases. Appellee explains that, when only circumstantial evidence is presented, an initial question arises concerning whether the injured party ever came into contact with any asbestos at all; whereas, in a direct evidence case, exposure is not at issue at the dispositive pre-trial motions stage. Under Appellee’s approach, the only issue to be resolved in a direct evidence case is whether that asbestos exposure caused the injured person’s disease, and causation is demonstrated through the medical testimony establishing the relationship between the exposure and the asbestos-related disease.
Appellee also disputes Appellant’s characterizations of Mr. Gregg’s automobile maintenance work as “casual” and “recreational” and suggests that a better characterization would be “quasi-occupational.” While Appellee recognizes that he was able to identify only a few incidents of Mr. Gregg’s exposure concretely, he maintains that the more general references in the testimony are circumstantial evidence that Mr. Gregg ■performed brake changes with asbestos-containing products from Appellant’s store more frequently. Further, Appellee criticizes Appellant’s efforts to compare Mr. Gregg’s asserted occupational exposure with his exposure while changing brakes, explaining that there is no evidence of occupational exposure. Moreover, Appellee notes that he has filed a motion to amend his complaint to remove the allegations of occupational exposure. Appellee distinguishes the Chavers decision, relied upon by Appellant, as involving actual evidence of substantial occupational exposure to asbestos and weaker evidence of exposure in automobile maintenance activities.
As to policy, Appellee asserts that there are no “floodgates of litigation” involving mesothelioma, the occurrence of which has remained about 3,000 cases per year in the United States, which Appellee indicates that courts historically have been able to handle without significant difficulty. Thus, Appellee suggests that there is no reason for this Court to create an additional barrier for victims of the disease and/or their representatives to surmount before their cases can be presented before juries.
At the outset, Appellee is correct that the use of the frequency, regularity, proximity analysis arose out of circumstances in which the exposure of the plaintiffs (or
Like many other courts, however, we believe that the criteria should have broader application in the courts’ assessment of the sufficiency of a plaintiffs proofs. See, e.g., Lindstrom v. A-C Product Liability Trust,
We recognize that it is common for plaintiffs to submit expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor in asbestos disease. However, we share Judge Klein’s perspective, as expressed in the Summers decision, that such generalized opinions do not suffice to create a jury question in a case where exposure to the defendant’s product is de minimus, particularly in the absence of evidence excluding other possible sources of exposure (or in the face of evidence of substantial exposure from other sources). See Summers,
We appreciate the difficulties facing plaintiffs in this and similar settings, where they have unquestionably suffered harm on account of a disease having a long latency period and must bear a burden of proving specific causation under prevailing Pennsylvania law which may be insurmountable. Other jurisdictions have considered alternate theories of liability to alleviate the burden. See, e.g., Menne v. Celotex Corp.,
In summary, we believe 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 plaintiffs/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. We hold, therefore, that the common pleas court did not err in its decision to make this assessment. It remains to be determined on remand whether, in light of Appellee’s evidence concerning the frequency, regularity, and proximity of Mr. Gregg’s exposure to asbestos-containing products sold by Appellant, the common pleas court correctly determined that a jury issue was not present.
The order of the Superior Court is vacated, and the matter is remanded for further proceedings consistent with this opinion. Appellee’s Motion to Amend the Complaint is transferred to the intermediate appellate court, to be addressed in connection with the review on remand.
Jurisdiction is relinquished.
Notes
. This case was reassigned to this author.
. Summary judgment was also granted in favor of Allied Signal, Inc., and the propriety of this decision is not at issue in the present appeal.
. It is unclear why the court focused only on Bendix Corporation products in relation to Appellant’s potential liability, since Appellee also adduced product identification testimony indicting that Mr. Gregg was also exposed to Raybestos brake products sold by Appellant.
. The panel also noted that the common pleas court's position on the motion to strike Dr. Spector's supplemental expert report was unclear from the record, and thus, it required clarification on remand.
Judge Montemuro dissented, taking the position that no issue was raised by Appellee concerning the expert report, and the report was untimely and, therefore, should not be considered.
On remand, the common pleas court denied the motion to strike the supplemental expert report.
. See, e.g., Commonwealth v. Bricker,
. While Appellant maintains that Appellee cannot demonstrate that the brake pads contained asbestos, the witness testified that installations that he saw were of Raybestos products, and Appellee has adduced evidence that Raybestos brake products sold in the relevant period contained asbestos.
Testimony that Mr. Gregg also breathed dust while cleaning out the wheel wells of automobiles during the brake-changing process is less direct, since a number of inferences are required to connect the dust to brake products purchased from Appellant. For example, there was no testimony that Mr. Gregg procured brake products exclusively from Appellant's store (indeed, there was evidence that he bought some items from another automobile supply store in which he previously had worked).
. For example, although Appellee describes Eckenrod as a case in which the plaintiff had adduced purely circumstantial evidence of exposure, there was in fact direct testimony by co-workers that "Mr. Eckenrod was ‘exposed to’ asbestos products.” Eckenrod,
. Notably, under some of these theories, in recognition of the fact that a defendant may be held liable under less than substantial-factor causation, relief from joint and several liability may be available. See Menne,
Dissenting Opinion
dissenting.
Because I believe that the Majority’s disposition of this matter is little more than a credibility determination, and thus improperly invades the province of the fact finder, I respectfully dissent.
It can be tempting for a court in a summary judgment matter to determine whether it finds a party’s evidence persuasive. Yet, the judiciary is forbidden from engaging in such an inquiry at the summary judgment phase. Our function in a summary judgment matter is simply to “view the record in the light most favorable to the nonmoving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party.” Mountain Village v. Bd. of Supervisors of Long swamp Twp.,
In the matter sub judice, the evidence when taken in the light most favorable to Appellee as nonmoving party establishes that Decedent was exposed to Appellant’s asbestos laden product. Furthermore, Appellee offered expert testimony that Decedent’s mesothelioma was caused by occupational and nonoccupational exposure to asbestos, and that only the barest amounts of asbestos can cause mesothelioma.
The Majority, however, concludes that this evidence does not present a jury question. The Majority does not come to this conclusion by finding that this evidence, when credited in its entirety, would fail to support a jury verdict for Appellee. Rather, it acknowledges the evidence as adduced by Appellee but then finds that not all of Appellee’s evidence is worthy of belief. Specifically, the Majority regards the opinion offered by Appellee’s scientific expert to be of suspect quality; the Majority apparently cannot square the scientific expert’s opinion regarding the causation of asbestosis with the Majority’s own views on how asbestosis is caused.
This simply is not the function of summary judgment. Summary judgment is designed to winnow out those matters in which the evidence as adduced by the party bearing the burden of proof, even if that evidence is believed in its entirety, is insufficient to establish the cause of action. In such matters, summary judgment should enter since it is wholly unnecessary to progress to the fact finding crucible of trial. Summary judgment is not, however, the conduit by which the judiciary can make credibility determinations by fiat. Accordingly, I respectfully dissent.
. In brief, Appellee claimed that Bendix brakes Decedent had purchased from Appellant contained asbestos fibers. In support of his claim, Appellee produced deposition testimony of two of the Decedent's children. Carolyn Morici ("Morici”), Decedent’s daughter, stated that she bought Bendix brakes for Decedent at Appellant's store when she was a child. Deposition of Carolyn Morici at 37 and 39. Morici observed Decedent installing the brakes and that the procedure was dusty. Id. at 73. Appellee also recalled buying auto supplies for Decedent at Appellant’s store and observing Decedent perform the dusty task of installing new brakes on the family's automobiles. Deposition of John Andrew Gregg at 93 and 124.
Appellee also adduced the testimony of Charles Schaefer ("Schaefer”), who was a neighbor of Decedent's in the 1950’s and 1960's. Schaefer testified that he observed Decedent placing brake shoes in his cars and that the process was dusty. Deposition of Charles Schaefer at 39. Schaefer also testified that the Decedent, to his knowledge, bought his brakes only at V-J. Deposition of Charles Schaefer at 46.
Finally, Appellee produced a supplemental report by his medical expert which opined that all of Decedent's "asbestos exposures both occupational and non-occupational contributed to the development of his malignant mesothelioma.” Supplemental Report of Harvey Spec-tor, M.D., 8/20/2001, at 1. This supplemental report specifically noted that the expert had reviewed the Decedent’s exposure to asbestos while installing brake linings on his automobile. Id. Another expert stated that “extremely low exposure levels are capable of producing mesothelioma and other malignancies. Both animal and human data exist that show as little as one day of exposure can lead to the development of mesothelioma....” Affidavit of Arthur L. Frank, M.D., dated November 5, 2002.
. I would caution that a determination of whether a certain amount of a pollutant can bring about an illness is not arrived at via an application of pedestrian common sense. This court has recognized that for such questions, scientific expert testimony is required as "it is generally acknowledged that the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge of the average layperson.” Hamil v. Bashline,
Dissenting Opinion
dissenting.
Because I agree with Mr. Chief Justice Cappy’s conclusion that the Majority is erroneously invading the province of the fact finder, I wholly join him and respectfully
It appears that the Majority, in expounding on what it labels as “Judge Klein’s perspective,” paints the entire spectrum of experts with a broad brush of quackery regarding the issuance of their respective opinions. Moreover, this approach suggests that the trial court is obligated to ferret out opinions of arguable scientific merit from those of a dubious nature, and everything in between, even where Appellant never challenged the methodology of Appellee’s expert as being outside the accepted scientific methodology of asbestos cases and never requested a Frye hearing (to determine whether the general scientific community has reached a general acceptance of the principles and methodology employed by the expert witness before the trial court will allow the expert to testify regarding his conclusions).
This case is before us on Appellant/Defendant’s motion for summary judgment. Of course, we must consequently view the facts in the light 'most favorable to the Appellee/Plaintiff, who is the non-moving party. See Pa.R.Civ.P. 1035.2; see also Atcovitz v. Gulph Mills Tennis Club, Inc.,
Relying on the Tragarz test,
. See Frye v. United States,
. Tragarz v. Keene Corp.,