Nicholas Malfitano Apr. 23, 2015, 1:12pm


PHILADELPHIA – Friday, the state Superior Court affirmed an earlier ruling from the Philadelphia County Court of Common Pleas, which had granted summary judgment for a former crane operator in a lawsuit brought by a man who claimed he developed lung cancer as a result of asbestos exposure at his workplace.

Norman J. Sterling and Laura M. Sterling of Lehighton initially filed suit in the Philadelphia County Court of Common Pleas in October 2012, charging P&H Mining among 58 defendants as being liable for Norman Sterling being exposed to asbestos in the course of his professional duties as a crane operator for Bethlehem Steel from 1952 to 1979.

Specifically, the Sterlings alleged the P&H-manufactured cranes Norman used though his work in Bethlehem Steel’s “beam yard” or shipping yard, contained components containing asbestos.

Through depositions conducted in October 2013, Sterling described his work of “loading, unloading and operating cranes, including some P&H cranes, from approximately 1969 to 1978.”

The following December, P&H moved for summary judgment against the Sterlings, believing they did not make a case for Norman being exposed to asbestos specifically through component parts of P&H cranes.

P&H claimed Sterling’s testimony, along with that of other Bethlehem Steel employees, showed he inhaled dust from brakes and wiring on P&H cranes, and that P&H had “previously admitted” said brakes and wiring contained asbestos.

In February 2014, the Court of Common Pleas found for summary judgment in favor of P&H, ruling that the Sterlings failed to produce evidence showing Norman inhaled asbestos fibers from component parts of P&H cranes.

The Sterlings soon appealed the decision, with the appeal coming before Judge Arnold L. New.

“To survive summary judgment in an asbestos products liability case, a plaintiff must produce evidence he frequently and regularly inhaled asbestos fibers shed by the defendant's product,” New stated. “The plaintiff must identify an asbestos-containing product attributable to the particular defendant. Then, the plaintiff must show his contact with that product was of a nature to give rise to a reasonable inference he inhaled asbestos fibers shed therefrom.”

New decided Sterling’s testimony did not contain anything to infer he inhaled asbestos fibers from wiring or brakes of P&H cranes at Bethlehem Steel, even if an assumption were made that they did contain asbestos fibers.

“The totality of Mr. Sterling's testimony as to P&H is as follows: Mr. Sterling worked as a chain man and crane man at Bethlehem Steel. His job consisted of chaining up big piles of steel and putting them in a run and piling them. In doing so, he operated cranes, including P&H cranes. As a chain man, he would observe dust coming from the wheels of the cranes,” New said.

“Mr. Sterling did not testify to any information as to the nature of the dust, how far he was from the dust, whether he inhaled the dust, or whether the dust he observed contained asbestos.”

New concluded that absent information was enough to uphold the previous decision of summary judgment for P&H. The Sterlings then appealed New’s ruling to the Pennsylvania Superior Court.

The matter appeared before President Judge Susan Peikes Gantman, Judge Jacqueline O. Shogan and Judge Cheryl Lynn Allen. Gantman authored the opinion for all three judges, released Friday.

Gantman cited specific criteria needed to overturn a ruling for summary judgment in asbestos litigation.

“In order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product,” Gantman wrote.

“Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of plaintiff’s injury.”

Per precedent of Pennsylvania courts relating to evidentiary evaluation in asbestos litigation at the summary judgment stage, Gantman sought to apply the “frequency, regularity, proximity” standards derived from Eckenrod v. GAF Corp. to Sterling’s testimony.

Though conceding they “do not establish a rigid standard with an absolute threshold necessary to support liability," Gantman said the frequency, regularity and proximity standards are used to separate cases where a plaintiff can provide sufficient evidence of a “significant likelihood” asbestos inhalation was caused by exposure to a defendant’s product, from other cases where exposure was at most, casual or minimal.

Gantman referred to P&H’s earlier admission that it had previously sold “some equipment and replacement component parts containing small amounts of asbestos," but concluded that these same admissions were “insufficient” to establish Sterling worked on that same equipment or replacement component parts at Bethlehem Steel.

According to P&H’s website, it sold its crane business in 1997 and no longer support that manufacturing line.

In Gantman’s opinion, she found Norman did not sufficiently prove his alleged exposure to asbestos was purely resultant from P&H’s cranes.

“Appellant Mr. Sterling also admitted he worked mostly on cranes supplied by other companies,” Gantman opined. “Although Appellant Mr. Sterling testified he saw dust emanate from the wheel area of the cranes when the brakes were applied, he conceded there were multiple sources of dust in the beam yard.”

“Moreover, the testimony of other former Bethlehem Steel employees provided no information regarding the frequency, regularity, or proximity of Appellant Mr. Sterling’s own alleged exposure to asbestos in P&H products,” Gantman wrote.

On behalf of the Superior Court, Gantman concluded that the plaintiffs failed to provide evidence directly tying Sterling’s asbestos inhalation to P&H cranes.

“Appellants thus failed to adduce evidence sufficient to support an inference that Appellant Mr. Sterling inhaled asbestos from component parts of P&H cranes. Therefore, the court properly entered summary judgment in favor of P&H," Gantman wrote.

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