PENNSYLVANIA RECORD

A three-judge state appellate court panel has affirmed a nearly two-year-old decision by a Philadelphia Common Pleas Court judge to grant summary judgment to the defense in an asbestos case.

In a May 29 opinion, judges with the state’s Superior Court upheld the July 16, 2010 summary judgment award in favor of defendants J.A. Sexauer, Kentile and Pecora Corp., who were being sued by Beverly Fisher on behalf of herself and her deceased husband, Sidney Fisher.

The widow claimed in her lawsuit that her husband’s small-cell carcinoma diagnosis in March 2006 was a result of his exposure to asbestos during his working life as a journeyman plumber, according to the court record.

Sidney Fisher, who was 77 years old at the time of his diagnosis, had worked around construction materials that contained asbestos for about 50 years, the lawsuit claimed.

Those materials included plumber’s packing manufactured by J.A. Sexauer, vinyl asbestos tile made by Kentile and furnace cement manufactured by Pecora, the lawsuit had contended.

Sidney Fisher, who died in December 2006, had participated in deposition testimony prior to his passing.

The record shows that Philadelphia Common Pleas Court Judge Allan L. Tereshko agreed with the defendants that Sidney Fisher failed to establish the requisite threshold for asbestos exposure recognized by the courts when he offered his pre-death testimony.

The jurist subsequently granted the defendants’ motion for summary judgment.

On appeal, Fisher’s widow argued that the trial court failed to draw inferences in her favor as required by the standard of review applicable to summary judgment, and thus disregarded questions of fact concerning the extent of asbestos exposure her deceased husband suffered, the appellate court opinion states.

The appellate panel, however, disagreed with the plaintiff, writing in its opinion that the judges found no error in the trial’s courts decision to grant summary judgment.

“… the evidence fails to establish that the decedent’s exposure reached the threshold established by [court precedent],” the opinion states.

The appeals judges wrote that the record shows Sidney Fisher did not establish that he inhaled asbestos fibers from the products manufactured by the individual defendants.

“We find the [trial] court’s interpretation entirely consistent with the record,” the opinion states.

Addressing the claims against Kentile, the appeals panel wrote that the trial court was correct to determine that Sidney Fisher’s deposition testimony offered only “speculation on the nature and extent of his exposure, as the asbestos content of the mingled dust could not be known.”

The plaintiff had argued in her lawsuit that her husband had worked for extended periods of time on construction projects where Kentile floor tiles were being cut for installation, and that dust created during the process mingled with other dust on the floor that then became airborne when the sites were swept.

The appeals judges agreed with the trial court judge who reasoned that not all Kentile flooring in use at the time contained asbestos.

The panel also agreed with the trial court in its granting summary judgment to defendant Pecora Corp., which manufactured the Red Devil asbestos furnace cement Sidney Fisher worked with during various times throughout  his career.

The trial court concluded that the late Fisher’s deposition testimony concerning his exposure to Pecora asbestos was “too speculative, as he confirmed that he applied the material wet, which eliminated the possibility of airborne fibers, and responded indefinitely to critical questions bearing on whether he was exposed to asbestos dust,” the appellate opinion states.

The appeals panel agreed with that assessment.

The opinion was signed by Superior Court judges John T. Bender, Paula Francisco Ott and James T. Fitzgerald, III.