Appellate judge rules 'every exposure' theory insufficient in asbestos case

By Heather Isringhausen Gvillo | May 21, 2014


A Pennsylvania appellate court affirmed that a former refinery worker failed to provide enough evidence proving his late wife’s third-party mesothelioma resulted from the defendant’s products.

Judge Eugene Strassburger delivered the opinion in the Superior Court of Pennsylvania on April 24 affirming the lower court’s decision to grant summary judgment to two defendants in a third-party asbestos lawsuit.

Strassburger agreed with the trial court that the claimant failed to provide sufficient evidence proving his wife developed mesothelioma from his work with the defendants’ products.

Allen Groover, on behalf of his deceased wife Cheryl Groover, appealed two January 2013 orders granting summary judgment for defendants CBS Corporation (Westinghouse) and Spirax Sarco, Inc., in the Court of Common Pleas of Philadelphia County Civil Division.

Groover filed his lawsuit against several defendants in September 2011 after his wife died of mesothelioma in October 2010.

Groover worked in a Marcus Hook refinery from 1973 to 2010. He alleges that he was exposed to asbestos while working with Westinghouse turbines and Sarco steam traps. During his work, Groover believes asbestos dust attached to his clothing and he carried it home. His wife was exposed to the toxic dust when she consistently laundered his work clothing, resulting in her developing mesothelioma, he alleges.

Both Westinghouse and Sarco moved for summary judgment in November 2012. It was granted in January 2013. Groover appealed.

Relating to the approved summary judgments, Groover questioned whether the trial court erred as a matter of law because he says the record reveals issues of material fact relating to asbestos exposure to the company’s turbines.

He also questioned whether the lower court ruled correctly on the statute of repose in regards to Westinghouse and whether the record on Sarco revealed evidence that the company is liable for asbestos in gaskets that are necessary components of its steam traps.

Strassburger wrote that Groover must show that the injuries were caused by a product of the specific defendants in order for liability to attach in a products liability claim.

Furthermore, Groover must also present sufficient evidence that the decedent inhaled asbestos fibers from a specific manufacturer’s product in order to defeat summary judgment, the court ruled.

In this case, the regularity-frequency-proximity standard was used for determining whether a plaintiff provided sufficient evidence for a jury to reasonably conclude that the decedent breathed asbestos fibers from a specific defendant’s product.

“Furthermore, we note that in the instant case, the question is not whether the products were used with such regularity and frequency in the workplace such that Groover breathed fibers from the products,” Strassburger stated.

“Rather, the question is whether his work regularly and frequently placed him in proximity with the defendants’ products attached to Groover’s clothing, were breathed by decedent when she did the laundry, and were a substantial cause of decedent’s development of mesothelioma.”

Westinghouse summary judgment

Strassburger wrote that Westinghouse claimed there was no triable issue of material fact showing decedent’s exposure was a result of Westinghouse’s products. It asserts that Groover failed to offer sufficient evidence to satisfy the regularity-frequency-proximity standard.

After examining the evidence, the trial court concluded that Groover failed to provide evidence that he was in the proximity of Westinghouse’s turbines or that the turbines even contained asbestos during the time that he worked there. Therefore, he also failed to prove that asbestos fibers from the turbines attached to his clothing causing his wife to inhale the dust.

Strassburger agreed with the trial court, saying it did not abuse its discretion when evaluating the evidence.

Examining the evidence himself, Strassburger concluded that Groover did identify that he was exposed to asbestos from Westinghouse turbines, but failed to indicate regularity and frequency of the exposure.

Groover provided a deposition from his brother and co-worker, Earl Groover, as part of his evidence. However, Strassburger found that Groover’s brother only worked side-by-side with the plaintiff during an eight-to-10-week period in 1988. The plaintiff’s brother also said he couldn’t associate asbestos-containing products with Westinghouse turbines during that brief period when they worked together.

Groover’s brother did testify that visible dust was released from asbestos insulation in the boiler houses during an “upset condition,” but he could not testify that he or Groover was in the boiler house during those conditions.

“Given this record, we cannot conclude that the trial court erred in holding that Groover presented insufficient evidence that asbestos fibers from a Westinghouse product attached to his clothing in the workplace and were breathed by decedent at Groover’s home,” Strassburger concluded.

As for Groover’s statute of repose question, Strassburger said the issue was moot because the claimant failed to provide sufficient evidence of exposure, meaning summary judgment would have been granted regardless.

Sarco summary judgment

Sarco alleged Groover and his brother’s testimonies failed to satisfy the regularity-frequency-proximity standard. It also contended that it was not liable for asbestos-containing component parts used in its products unless it manufactured, supplied or specified the use of those specific parts.

The trial court ruled that Groover did not provide enough evidence showing that his wife inhaled asbestos fibers from Sarco products.

While Groover presented evidence that he worked with Sarco steam traps, he admitted in his deposition that he only removed the asbestos-containing gaskets when they were attached to the top of the steam trap but never changed a gasket inside a steam trap.

Groover further alleges that because the products in question contained asbestos and were present in his work area, it is sufficient for a jury to conclude that a plaintiff could be exposed and injured by the products.

However, Strassburger wrote that the problem with this analysis is that it is not the law.

“Only ‘casual or minimum exposure to the defendant’s product’ is insufficient to meet the ‘frequency, regularity, and proximity’ test,” he stated.

Strassburger cited the Howard III decision, which indicates that the “each and every exposure” theory is not viable to establish liability in a dose-responsive disease. He added that de minimus exposure to an asbestos-containing product is insufficient to establish causation.

“Clearly, this requires some affirmative showing that the plaintiff or decedent breathed dust from the particular defendant’s product,” Strassburger wrote. “A plaintiff no longer may simply offer evidence that he or she worked with or around a defendant’s product.”

However, Groover failed to present evidence establishing his own exposure to asbestos fibers released from a Sarco product, let alone that decedent inhaled Sarco asbestos fibers from his work clothing, the court ruled.

“Given the legal precedent and our standard of review, we cannot conclude that the trial court erred or abused its discretion in finding that Groover offered insufficient evidence that decedent breathed asbestos fibers from a Sarco product,” Strassburger wrote.

As for Groover’s question regarding Sarco’s liability for component parts of the steam traps, Strassburger considered the issue moot. Because Groover failed to provide enough evidence showing the decedent was injured from Groover’s work with Sarco products, the court did not even distinguish between Sarco steam traps and the asbestos-containing gasket component parts.

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