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Pennsylvania Superior Court Tightens Requirements for Co-Worker Affidavits in Asbestos Cases

Toxic Torts and Environmental Alert | November 6, 2014
By: Jerrold P. Anders and Tonya M. Harris

In Krauss v. Trane US Inc., 2014 Pa. Super. 241, --- A.3d --- (October 22, 2014), the Superior Court of Pennsylvania held that a witness affidavit does not create a genuine issue of fact to defeat summary judgment when it reflects only a presumption and belief that certain products contained asbestos.  Moreover, when an affidavit fails to demonstrate plaintiff’s frequent, regular, and proximate exposure to a specific defendant’s asbestos-containing product, summary judgment will be granted.

The Executor of the Estate of Henry M. Krauss filed two lawsuits against forty-nine defendants in the Philadelphia Court of Common Pleas.  Plaintiff alleged that Mr. Krauss, a bricklayer from 1978 to 1983, was occupationally exposed to asbestos and developed mesothelioma.  Various defendants moved for summary judgment based on insufficient product identification.  The trial court granted summary judgment in favor of the defendants because the co-worker affidavits failed to show that:  (1) Mr. Krauss worked in proximity to the defendants’ products;  (2) the products contained asbestos during the relevant period; or (3) Mr. Krauss inhaled asbestos fibers from the products.

The Superior Court affirmed the trial court’s decision and reviewed case law regarding the summary judgment standard in asbestos cases.  In Gregg v. V-J Auto Parts, 943 A.2d 216 (Pa. 2007), the Supreme Court of Pennsylvania criticized the rigid “frequency, regularity, proximity” test adopted by the Superior Court in Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988)and its application in every case.  Instead, the Supreme Court modified the test set forth in Eckenrod, and adopted a fact-specific sliding scale approach as outlined in the 1992 Seventh Circuit decision, Tragarz v. Keene Corp, 980 F.2d 411(7th Cir. 1992).

The sliding-scale approach in Tragarz included two considerations absent from the Eckenrod analysis.  The court in Tragarz suggested that the application of the Eckenrod test should be tailored to the facts and circumstances of the specific case.  Therefore, the application of the test is less critical where the plaintiff provides specific evidence of exposure.  Additionally, the frequency and regularity prongs of the Eckenrod standard become less burdensome where the plaintiff provides competent medical evidence showing that the disease developed after a minor exposure to asbestos fibers.  However, in addressing the “any exposure” and “any breath” theory of causation, the Superior Court highlighted the Supreme Court’s ruling in Howard v. A.W. Chesterton, Co., 78 A.3d 605 (Pa. 2013), holding thatproof of de minimus exposure to a defendant’s product is insufficient to establish causation.

Based on these standards, the Superior Court held that the plaintiff’s evidence in Krauss did not meet the summary judgment standard specific to an asbestos case as outlined in Gregg v. V-J Auto Parts.  The affidavit by Mr. Krauss’ former co-worker was not based on his actual knowledge.  The affidavit reflected only a presumption and belief that that boilers, turbines and pumps Mr. Krauss worked around contained asbestos.  The Superior Court held that the co-worker affidavits did not provide specific evidence of Mr. Krauss’s exposure to a product manufactured or supplied by a particular defendant at a particular work site.

The Superior Court also determined that the co-worker’s deposition testimony that he and Mr. Krauss were 25 to 30 feet away from an alleged asbestos-containing Westinghouse turbine failed to establish a genuine issue of material fact about whether Mr. Krauss alleged inhalation of asbestos fibers from the turbine that was regular, frequent, and proximate exposure.

Similarly, the court found that the affidavit of Mr. Krauss’ son, who worked with his father as a bricklayer, failed to establish exposure to GE turbines and Georgia-Pacific joint compound.  The son’s affidavit, which merely stated that the products created visible dust, failed to address the frequency, regularity or proximity of Mr. Krauss’s exposure to any specific product.  The appellate court also held that the son’s affidavit failed to provide specific evidence that the GE turbines or Georgia-Pacific products contained asbestos.

The plaintiff argued that contradictions existed between the son’s affidavit and his deposition testimony, which created a factual question and precluded the entry of summary judgment.  However, the Superior Court explained that there was no case law supporting the plaintiff’s claim that contradictions in a single witness’s testimony creates a genuine issue of fact to defeat summary judgment. 

The attorneys of the Toxic Torts and Environmental Group of White and Williams can assist clients on all the facets of the toxic torts and asbestos litigation.  Please contact Jerrold P. Anders (215.864.7003 | for assistance. 

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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