Heather Isringhausen Gvillo Aug. 12, 2014, 8:59am

PHILADELPHIA (Legal Newsline) – The U.S. Court of Appeals for the Third Circuit has affirmed a summary judgment award from the asbestos multidistrict litigation docket in Philadelphia, concluding that the claimants failed to provide sufficient evidence showing a home construction worker was exposed to asbestos from joint compound.

Judge D. Michael Fisher delivered the July 31 opinion with Judges Robert E. Cowen and Franklin S. Van Antwerpen concurring.

Plaintiff Cathy Baxley, individually and as personal representative of the estate of Jimmie Williams, filed the appeal after Judge Eduardo Robreno granted summary judgment to defendant Georgia Pacific in the United States District Court for the Eastern District of Pennsylvania – the nation’s asbestos multidistrict litigation docket.

Based on a testimony by Jimmie Williams, Jr., the decedent’s son, the late Williams performed repairs and renovations in the family’s Virginia home throughout the 1970s.

Before being removed to the asbestos MDL docket, the case originated in South Carolina.

The claimants alleged the decedent developed mesothelioma in August 2008 as a result of his asbestos exposure during home repairs. The decedent died from the disease one month after being diagnosed.

Fisher explained that the sole issue in the appeal is whether the claimants provided sufficient evidence to raise a genuine dispute of material fact proving the decedent was exposed to asbestos from a Georgia Pacific product.

The district concluded that she had not provided sufficient evidence, and the appeals court agreed.

Because the case must be litigated according to South Carolina law, the appeals court applied the frequency, regularity and proximity test for determining whether the asbestos exposure is “actionable.”

“The evidence Baxley has adduced to demonstrate Williams' exposure to an asbestos-containing Georgia Pacific product is speculative at best,” Fisher concluded, “and ‘speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.’”

The claimants provided evidence testimony by Oliver E. Burch, the former general sales manager for Georgia Pacific’s Gypsum Division, in which he stated that by about 1975 all Georgia Pacific products that did not contain asbestos were labeled “asbestos free.”

Fisher wrote that while the claimants indicated that some Georgia Pacific products sold at the time of the repairs still contained asbestos, it is possible that Williams purchased asbestos-free products.

He added that because both asbestos and non-asbestos products existed at the time the decedent would have purchased the material, the family’s identification of the product and its packaging is “critical.”

However, Williams Jr., could not recall any of the labels or wording beyond the name “Georgia Pacific” on the packing of the products his father purchased.

“Baxley makes much of Burch’s testimony,” Fisher wrote, “which suggests that by the mid-1970s, if a product were asbestos-free the label would say so, arguing that ‘the obvious and reasonable inference is that packages not labeled ‘asbestos free’ did in fact contain asbestos.’”

He added that because the decedent’s son could not recall if an asbestos free label was present or not, Burch’s testimony does not advance the plaintiffs’ claim.

“The package could have said ‘asbestos free,’ or it could not have; there is no evidence from which a jury could decide one way or the other and to ask them to do so would be to invite pure speculation,” Fisher concluded.

As a result, the court concluded summary judgment was appropriate.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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