Heather Isringhausen Gvillo Oct. 14, 2014, 9:08am

PHILADELPHIA (Legal Newsline) – The U.S. Court of Appeals for the Third Circuit has ruled that summary judgment was proper in an asbestos case where the decedent’s only evidence was that he “just knew” asbestos was used in the products at issue.

Judge Michael A. Chagares delivered the Oct. 8 opinion, affirming the lower court’s judgment, in the United States Court of Appeals for the Third Circuit. Judges Thomas L. Ambro and Thomas I. Vanaskie concurred.

Plaintiff Taylor Stokes filed the appeal on behalf of decedent Raymond Stevens, who developed mesothelioma as a result of asbestos exposure and later died from the injury while his case was pending in the U.S. District Court for the Eastern District of Pennsylvania.

Stevens alleged he was exposed to asbestos-containing products manufactured by defendant CBS Corporation, formerly known as Westinghouse, and distributed by defendant International Paper Co.

More specifically, Stevens claimed he was exposed to asbestos associated with Micarta panels the he installed aboard U.S. Navy vessels between 1960 and 1985.

Stevens’ deposition testimony from before his death is the only evidence of exposure provided by the plaintiffs. In his testimony, Stevens said he cut and installed green composite paneling but could not recall the manufacturer of the products or its precise name.

He also originally claimed that the panels were marked as containing asbestos, but he later admitted that he never actually saw the word asbestos on the panels themselves.

However, the defendants requested summary judgment after presenting an affidavit from Dr. David Baldwin, the former general manager of Westinghouse’s Micarta division.

Baldwin testified that Westinghouse did manufacture the paneling, but only some contained asbestos. Additionally, the version that contained asbestos was never approved for use on Navy vessels. Instead, non-asbestos, paper-based panels were used aboard the ships.

Baldwin provided letters and construction specifications prohibiting the use of asbestos in paneling to further his testimony.

The lower court concluded that the decedent’s “internally inconsistent” testimony could not create a genuine issue of material fact. As a result, the court granted summary judgment.

The appeals court agreed that the plaintiff failed to provide sufficient evidence to defeat a summary judgment request.

“An essential element of the plaintiff’s maritime products liability claim is that the products to which he was exposed actually contained asbestos,” Chagares wrote. “On this issue, we do not see how any reasonable jury could credit Steven’s internally inconsistent deposition testimony and return a verdict for the plaintiff.”

In fact, when asked how Stevens knew the panels contained asbestos, he said he “just knew” asbestos was used in “that type of material.”

However, the appeals court held Stevens’ testimony is “precisely the kind of speculative testimony that is insufficient to create a genuine issue of material fact.”

Because the decedent failed to provide any evidence to controvert the defendants’ arguments, summary judgment was proper.

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

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