Heather Isringhausen Gvillo Oct. 30, 2014, 9:25am

PHILDELPHIA (Legal Newsline) – A Pennsylvania appellate court has granted summary judgment for six asbestos defendants in a case in which the primary witness relied on his own “knowledge and belief” that the products at issue contained asbestos.

Judge Jacqueline O. Shogan delivered the Oct. 22 opinion in the Superior Court of Pennsylvania affirming the lower court’s judgment. Judges Victor P. Stabile and William H. Platt concurred.

Plaintiff Colleen M. Krauss appealed the judgment out of the Philadelphia Court of Common Pleas, which granted summary judgment in favor of defendants General Electric Company, Georgia Pacific LLC, CBS Corporatoin-Westinghouse, Goulds Pumps, Inc., Zurn Industries and Trane US Inc.

Krauss filed the lawsuit on behalf of decedent Henry Krauss in February 2006 and then filed a second suit in January 2007. The cases were consolidated in May 2011.

Kraus claims the decedent was employed in the bricklaying trade at various jobsites for varying lengths between 1978 and 1983 where he was allegedly exposed to asbestos. As a result, the decedent developed mesothelioma.

In November 2012, all the defendant appellees filed motions for summary judgment, which were granted in January 2013.

Because the decedent was not deposed before his death, Krauss claims the decedent’s former co-worker Michael Morgan’s affidavit is sufficient to raise genuine issues of material fact proving frequent, regular and proximate asbestos exposure to products from each defendant in the appeal.

In his affidavit, Morgan testified that he recalled products form each defendant at the various worksites where he worked with the decedent over the course of a five-year period.

However, he failed to provide specific evidence showing the decedent was exposed to the specified products manufactured by a particular manufacturer or supplier at a particular worksite.

The affidavit also fails to establish that the products even contained asbestos.

“Morgan’s affidavit asserts that ‘all of the boilers, turbines and pumps’ identified in his affidavit were insulated with asbestos products based on his ‘knowledge and belief.’ It however, provides no specific evidence upon which he based his determination that these boilers, turbines and pumps were insulated with asbestos products,” Shogan wrote.

Based on this argument, the appeals court concluded that Morgan’s statements provided in his affidavit that the products contained asbestos did not derive from actual knowledge. Instead, the affidavit is based on presumption and belief that the products contained asbestos.

“Such statements are insufficient to show that there exists a genuine issue of fact as to the existence of asbestos in these products,” Shogan wrote.

“Additionally, such statements do not present competent evidence for the jury because it is speculative. A plaintiff cannot survive summary judgment when mere speculation would be required for the jury to find in plaintiff’s favor,” she added.

Because Morgan based his statements solely on speculation and conjecture, the appeals court held that the affidavit is insufficient as a basis upon which appellant’s case can survive summary judgment.

“It fails to establish a genuine issue of material fact as to the presence of a specific manufacturer’s product at a specific worksite where decedent worked, and fails to establish that asbestos was present in those products in the various worksites. Appellant is not entitled to an inference of fact based merely on Morgan’s unsubstantiated claims,” Shogan wrote.

Furthermore, Morgan’s affidavit failed to meet the frequency, regularity and proximity test.

In regards to frequency and regularity, Morgan merely stated in general that each of the decedent’s jobs lasted roughly one week or longer.

As for proximity, Morgan “does not identify the proximity to the alleged asbestos-containing products with which decedent worked."

Therefore, the court concluded that Morgan’s affidavit alone does not create a genuine issue of material fact precluding summary judgment and affirmed the lower court’s decision.

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

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