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Monday, October 14, 2019

Frequency, regularity and proximity not established in asbestos case

By Heather Isringhausen Gvillo | Oct 27, 2014

PHILADELPHIA (Legal Newsline) – A federal judge in the nation’s asbestos multidistrict litigation court has held that summary judgment was proper in a case that, he says, failed to establish the frequency, regularity and proximity standards in proving causation.

Judge Eduardo Robreno delivered the Oct. 15 opinion in the United States District Court for the Eastern District of Pennsylvania granting summary judgment for defendant Heidelberg USA, Inc.

Plaintiff Donna Palmer claims that from 1962 to 1977, her husband was exposed to asbestos dust used in Mergenthaler Linotype machines to pack the space between the crucible and the pot jacket.

Prior to his death, the decedent testified that his exposure occurred when he was required to use compressed air to blow dust off the machines. He explained that cracks in the machinery allowed asbestos dust to escape, causing him to breathe in the fibers “many times.”

Palmer argues that in his deposition testimony, Heidelberg corporate representative Michael Niesen testified that six pounds of raw asbestos were used in Mergenthaler Linotype machines and the company mandated that dry asbestos be used.

The plaintiffs believe these testimonies provide sufficient evidence to support a finding of causation with respect to Heidelberg.

The defendant, on the other hand, argues that Palmer’s evidence is insufficient to prove causation, claiming there is no evidence that it manufactured, sold or supplied the insulation at issue in this case.

Robreno explained that a plaintiff must establish that the decedent’s injuries were caused by one of Heidelberg’s products with the necessary frequency, regularity and proximity standards.

By providing sufficient evidence to satisfy the test, the plaintiff would create a genuine issue of material fact as to whether that specific product was a substantial factor of the decedent’s asbestos-related injury.

Robreno held that Palmer provided appropriate evidence showing that the decedent was exposed to respirable dust from raw asbestos used in Merganthaler Linotype machines.

Furthermore, evidence shows that cracks in the machinery were common and that asbestos escaped through the cracks and “reached the decedent’s breathing area ‘many times.’”

However, Robreno concluded that Palmer’s evidence does not establish that the decedent was exposed to asbestos from the machinery with the required frequency and regularity according to Pennsylvania law.

As a result, he held that summary judgment was proper.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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