Frederick S v. Certainteed Corp.
| Decision Date | 21 July 2010 |
| Docket Number | 21 EAP 2006,20 EAP 2006,22 EAP 2006.,No. 19 EAP 2006,19 EAP 2006 |
| Parties | Frederick S. and Lynn SUMMERS, H/W, Appelleesv.CERTAINTEED CORPORATION and Union Carbide Corporation, Appellants.Richard Nybeck, Appelleev.Union Carbide Corporation, Appellant.Frederick S. and Lynn Summers, H/W, Appellantsv.Certainteed Corporation and Union Carbide Corporation, Appellees.Richard Nybeck, Appellantv.Union Carbide Corporation, Appellee. |
| Court | Pennsylvania Supreme Court |
COPYRIGHT MATERIAL OMITTED
Peter J. Neeson, Rawle & Henderson, LLP, Philadelphia, for Allied Signal Inc. in No. 19 EAP 2006.
Robert B. Lawler, Stephen M. Fitzgerald, Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Philadelphia, for Certainteed Corp. and Union Carbide Corp. in No. 19 EAP 2006.
Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Robert N. Spinelli, Catherine Nancy Jasons, Kelley, Jasons, McGowan, Spinelli & Hanna, L.L.P., Philadelphia, for Union Carbide Corp. in No. 20 EAP 2006.
Richard P. Myers, Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, for Richard Nybeck in Nos. 20 EAP 2006 and 22 EAP 2006.
Peter J. Neeson, Carl D. Buchholz, III, Rawle & Henderson, L.L.P., Philadelphia, for Allied Signal Inc. in Nos. 19 EAP 2006 and 21 EAP 2006.
Louis M. Tarasi Jr., Tarasi & Tarasi, P.C., Pittsburgh, for Amicus Curiae Pennsylvania Trial Lawyers Association.
Richard P. Myers, Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, for Frederick S. and Lynn Summers in Nos. 19 EAP 2006 and 21 EAP 2006.
William J. Smith, Dickie, McCamey & Chilcote, P.C., William Rudolph Adams, for John Crane, Inc. f/k/a Crane Packing in Nos. 20 EAP 2006 and 22 EAP 2006.
Robert B. Lawler, Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Philadelphia, for Union Carbide Corp. and Certainteed in No. 21 EAP 2006.
Daniela Lellis de Carvalho, Wilbraham, Lawler & Buba, P.C., Robert N. Spinelli, Catherine Nancy Jasons, Kelley, Jasons, McGowan Spinelli & Hanna, L.L.P., Philadelphia, for Union Carbide Corporation c/o CT Corporation in No. 22 EAP 2006.
Michael Lee Martinez, Crowell & Moring, L.L.P., for Amicus Curiae Coalition of Litigation Justice, Inc.
James Michael Beck, Dechert LLP, Philadelphia, for Amicus Curiae Product Liability Advisory Council, Inc.
Kenneth M. Argentieri, David G. Klaber, K&L Gates, L.L.P., Pittsburgh, Bruce H. Bikin, Rebecca F. Kraut, Philadelphia, Montgomery, McCracken, Walker & Rhoads, L.L.P., for Amicus Curiae The BOC Group, et al.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
1
Appellants, Frederick Summers and Richard Nybeck, appeal the Superior Court's per curiam order, which affirmed the trial court's grant of summary judgment to Appellees, Union Carbide Corporation, Certainteed Corporation, and Allied Signal, Inc.2 After careful consideration, we reverse the Superior Court's order affirming the trial court, and remand this action to that court for proceedings consistent with this opinion.
This appeal comes to us via strict liability, asbestos litigation commenced by Frederick Summers (and his wife, Lynn) and Richard Nybeck (collectively, Appellants). Appellants filed separate actions in the Philadelphia County Court of Common Pleas in 2001, seeking damages related to each man's exposure to asbestos during various employments. After many named defendants, by either stipulation or court order, were dismissed from the cases, Appellees filed motions for summary judgment in the respective actions, which the trial court granted. Appellants filed separate notices of appeal, and two separate panels of the Superior Court entertained oral arguments. Following oral arguments and the issuance of a panel decision in the Nybeck case, the Superior Court consolidated the two appeals, and listed them for oral argument before the court en banc. The court then divided evenly, 4-4, affirming the trial court's order granting summary judgment.3 Summers v. Certainteed Corp., 886 A.2d 240 (Pa.Super.2005) ( en banc ). We granted allowance of appeal to determine whether the Superior Court misapplied the precedent of this Court in affirming the order granting summary judgment. As proper disposition of the instant appeals is based partly upon each Appellant's individual health conditions, our analysis commences by addressing each in turn.
In 1959 and 1960, Mr. Summers worked as a saw operator at an asbestos manufacturing plant. With his daily cutting and sawing of asbestos material came the unavoidable consequence of constant inhalation of asbestos dust. After leaving employ at the plant, Mr. Summers further encountered asbestos through subsequent careers at the Southeastern Pennsylvania Transit Authority and as an independent heating and plumbing contractor.
In 1999, Mr. Summers sought treatment for his breathing difficulties. By 2003, Mr. Summers' condition had become so debilitating that he was forced to retire. Since retirement, Mr. Summers has been unable to enjoy many of life's activities, such as fishing, jogging, or flying in airplanes, due to extreme shortness of breath. Indeed, Mr. Summers cannot climb one-half of a flight of stairs without losing his breath.
In 2003, after several medical examinations, which revealed the presence of pleural thickening, Dr. Jonathan L. Gelfand diagnosed Mr. Summers with asbestos pleural disease related to his years of asbestos exposure. Dr. Gelfand concluded that the disease was a substantial factor in his reduced lung diffusion 4 and extreme shortness of breath. Contemporaneous with this diagnosis, however, Dr. Gelfand further opined that Mr. Summers suffered from obstructive lung disease contributable to a forty pack-year history of smoking cigarettes.5 Although Mr. Summers ceased smoking over thirty years ago, Dr. Gelfand opined that Mr. Summers' breathing difficulties could also be attributed to his past smoking. Finally, Mr. Summers' prior medical history was notable for a spontaneously collapsed lung in the 1960s, asthma, removal of his gallbladder, and surgery for an ulcer.
Notwithstanding the diagnostic complexities, as noted, Dr. Gelfand concluded, to a reasonable degree of medical certainty, that the asbestos-related pleural disease was a substantial factor in Mr. Summers' diffused lung condition and debilitating shortness of breath. In so finding, Dr. Gelfand noted that, while the obstructive lung condition due to smoking showed “some improvement,” in general, the reduction in lung diffusion remained severe. See Report of Dr. Gelfand concerning Frederick Summers, Reproduced Record (R.R.) at 45a. Accordingly, Dr. Gelfand opined that, while occupational exposure to asbestos dust substantially contributed to his condition id. at 46a, the obstructive lung disease, caused by cigarette smoking, also played a role in his breathlessness.
While Mr. Nybeck was enlisted in the Navy in the 1950s, 1960s, and 1970s, he was exposed to asbestos dust and fibers from materials used in boilers, automobile brakes, and steam pipes. Mr. Nybeck, like Mr. Summers, was forced into premature retirement due to debilitating shortness of breath, and can no longer enjoy life's activities, such as fishing, or even walking on level ground, without becoming short of breath. His condition has worsened, and his limitations have increased, over the past decade.
Dr. Gelfand, also Mr. Nybeck's treating physician, diagnosed Mr. Nybeck with asbestos-related pleural thickening and the more severe disease of asbestosis. Mr. Nybeck also smoked cigarettes until approximately ten years ago, and thus suffers from severe obstructive lung disease related to an eighty pack-year history of smoking. Again, however, notwithstanding the case's complexities, Dr. Gelfand was able to conclude to a reasonable degree of medical certainty that occupational exposure to asbestos fibers and dust over the years caused Mr. Nybeck's pleural disease and asbestosis, which are significant contributing factors to his debilitating condition. See Report of Dr. Gelfand concerning Richard Nybeck, R.R. at 183a.
As noted, Appellants initially filed separate products liability actions against a number of defendants, some common to the two actions, others not. The defendants in each case filed motions for summary judgment; and, relevant to this appeal, argued that neither Appellant could survive summary judgment because their respective smoking-related diseases prevented them from proving that exposure to asbestos was the cause of their debilitating conditions.
Although the cases had not been formally consolidated, the trial court, entering one order and supporting opinion, granted the defendants' motions for summary judgment and dismissed Appellants' cases.6 In support of its order, the trial court cited to the Superior Court's 2003 decision in Quate v. American Standard, Inc., 818 A.2d 510 (Pa.Super.2003), which states as follows:
Appellants filed separate appeals to the Superior Court, and, as noted, the cases were eventually consolidated for oral argument before the court en banc. The eight-member court split 4-4, resulting in the affirmance of the trial court...
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