Gilbert v. MONSEY PRODUCTS COMPANY, No. 611 EDA 2003

• Decision Date: 30 September 2004
• Docket Number: No. 805 EDA 2003, No. 611 EDA 2003
• Citation: 861 A.2d 275,2004 PA Super 380
• Parties: ELIZABETH D. GILBERT, ADMINISTRATRIX OF THE ESTATE OF GEORGE E. GILBERT and ELIZABETH D. GILBERT, IN HER OWN RIGHT, Appellants, v. MONSEY PRODUCTS COMPANY and A.P. GREEN REFRACTORIES CO., et al., Appellees, ELIZABETH D. GILBERT, ADMINISTRATRIX OF THE ESTATE OF GEORGE E. GILBERT and ELIZABETH D. GILBERT, IN HER OWN RIGHT, Appellants, v. IPA SYSTEMS, INC. and A.P. GREEN REFRACTORIES CO., et al., Appellees.
• Court: Pennsylvania Superior Court

2004 PA Super 380

861 A.2d 275

ELIZABETH D. GILBERT, ADMINISTRATRIX OF THE ESTATE OF GEORGE E. GILBERT and ELIZABETH D. GILBERT, IN HER OWN RIGHT, Appellants, v. MONSEY PRODUCTS COMPANY and A.P. GREEN REFRACTORIES CO., et al., Appellees, ELIZABETH D. GILBERT, ADMINISTRATRIX OF THE ESTATE OF GEORGE E. GILBERT and ELIZABETH D. GILBERT, IN HER OWN RIGHT, Appellants, v. IPA SYSTEMS, INC. and A.P. GREEN REFRACTORIES CO., et al., Appellees.

Nos. ,

Superior Court of Pennsylvania.

Filed: September 30, 2004.

Before: DEL SOLE, P.J., ORIE MELVIN and BECK, JJ.

OPINION BY DEL SOLE, P.J.:

¶ 1 This case comes before us on appeal from the entry of summary judgment in favor of two defendants in an asbestos-related products liability case. Because we find that the trial court erred as a matter of law, we vacate the judgments of the trial court.

¶ 2 Appellant brought a products liability action against multiple companies including Appellees Monsey Products Company ("Monsey") and IPA Systems, Inc. ("IPA"). Appellant alleged that certain Monsey and IPA products contained asbestos and that his use of these products caused him to develop mesothelioma. As the matter headed to trial, Monsey and IPA moved for summary judgment on the ground that Appellant failed to present evidence sufficient to satisfy the product identification requirements established in Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988), which requires a plaintiff to prove frequent, regular and proximate exposure to a defendant's product. Id. Granting these motions, the trial court held that as a matter of law, the evidence presented by Appellant did not meet the frequency and regularity requirements of the Eckenrod test.

¶ 3 In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any doubts as to the existence of a genuine issue of material fact against the moving party. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa. Super. 2002). In reviewing a grant of summary judgment, our scope of review is plenary and this Court will reverse only upon finding that the trial court abused its discretion or erred as a matter of law. Harahan v. AC & S, Inc., 816 A.2d 296 (Pa. Super. 2003). The inquiry under a motion for summary judgment is whether the plaintiff "has pointed to sufficient ... facts in the record to indicate that there is a genuine issue of material fact as to the causation of [the] disease by the product of each particular defendant." Eckenrod v. GAF Corp., 544 A.2d at 53.

¶ 4 For liability to attach in a products liability action, plaintiff must prove that defendant's product caused plaintiff's injury. Eckenrod, 544 A.2d 50. In asbestos litigation, plaintiff must present evidence that he inhaled asbestos fibers shed by defendant's product. Id. In Wilson v. A.P. Green Industries, Inc., 807 A.2d 922 (Pa. Super. 2002), we stated, "[i]deally, a plaintiff ... will be able to directly testify that plaintiff breathed in asbestos fibers and that those fibers came from defendant's product." Id. at 924. Without such direct evidence, plaintiff must rely on circumstantial evidence of exposure; specifically, plaintiff must meet the Eckenrod test. Id. (emphasis added).

¶ 5 In the present case, Appellant was able to testify and stated that he worked with Appellees' products and inhaled fibers from these products. The question as to whether there was sufficient regularity and frequency so as to cause Appellant's injury is a question for the jury. Wilson, 807 A.2d 922.

¶ 6 Because Appellant provided direct testimony, the Eckenrod test was not applicable. We therefore find that the trial court erred in applying the Eckenrod test. Accordingly, the orders dated November 21, 2002, granting summary judgment in favor of Monsey and IPA are reversed.

¶ 7 Judgments vacated. Case...