Rothenbecker v. 3M Co.

• Decision Date: 15 June 2018
• Docket Number: NO. 3:17-CV-0585,3:17-CV-0585
• Parties: JOHN JOSEPH ROTHENBECKER, JR. and SHEILA ROTHENBECKER, his wife, Plaintiffs, v. 3M COMPANY, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

JOHN JOSEPH ROTHENBECKER, JR.

and SHEILA ROTHENBECKER, his wife, Plaintiffs, v. 3M COMPANY, Defendant.

NO. 3:17-CV-0585

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

June 15, 2018

(JUDGE CAPUTO)

MEMORANDUM

Presently before me is the Motion for Summary Judgment (Doc. 18) filed by Defendant 3M Company ("3M"). John Joseph Rothenbecker, Jr. ("Rothenbecker") claims that he was exposed to harmful levels of respirable silica when drilling or cutting concrete while wearing 3M respirators during his career as a sheet metal worker. After being diagnosed with silicosis, Rothenbecker and his wife (collectively, where appropriate, "Plaintiffs") commenced this action asserting strict liability and negligence claims against 3M as well as a derivative loss of consortium cause of action. 3M now argues that it is entitled to judgment as a matter of law on Plaintiffs' strict liability and negligence claims for lack of evidence that its respirators were the proximate cause of Rothenbecker's injuries. Because a dispute of material fact exists as to this issue, 3M's motion for summary judgment will be denied.

I. Background

The facts relevant to the instant motion are brief and largely not in dispute. For approximately four (4) years beginning in 1984, Rothenbecker worked as an apprentice at Power Mechanical, where his duties included cleaning up the shop, loading trucks, and making deliveries. (See 3M's Statement of Material Facts "3M's SMF", ¶ 2; Plaintiffs' Statement of Material Facts "Plfs.' SMF", ¶ 2). Rothenbecker would also go to job sites to clean and cut concrete holes during this time. (See Rothenbecker's SMF, ¶ 2).

From 1989 until about 2001, Rothenbecker worked as a journeyman sheet metal worker at various different construction sites through the local sheet metal workers union. (See 3M's SMF, ¶ 3; Rothenbecker's SMF, ¶ 3). Throughout his time as a journeyman, Rothenbecker's job generally involved two (2) hours per day of drilling, cutting, or chipping concrete. (See 3M's SMF, ¶ 4; Rothenbecker's SMF, ¶ 4). When drilling into concrete, Rothenbecker would wear a 3M mask. (See Rothenbecker Dep., 97:17-98:5; 194:9-12). Once Rothenbecker moved into more of a supervisory role, he was not provided breathing equipment because he was not hands-on drilling concrete. (See id. at 219:6-20; see also id. at 20:9-21:22).

Rothenbecker stopped working in April or May 2015. (See id. at 33:7-13). He learned that he had silicosis that summer. (See id. at 14:15-20, 70:24-71:6, 216:17-20).

Based on the foregoing, Plaintiffs commenced this action against 3M on March 13, 2017 in the Court of Common Pleas of Luzerne County, Pennsylvania. (See Doc. 1-1, generally). In the Complaint, Plaintiffs assert claims for: (1) negligence (Count One); (2) strict liability (Count Two); (3) punitive damages (Count Three); and (4) loss of consortium (Count Four). (See id.).

3M timely removed the action to this Court, (see Doc. 1, generally), and filed an Answer with Affirmative Defenses. (See Doc. 3, generally). Discovery ensued. At the close thereof, 3M filed the instant motion for summary judgment. (See Doc. 18, generally). That motion is fully briefed and ripe for disposition.

II. Legal Standard

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A court may grant a motion for summary judgment if, after it considers all probative materials of record, with inferences drawn in favor of the non-moving party, the court is satisfied that there are no genuine issuesof material fact and the movant is entitled to judgment as a matter of law." Chavarriaga v. N.J. Dep't of Corrs., 806 F.3d 210, 218 (3d Cir. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 2556, 91 L. Ed. 2d 265 (1986); Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000)). "A fact is 'material' under Rule 56 if its existence or nonexistence might impact the outcome of the suit under the applicable substantive law. A dispute over a material fact is 'genuine' if 'a reasonable jury could return a verdict for the nonmoving party.'" Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). "In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter . . . ." American Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 587, 581 (3d Cir. 2009) (citing Anderson, 477 U.S. at 248-49, 106 S. Ct. 2505).

The moving party bears the initial burden to identify "specific portions of the record that establish the absence of a genuine issue of material fact." Santini, 795 F.3d at 416 (citing Celotex, 477 U.S. at 323, 106 S. Ct. 2548, 2553). If this burden is satisfied by the movant, the burden then "shifts to the nonmoving party to go beyond the pleadings and 'come forward with specific facts showing that there is a genuine issue for trial.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). The nonmovant's burden is not satisfied by "simply show[ing] that there is some metaphysical doubt as to the material facts." Chavarriaga, 806 F.3d at 218.

III. Discussion

The product that is predominantly at issue here, the 3M 8710 respirator, received a certificate of approval from the National Institute of Occupational Safety and Health ("NIOSH") and the U.S. Bureau of Mines ("USBM") on May 24, 1972 after the NIOSH and USBM jointly enacted respirator regulations to oversee the performance and quality of respiratory equipment. See Kilty v. Weyerhaeuser Co., No. 16-715, 2018 WL 2464470, at *2 (W.D. Wisc. June 1, 2018) (citing 30 C.F.R. § 11)."The regulations provided that respirators shall be considered approved for use 'only where such respirators are the same in all respects as those respirators which have been approved after meeting the minimum requirements for performance and respiratory protection prescribed in Part 11.'" Id. (quoting 30 C.F.R. 11.2).

The 8710 respirator was introduced by 3M "for protection against pneumoconiosis-producing and fibrosis-producing dusts . . . ." 3M Co. v. Johnson, 895 So. 2d 151, 155 (Miss. 2005). "The United States Occupational Safety and Health Administration ("OSHA") approved the 8710 respirator for use in environments where exposures to certain substances . . . did not exceed ten times the permissible exposure limit ("PEL")." Id.; see also 29 C.F.R. § 1910.134(d)(3)(i)(A) & Table 1.¹

Rothenbecker claims that he was overexposed to respirable silica when cutting or drilling concrete during his career as journeyman even though he wore a 3M respirator. As a result of the failings of these respirators, Rothenbecker asserts that 3M is liable in tort under both negligence and strict liability theories. Rothenbecker's strict liability cause of action encompasses both warning and design defects.

Under Pennsylvania law, "plaintiffs seeking relief under a strict product liability cause of action must prove that 'the product was defective, the defect existed when it left the defendant's hands, and the defect caused the harm.'" High v. Pennsy Supply, Inc., 154 A.3d 341, 345-46 (Pa. Super. Ct. 2017) (quoting Barton v. Lowe's Home Ctrs., Inc., 124 A.3d 349, 354-55 (Pa. Super. Ct. 2015)). "A product may be found to be defective based on proof of any one of three conditions: a manufacturing defect in the product itself, a defect in the product's design, or a failure of the manufacturer to warn of the product's danger or to instruct on the proper use of the product." Id. at 346 (citing Weiner v. Am. Honda Motor Co., 718 A.2d 305, 307 (Pa.Super. 1998)).

The law governing strict products liability actions in Pennsylvania has been developed based upon the principles outlined in Section 402A of the Second Restatement of Torts, which provides as follows:

§ 402A Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Id. (emphasis omitted) (citing Restatement (Second) of Torts, § 402A (1965)).²

A negligence claim requires proof of "'[1] the presence of a legal duty or obligation; [2] a breach of that duty; [3] a causal link between that breach and the injury alleged; and [4] actual damage or loss suffered . . . as a consequence.'" Menkes v. 3M Co., No. 17-573, 2018 WL 2298620, at *3 (E.D. Pa. May 21, 2018) (alterations in original) (quoting Wright v. Eastman, 63 A.3d 281, 284 (Pa. Super. Ct. 2013)). While "Section 402A governs only strict liability claims[ ] and . . . common law negligence claims are subject to a different standard and analysis," Schwartz v. Abex Corp., 106 F. Supp. 3d 626, 635 (E.D. Pa. 2015) (citing Tincher, 104 A.3d at 381-84), "[p]roximate causation is a necessary element in proving a tort case under theories ofstrict liability or negligence." Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 492 (3d Cir. 1985) (citing Sherk v. Daisy-Heddon, 450 A.2d 615, 617 (Pa. 1982); Restatement (Second) of Torts, §§ 430, 431 (1965)); see also Sikkelee v. AVCO Corp., 268 F. Supp. 3d 660, 715 (M.D. Pa. 2015).

3M raises a single issue in its motion for summary...