Gorton et al v. Air & Liquid Systems Corp. et alMOTION for Summary JudgmentM.D. Pa.March 4, 2019IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VD RHONDA J. GORTON, Personal Representative for the Estate of THOMAS D. GORTON, II and in her own right, CONSOLODATED TINDER MDL DOCKET NO. 875 CIVIL ACTIONI NO. 1:17-cv-0111O-JFC ASBESTOS MATTE,R JURY TRIAL DEMANDED Plaintif(s), ELECTRONIICALLY FILED -VS.. H.B. FULLER COMPANY, et al. Defendant(s). DEFENDANT H.B. FULLER COMPANY'S MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LA\il Defendant H.B. Fuller Company ("H.8. Fuller"), by and through its undersigned counsel, and pursuant to Federal Rule of Civil Procedure 56, and this Court's Scheduling Order, hereby moves for summary judgment as to all of Plaintiff s claims. In support of this motion, H.B. Fuller states the following: I. INTRODUCTION Plaintiffs, Thomas Gorton and Rhonda Gorton, originally filed this action in the Court of Common Pleas of Dauphin County against multiple defendants, including H.B. Fuller on May 17, 2017, This case was removed to this Honorable Court on June 23,2017, in the United States l 1 89833 I I 89833.v I Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 1 of 43 District Court for the Middle District of Pennsylvania. Plaintiff Thomas Gorton died on March 6, 2018, subsequent to the removal of this claim to federal court and his wife, Rhonda was substituted as Personal Representative for the Estate of Thomas Gorton. Plaintiffs' claims in this matter are based on injuries allegedly sustained as a result of exposure to asbestos. Plaintiffs allege that the decedent was exposed to asbestos while serving in the U.S. Navy between 1959-1962; through his employment with Pacific Bell Telephone (1962' 1968), Azfec Communications (1984-1985), Olson Brothers Service, Inc. (1982), Executone- Akron, Inc. (1985), NevadaBell Telephone Co. of St. Louis (1978, 1986-1988), AT & T of Ohio (1986- 1988); through renovations he performed to many of his homes; and through his personal maintenance of his personal automobiles and those of family members and friends. See Plaintiff s Amended Complaint (attached hereto as Exhibit A). H.B. Fuller respectfully submits that it is entitled to summary judgment in this action as there is no evidence of any exposure to any asbestos from a product for which H.B. Fuller is responsible. II. STATEMENT OF UNDISPUTED MATERIAL FACTS Mr. Gorton was deposed in the instant matter on May 25,2017. Although he testified at length he was unable to attribute any of his asbestos exposure to any product or service of H.B. Fuller. Mr. Gorton previously testified in 201 1 in another asbestos case as a product identification witness. In that deposition he did not provide any testimony that he worked with or around a product manufactured or supplied by H.B. Fuller. No co-workers were deposed in this case to provide additional product identification evidence. I I 89833 I 189833.v1 Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 2 of 43 Finally, there is no evidence of any kind, written or otherwise, suggesting that Mr. Gorton, or anyone else, worked with or around an asbestos-containing products manufactured or supplied by H.B. Fuller. The law is clear in that Plaintiff bears the burden of proving that Mr. Gorton was exposed to each defendant's product and that the defendant's product was a substantial factor in plaintiff s injury.l Plaintiffs have not and cannot meet their burden. Therefore, summary judgment is warranted in the instant matter. III. APPLICABLE LAW A. Legal Standard In order to prevail on a motion for summary judgment, the moving party must establish that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. In re L'[/eiss, 1 1 1 F.3d 1159, 1 168 (4th Cir. 1997) (citing Celotex Corp. v. Catrett, 477 U.5. 317 , 322-23,106 S. Ct.2548,2552-53 (1986)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 tJ.S.242,247-48,106 S.Ct. 2505,2510 (1986) (emphasis added); Bouchat v. Baltimore Ravens Football Club, Lnc.,346 F.3d 514,519 (4th Cir. 2003). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Bouchat,346 F.3d at 522 (citing Celotex,4l7 U.S. at325,106 S. Ct. at2554). Once the moving party has met its burden, the non-moving party may not rest on the allegations in its pleading. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. Rather, "[the tt Lindstrom v. A-C Product Liability Trust, 424 F. 3d 488, 492 (6th Cir. 2005); citing Stark v. Armstrong lVorld Indus., Inc,, 21 Fed, Appx. 37 1, 375 (6th Cir. 2001)' l I 89833 I I 89833.v I Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 3 of 43 opposing party] must set forth specific facts showing that there is a genuine issue for trial." Id. The non-moving party must make such a showing by means of affidavits or other verified evidence. Bouchat,346 F.3d at 522 (citing Matsushita Elec. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574, 586-87, 106 S. Ct. 1348 (1986)). A genuine issue exists if a reasonable jury considering the evidence could return a verdict for the non-*ouing party. Shaw v. Stroud,l3 F.3d 7gl,7g8 (4th Cir. 1994) (citing Anderson,477 U.S. at247-48, 106 S. Ct. at2510). Evidence that is merely colorable or not significantly probative, will not suffice to defeat a motion for summary judgment. Anderson, 477 U .5. at 249-50, 1 06 S. Ct. at 25lI . Motions for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure are to be decided purely on the record as it exists at the time the motion is filed. In deciding these motions, the Court should consider neither potential evidence nor bald assertions contained in the pleadings, nor indulge in conjecture as to what speculative evidence may support a plaintiffs claims. See Solomonv. Soc'y of Automotive Eng'rs,2002 WL 1754409, at *1 (3d Cir. July 30, 2002). The rationale behind Federal Rule of Civil Procedure 56 is to promptly dispose of cases. See Advisory Committee Note to Rule 56 (stating "the changes are in the interest of more expeditious litigation."). "The very mission of the summary judgment procedure is to pierce the pleadings and assess the proofs in order to see if there is a genuine need for trial." 1d. This is especially significant in multi-party litigation concerning exposure to asbestos. B. Causation Standards Under Pennsylvania Law This matter was originally filed with the Court of Common Pleas, Dauphin County, Pennsylvania. H.B. Fuller suggests that Plaintiffs will agree that Pennsylvania law applies to the claims asserted against H.B. Fuller. Under Pennsylvania law, a plaintiff in a products liability case must establish a suffrciently significant likelihood that the product in question caused his harm. l l 89833 1189833.v1 Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 4 of 43 Gregg v. V-J Auto Parts, 943 A.2d. 216,225 (Pa. 2007). As a result, Plaintiff must prove he sustained exposure to a defendant's asbestos-containing product with sufficient frequency, regularity and proximity that a jury would be entitled to make the necessary inference of a sufficient causal connection between the defendant's product and the asserted injury. Id. aT227. In an asbestos-related products liability action, such as the present civil action, it is axiomatic that plaintiff must prove that a defendant actually manufactured, distributed or supplied the allegedly defective product. Recent decisions concerning the Eckenrod sÍandard note the specific level of proof a plaintiff must satisfy in an asbestos personal injury lawsuit. See Wilson v. A,P. Green Industries, Inc,, 807 A.2d at924. In relevant part the Wilson decision requires that a plaintiff show: (1) "his/her injuries were caused by the product of a particular manufacturer or supplier"; (2) The product was defective. (citation omitted). Establishing product identity in an asbestos case requires a plaintiff to produce evidence that she 'oinhaled asbestos fibers shed by the specifÏc manufacturer's product." Eckenrod v. GAF Corp., 375 Pa. Super. 187,544 A.2d 50 (1988). Ideally, a plaintiff or witness will be able to testify that the plaintiff breathed in asbestos fibers and that those fibers came from defendant's product. Without such direct evidence, plaintiff must rely upon circumstantial evidence of exposure. Such evidence may not mçrely demonstrate the "presence of a,sbestos in the workplace" but must show that plaintiff "worked in the vicinity of the product's use." Andoaloro v. Armstrong World Industries, Inc., 799 A.zd 7I, 86 (Pa. Super 2002) (citing Eckenrod, 544 A.2d at 52). Specifically, a plaintiffls evidence of exposure and product identity must show that she ooworked on a Iggular basis, in physical proximity with the product, and that [her] contact with it was of such a nature as to raise a reasonable inference that [she] inhaled asbestos fTbers that emanated from it. Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 622 (Pa. Super. 1999) (citing the frequency, regularity, and proximity standard from Eckenrod,544 A.2d at 53.) (emphasis added). I I 89833 I I 89833.v I Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 5 of 43 Iv. PLAINTIFF HAS OFFERED NO EVIDENCE OF EXPOSURE TO AN ASBESTOS. CONTAINING PRODUCT MANUFACTURED OR SUPPLIED BY H.B. FULLER Per Eckenrod,ooinorder for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled the asbestos fibers shed by the specific manufacturer's producÍ." Eckenrod, 544 A.2d aI52 (citations omitted). V/ith respect to H.B. Fuller, this case is solely about Mr. Gorton's service in the U.S. Navy and his employment with various communication companies where he failed to identify H.B. Fuller products. Plaintiffs have wholly failed to produce legally sufficient evidence, under Pennsylvania's controlling causation standard or otherwise, that Mr. Gorton's injuries were caused by asbestos fibers 'oshed by" an H.B. Fuller product. Mr. Gorton never worked with or around any product associated with H.B. Fuller while in the U.S. Navy or while working as a civilian. Speculation cannot serve as a substitute for legally competent evidence. In Samarin v GAF Corporation, 57I A.2d 398 (Pa. Super 1939). The Pennsylvania Superior Court held that a plaintiff merely "citing his experience as a tradesman for over twenty years as the source of his knowledge that the pipecovering contained asbestos, and his statement that the job application called for asbestos", did not create a material issue of fact with respect to exposure. See also Bushless v, GAF Corporation,40I Pa. Super. 351, 585 A.2d496,503 (Pa. Super. 1990). Leaving questions of frequency, regularity, proximity and "significant likelihood" aside, Plaintiffs evidence on the threshold issue of exposure is nothing more than guesswork. As the court observed in Bushless, "Plaintiffs identification testimony is merely speculation and cannot be accepted as evidence as to the presence of asbestos." Plaintiff s testimony, "...leave[s] us with enough fact only for a guessing game... However, Eckenrodmakes it clear that we cannot enter into such a guessing game." Samarin at 408; see also Linster v. Pneumo-Abex, et a|.,2010 Phila. Ct. Com. Pl. LEXIS l l 89833 I 189833.v1 Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 6 of 43 78 (2010). This Court should likewise decline any form of Plaintiffs' invitation to enter into a guessing game in this case. Consequently, Plaintiffs in this case has not met their burden of producing evidence of frequent, regular and proximate exposure to asbestos products manufactured, distributed or supplied by H.B. Fuller. H.B. Fuller is therefore entitled to judgment in its favor as a matter of law. WHEREFORE, Defendant H.B. Fuller Company respectfully requests that this Court grant its summary judgment motion and dismiss the complaint and all cross-claims against it with prejudice. Respectfully Submitted By: Dated: March 4,2019 S. Bo George S. Bobnak, Esquire Christie & Young PC 1880 John F. Kennedy Boulevard, 1Oth Floor Philadelphia, PA 19103 (2ts) s87-t669 Counsel for Defendant H.B. Fuller Company l I 89833 I 189833.v1 Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 7 of 43 EXHIBIT 66 T" Case 1:17-cv-01110-JFC Document 349 Filed 03/04/19 Page 8 of 43 Cçr¿ns.el-iqq PlainUif f (s) T,AW OFFICES OF PETER G. ANGEI,OS wtlliam D. Potãnd ür-, Esquire 2001 North Fronc St,reeÈ Building 3, Sufte 330 HarrisÞurg, PA 1"7L02 phone: 7L't -232-1886 fax: 711'232 -4189 e.-maiI : wpoland@lawpga. corn THOMAS D. GORTON TT ANd 660 WalLon Street Lemoyne/ Pennsylvania L7043 PIaíntiff \¡s GENERÄL ELECTRIC COMPANY 3135 Easton Turnpike Fairfíeld, Connecticut 06431- and A. O. gMTTH CORPORå,TÏON WorId Headquarters LT210 West Park PLace MíIwaukee, Wisconsin 53224 and PENTATR PIIMP GROUP INC. , Successor to AURORA PTIMP CO. 5500 llayzata Boulevard Golden Val"Ie, MinnesoLa 55416 TN THE COURT OF' DAUFHTN COUNTY, * * * * * * * * * * * * * * * * tr * * * * * 7k * * * * * COMMON PLEAS, PENNSYLVANIA NO. 2012-CV-8651-AS CTVIL .ACTION ASBEgTOS JURY TRIAL DEMANDED AI'{ENDED COMFLAINT t\¡€ C.(, h æ f\trv * Ffl çrt çs, ËtÞ Þgrn= =äÞëíe - ATTACHMENT of Amendecl Complaint -ú Qc:-, T-nÉ-:' ãeg' C¡¡ '¡