IN THE SUPREME COURT OF PENNSYLVANIA. 48 EAP 2012, 49 EAP 2012 and 50 EAP 2012 (Related Cases)

Transcription

1 IN THE SUPREME COURT OF PENNSYLVANIA 48 EAP 2012, 49 EAP 2012 and 50 EAP 2012 (Related Cases) MARGARET HOWARD and ROBERT HOWARD, CO-EXECUTORS OF THE ESTATE OF JOHN C. RAVERT, DECEASED PLAINTIFFS-APPELLEES v. A.W. CHESTERTON, INC., ACE HARDWARE, INC., MONSEY PRODUCTS COMPANY, PECORA CORPORATION AND UNION CARBIDE CORPORATION DEFENDANTS-APPELLANTS BRIEF OF PLAINTIFFS-APPELLEES APPEAL FROM THE ORDER ENTERED SEPTEMBER 16,2011, IN THE SUPERIOR COURT OF PENNSYLVANIA AT 2978 EDA 2010, REVERSING AND REMANDING THE ORDER OF MAY 14, 2008 OF THE OF PHILADELPHIA COURT OF COMMON PLEAS GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AT JUNE TERM, 2007, NO. 202 Robert E. Paul Richard P. Myers Suite Walnut Street Philadelphia, PA (215) Attorney for Appellees

2 TABLE OF CONTENTS TABLE OF AUTHORITIES....i COUNTER-STATEMENT OF THE STANDARD AND SCOPE OF REVIEW... 1 COUNTER-STATEMENT OF THE CASE... 2 SUMMARY OF ARGUMENT ARGUMENT I. Plaintiffs' concessions that Mr. Ravert was not regularly and frequently exposed to asbestos fibers shed from Monsey, Pecora or Ace Hardware products should resolve this case H. Plaintiffs concede that inadequacies in the factual record cannot be cured by expert affidavits HI. Betz v. Pneumo Abex is inapplicable to the summary judgment issues in this case A. Defendants failed to preserve a challenge under Betz to Plaintiffs' experts' opinions when they did not request a Frye hearing prior to this appeal B. Betz did not hold that there was a quantifiable de minimis level or "dose" of asbestos that had to be established to show medical causation in a mesothelioma case C. Since Defendants have presumably spoliated any asbestos products manufactured during the era in which Mr. Ravert used those products, Betz cannot be applied to require Plaintiffs to produce reports on products that no longer exist CONCLUSION CERTIFICATE OF SERVICE... 33

3 TABLE OF AUTHORITIES Cases Albright v. Abington Memorial Hasp., 696 A.2d 1159 (Pa. 1997)... 5 Andaloro v. Armstrong World Indus.. Inc., 799 A.2d 71 (Pa. Super. 2002) Asbestos Info. Ass'n/North America v. Reich, 117 F.3d 891 (5th Cir. 1997)... 20, 21 Ayres v. Pittsburgh. C.C. & St.L.Ry.Co., 50 A.968 (Pa.1902) Basile v. H&R Block. Inc., 761 A.2d 1115 (Pa. 2000) Betz v. Pneuma Abex. LLC, 44 A.3d 27 (Pa. 2012)... passim Brosie v. A.W. Chesterton Co., 2012 Pa. Dist. & Cnty. Dec. LEXIS 275 (Wash. Co. 2012) Borough ofnanty-glo v. American Surety Co. of New York 163 A. 523 (Pa. 1932)... 2, 21,25 Blum v. Merrell-Dow Pharms. Inc., 764 A.2d 1 (Pa. 2000) Bremmer v. Protected Home Mut. Life Ins., 260 A.2d 785 (Pa. 1970) Commonwealth v. Daniels, 390 A.2d 172 (Pa. 1978) Commonwealth v. Jacobs, 639 A.2d 786 (Pa. 1994) Commonwealth v. Nasuti, 123. A.2d 435 (Pa. 1956) Commonwealth v. Williams, 9 A. 3d 613 (Pa. 2010)... 1 Cooper v. Metropolitan Life Ins. Co., 186 A. 125 (Pa. 1936) Donoughe v. Lincoln Electric Co., 936 A.2d 52 (Pa.Super. 2007)... 25, 27 Ford v. Jeffries, 379 A.2d 111 (Pa.1977) Frye v. United States. 293 F (D.C. Cir. 1923)... passim Gregg v. V-J-Auto, Inc., 943 A.2d 216 (Pa. 2007) on remand, 975 A.2d 1171 (Pa. Super. 2009)... passim Hicks v. Dana Corp., 984 A.2d 943 appeal denied, 19 A.3d 1051 (Pa. 2011) ii

4 Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633 (Pa. Super. 1988) Junge v. Garlock. Inc., 629 A.2d 1029 (Pa. Super. 1993) appeal denied, 641 A.2d 310 (Pa. 1994) Leberv. Stretton, 928 A. 2d 262 (Pa. Super. 2007)... 1 Kozakv. Struth. 531 A.2d 420 (Pa. 1987) Lonasco v. A-Best Products. Inc., 757 A.2d 367 (Pa. Super. 2000) appeal denied, 781 A.2d 145 (Pa. 2001) McManamon v. Washko. 906 A.2d 1259 (Pa. Super. 2006) appeal denied, 906 A.2d 1259 (Pa. 2007) Mitzelfelt v. Kamrin. 584 A.2d 888 (Pa. 1990) Stanton v. Lackawanna Energy. Ltd., 886 A.2d 667 (Pa. 2005) Summers v. CertainTeed Corp., 997 A.2d 1152 (Pa. 2010)... passim Tragarz v. Keene Corp., 980 F. 2d 411 (7th Cir. 1992) Wehmeier v. UNR Industries Inc., 572 N.E. 2d 320 (Ill. App. 1991) Statutes. Rules and Regulations 29 u.s.c. 653(b)(4)... 20, C.F.R C.F.R (a)(8)... 20, 21 Pa. R. Civ. P , 17, 26 Pa. R. Civ. P Pa. R. Evid Pa. R. Prof. Conduct Pa. R. Prof. Conduct iii

5 Other Authorities Pennsylvania Standard Jury Instruction (Civ.) Restatement (Second) Torts Restatement (Second) Torts Mathews, "Ghost Story: At Medical Journals, Writers Paid by Industry Play Big Role," Wall St.]., December 13, 2005, A1, col Michaels, D., Doubt Is Their Product: How Industry's Assault on Science Threatens Your Health (2008) Rand Institute for Civil Justice, "Asbestos Litigation in the U.S." A New Look at an Old Issue," August iv

6 COUNTER-STATEMENT OF THE STANDARD AND SCOPE OF REVIEW The standard of review in this case is whether there was an error of law by the trial court. Summers v. CertainTeed Corp A.2d 1152 (Pa. 2010). Whether or not there is a genuine issue of material fact that precludes summary judgment is a question of law.!d. at The "abuse of discretion" standard is no longer applied in appeals of grants of summary judgment when there is a question of law.!d. The scope of review is a plenary review of the entire factual record below in the light most favorable to the nonmoving party, as the matter concerns a grant of summary judgment. Summers,!d. at 1159; Albright v. Abington Mem. Hosp A.2d 1159 (Pa. 1997). The interpretation of procedural rules presents a question oflaw. Commonwealth v. Williams. 9 A 3d 613 (Pa. 2010). When the question raised is a question of law, the standard of review is de novo, and its scope of review is plenary. ld. at 617; Leber v. Stretton, 928 A 2d 262 (Pa. Super. 2007). 1

7 COUNTER-STATEMENT OF THE CASE Introduction On November 8, 2012, Plaintiffs Margaret Howard and Robert Howard moved this Court to discontinue their lawsuit against the defendants-appellants in this case. On January 31, 2013, this Court denied Plaintiffs' motion. Plaintiffs have authorized counsel to concede that Defendants-Appellants are entitled to relief in this case, and in order to achieve that relief with the least expenditure of time and effort, counsel respectfully requests that this Court summarily reverse the Superior Court and reinstate the entries of summary judgment in defendants' favor.l Consistent with counsel's duty to the client under Pa. R. Prof. Conduct 1.1 and Pa. R. Prof. Conduct 3.1, counsel has carefully reviewed the record on appeal in this case together with this Court's opinions in Gregg v. V-J-Auto. Inc., 943 A.2d 216 (Pa. 2007), and Betz v. Pneuma Abex. LLC, 44 A. 3d 27 (Pa. 2012). Even though Plaintiffs prevailed in the Superior Court in getting the summary judgments against the instant defendants reversed, counsel has reviewed the Superior Court's opinion in the light ofthe questions that this Court has asked the parties to address on appeal and has concluded that the record in this case does not provide a basis upon which a jury could find that Mr. Ravert was exposed to enough respirable fibers shed from any of the instant defendants-appellants' asbestos-containing products that such products could be a factual cause of his malignant mesothelioma.z For 1 Although this Court denied defendant Union Carbide's petition for allowance of appeal, upon remand, Plaintiffs will discontinue their case against Union Carbide in addition to the instant defendants-appellants. 2 The Defendants-Appellants in this case do not contest that Mr. Ravert's mesothelioma was caused by the totality of his asbestos exposure. 2

8 the reasons that follow, Plaintiffs respectfully suggest that this Court reinstate the entries of summary judgment in the instant case based upon Gregg. Procedural History and Prior Determinations On June 4, 2007, John Ravert ("Mr. Ravert'') filed a Complaint in the Philadelphia Court of Common Pleas in 2007, alleging that his malignant mesothelioma was caused by exposure to asbestos from Defendants' and others' products. (R.85a, 99a) Mr. Ravert died on September 18, On November 16, 2007, his sister and brother-in-law, Margaret Howard and Robert Howard ("Plaintiffs"), the co-executors of Mr. Ravert's estates, were substituted as parties. Defendants-Appellants ("Defendants") herein moved for summary judgment, claiming that there was insufficient evidence of Mr. Ravert's exposure to asbestos from any of their products. Plaintiffs opposed these motions. Philadelphia Court of Common Pleas Judge Allan L. Tereshko granted the motions of Defendants herein, but denied the motions of two defendants, Goodyear Tire & Rubber Co. ("Goodyear") and Weil-McLain ("Weil").3 3 On June 23, 2008, Defendant Monsey moved to quash the state court appeal, claiming that the orders granting summary judgment were not final appealable orders, as the denial of Goodyear's and Weil's motions did not dispose of all claims against all parties, even though the claims against Goodyear and Weil were in federal court. Monsey argued that the orders granting summary judgment were not final, appealable orders, due to the continued viability of the claims against Goodyear and Weil in federal court. Plaintiffs opposed the Motion to Quash. On July 25, 2008, the Superior Court denied Monsey's motion without prejudice to raise the issue before the merits panel. The Superior Court merits panel subsequently dismissed Plaintiffs' appeal as interlocutory and remanded the case to the trial court due to the existence of the federal claims against Goodyear and Weil (R.62a). Once the claims in federal court were resolved, the federal court then remanded the case to state court (R.63a). Plaintiffs then filed a motion to reinstate the appeal, which was opposed by Defendants. The Superior Court denied the motion to reinstate the appeal, but directed Plaintiffs to file a new notice of appeal, which Plaintiffs promptly did. (R.63a). This present proceeding is a result of the second appeal after the remand from federal court. 3

9 On May 20, 2008, Goodyear and Weil removed the case to the United States District Court for the Eastern District of Pennsylvania. Plaintiffs moved to remand the case on the grounds that it was one case, and Plaintiffs had not agreed to dismiss nondiverse defendants Pecora Corporation ("Pecora") and Monsey Products Company ("Monsey"). Plaintiffs argued that the case was not removable under 28 U.S.C. 1441(b). Plaintiffs also moved for reconsideration of the grants of summary judgment to the five Defendants herein. Plaintiffs were advised that both motions were orally denied by the Chief Judge James T. Giles, as communicated by his law clerk Plaintiffs requested that the federal court reconsideration rulings be reduced to written orders, as the judge stated that he could not reconsider summary judgment motions that had been granted in Philadelphia County, as he lacked jurisdiction over those defendants (one of whom is a Defendant herein). No such order was ever signed or docketed. Plaintiffs protectively filed appeals of the state court grants of summary judgment to the Superior Court, as it was unclear if the dismissed claims were removed to federal court. Defendant Monsey moved to quash the state court appeal, claiming that the orders granting summary judgment were not final appealable orders. Monsey argued that the orders granting summary judgment were not final, appealable orders, due to the continued viability of the claims against Goodyear and Weil in federal court. The Superior Court denied Monsey's motion without prejudice to raise the issue before the merits panel. The Superior Court merits panel dismissed Plaintiffs' appeal as interlocutory and remanded the case to the trial court due to the existence of the federal claims against Goodyear and Weil. (R.62a). After the claims in federal court were resolved, the federal court remanded the case to state court (R.63a). Plaintiffs filed a motion to reinstate the 4

10 appeal, which Defendants opposed. The Superior Court denied the motion to reinstate the appeal, but directed Plaintiffs to file a new notice of appeal, which Plaintiffs promptly did. (R.63a). After briefing and oral argument, the second Superior Court merits panel reversed the grants of summary judgment and remanded the case to the Philadelphia County Court of Common Pleas. Defendant Union Carbide Corporation ("Union Carbide") filed a motion for rehearing en bane with the Superior Court on September 30, On October 11, 2011, Plaintiffs filed an answer opposing Union Carbide's motion for a rehearing. On October 18, 2011, the Superior Court denied Union Carbide's motion for rehearing en bane without prejudice tore-file once the panel's opinion was published. On October 28, 2011, the Superior Court published its opinion. Howard v. A.W. Chesterton. Inc., 31 A.2d 971 (Pa. Super. 2011). Union Carbide re-filed its motion for rehearing en bane on November 10, 2011, which Plaintiffs opposed. The Superior Court denied the motion for a rehearing on December 20, Thereafter, Ace Hardware Corporation ("Ace"), Monsey, Pecora and Union Carbide then petitioned this Court for allowance of appeal. On October 11, 2012, this Court granted Ace's, Monsey's and Pecora's petitions for allowance of appeal, but denied Union Carbide's petition for allowance of appeal. Factual History In his June 4, 2007 complaint filed in the Philadelphia County Court of Common Pleas, Mr. Ravert alleged that his malignant mesothelioma was caused by his exposure to asbestos products manufactured andjor sold by the instant defendants and others. Because of Mr. Ravert's terminal disease, his deposition was scheduled quickly. Mr. Ravert 5

11 testified about his exposures to asbestos products during a deposition which stretched over parts of four days from June 25, 2007 to June 26, 1007, and July 17 to July 18, As a result of his poor health, Mr. Ravert had difficulty testifying. On June 27, 2007, Mr. Ravert said that he had had "a small attack this morning," (R.511a), and that the night before he had needed an air supply just to breathe. (R.533a). He said he "should have stayed home." (R.533a). He said his chest was "tight." (R.518a). At one point, he said he had had a "small seizure" during a break. (R.532a). He asked that the deposition be concluded because, "I need to go home." (R.533a). At the continuation of his deposition on July 18, 2007, Mr. Ravert testified that he had spent the previous day at the hospital being intubated and medicated so he could breathe. (R.551a). Understandably, Mr. Ravert's deposition testimony is not completely coherent. In summary, Mr. Ravert testified to being exposed to asbestos in when he worked for a fuel oil company, from the late 1960s and early 1970s as a maintenance man at a fishing rod and reel company, in the mid-1970s as a maintenance man at an apartment management company and thereafter as a maintenance man at the Baldwin School. Mr. Ravert also used asbestos products when repairing his mother's and neighbors' roofs. All ofthe parties in this case have agreed that Mr. Ravert's malignant mesothelioma was caused by his asbestos exposure. Mr. Ravert was the sole witness to his asbestos exposures, and there were no other living witnesses who were in a position to know anything about how Mr. Ravert was exposed to asbestos. The factual record related to Mr. Ravert's exposures to asbestos products was, therefore, complete after Mr. Ravert's deposition was concluded. 6

12 Defendants Monsey and Pecora do not dispute that Mr. Ravert worked with their asbestos-containing products. Mr. Ravert used Monsey asbestos roof cement while working at Penn Fishing & Tackle factory from (R.328a, 334a). At one point in his deposition, Mr. Ravert testified that he had to repair the roof five or six times a month. (R.334a). At another point in his deposition, he testified that he repaired the roof over two dozen times. (R.336a). Although Mr. Ravert said that he returned to work on the same area of the roof where he had applied Monsey cement after the cement had dried, he did not testify that he saw or breathed dust on those occasions. (R a). Mr. Ravert testified he used Monsey roof cement on his mother's roof starting in the 1960s. He used the Monsey product many times on her roof before her death in (R.339a). He also patched a skylight in his mother's house with Monsey asbestos cement. (R.340a). He said that he repaired his mother's roof with Monsey asbestos roof cement "many, many, many, many times" over the decades. (R. 339a, 342a). Mr. Ravert testified that he did roof repair for his mother's neighbors, as well. (R.341a). Mr. Ravert did not testify that the use of the product gave off any dust. Mr. Ravert worked at the Hamilton Apartments as a maintenance man from (R.85a). This apartment complex had 96 units, and Mr. Ravert was the only maintenance man. (R.342a). He used Monsey roof coating at the Hamilton Apartments. (R.331a, 342a). He described the quantity used as "a lot." (R.471a). Mr. Ravert did not identify any circumstances during which he was exposed to visible dust from the Monsey roof cement. From , when Mr. Ravert was a teenager, he worked with his brother-in-law for Bee Fuel Oil Company performing burner cleanouts of residential boilers. (R.85a, 7

13 Plaintiffs' Amended Complaint). Mr. Ravert estimated that they did 350 houses during the summer. (R.569a). He also assisted with emergency furnace repair in the winter. (R.569a). He used Pecora's asbestos furnace cement during his years of employment at Bee Fuel. (R.566a). Mr. Ravert applied the furnace cement on the flue and other parts of the furnace with a trowel or with his hands. (R.568a). At times the cement had dried in the can, and had to be mixed with water before it could be applied. (R.618a). Mr. Ravert also used a Pecora asbestos gasket cement. (R.563a). He used it on pipe threads (R.574a). He used it many times. (R.574a). After four or five months, the seal would dry out and crack (R.S49a). Mr. Ravert was "constantly" in areas in where he applied Pecora asbestos gasket seal, and to which he would return when the Pecora asbestos cement had dried, cracked and peeled off. (R.622a). 4 Mr. Ravert did not describe any circumstances in which he breathed dust from the Pecora products. At summary judgment, Plaintiffs proffered affidavits, excerpts from plaintiff and defense expert testimony, plus medical textbook excerpts and journal articles to support their medical causation argument. Plaintiffs proffered an affidavit from James Girard, Ph.D., in which he stated that all wet asbestos products gave off invisible fibers when applied. (R.201a-202a). Plaintiffs also proffered an affidavit by Arthur Frank, M.D., that included a statements that there was no safe level of asbestos exposure below which mesothelioma could not occur. (R.204a-207a). Plaintiffs' expert's view that that respirable asbestos fibers were not visible to the naked eye, (R.201a), was undisputed by Monsey's own expert's report. (R.361a). Other defense experts made similar admissions such as Dr. William Krebs, (R.282a-283a), Dr. Victor Roggli, (R.491a; 246a-248a). Judge Tereshko also acknowledged 4 Plaintiffs have also decided not to pursue further any claims against Ace Hardware, Inc., and thus have not discussed the evidence of record against it. 8

14 SUMMARY OF ARGUMENT Plaintiffs concede that Defendants Monsey, Pecora and Ace are entitled to relief on this record. In Summers v. CertainTeed Corp., 997 A.2d 1152 (Pa. 2010), this Court held that whether there is a genuine issue of material fact is a question of law, and the standard of review was whether or not there was an error oflaw.jd. at Defense arguments based on an "abuse of discretion" standard should be disregarded as contrary to Summers. Although defendant Monsey misstated this Court's standard and scope of review, Plaintiffs concede that the factual record fails to demonstrate regular and frequent enough exposures during which respirable asbestos fibers were shed by either Monsey's, Pecora's or Ace Hardware's asbestos-containing products to defeat summary judgment. Gregg v. V I-Auto, Inc., 943 A.2d 216 (Pa. 2007). Absent a hearing pursuant to Frye v. United States, 293 F (D. C. Cir. 1923), regarding expert methodology prior to the consideration of summary judgment, consideration of Plaintiffs' and Defendants' expert witness affidavits are irrelevant to the question of whether a given plaintiffs' exposures to particular asbestos products are sufficiently regular, frequent and proximate enough under~ Defendants failed to preserve a challenge to Plaintiffs' experts' opinions by failing to request a hearing pursuant to Pa. R. Civ. P A Rule hearing is the exclusive means by which an expert's opinions can be challenged. Betz v. Pneuma Abex, LLC. 44 A.3d 27 (Pa. 2012). Betz did not address the standard of proof on medical causation at the summary judgment stage, nor did Betz hold that there was a quantifiable de minimis level or "dose" of asbestos exposure that must be shown to establish medical causation. 10

15 To the extent that Betz would require that Plaintiffs' experts proffer opinions on the release of asbestos fibers by a particular defendant's products, then that defendant would have to provide product testing samples to Plaintiffs that were manufactured under the identical process and the identical chemical composition that was used during the years the worker was exposed to that product. 11

16 ARGUMENT I. Plaintiffs' concessions that Mr. Ravert was not regularly and frequently exposed to asbestos fibers shed from Monsey, Pecora or Ace Hardware products should resolve this case. Summary judgment may be only granted when the pleadings, depositions, interrogatory answers, admissions, affidavits, and expert reports, if any, show that there is no genuine issue as to any material fact and that the record entitles the moving party to judgment as a matter of law. Pa. R. Civ. P Summary judgment is only appropriate "when the facts are so clear that reasonable minds cannot differ." Basile v. H&R Block. Inc., 761 A.2d 1115, 1118 (Pa. 2000). When an appellate court is considering whether the evidence tending to establish a certain issue is sufficient to raise a jury question, the court will assume the truth of facts of which there is any sufficient evidence. Ayres v. Pittsburgh. C.C. & St.L.Ry.Co., 50 A. 968 (Pa. 1902). In its brief, Monsey criticizes the Superior Court for not applying the "abuse of discretion" standard in this proceeding. (Monsey Brief at 38-42). Monsey incorrectly relies on Stanton v. Lackawanna Energy. Ltd., 886 A.2d 667 (Pa. 2005), which was overruled by this Court in Summers v. CertainTeed Corp A.2d 1152 (Pa. 2010). This Court held in Summers that the "abuse of discretion" standard is not the proper standard for review of a grant of summary judgment on appeals Summers, Id. at The proper standard when there is a claim of genuine issues of material fact is whether the trial court committed an error of law. Summers. I d. The "error of law" standard set forth by this Court in Summers is s Monsey does not refer to Summers at any place in its entire Brief, despite the fact Summers is the most current precedent from this Court on the standard and scope of review for summary judgment in asbestos cases. This was no mere oversight, as the law firm that represents Monsey in this appeal also represented Allied Signal, Inc. in Summers. 12

17 a mandatory standard of review that the Superior Court was required to apply. Monsey's arguments in PartI-E of its Brief only address an "abuse of discretion" standard. Monsey not only disregards the Summers standard, but also substitutes its own "gatekeeper" standard that it claims it derives from Gregg. 6 According to Monsey, the trial court acts as a gatekeeper, making a threshold sufficiency-of-evidence determination. Monsey argues that the appellate court lacks any power to review this gatekeeper determination, but that the reviewing court should simply defer to the trial court's determination. (Monsey Brief at 19). This is the identical "abuse of discretion" standard rejected by this Court in Summers.? Under Summers, since a reviewing court is required to apply only the "error of law" standard, the reviewing court must, by necessity, examine the trial court's "gatekeeper" determinations to see if the trial court applied the law properly, based on the facts of record which are reviewed de novo. Plaintiffs concede, however, that when the correct standard is applied to the evidence in this case against Monsey, Pecora and Ace Hardware, Plaintiffs' evidence is insufficient to prove that Mr. Ravert breathed asbestos fibers shed by the defendants' products regularly and frequently enough to withstand summary judgment. In Gregg v. V- J-Auto. Inc., 943 A.2d 216 (Pa. 2007), this Court recognized that malignant mesothelioma, which is also at issue here, can be caused by relatively small amounts of asbestos exposure. 6 Monsey also incorrectly states the basis for the Superior Court's affirming the grant of summary judgment in Gregg on remand. On remand, the Superior Court in Gregg did not find that there were insufficient instances of exposure to asbestos brakes bought at V-J Auto, but that plaintiffs' witnesses could not testify that the brakes they saw the decedent install at any one time were actually the same brakes that witnesses testified were purchased at V-J Auto, since the decedent and his family patronized more than one auto supply store. Gregg v. V-I Auto. Inc., 975 A.2d 1171, 1178 (Pa. Super. 2009). 7 Summers also held that the scope of review was a plenary review of the entire factual record. Id. at

18 Gregg, 943 A.2d at 226. In Tragarz v. Keene Corp., 980 F. 2d 411 (7th Cir. 1992), which reasoning this Court adopted in Gregg, medical experts testified at trial that there was no safe level of exposure below which mesothelioma could not occur. 8 Tragarz applied the Illinois Court of Appeal's holding in Wehmeier v. UNR Industries Inc., 572 N.E. 2d 320 (Ill. App ), that "the regularity, frequency and proximity test becomes even less rigid for purposes of proving substantial factor when dealing with cases in which exposure to asbestos causes mesothelioma." Tragarz. 980 F. 2d at 421: The decision in Tragarz v. Keene Corp., 980 F. 2d 411 (7th Cir. 1992), referenced by both parties, provides helpful guidance concerning the application of the frequency, regularity and proximity factors in asbestos litigation. Tragarz explains that these criteria do not establish a rigid standard with an absolute threshold necessary to support liability. Rather, they are to be applied in an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficient significant likelihood that the defendant's product caused his harm, from those in which such likelihood is absent on account of only casual or minimal exposure to the defendant's products... Similarly, under Tragarz, the frequency and regularity prongs become "somewhat less cumbersome" in cases involving diseases that the plaintiffs competent medical evidence indicates can develop after only minor exposure to asbestos fibers. We agree with the Tragarz court's approach and adopt it here. This scientific view is generally accepted, and is even acknowledged by defense experts. See, e.g., Dr. Roggli at R.445a-44 7a. Plaintiffs concede in this case, however, that because of the manner in which Mr. Ravert testified to the use of Monsey and Pecora asbestos products and the nature of his usage of those products, Plaintiffs' evidence is 8 See also Rand Institute for Civil Justice, "Asbestos Litigation in the U.S." A New Look at an Old Issue," August 2001, at 19. "Certain diseases, such as mesothelioma, can occur even when there has been a relatively low level of exposure." See also 16 C.F.R : "The [Consumer Product Safety] Commission noted that in the scientific literature, there is general agreement that there is no known threshold level below which exposure to respirable free-form asbestos would be considered safe." 14

19 inadequate under Gregg. Had Mr. Ravert testified to usages involving the removal of Monsey or Pecora products under circumstances that produced visible dust, or where the evidence might have fairly allowed that inference to be drawn, Plaintiffs' evidence against Monsey and Pecora might have withstood summary judgment. However, after reviewing the record carefully in this case, in the light of the question that this Court asked, Plaintiffs concede that such inferences cannot fairly be drawn from Mr. Ravert's testimony in this case. This Court allowed appeal of the following question in this case: Does the Superior Court's holding that a plaintiff need not produce evidence that a defendant's asbestos-containing product produced dust conflict with this court's holding in Gregg? Plaintiffs concede that the answer to this question is "yes" because the factual record must, at a minimum, allow the inference that the particular asbestos exposure produced some amount of dust. Plaintiffs concede that for products such as Monsey's and Pecora's, which were applied wet, Plaintiffs would have to have shown that the products were handled after they had dried in a manner that produced dust. 9 There was no such evidence of Mr. Ravert handling these products after they had dried. II. Plaintiffs concede that inadequacies in the factual record cannot be cured by expert affidavits. This Court also asked the parties to address the following issue in this appeal: Does the Superior Court's holding, which permits a plaintiff who fails to produce sufficient evidence of regularity, frequency and proximity of exposure to a defendant's specific asbestos containing product to defeat 9 In Gregg, this Court used the terms "dust" and "fibers" interchangeably in the context of how a particular product used in a particular way. Reference to "dust" occurs at 943 A.2d 221, 224, 225, and 228; reference to "fibers" occurs at 943 A.2d 220, 225, and 228). 15