Pennsylvania Appellate Court Decision

On October 22, 2014, the Superior Court of Pennsylvania issued an opinion in Krauss v. Trane US Inc., et al., 2014 PA Super 241, which reaffirms several principles of Pennsylvania law important to defendants in asbestos litigation. In a seventy-page opinion, Justices Shogan, Stabile and Platt discussed the application and interpretation of governing precedent, and affirmed the trial court's grant of summary judgment to several defendants. This opinion bolsters several legal principles governing the admissibility of plaintiffs' evidence offered to defeat summary judgment.

In summary, the Court found that the Eckenrod "frequency, regularity, proximity" exposure test applies to both circumstantial and direct evidence and provides useful guidance in distinguishing cases where the likelihood of harmful exposure "is absent on account of only casual or minimal exposure to the defendant's product." Gregg v. V-J Auto Parts Company, 943 A.2d 216, 225 (citing Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992). Summary judgment motions enable the court to determine whether plaintiffs' evidence creates a genuine issue of fact - that is, a factual inference - which is not based upon de minimus exposure. The Court approvingly cited Gregg's rejection of the "fiction that each and every breath of asbestos, no matter how minimal in relation to other exposures, implicates a fact issue concerning substantial factor-causation." Full joint and several liability should not be imposed "in the absence of any reasonably developed scientific reasoning that would support the conclusion that the product sold by the defendant was a substantial factor in causing the harm." Gregg, 943 A.2d 216, at 226 -27. Experts must make "some reasoned, individualized assessment of a plaintiff's or decedent's exposure history" to support opinions regarding substantial causation. Howard v. A.W. Chesterton, Co. 78 A.3d 605, 608 (Pa. 2013).

 The Court reiterated that lay witness opinions are subject to scrutiny under Pa RCP 701 requiring (in order to be admissible) that the lay opinions are

(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

The Court found that the lower court properly rejected the supporting affidavits of witnesses that did not establish, on the basis of personal knowledge, that products in issue contained asbestos, or that the decedent was exposed to asbestos from particular products. In all, this decision is a welcome addition to the arsenal of authority available to defense counsel moving for summary judgment in appropriate Pennsylvania asbestos cases.