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Sterling Signals Tougher Scrutiny of Co-worker Testimony

December 1, 2015

By Robyn A. Shelton, Esq.*

 

Key Points:

  • Sterling reinforces that even claims of direct exposure do not meet Pennsylvania’s standard without evidence of frequent and regular contact with the defendant’s product.
  • Co-worker testimony that does not relate to the plaintiff’s work experience fails to satisfy the frequency, regularity and proximity requirements under Eckenrod.

 

In Sterling v. P&H Mining Equipment, Inc., 113 A.3d 1277 ( Pa.Super. 2015), the Pennsylvania Superior Court upheld summary judgment for the defendant, a crane manufacturer, in an asbestos claim where the plaintiff relied partly on co-worker testimony. In this case before the Court of Common Pleas, Philadelphia County, Mr. Sterling had claimed that his lung cancer was caused by asbestos exposure from his career in the steel industry. He had worked from 1952 to 1979 at various jobs for Bethlehem Steel, including as a crane operator. Mr. Sterling alleged that he inhaled asbestos dust created by brakes on the cranes, including those made by the defendant, P&H Mining Equipment, Inc.

Plaintiff’s Claims of Direct Exposure Not Enough to Meet Pennsylvania Standard

Mr. Sterling argued that he frequently worked in the vicinity of P&H cranes and that he and his co-workers often saw dust emanating from the brakes. Mr. Sterling sometimes helped the repairmen who carried out maintenance on crane brakes.

In addition, Mr. Sterling offered testimony from four co-workers who had testified in their own cases about exposure to dust from crane brakes. Mr. Gaugler testified that he personally helped change brakes as a chain man and in other roles. Mr. Carl oiled and greased cranes as a chain man and directly observed crane brakes in the process. Mr. Wagner worked with crane brakes and crane wiring as a motor inspector. Mr. Weiss testified that he inhaled brake dust from cranes while tearing out crane trolleys.

As such, all four alleged that they worked directly on brakes in a variety of jobs. All four discussed dust created in the process. Yet none of their testimony reflected on Mr. Sterling’s allegations regarding P&H cranes.

In upholding the trial court’s grant of summary judgment for the defendant, the Superior Court agreed that the evidence failed to satisfy Pennsylvania’s requirement that the plaintiff in an asbestos case show frequent, regular and proximate contact with an asbestos-containing product made by the defendant. In particular, the court noted, “Mr. Sterling did not testify to any information as the nature of the dust, how far he was from the dust, whether he inhaled the dust, or whether the dust he observed contained asbestos.”

Parallel Testimony Does Not Shed Light on Plaintiff’s Case

The court also explained why the co-workers’ testimony failed to make up for any deficiencies in Mr. Sterling’s case. For starters, the court observed that the four co-workers’ testimony related solely to their own alleged exposures, without any connection between them and Mr. Sterling’s experience.

Even if the court assumed that the others were exposed to brake dust from cranes, the court concluded that “there was still no basis to infer [that] Mr. Sterling was similarly exposed[,]” especially where Mr. Sterling did not testify to working directly on crane brakes or crane wiring, as the four co-workers had done.

As the court summed it up: “[T]he testimony of other former Bethlehem Steel employees provided no information regarding the frequency, regularity or proximity of Appellant Mr. Sterling’s own alleged exposure to asbestos in P&H products.” The case, decided April 17, 2015, signals that pure “parallel” testimony of a co-worker’s alleged exposures is not sufficient to bolster a plaintiff’s case where there is no connection to the plaintiff.

In Mr. Sterling’s case, the Superior Court was unwilling to assume that his co-workers’ testimony regarding brake dust applied to Mr. Sterling’s experience. Perhaps equally important was the fact that Mr. Sterling testified that he mainly worked on cranes made by other manufacturers. In addition, Mr. Sterling acknowledged that there were many sources of dust in the “beam yard” where he worked. Nonetheless, the court appeared to seek a definite nexus between his co-workers’ testimony and the plaintiff, noting at one point that “Mr. Sterling’s name was never mentioned by the four witnesses.”

*Robyn is an associate in our Pittsburgh, Pennsylvania office. She can be reached at 412.803.1174 or rashelton@mdwcg.com.

Defense Digest, Vol 21, No. 4, December 2015

Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2015 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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