J-A09025-15

                             2015 PA Super 119

TIMOTHY CRISWELL, EXECUTOR OF : IN THE SUPERIOR COURT OF
THE ESTATE OF EARL J. CRISWELL, :      PENNSYLVANIA
DEC’D,                          :
                                :
               Appellant        :
                                :
          v.                    :
                                :
ATLANTIC RICHFIELD COMPANY AND :
SUNOCO, INC. (R&M),             :
                                :
               Appellees        : No. 2175 EDA 2014

                Appeal from the Order entered May 27, 2014,
                Court of Common Pleas, Philadelphia County,
                 Civil Division at No. 3789 April Term, 2012

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.:                                FILED MAY 18, 2015

      Timothy Criswell (“Criswell”), as the executor of the estate of Earl J.

Criswell (“Decedent”), appeals from the orders of court granting summary

judgment in favor of appellees Atlantic Richfield Company (“Atlantic”) and

Sunoco, Inc. (“Sunoco”) (collectively, “Appellees”). Following our review, we

reverse.

      This case involves negligence claims brought by Criswell under the

Jones Act, 46 U.S.C.A. § 30104,1 against multiple defendants, claiming that




1
  “It is established that the courts of this Commonwealth have concurrent
jurisdiction with federal courts to try actions brought under the Jones Act for
injuries sustained, and for maintenance and cure[,] under traditional
maritime law.” Richards v. Dravo Corp., 375 A.2d 750, 752 (Pa. Super.
1977). Further, the Jones Act provides that the rules of liability established
J-A09025-15


exposure to asbestos during his time as a member of the Merchant Marine

caused him to develop lung cancer. Specifically, Criswell alleges negligence

on the part of Appellees because they required Decedent to work with

asbestos aboard their vessels when they knew it was hazardous to his health

and they did not warn him of this danger. Following the close of discovery,

all defendants moved for summary judgment.           Relevant to this appeal,

Appellees sought summary judgment on the basis that Criswell could not

prove exposure to asbestos on their ships. Atlantic’s Motion for Summary

Judgment, 3/11/14, at 1; Sunoco’s Motion for Summary Judgment, 3/11/14,

at 1. The trial court granted Atlantic’s and Sunoco’s motions for summary

judgment only. The claims against the remaining defendants were settled

prior to trial. Criswell then filed this timely appeal, in which he presents the

following two issues for our review:2

             1. Did the [trial] court err by disregarding evidence
                of [] Decedent’s extensive exposure to asbestos
                insulation while serving as a merchant seaman
                aboard [Appellees’] tankers?

             2. Did the [trial] court err when it held that
                [Criswell] had failed to prove [Appellees]
                “negligent, however slight” under the Jones Act?

Criswell’s Brief at 4.



under the Federal Employers’ Liability Act (“FELA”) will apply in a negligence
action brought thereunder. Id. at 752 n.1.
2
  The trial court did not order Criswell to file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).


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J-A09025-15


      We begin with our standard of review:

            [O]ur standard of review of an order granting
            summary judgment requires us to determine
            whether the trial court abused its discretion or
            committed an error of law. Our scope of review is
            plenary. In reviewing a trial court’s grant of
            summary judgment, we apply the same standard as
            the trial court, reviewing all the evidence of record to
            determine whether there exists a genuine issue of
            material fact. We view the record in the light most
            favorable to the non-moving party, and all doubts as
            to the existence of a genuine issue of material fact
            must be resolved against the moving party. Only
            where there is no genuine issue as to any material
            fact and it is clear that the moving party is entitled
            to a judgment as a matter of law will summary
            judgment be entered. All doubts as to the existence
            of a genuine issue of a material fact must be
            resolved against the moving party.

                                    ***

            Upon appellate review, we are not bound by the trial
            court’s conclusions of law, but may reach our own
            conclusions.

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-98 (Pa. Super. 2012)

(internal citations omitted).

      Rule of Civil Procedure 1035 governs motions for summary judgment

and provides, in relevant part, as follows:

            After the relevant pleadings are closed, but within
            such time as not to unreasonably delay trial, any
            party may move for summary judgment in whole or
            in part as a matter of law

            (1) whenever there is no genuine issue of any
            material fact as to a necessary element of the cause
            of action or defense which could be established by
            additional discovery or expert report, or


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J-A09025-15


            (2) if, after the completion of discovery relevant to
            the motion, including the production of expert
            reports, an adverse party who will bear the burden
            of proof at trial has failed to produce evidence of
            facts essential to the cause of action or defense
            which in a jury trial would require the issues to be
            submitted to a jury.

Pa.R.C.P. 1035.2.   This Court has explained the application of this rule as

follows:

            Motions for summary judgment necessarily and
            directly implicate the plaintiff’s proof of the elements
            of a cause of action. Summary judgment is proper if,
            after the completion of discovery relevant to the
            motion, including the production of expert reports,
            an adverse party who will bear the burden of proof
            at trial has failed to produce evidence of facts
            essential to the cause of action or defense which in a
            jury trial would require the issues to be submitted to
            a jury.     In other words, whenever there is no
            genuine issue of any material fact as to a necessary
            element of the cause of action or defense, which
            could be established by additional discovery or
            expert report and the moving party is entitled to
            judgment as a matter of law, summary judgment is
            appropriate. Thus, a record that supports summary
            judgment either (1) shows the material facts are
            undisputed or (2) contains insufficient evidence of
            facts to make out a prima facie cause of action or
            defense.

Petrina, 46 A.3d at 798.

      Criswell first argues, essentially, that the trial court failed to view the

evidence in the light most favorable to him when it determined that he failed

to establish Decedent’s exposure to asbestos on Appellees’ ships. We agree.

      In granting Appellees’ motions for summary judgment, the trial court

concluded that Criswell had failed to establish exposure to asbestos


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J-A09025-15


“sufficient to cause the disease” by focusing solely on discrete portions of

Decedent’s testimony.3 It reasoned as follows:

            [W]hen asked[,] [Decedent] admitted that he has no
            special training in identifying asbestos by sight. See
            Dep at p 531. [Decedent] was also unable to look at
            dust and determine whether it contained asbestos.
            Id. Yet, when testifying in connection with exposure
            from [Atlantic], [Decedent] testified that he believed
            the steam lines he worked on were covered in
            asbestos “because it's a very serious thing to have
            pipes that are not covered with some type of
            asbestos, especially if it's high pressure or high
            temperature.” Id. at 590.

            When testifying in connection with [Sunoco],
            [Decedent] admitted he did not personally handle
            insulation material. Id. at 1132. He admitted he
            didn’t know if the insulation material contained
            asbestos. Id. at 1166. [Decedent] further admitted
            that he did not see any writing on the old material
            that were [sic] removed, and that his only basis for
            believing the replacement components contained
            asbestos was their high heat application. Id. at
            1170.

            The [sic] type of testimony is precisely the type of
            testimony that is too speculative to be accepted by
            this court. In Samarin v. GAF Corp[.], [] 571 A.2d
            398 ([Pa. Super.] 1989), alloc. denied, [] 574 A.2d
            71 ([Pa.] 1990), the Superior Court held that
            evidence of a materials high heat application is
            insufficient to support the conclusion that the
            product contained asbestos. The Superior Court
            further held that “without more facts, it is not
            reasonable for the trial court to infer that the
            products must have contained asbestos because they
            were heat resistant.” Id. at 403[;]      [s]ee also


3
  That the trial court couched its finding in terms of exposure “sufficient to
cause the disease” is telling of its additional failure to apply the correct
standard regarding causation, which we discuss infra.


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J-A09025-15


            Bushless v. GAF Corp., 585 A.2d 496 (Pa. Super.
            1990).     Here, Plaintiff is relying on high heat
            application without further evidence just as in the
            aforementioned     cases.    Therefore   [s]ummary
            [j]udgment is proper.

Trial Court Opinion, 9/22/14, at 3.

      It is apparent that the trial court found that the only evidence Criswell

produced to establish Decedent’s exposure to asbestos was Decedent’s

testimony that he assumed the materials contained asbestos because they

could withstand high temperatures, and the trial court concluded that this

alone is an insufficient basis upon which to infer that the materials

contained asbestos.     This is an accurate statement of the law, in the

abstract. See Samarin, 571 A.2d at 404 (“[W]ithout more facts, it is not

reasonable for the trial court to infer that these products must have

contained asbestos because they were heat resistant.”) (emphasis in the

original). In this case, however, Criswell presented other evidence regarding

Decedent’s exposure to asbestos.

      Decedent    testified   that    he   worked   on   Atlantic   vessels   for

approximately five years; first as an oiler for about six months and then as a

pump man. Response to Atlantic’s Motion for Summary Judgment, 3/27/14,

Exhibit F at 72-73.     As the pump man, Decedent was responsible for

maintaining “all the main cargo pumps, all the valves in the tanks, steam

smothering system, CO2 system.” Id. at 74. In that capacity, he worked

with insulation that went around the steam lines and valves. Id. at 75. To



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J-A09025-15


perform repairs on the insulation, Decedent had to cut molded insulation and

mix a mortar to fill in holes. Id. at 79-80. Decedent used a bag of loose

material labeled “asbestos” to make this mortar.         Id. at 80, 718-19.

Decedent testified that when using the loose asbestos, “you tried to be

careful, stay out of the wind. … The wind blowing up, you would try to be

careful. … [I]t was annoying to get on you. It was sticky and itchy … .” Id.

Decedent also stated that vibrations would cause dust from deteriorating

insulation to fall off and that “seven days a week, twenty four hours a day it

was in the air.” Id. at 586-89. These materials were kept in a designated

asbestos locker, which served in part to prevent the loose asbestos from

blowing around.   Id. at 723-24.    Inexplicably, the trial court ignored this

clear evidence of exposure to asbestos.       Viewing it in the light most

favorable to Criswell, and resolving all doubts as to the existence of a

genuine issue of material fact against Atlantic, we conclude that this is

evidence of Decedent’s exposure to asbestos on Atlantic’s ships.

      Decedent also testified that he worked on Sunoco vessels following his

discharge from the Navy in 1946 until 1953. Response to Sunoco’s Motion

for Summary Judgment, 3/27/14, Exhibit D at 59; Exhibit F.          Decedent

testified that he would mix loose asbestos into a mortar to repair insulation

of the steam lines on Sunoco ships. Id., Exhibit D at 69-70.4 He testified



4
  The trial court overlooked this testimony when it concluded that with
regard to Sunoco, “[Decedent] admitted he did not personally handle


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J-A09025-15


that he worked with pre-fabricated asbestos insulation that was molded into

half-moon shapes, which he then placed on steam lines, bound with wire,

coated and painted. This process created dust from the insulation, which he

inhaled.   Id. at 67-68.    Decedent also testified that he would remove

cracked and broken insulation and replace it with molded asbestos, which he

would cut to the appropriate size.     Id. at 826-28, 834-35.     According to

Decedent, the engine rooms were insulated with asbestos, and vibrations

through the ship caused dust from the insulation to fall. Id. at 66. When he

worked as a wiper on Sunoco vessels, he swept up the insulation that had

been removed. Id. at 1164-65.

      Unlike on the Atlantic ships, Decedent did not testify that he worked

with any item labeled “asbestos” on a Sunoco vessel. Nevertheless, he did

testify that Sunoco ships had turbines manufactured by General Electric and

that he worked with insulation for these turbines. Id. at 738-44. Decedent

also produced documents from General Electric, dated November 1958,

titled “General Specifications for Heat Retention Materials” and specifically

indicated for its steam turbines. Response to Sunoco’s Motion for Summary

Judgment, 3/27/14, Exhibit I. These documents state that asbestos was a



insulation material. Trial Court Opinion, 9/22/14, at 3. The testimony the
trial court cited in support of this conclusion actually indicates that Decedent
did not install this material during the short period he held the position of
wiper. N.T., 6/5/12, at 1132. Decedent testified that he was promoted from
the position of wiper after approximately his first year or two with Sunoco.
Id. at 1167-68.


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J-A09025-15


component of the insulation materials referred to as “plastic insulating

cement” and “pre-formed sectional pipe insulation” and also, obviously, a

material referred to as “sprayed asbestos.”      Id.   Decedent testified that

fixing or replacing the insulation materials that covered the turbines released

particles therefrom into the air. Response to Sunoco’s Motion for Summary

Judgment, 3/27/14, Exhibit D at 744. This evidence, when considered in the

light most favorable to Criswell, is evidence of Criswell’s exposure to

asbestos on Sunoco vessels.5

      In his second issue, Criswell argues that the trial court applied the

wrong standard for negligence when concluding that he failed to put forth

evidence to establish causation. We agree. The trial court began from the

premise that “[i]n order to establish causation in an asbestos claim under

the Jones Act, a plaintiff must show that … the product was a substantial



5
  Sunoco argues that Decedent’s basis for belief that he was exposed to
asbestos aboard its ships was that the material he worked with could
withstand high temperatures and that this is insufficient to overcome its
summary judgment motion. Sunoco’s Brief at 17. There is no merit to this
claim, as we have just established that Criswell produced other evidence of
Decedent’s exposure to asbestos on its ships. Sunoco also argues that
Decedent believed that he worked with asbestos because the ships’
engineers told him it was asbestos. Sunoco argues that this evidence is
hearsay and therefore incompetent to overcome its motion for summary
judgment. Id. at 19. The trial court did not address this evidentiary issue,
and we need not consider it now. As our discussion indicates, the record
contains additional evidence to support a finding of exposure to asbestos,
and so we do not need to consider the competency of this particular
testimony. That is to say, even if Sunoco’s argument is correct, there is
other competent evidence that establishes exposure to asbestos on its
vessels.


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J-A09025-15


factor in causing the injury he suffered.” Trial Court Opinion, 9/22/14, at 2

(citing Lindstrom v. A-C Product Liab. Trust, 424 F.3d 488 (6th Cir.

2005)).6   This is incorrect.   To prove causation under the Jones Act, a

plaintiff need only prove “whether the employer’s negligence played any

part, however slight, in causing the injury.” Richards, 375 A.2d at 752 n.2;

see also   CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2636 (U.S.

2011) (“Under [FELA] the test of a jury case is simply whether the proofs

justify with reason the conclusion that employer negligence played any part,

even the slightest, in producing the injury or death for which damages are

sought.”).7 As recounted above, Criswell established exposure to asbestos

on Appellees’ vessels. Criswell has also produced an expert report by Arthur

Frank, M.D., Ph.D., in which Dr. Frank opined that Decedent developed

           asbestos-related pleural disease, called by some
           pleural asbestosis, based upon the prior history of
           exposures [to asbestos] as well as the radiographic
           findings.   Secondly, and more importantly, he
           developed and then died from lung carcinoma that
           was caused by his exposures in combination with his
           habit of cigarette smoking.        The cumulative
           exposures he had to asbestos, from any and all



6
  As noted by Criswell, Lindstrom is a products liability case and does not
involve a claim brought under the Jones Act.
7
  More specifically, this relaxed standard of causation means that under the
Jones Act, a plaintiff does not have to prove that the defendant’s negligence
was the proximate cause of its injury. The Jones Act plaintiff need only
establish that negligence of the employer played any part at all in bringing
about the injury. CSX Transp., Inc. v. McBride, 131 S. Ct. 2630, 2638
(U.S. 2011).


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J-A09025-15


             products, containing and [sic] any fiber type, would
             have given rise to these two conditions.

Response to Atlantic’s Motion for Summary Judgment, 3/27/14, Exhibit O at

2; Response to Sunoco’s Motion for Summary Judgment, 3/27/14, Exhibit M

at 2.    This evidence is sufficient to meet the relaxed causation standard

employed under the Jones Act; that is, it is sufficient to “justify with reason

the conclusion that employer negligence played any part, even the slightest,

in producing the injury or death for which damages are sought.” CSX

Transp., 131 S. Ct. at 2636.

        In sum, the trial court failed to view the evidence in the light most

favorable to Criswell and applied the wrong standard for causation for a

negligence claim under the Jones Act.     In both respects, it misapplied the

law. Our review of the record reveals that Appellees’ summary judgment

motions should have been denied, and so we reverse the trial court’s

determination.

        Orders reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2015




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