Upholding a lower court’s decision, six defendants in an asbestos case were granted summary judgment by a Pennsylvania appeals court. The appellate court judges affirmed the decision originally made at the Philadelphia Court of Common Pleas, which was appealed by the plaintiff, Colleen M. Krauss.
Ms. Krauss filed two lawsuits on behalf of decedent Henry Krauss, one in 2006 and one in 2007. According to Ms. Krauss, Mr. Krauss was a bricklayer from 1978 to 1983, during which time he was exposed to asbestos-containing materials on numerous occasions. Mr. Krauss passed away from mesothelioma, an asbestos-related type of cancer, before Mr. Krauss filed her first lawsuit.
Summary judgment was initially granted at the Philadelphia Court of Common Pleas in January, 2013. Ms. Krauss called on Michael Morgan, Mr. Krauss’s former co-worker, to testify that Mr. Krauss had come into semi-regular contact with the defendants’ asbestos-containing products. Since Mr. Krauss had not been deposed prior to his death, the appeal hinged on the testimony of Mr. Morgan, the plaintiff’s primary witness.
Fortunately for the defense, Mr. Morgan proved to be inadequate as a witness, and the appeals court concluded that the lower court had gotten it right the first time.
“Morgan’s affidavit asserts that ‘all of the boilers, turbines, and pumps’ identified in his affidavit were insulated with asbestos products based on his ‘knowledge and belief,’” wrote Judge Jacqueline O. Shogan in the panel’s opinion. “However, [the affidavit] provides no specific evidence upon which he based his determination that these boilers, turbines, and pumps were insulated with asbestos products.”
The evidence issue was a major blow to the plaintiff’s appeal. Since he’s not an expert, Mr. Morgan’s ‘belief’ that the products contained asbestos was essentially useless, as there was no way to prove that this belief wasn’t the result of Mr. Krauss’s assertion. Actual evidence – photographs, expert testimony, samples, tests – might have changed the outcome of the case.
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