Pennsylvania Supreme Court Rules Co-Worker Affidavits Do Not Provide Sufficient Evidence to Create Genuine Issue of Material Fact
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In an opinion filed at the end of 2014, the Pennsylvania Superior Court found that an affidavit with blanket statements regarding Plaintiff’s alleged exposure did not meet evidentiary standards nor did it provide sufficient evidence to create a genuine issue of material fact.
Specifically, in Krauss v. Trane U.S. Inc., 104 A.3d 556 (Pa. Super. 2014), the plaintiff produced a co-worker affidavit, in which the co-worker stated:
1. He worked with the plaintiff;
2. At numerous job sites;
3. At those sites he worked with boilers, turbines and joint compound made by a number of manufacturers;
4. All the boilers, turbines and joint compound were insulated with asbestos;
5. All the products created dust and he and the plaintiff breathed it in.
Krauss, at 565.
First, applying Pa.R.E. 701 (Opinion Testimony by Lay Witness) and Pa.R.E. 602 (The Need for Personal Knowledge), the Court held that the co-worker did not possess sufficient experience or knowledge to provide the technical opinion that the products he and the plaintiff worked around contained asbestos. The Court noted that, “[the co-worker] boldly professed that he recalled all of these products being present at the various worksites where he worked with Plaintiff over the course of a five-year period . . . . [the coworker’s] affidavit, however, provides no specific evidence that [the plaintiff] was exposed to a product manufactured by a particular manufacturer or supplier at a particular worksite.” Krauss at 566-67.
Second, the Court determined that summary judgment was appropriate where the affidavit raised genuine issues of material fact concerning frequent, regular and proximate exposure to asbestos products as required by Eckenrod v. GAF Corp., 544 A.2d 50 (Pa. Super. 1988) and Gregg v. V–J Auto Parts, Company, 943 A.2d 216, 226 (Pa. 2007).
The Court held that the co-worker’s statements did not present competent evidence for the jury because they were speculative. “In fact, the trial court has a duty to prevent questions from going to the jury which would require it to reach a verdict based on conjecture, surmise, guess or speculation.” Id. Therefore, the Court explained, a jury may not determine whether a defendant’s product caused a plaintiff’s injury based solely upon speculation and conjecture; “there must be evidence upon which logically its conclusion must be based.” Krauss at 568 (citing Farnese v. Southeastern Pennsylvania Transp. Authority, 487 A.2d 887, 890 (1985).
Therefore, the Court determined that the affidavit, in conjunction with other general evidence, failed to establish a genuine issue of material fact that the plaintiff inhaled asbestos fibers from the defendants’ products.
The Krauss opinion will prove helpful in defending claims where a plaintiff attempts to bootstrap exposure to a defendant’s product through a co-worker affidavit. Prior to Krauss, plaintiffs were able to attach liability by presenting a blanket and speculative co-worker affidavit – much like the one the plaintiff submitted in Krauss. Now, such affidavits will be held to the same and more stringent standard as other exposure evidence, which requires the plaintiff to establish regular, frequent and proximate exposure to asbestos, all while meeting the constraints of the Rules of Evidence.