Re:Benjamin Merle and Linda Carol Thames v. Fisher Scientific International Inc., et al,

Philadelphia County CCP, September Term 2005

Defendant’s Counsel: Michael J. Block, Wilbraham, Lawler & Buba, PLC

Trial Date:April 2, 2007

Motion Filing Date:May 22, 2007

Response Date: June 8, 2007

Reply Due : June 13, 2007

Philadelphia County CCP, July 2007 Trial Group No. 2143

Plaintiffs’ Response in Opposition to Defendant Fisher Scientific International Inc.’s Motion for Summary Judgment Alleging Lack of Product ID

Dear Judge Tereshko:

Plaintiffs Benjamin Merle Thames and Linda Carol Thames, by and through their undersigned counsel, submit this response in opposition to Defendant Fisher Scientific International Inc.’s (“Fisher”) Motion for Summary Judgment. In support thereof, Plaintiffs would respectfully show as follows:

Introduction

Defendant Fisher supplied asbestos-containing products and failed to adequately warn its consumers and end users of the product about the dangers associated with use of these products. As a result of exposure to asbestos fibers released from products supplied by Defendant, Benjamin Thames developed mesothelioma, a fatal asbestos-related disease. Under Pennsylvania law, Plaintiffs may seek compensation for these injuries caused by Defendant’s tortious conduct.

In particular, the evidence is as follows:

• Mr. Benjamin Thames testified that during his work as a lab scientist at the Pittsburgh Energy Research Center, he worked personally with asbestos tape sometimes as often as two or three times a week for over a decade from the mid 1950s to the late 1960s and was exposed to the dust from such work.

• Mr. Anthony Logar, who worked in the lab with Mr. Thames during his entire career, testified that he personally observed Mr. Thames as he worked with the asbestos tape and as he used tongs and clamps covered with asbestos sleeves to handle laboratory glassware that had to be heated.

• Mr. Logar testified that the asbestos tape and the tongs and clamps used by Mr. Thames in the 1960s were supplied by Fisher Scientific, not by Burrell.

• Fisher admits that from at least 1960 through 1978, it sold asbestos tape and asbestos covered tongs and clamps such as those described by Messrs. Thames and Logar.

• William Longo, Ph.D., Plaintiffs’ materials scientist, has reviewed the discovery in this case and the results of laboratory tests performed on the asbestos sleeves for tongs and clamps such as those used by Mr. Thames. Dr. Longo has opined that to a reasonable degree of scientific certainty, Mr. Thames’ exposure to these asbestos products would have exposed Mr. Thames to significant levels of airborne chrysotile and tremolite fibers.

• Plaintiffs’ medical expert, Steven H. Dikman, M.D., has reviewed all of the above evidence. Dr. Dickman has opined that, to a reasonable scientific certainty, Mr. Thames’ exposures to Fisher Scientific asbestos tape and asbestos sleeved clamps were a substantial contributing factor in the development of his malignant mesothelioma.

Summary Judgment Standard for Asbestos Litigation

To survive a motion for summary judgment in an asbestos products liability action, a plaintiff is required to present evidence that he worked in the vicinity of the product’s use and that he inhaled asbestos fibers shed by the manufacturer’s product. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 652 (Penn. Super. Ct. 2002). The testimony of any witness with knowledge regarding the plaintiff's workplace and his or her exposure to a defendant's asbestos-containing products is admissible when probative. Lilley v. Johns-Manville Corp., 408 Pa. Super 83, 596 A.2d 203, 207 (1991), appeal denied, 530 Pa. 644, 607 A.2d 254 (1992). A plaintiff need not demonstrate the specific level or duration of his exposure. Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614. A plaintiff need not establish the specific role played by each individual asbestos fiber within the body. Lonasco v. A-Best Products Co., 757 A.2d 367, 375 (Pa. Super.2000), appeal denied, 566 Pa. 645, 781 A.2d 145 (2001). The question as to whether there was sufficient regularity and frequency so as to cause Plaintiff’s injury is a question for the jury. Wilson v. A.P. Green Indus., Inc., 807 A.2d 922 (Pa. Super 2002).

Summary judgment will be granted only in those cases that are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). In this case, reasonable and fair-minded people could certainly conclude that exposure to Defendant’s asbestos-containing products was a proximate cause of Mr. Thames’ mesothelioma.

Mr. Thames was exposed to asbestos released from Fisher asbestos tape and Fisher tongs and clamps with asbestos sleeves and coverings.

Mr. Thames, during his work as a lab scientist at the Pittsburgh Energy Research Center, worked personally with asbestos tape sometimes as often as two or three times a week for over a decade from the mid 1950s to the late 1960s and breathed the dust generated when the tape was torn.

Benjamin Thames worked as a lab scientist at the Pittsburgh Energy Technology Center from 1947 until 1985. Deposition of Benjamin Thames taken in this matter on December 7, 2006 (“Thames Depo.”)(referenced pages attached hereto as Exhibit A), at 8:18 - 9:22. From the mid-1950s to the late 1960s, Mr. Thames used asbestos tape for the purpose of insulating glassware that needed to be heated. Id. at 10:18 - 11:7; 12:14 - 20. The asbestos tape was between half an inch and three quarters of an inch in width. Id. at 13: 12 - 25. The tape came on a roll from which Mr. Thames would tear off the length he needed. Id. at 14:1 - 7. It took a yard or two of tape to insulate a particular vessel, and for every yard of tape used, Mr. Thames would tear off three or four segments of tape, just as though he were tearing a strip of paper. Id. at 14:15 - 25.

When he did this, Mr. Thames was probably eight to ten inches from the tape, and close enough to breathe the dust created when the tape was torn. Id. at 14:23 - 15:15; 22:12 - 19. Throughout the 1960s, Mr. Thames used the asbestos tape nearly every week,^[1] two to three times a week, tearing off three to six feet of tape each time he used it. Id. at 15:15 - 16:3.

Once he was finished with an experiment, Mr. Thames had to remove the old tape from the glass vessels. Id. at 16:11-15. The tape would become bonded to the glassware during the heating process and had to be cut off with a razor blade. Id. at 16:16-25. Then as the dry tape was scraped away, airborne dust was generated which Mr. Thames inhaled. Id. at 17:7 - 18:2; 32:15 - 18. Mr. Thames performed this process every time he did an experiment – two to three time a week. Id. at 18:2 - 12. The tape removal took about an hour to complete. Id. at 18:10 - 12. Mr. Thames inhaled the dust from this process on many occasions. Id. at 22:21 - 23:1-12.^[2]

Mr. Anthony Logar worked with Mr. Thames on a daily basis in the lab at the Pittsburgh Energy Research center from the 1940s through the 1980s. Deposition of Anthony Logar taken in this matter on December 20, 2006 (“Logar Depo.”)(referenced pages attached hereto as Exhibit B), at 8:2 - 5; 10:1 - 2. Mr. Logar personally observed Mr. Thames as he worked with the asbestos tape used to wrap the glassware needed for the lab experiments. Id. at 25:7 - 24. He described seeing Mr. Thames tear the tape from a roll and wrap the glass tubing with it. Id. at 27:10 - 29:5. Indeed, Fisher’s claim in its motion that “Mr. Logar admitted that he doesn’t know if Plaintiff worked with asbestos tape,” Fisher Motion at 3, is so misleading as to be simply untrue. Although Mr. Logar initially referred to the asbestos tape as asbestos “wrapping,” his description of the tape was the same as Mr. Thames’ Id. at 23:3 - 16. Further, any confusion over the “asbestos tape” or “asbestos wrapping” was cleared up by Fisher’s own counsel:

QAnd you spoke about a wrapping around a tube, and just so everything is clear, I think it was called a few different things, it was called by you as a wrapping and then later on it was analyzed or analogized to being similar to a tape without being sticky.

1. Right.

QOkay. So, when you speak of a wrapping that was used on the tubing and tape was also discussed, we’re all talking about the same thing; correct?

ACorrect.

Id. at 50:16 - 51:2 (emphasis added). The undisputed evidence in this case is that Mr. Thames personally worked with asbestos tape almost weekly for over a decade and that Mr. Logar watched him do it.

Mr. Logar also personally observed Mr. Thames as he worked in the lab with asbestos covered tongs and clamps. Mr. Logar described several items of lab equipment that contained asbestos, including clamps or tongs that were used to hold hot glassware, which clamps had asbestos sleeves. Id. at 14:19 - 15:9. He described Mr. Thames’ use of the asbestos clamp to steady the hot glass as it came out of the heating box. Id. at 32:7 - 14. When the asbestos sleeve on the clamps became charred or frayed, the scientists simply ordered new clamps with new asbestos sleeves. Id. at 33:2 - 34:11.

The asbestos tape and the asbestos covered tongs and clamps used by Mr. Thames in the 1960s were supplied by Fisher Scientific.

Mr. Logar testified plainly and without equivocation that the asbestos tape Mr. Thames used to wrap glassware came from Fisher. Id. at 20:19 - 23; 23:3 - 16. And the clamps and tongs with the asbestos sleeves also came from Fisher. Id. at 23:16 - 24:2. In fact, the clamps had the name “Fisher” right on them. Id. at 23:16 - 19. The lab kept a Fisher catalog on hand and when the scientists needed supplies, their messenger would pick them up from Fisher. Id. at 21:9 - 16.

Although Fisher now suggests that the asbestos lab products to which Mr. Thames was exposed in the 1950s and 1960s may have come from Burrell Scientific, a different supplier, Fisher Motion at 2, there is no evidence in the record to support such a notion. Mr. Logar testified that it was not until the 1970s that the lab also began to order some products – though still not the majority – from Burrell Scientific. Logar Depo. at 21:3 - 22:16. Similarly, Mr. Thames also testified that he did not recall anyone in his lab ordering supplies from a source other than Fisher, such as Burrell Scientific, until the 1970s. Thames Depo. at 34:22 - 35:3. In the 1960s when Mr. Thames was exposed to asbestos tape and asbestos covered clamps and tongs, he was exposed to products supplied by Fisher.

Fisher admits that from at least 1960 through 1978, it sold asbestos tape and asbestos covered tongs and clamps such as those described by Messrs. Thames and Logar.

Robert Forte is Fisher Scientific’s Vice President of Business Development. Deposition of Robert Forte taken in this matter on February 28, 2007 (“Forte Depo.”)(referenced pages attached hereto as Exhibit C), at 26:10 - 21. Mr. Forte confirmed that through the early 1970s, Fisher maintained a large facility in Pittsburgh that contained the company’s corporate headquarters, as well as sales, distribution and customer service centers. Id. at 37:25 - 39:3; Forte Exhibit 2.

Mr. Forte also confirmed that from at least 1960 to 1978, the Fisher catalog offered asbestos tape for sale. Id. at 72:22 - 25; see also Forte Exhibit 3 at Document Responsive to Request No. 10 (handwritten notation “Raybestos M” in the vendor column for Fisher asbestos tape). For example, the 1963 catalog lists on page 20 both asbestos paper tape and asbestos cloth tape for wrapping lab vessels required to be heated during experiments. Id. at 97:11 - 99:5; see also 1963 catalog excerpts produced by Fisher (attached hereto as Exhibit D). And, according to Fisher Scientific’s corporate representative, the asbestos tape used by Mr. Thames was the same as the asbestos tape included in the Fisher catalog: “The description of the tape, the application, appears to be the description of the tape that’s cataloged.” Forte Depo. at 95:5 - 13.

Further, from at least 1960 to 1979, Fisher also offered for sale in its catalog clamps and tongs with asbestos sleeves or coverings. Id. at 73:1 - 12. If a customer purchased such a clamp, it would come equipped with an asbestos covering. Id. at 99:6 - 20.

William Longo, Ph.D., Plaintiffs’ material scientist, has opined that to a reasonable degree of scientific certainty, Mr. Thames’ exposure to these asbestos products would have exposed Mr. Thames to significant levels of airborne chrysotile and tremolite fibers.

Plaintiff’s expert in materials sciences, William Longo, Ph.D., has reviewed the discovery materials in this case, including the depositions of Messrs. Thames and Logar concerning Mr. Thames’ exposure to asbestos tape and to tongs and clamps with asbestos sleeves or coverings during his work at the Pittsburgh Energy Technology Center. March 14, 2007 Expert Report of William E. Longo, Ph.D. (attached as Exhibit E). In addition, Dr Longo has reviewed the results of tests performed by Tim Vander Wood, Ph.D., on Fisher-Scientific Cataloy-R clamp sleeves or coverings. See March 2, 2007 Evaluation of Laboratory Clamp by Tim B. Vander Wood, Ph.D. (attached to Dr. Longo’s report). Dr. Longo has opined that, to a reasonable degree of scientific certainty, Mr. Thames’ work with those asbestos containing products would have exposed him to significant levels of airborne chrysotile and tremolite fibers.

Plaintiffs’ medical expert, Steven H. Dickman, M.D., has opined that, to a reasonable scientific certainty, Mr. Thames’ exposures to Fisher Scientific asbestos tape and asbestos sleeved tongs and clamps were a substantial contributing factor in the development of his malignant mesothelioma.

Plaintiffs’ board certified pathologist, Dr. Steven Dikman, has reviewed medical records and pathology materials relating to Benjamin Thames, as well as the March 14, 2007 expert report of William Longo, Ph.D., the sworn deposition testimony of Benjamin Thames, and the sworn deposition testimony of Anthony Logar. Based on his review of those materials, Dr. Dikman has opined that, to a reasonable scientific certainty, Mr. Thames’ exposures to Fisher Scientific asbestos tape and asbestos sleeved tongs and clamps were a substantial contributing factor in the development of his malignant mesothelioma. June 6, 2007 Affidavit of Steven H. Dikman (attached hereto as exhibit F).

This evidence provides sufficient facts to demonstrate the elements necessary to defeat a motion for summary judgment. See Taylor v. Celotex Corp., Pa. Super. 566, 574 A.2d 1084, 1091-92 (1990) (holding that sufficient nexus between exposure to asbestos and manufacturer's product may be shown through testimony of co-workers that establishes that plaintiff worked with, or was in the vicinity of, a manufacturer's asbestos product).

Conclusion

Contrary to Defendant’s argument in its motion for summary judgment, Plaintiffs’ summary judgment evidence raises a genuine issue of material fact with respect to whether asbestos-containing products supplied by Fisher contributed to Mr. Thames’ mesothelioma. Accordingly, summary judgment is not appropriate.

WHEREFORE, for the foregoing reasons, Plaintiff respectfully requests this Court deny Fisher’s Motion for Summary Judgment.

Sincerely,

BARON & BUDD, P.C.

1. ↑ At times, a two or three month interval would pass when Mr. Thames’ work did not involve experiments that required the use of asbestos tape. Id. at 15:16 - 21; 18:3 - 9.
2. ↑ Given Mr. Thames’ own testimony that he breathed the dust generated both when the asbestos tape was first torn and applied and then later when the hardened tape was scraped off with a razor blade, Fisher’s claim in its motion that “no witness associated any dust with the use of any asbestos-containing lab equipment,” Fisher Motion at 2, is bewildering, and untrue.