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Pennsylvania Appellate Court Applies "Frequency, Regularity, Proximity" Standard, Dismissing Bystander Exposure Claim Superior Court of Pennsylvania, April 17, 2015

The plaintiff commenced this action, alleging bystander exposure to brake work done on a P&H crane brakes. The defendants moved for summary judgment on the grounds there was insufficient evidence of asbestos exposure to any P&H crane brakes. In opposition to the motion, the plaintiffs relied on the following proof as recounted by the court: “Appellants contend that by P&H’s own admission, its cranes contained parts made with asbestos, including the brakes and wiring. Appellants assert Appellant Mr. Sterling’s job duties constantly put him in the direct vicinity of P&H cranes, and he and his coworkers frequently saw dust produced by the cranes’ asbestos-containing brakes. For example, Appellants claim that Appellant Mr. Sterling’s duties as a crane man required him to assist the repairmen who regularly performed dust-producing maintenance on the brakes. Appellants suggest this brake dust continuously ‘filled the air surrounding [Appellant] Mr. Sterling at Bethlehem Steel.’”

The lower court ruled that this proof was insufficient evidence of asbestos exposure and granted summary judgment. On appeal, the Superior Court applied the “frequency, regularity, proximity” standard and concluded that the plaintiffs’ proof did not meet that threshold: “Although Appellant Mr. Sterling testified he saw dust emanate from the wheel area of the cranes when the brakes were applied, he conceded there were multiple sources of dust in the beam yard. See Krauss, supra (stating plaintiff's speculative personal belief that product contained asbestos fails to create genuine issue of fact as to existence of asbestos in product). Moreover, the 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.”

Read the full decision here.

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