• Plaintiff’s Testimony about Secondary Brake Exposure Sufficient to Overcome Summary Judgment
  • January 12, 2018 | Author: James F. Coleman
  • Law Firm: Goldberg Segalla LLP - Philadelphia Office
  • OHIO – Plaintiff Julia Alexander filed suit against multiple defendants after she was diagnosed with peritoneal mesothelioma in May of 2016. The plaintiff alleges that she was exposed to asbestos via Bendix brake products which were manufactured by Honeywell International. The plaintiff testified that she visited her fiancé, an automobile mechanic, two to three times per week for four hours a visit from 1987-91. Throughout this period, the plaintiff alleges she observed her fiancé performing brake work on a variety of vehicles one to three times per week. The plaintiff identified Bendix as the only brand of replacement brakes her fiancé used, and testified during her deposition that she was within five feet of him while he was working.

    The proper summary judgment analysis under Fed.R.Civ.P. 56(c) and multiple case opinions entails “the threshold inquiry of determining whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”

    The Ohio Revised Code, Section 2307.96(B) sets forth the applicable burden of proof in asbestos tort claims: “A plaintiff in a tort action who alleges any injury or loss to person resulting from exposure to asbestos has the burden of proving that plaintiff was exposed to asbestos that was manufactured, supplied, installed, or used by the defendant in the action and that the plaintiff’s exposure to the defendant’s asbestos was a substantial factor in causing the plaintiff’s loss or injury.” Similar to other states, the trier of fact must consider the manner in which the plaintiff was exposed, the proximity to defendant’s product, the frequency and length of the plaintiff’s exposure, and any mitigating or enhancing factors of exposure.

    The court held that even in light of some “imprecise and even conflicting testimony in the record of this case,” the plaintiffs presented sufficient evidence upon which a jury could find that asbestos-containing Bendix brake products were a substantial factor in plaintiff’s injury, if they find her testimony credible. Honeywell provided evidence that might be useful for cross-examination at trial, but “this only shows the existence of a question of material fact which precludes summary judgment in either party’s favor.” The plaintiff’s testimony identified Honeywell’s product and sufficient evidence for a jury to determine the manner, frequency, length of exposure, and enhancing factors relevant to a determination as to whether Bendix brakes were a substantial factor in her contraction of mesothelioma.

    The court denied Honeywell’s motion for summary judgment and also denied the plaintiffs’ motion to amend the order allowing the defendant 90 days after the court’s ruling on summary judgment to produce expert reports.

    Read the full decision here.