Opinion
PC-2016-0544
10-19-2017
In Re: Asbestos Litigation LORETTA BELAC, Plaintiff, v. 3M COMPANY, ET AL., Defendants.
For Plaintiff: John E. Deaton, Esq. For Defendant: Andrew R. McConville, Esq. Marc E. Finkel, Esq. Lisa M. Kresge, Esq. Kevin J. McAllister, Esq.
For Plaintiff: John E. Deaton, Esq.
For Defendant: Andrew R. McConville, Esq. Marc E. Finkel, Esq. Lisa M. Kresge, Esq. Kevin J. McAllister, Esq.
DECISION
TAFT-CARTER, J.
Before the Court for decision are the Defendants'-Evenheat Kiln, Inc. (Evenheat) and Sargent Art, Inc. (Sargent Art)-Motions for Summary Judgment. Evenheat further requests entry of a separate judgment on its motion to strike Plaintiff's affidavit pursuant to the "sham affidavit" doctrine. The Defendants contend that summary judgment should be granted because the Plaintiff, Loretta Belac (Plaintiff), has not produced sufficient evidence of product identification or a causal connection. The Plaintiff objects to the motions, arguing that there are genuine issues of material fact for trial and that appropriate product identification and causal connection between the Plaintiff's injuries and the Defendants' products has been shown. This Court heard oral arguments in this matter on September 6, 2017 and now exercises jurisdiction pursuant to G.L. 1956 § 8-2-14 and Super. R. Civ. P. 56.
I
Facts and Travel
The Plaintiff originally filed this personal injury action on February 9, 2016, asserting claims for failure to warn, negligence, strict product liability, breach of warranty, and conspiracy. The Plaintiff named several defendants, including Evenheat and Sargent Art. In her Complaint, the Plaintiff alleges that over the course of her career crafting ceramics from her home business, she was exposed to asbestos-containing products manufactured by the Defendants. She contends that this exposure ultimately caused her to develop mesothelioma.
Plaintiff subsequently filed two amended complaints in this matter to add additional defendants. The First Amended Complaint was submitted on July 28, 2016, and the Second Amended Complaint was submitted on September 8, 2016.
During discovery, Plaintiff was deposed over the course of six days from June to September of 2016. Both Evenheat and Sargent Art attended the deposition. Plaintiff died last year due to complications from her illness. At the time of this Decision, Plaintiff's counsel has not moved for the appropriate substitution of parties pursuant to Super. R. Civ. P. 25.
A
Defendant Evenheat
Evenheat, a kiln manufacturing company, unlike other defendants in this matter, never contested jurisdiction in Rhode Island. Rather, after responding to Plaintiff's discovery requests, Evenheat brought a Motion for Summary Judgment on December 22, 2016, alleging a lack of product identification and insufficient causal connection. The Plaintiff later filed an objection to Evenheat's Motion for Summary Judgment on May 22, 2017. Evenheat responded to Plaintiff's objection on August 31, 2017 and filed an accompanying motion to strike Plaintiff's daughter's affidavit-completed on May 10, 2017 by Faith Belac Cope (Belac Cope)-under the "sham affidavit" doctrine. Oral arguments on the summary judgment motion were scheduled and heard on September 6, 2017.
Shortly after Plaintiff filed her initial Complaint, several defendants filed motions to dismiss alleging lack of personal jurisdiction in Rhode Island. On March 28, 2017, pursuant to Super. R. Civ. P. 41(a)(2), the Plaintiff filed a voluntary motion to dismiss all remaining defendants, including both Defendants in the current matter. This Court granted Plaintiff's motion with respect to all defendants except Evenheat and Sargent Art-finding that a dismissal to all named defendants would cause them prejudice.
B
Defendant Sargent Art
Sargent Art, a craft product company, also did not contest jurisdiction in Rhode Island and filed a Motion for Summary Judgment in this matter on January 10, 2017. Sargent Art contends that the record is absent evidence showing Plaintiff worked with its products. Therefore, it asserts that the Plaintiff has not met her burden regarding adequate product identification and causal connection evidence. Sargent Art filed an objection to Plaintiff's voluntary motion for dismissal on March 30, 2017. Following the denial of her motion, the Plaintiff filed an objection to Sargent Art's Motion for Summary Judgment on May 22, 2017. As with Evenheat's oral arguments, oral arguments on Sargent Art's Motion for Summary Judgment were scheduled and heard on September 6, 2017.
II
Parties' Arguments
Evenheat maintains that the Plaintiff has failed to provide any product identification evidence or evidence demonstrating a causal connection between Plaintiff's illness and its products. Evenheat further contends that the affidavit submitted by Plaintiff's daughter, Belac Cope, should be struck pursuant to the "sham affidavit" doctrine. In support of this argument, Evenheat asserts that the Belac Cope affidavit contradicts Plaintiff's deposition testimony and provides no explanation for the contradiction. In response, Plaintiff contends that she has presented material facts identifying Evenheat and showing a causal connection to the Plaintiff's illness. Moreover, Plaintiff argues that she intends to produce additional evidence of her use of Evenheat's products as the discovery process moves forward. She further asserts that a finding for Evenheat here is improper because the evidence produced has created a question of material fact best left for the jury's determination.
Belac Cope has submitted two affidavits in this matter. Each affidavit concerns one of the current Defendants. While Sargent Art has not submitted a motion contesting the legitimacy of Belac Cope's affidavit concerning her mother's use of its products, this Court shall use the same "sham affidavit" analysis to examine that affidavit, as well.
In its Motion for Summary Judgment, Sargent Art simply contends that Plaintiff has failed to show any evidence indicating that Plaintiff has identified its products or demonstrating a causal connection. Specifically, Sargent Art argues in its Memorandum that "Plaintiff has produced no evidence showing that the Plaintiff worked with, or in close proximity to, asbestos-containing products sold, distributed or installed by [Sargent Art]." Moreover, Sargent Art asserts that Plaintiff has not produced any evidence establishing a causal relationship between its products and her illness.
Plaintiff argues in response that-through her deposition testimony and the Belac Cope affidavit-she has met her initial burden regarding product identification and causal connection evidence. Furthermore, Plaintiff argues that she intends to produce supplemental evidence of her use of Sargent Art's products as the discovery process moves forward. She again asserts that a finding for the Defendant is improper because the evidence produced has created a question of material fact best left to the factfinder.
III
Standard of Review
"[S]ummary judgment is an extreme remedy that warrants cautious application." Gardner v. Baird, 871 A.2d 949, 952 (R.I. 2005). Pursuant to Super. R. Civ. P. 56(c), "[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Delta Airlines, Inc. v. Neary, 785 A.2d 1123, 1126 (R.I. 2001). In a motion for summary judgment, "'[t]he moving party bears the initial burden of establishing the absence of a genuine issue of fact.'" McGovern v. Bank of Am., N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting Robert B. Kent et al., Rhode Island Civil Procedure § 56:5, VII-28 (West 2006)). However, "'[t]he burden then shifts [to] the nonmoving party [who] has an affirmative duty to demonstrate a genuine issue of fact.'" Id. (internal ellipsis omitted). The party opposing the motion for summary judgment "cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I. 1996). Thus, "by affidavits or otherwise [opposing parties] have an affirmative duty to set forth specific facts showing that there is a genuine issue of material fact." Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998).
When determining whether or not there is a genuine issue for trial "'[t]he judge's belief that one scenario is more probable than the other is not a legally sufficient reason to grant a motion for summary judgment.'" Takian v. Rafaelian, 53 A.3d 964, 975 (R.I. 2012) (quoting McPhillips v. Zayre Corp., 582 A.2d 747, 750 (R.I. 1990)). Rather, while the motion judge is free to "search for the existence of factual issues, he or she may not determine them nor may the trial justice assess the weight or the credibility of the evidence." Takian, 53 A.3d at 975 (internal quotations and ellipses omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether [she] is ruling on a motion for summary judgment or for a directed verdict.").
Accordingly, in order for a plaintiff to survive a defendant's motion for summary judgment as to a particular claim, the plaintiff must "produce evidence that would establish a prima facie case for [that] claim . . . ." DiBattista v. State, 808 A.2d 1081, 1089 (R.I. 2002). Conversely, summary judgment is granted when the plaintiff is unable to establish a prima facie case. Kelley v. Cowesett Hills Assocs., 768 A.2d 425, 430 (R.I. 2001). A judge's function when "considering a proposed summary-judgment motion is not to cull out the weak cases from the herd of lawsuits waiting to be tried." Mitchell v. Mitchell, 756 A.2d 179, 185 (R.I. 2000). "Rather, only if the case is legally dead on arrival should the court take the drastic step of administering last rites by granting summary judgment." Id.
IV
Analysis
A
Sham Affidavit Doctrine
The Plaintiff has presented two affidavits to support her objections to the Defendants' Motions for Summary Judgment. Evenheat asserts that this Court should strike the affidavits of Belac Cope pursuant to the "sham affidavit" doctrine. Evenheat alleges that the affidavit contradicts Plaintiff's unambiguous deposition testimony regarding the number of kilns and the brands of kilns that the Plaintiff used throughout her lifetime. Moreover, Evenheat asserts that the Plaintiff provides no explanation for the alleged discrepancies between the affidavit and the deposition testimony.
The Belac Cope affidavits were completed on May 10, 2017 and filed on May 22, 2017. With regard to Evenheat, Belac Cope states that her mother used an Evenheat kiln "from about 1960 to 1962 and thereafter." (Belac Cope Aff. as to Evenheat ¶ 4.) Additionally, her affidavit states that the Plaintiff "would clean the kiln" by scraping the inside of the unit and using the recommended kiln wash "on a daily basis for several years." (Belac Cope Aff. as to Evenheat ¶¶ 5-6.) With regard to Sargent Art, Belac Cope states that her mother "use[d] many products manufactured by Sargent Art, including, but not limited to dye, clays and paints . . . ." (Belac Cope Aff. as to Sargent Art ¶ 3). Conversely, both Evenheat and Sargent Art assert that they have never manufactured asbestos-containing products. Further, they argue that because Plaintiff did not specifically identify either Evenheat or Sargent Art during her six-day deposition, she has not provided the requisite product identification and causal connection evidence necessary to proceed. Plaintiff disagrees, stating that she has provided both product identification and causal connection evidence. Plaintiff contends that she has provided adequate product identification and causal connection evidence at this stage of the proceeding through her deposition testimony and the Belac Cope affidavits.
The Rhode Island Supreme Court has never addressed the issue of sham affidavits. Where Rhode Island Courts are silent and the underlying law is substantially similar, this Court has looked to the Commonwealth of Massachusetts and Federal case law for guidance. In re Asbestos Litigation, No. Civ.A. 01-0696, 2002 WL 1378959 (R.I. Super. June 20, 2002) (citing, with approval, Massachusetts and Federal cases where the law and its design are substantially similar to Rhode Island law). Pursuant to the "sham affidavit" doctrine, "'[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.'" A.J. Amer Agency, Inc. v. Astonish Results, LLC, 2014 WL 3496964, at *12 (D.R.I. July 11, 2014) (quoting Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994)). "This doctrine bars reliance on portions of an affidavit that are contradicted by the affiant's prior deposition testimony." A.J. Amer Agency, Inc., 2014 WL 3496964, at *12 (emphasis added); see also Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir. 2009) (explaining that the sham affidavit rule does not necessarily apply when contradictory testimony comes from another witness); Bonilla v. Electrolizing, Inc., 607 F.Supp.2d 307, 311 n.3 (D.R.I. 2009) (declining to invoke the sham affidavit rule when inconsistency is not based on affiant's deposition testimony).
Belac Cope has not been subject to a deposition in this matter; consequently, her affidavit cannot be said to contradict her own testimony. See A.J. Amer Agency, Inc., 2014 WL 3496964, at *12. While Belac Cope's testimony may be deserving of further scrutiny, it is not within this Court's purview to "assess the weight or the credibility of the evidence." Takian, 53 A.3d at 975; Anderson, 477 U.S. at 255. Therefore, this Court declines to strike Belac Cope's affidavit under the "sham affidavit" doctrine, thus saving a determination of this witness's credibility for the fact-finder. Takian, 53 A.3d at 975; Anderson, 477 U.S. at 255.
B
Product Identification
The Defendants contend that there are no genuine issues of material fact and that the Plaintiff has provided no product identification evidence with respect to each of the Defendants. To survive summary judgment, Defendants explain, the Plaintiff must provide some evidence linking her alleged asbestos exposure to products manufactured by the Defendants as a prima facie element of the Plaintiff's case. Alternatively, Plaintiff contends that she has provided adequate product identification evidence with regard to both Evenheat and Sargent Art. Plaintiff presents nearly identical arguments in response to both Defendants' Motions for Summary Judgment. With regard to Evenheat, Plaintiff argues that her deposition testimony provides that she owned a number of kilns throughout her lifetime and that Belac Cope's affidavit specifically identifies Evenheat as one of the kilns used by Plaintiff. Similarly, Plaintiff contends that her deposition testimony clearly articulates that she purchased and used a variety of paints and clays throughout her career. Plaintiff also cites to Belac Cope's affidavit which specifically identifies Sargent Art as one of the brands used by Plaintiff.
This Court looks to Massachusetts case law on product identification to determine how a plaintiff may satisfy his or her burden of establishing a prima facie case at the summary judgment stage. See In re Asbestos Litigation, 2002 WL 1378959. In Welch v. Keene Corp., the Massachusetts Court of Appeals identified several ways in which a plaintiff might sufficiently allege contact with a defendant's asbestos-containing products. 575 N.E.2d 766, 769 (Mass. App. Ct. 1991). The framework analysis provided in Welch states that "[i]t is enough . . . to reach the jury that [the plaintiff] show that he worked with, or in close proximity to, defendants' asbestos products." Id. Moreover, "[a] plaintiff may also demonstrate exposure to a specific product through testimony of coworkers who can identify him as working with or around these products." Id. Thus, "the Welch list provide[s] guidance as to the types of materials with which a plaintiff claiming an asbestos-related injury can meet his or her burden of product identification at the summary judgment stage." In re Asbestos Litigation, 2002 WL 1378959, at *3.
In the case at bar, the Plaintiff did not specifically identify either Evenheat or Sargent Art during her deposition testimony. With regard to Evenheat, the Plaintiff did state that she has owned "at least seven kilns" throughout her lifetime. (Pl. Dep. Vol. I: 113:17-18.) She identified a number of kiln manufacturers specifically, but-throughout her deposition-she also refers to kilns that she owned without providing a brand name or description of the kiln. See id. at 114-20. However, the affidavit provided by the Plaintiff's daughter and co-worker, Belac Cope, specifically states that "Evenheat was one of the kilns [the Plaintiff] used" on a daily basis from 1960 to 1962. (Belac Cope Aff. as to Evenheat ¶ 4.)
Regarding Sargent Art, throughout her deposition testimony, Plaintiff generally discusses owning paints and clays over the course of her career. In particular, she discusses using interior house paint on her ceramics and purchasing craft supplies from Michael's craft store. See Pl. Dep. Vol. I: 135:12-24, 136:1-4; Vol. III: 447-448, 529. Again, Plaintiff also supplies an affidavit from her daughter and co-worker, Belac Cope, who states that she witnessed her mother "use many products manufactured by Sargent Art" while working in their home. (Belac Cope Aff. as to Sargent Art ¶ 3.)
Applying the factors outlined in Welch, this Court finds that the Plaintiff has alleged sufficient product identification and causal evidence with regard to each Defendant. See 575 N.E.2d at 769. Through her deposition testimony and Belac Cope's affidavit, Plaintiff has sufficiently alleged a specific period of exposure and the proximity and frequency of that exposure. Id. Accordingly, this Court finds that genuine issues of material fact exist regarding product identification, exposure, and causal connection for a jury's consideration. See Takian, 53 A.3d at 975; Anderson, 477 U.S. at 255.
V.
Conclusion
For the reasons stated herein, this Court finds that the Plaintiff has provided sufficient evidence demonstrating a genuine issue of material fact to survive summary judgment. Therefore, the Defendants' Motions for Summary Judgment are denied. This Court further declines to apply the "sham affidavit" doctrine here. Therefore, Defendant Evenheat's motion to strike is also denied. Counsel shall submit the appropriate order for entry.