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Hart v. Honeywell International

United States District Court, N.D. Ohio, Eastern Division

April 4, 2017



          Donald C. Nugent United States District Judge.

         This matter is before the Court on multiple motions for summary judgment: (1) Motion for summary judgment (partial) on Plaintiffs' Common Law Product Liability Claims, filed by Ford Motor Company (ECF #78); (2) Motion for Summary Judgment on Plaintiffs' Statutory Product Liability Claims for Compensatory Damages, filed by Ford Motor Company (ECF #79); (3) Motion for Summary Judgment, filed by Genuine Parts Company (ECF #81); (4) Motion for Partial Summary Judgment on Plaintiffs' Claim for Punitive Damages, filed by Ford Motor Company (ECF #83); (5) Motion for Summary Judgment, filed by Honeywell International, Inc. (ECF #84); and, (6) Motion for Summary Judgment, filed by Pneumo Abex, LLC (ECF #85). Ford has also filed a Motion for Sanctions. (ECF#80). Plaintiffs have responded to each motion, except the Motion for Partial Summary Judgment on Plaintiffs' Common Law Product Liability Claims (ECF #78), and Defendants have filed replies in support of their motions. (ECF # 89, 91, 92, 94, 95, 97, 98, 99, 100, 102, 103). Oral argument was held on October 27, 2016, at the end of which, the Court permitted the parties to file any supplemental information they wanted to have considered in the final ruling. Pneumo Abex, LLC was the only party to file a Supplemental Brief. (ECF #111). The issues are now fully briefed and the motions are ready for disposition.


         Plaintiff, Gail Hart, is the executor of the Estate of decedent Alva Coykendall. The Complaint alleges that Mr. Coykendall worked with a substantial amount of asbestos-containing brake and clutch friction materials manufactured and sold by the Defendants. He testified during his deposition that he did work as an uncertified mechanic from approximately 1972 through 2014. During that time, he testified that he performed work on brakes and clutches, among other things. He estimated that he performed thousands of brake changes, and was also exposed to brake dust when working on vehicles that did not require a full brake change. He also testified that he may have changed clutches on vehicles between one hundred and twenty and one thousand times. He believes that this work exposed him to asbestos fibers throughout the course of his career as a mechanic. In July of 2014, Mr. Coykendall was diagnosed with malignant mesothelioma. Eight months later, at the age of fifty-four, Mr. Coykendall passed away.

         The parties disagree as to whether Mr. Coykendall's exposure to asbestos from automotive friction parts (brakes and clutches) caused Mr. Coykendall's specific type of mesothelioma; whether he had more than de minimus exposure to each Defendant's product; whether certain defendants had provided adequate warnings on their asbestos-containing products; and, whether he was, in fact, actually exposed to causally significant levels of asbestos containing dust.

         Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The burden of showing the absence of any such “genuine issue” rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing prior Fed.R.Civ.P. 56(c)). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards. The court will view the summary judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence presented is “merely colorable” and not “significantly probative, ” the court may decide the legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most civil cases involving summary judgment, the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).

         Once the moving party has satisfied its burden of proof, the burden then shifts to the non-mover. The non-moving party may not simply rely on its pleadings, but must “produce evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995). A party asserting that a fact is genuinely disputed must cite “to particular parts of materials in the record” or show “that the [admissible] materials cited [by the other party] do not establish the absence or presence of a genuine dispute.” Fed.R.Civ.P. 56(c).

Fed. R. Civ. P. 56(e) states:
If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion; [or] grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it. . .

         Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred with the Ninth Circuit that “‘it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'” Wiley v. United States, 20 F.3d 222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Fed.R.Civ.P. 56(c) also has certain, more specific requirements:

An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

         However, evidence not meeting this standard may be considered by the district court unless the opposing party affirmatively raises the issue of the defect.

If a party fails to object before the district court to the affidavits or evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court's consideration of such materials are deemed to have been waived, and [the Sixth Circuit] will review such objections only to avoid a gross miscarriage of justice.

Wiley at 226 (citations omitted).

         As a general matter, the district judge considering a motion for summary judgment is to examine “[o]nly disputes over facts that might affect the outcome of the suit under governing law.” Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it weigh material evidence to determine the truth of the matter. Id. at 249. The judge's sole function is to determine whether there is a genuine factual issue for trial; this does not exist unless “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id.

         In sum, proper summary judgment analysis 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.” Anderson, 477 U.S. at 250.


         I. Common Law Claims

         Plaintiffs' first, second, third, fourth, seventh, and ninth causes of action assert common law theories of recovery. The Defendants seek dismissal of these claims because Ohio's Product Liability Act, O.R.C. 2307.71, et seq., expressly eliminated these common law claims: “Sections 2307.71 to 2307.80 of the Revised Code are intended to abrogate all common law product liability claims or causes of action.” O.R.C. 2307.71(B). This express abrogation of common law product liability claims has been consistently recognized by the Ohio courts since 2008, when the abrogation amendment to the Ohio Product Liability Act went into effect. See, e.g., Doty v. Gellhauer Elec., Inc., 888 N.E.2d 1138, 1142 (Ohio Ct. App. 2008); Jones v. Walker Mfg. Co., No. 97301, 2012 WL 1142889, *4 (Ohio Ct. App. Apr. 5, 2012). The Plaintiffs do not contest that these claims are no longer viable under Ohio law. They did not oppose Defendants' request for summary judgment on these counts[2] and, in fact, expressly conceded this issue at oral argument. The claims raised under Counts One, Two, Three, Four, Seven, and Nine of Plaintiffs' Amended Complaint are, therefore, dismissed.

         II. Failure to Warn

         A claim for failure to warn arises under Ohio Revised Code §2307.76(A)(1), which states that a product is “defective due to inadequate warning or instruction at the time of marketing if, when it left control of the manufacturer, both of the following applied:

(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;
(b) The manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of the harm.

         A plaintiff asserting a claim under this section of the Ohio Product Liability Act must establish that the failure or inadequacy of the warning was the proximate cause of his or her injury. O.R.C. § 2307.73(A)(2). The standard for establishing causation is that the alleged harm would not have occurred but for the defendant's conduct. Conversely, if the harm would have occurred regardless of whether the defendant did or did not provide an adequate warning, there is not sufficient causation to hold the defendant liable under this theory. See, Anderson v. St. Francis-St. George Hosp., Inc., 671 N.E.2d 225, 227 (Ohio 1996)(“the defendant's conduct is not the cause of the event (or harm) if the event (or harm) would have occurred regardless of the conduct.”). A failure to provide any warning creates a rebuttable presumption of causation in failure to warn cases. A defendant may rebut this presumption with affirmative evidence that a plaintiff either did not read a warning that was provided, or would not have ...

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