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Heaton v. Ford Motor Co.

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 7, 2017

PAUL HEATON, INDIVIDUALLY PLAINTIFF-APPELLANT
v.
FORD MOTOR COMPANY, ET AL. DEFENDANTS-APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-11-759955

          ATTORNEY FOR APPELLANT John D. Mismas

          ATTORNEYS FOR APPELLEE Susan M. Audey Jeffrey A. Healy Jeffrey M. Whitesell

          BEFORE: Keough, A.J., McCormack, J., and Stewart, J.

          JUDGMENT

          KATHLEEN ANN KEOUGH, A.J.

         {¶1} Plaintiff-appellant, Paul Heaton, individually and as executor of the Estate of Robert Brawley, appeals the trial court's decision granting summary judgment in favor of defendant-appellee, McCord Corporation. For the reasons that follow, we affirm.

         {¶2} In July 2011, Heaton filed a complaint against numerous defendants, including Honeywell International, Inc. and McCord. The complaint alleged various causes of action, including claims of strict products liability, negligence, supplier liability, failure to warn, and breach of warranties. The complaint related to Brawley's exposure to asbestos that caused his mesothelioma and eventual death. As to McCord, it was alleged that Brawley was exposed to asbestos while performing automotive repair and maintenance work as a shade-tree mechanic using McCord gaskets from the 1970s to 2010. It was alleged that this exposure was a substantial factor in Brawley's death.

         {¶3} In support of his claim against McCord, Heaton presented the deposition testimony of Michael Victor, a friend of Brawley's who worked on automobiles with him from 1974 to 2010. Victor was the only witness identified by Heaton who could identify Brawley's use of McCord gaskets. Victor was deposed over a period of three days in February 2012, and he identified automobiles that Brawley worked on where he may have used McCord gaskets. During the first day of deposition on February 20, Victor denied any knowledge of Brawley's exposure to asbestos from any home-repair products prior to 2010. On the second day of deposition on February 27, when counsel for Honeywell attempted to inquire into potential alternative asbestos exposures, i.e. Brawley's use of drywall compound products in the 1970s or 1980s that may have contained asbestos, Heaton's attorney instructed Brawley not to answer the question because, according to counsel, Victor already testified about this on the first day of deposition. During this exchange, it was discovered that Victor was now represented by Heaton's counsel for his own asbestos-related claims. Five months after the deposition, Victor passed away.

         {¶4} Unbeknownst to any of the defendants, Victor had executed an affidavit, notarized by counsel, on March 30, 2012, less than a month after his deposition, that averred that Brawley used the very drywall products - USG joint compound - that Honeywell's counsel attempted to ask Victor about but was prevented from doing so. The defendants to this lawsuit did not learn about the affidavit until a year later in July 2013, when it was used as support for a bankruptcy trust claim against USG. The defendants later learned that Victor executed a second affidavit in March 2012, averring that Brawley also used Gold Bond joint compound products, which was likewise used to support a bankruptcy trust claim. These affidavits were in direct contradiction to Heaton's February 3, 2012 written discovery responses, specifically Interrogatory Number 38:

State whether decedent was exposed to asbestos or asbestos containing products which were manufactured, sold, produced, prepared, or distributed by an entity not named as a defendant in this lawsuit. If so[, ] identify the manufacturer, the products and the dates of exposure.
ANSWER: Unknown

         {¶5} In September 2012, McCord, prior to the undisclosed affidavits being revealed, moved for summary judgment contending that Victor's testimony given at his deposition about Brawley's use of McCord gaskets was mere speculation. The trial court denied the motion recognizing that Heaton offered the "deposition testimonies of Victor, who at times worked on automobiles with [Brawley], " which was sufficient evidence to create a question of fact "whether [McCord's] gaskets were a substantial factor causing [Brawley's] mesothelioma."

         {¶6} On September 18, 2015, Honeywell filed a motion in limine, requesting the exclusion of and any reference to Victor's deposition testimony at trial. The motion was filed because Heaton did not supplement his discovery responses pursuant to Civ.R. 26(E) with the Victor affidavits or the additional information that Heaton was aware of evidence regarding Brawley's exposure to other nonparties' asbestos-containing products. Honeywell maintained that it was not afforded the opportunity to develop pertinent testimony on cross-examination due to counsel's instruction to Victor to not answer the question. It stated that the obstruction became more egregious when counsel later gained knowledge that Victor did in fact have information pertaining to drywall work that involved the use of asbestos-containing joint compound, yet the information was not provided to the defendants. Finally, Honeywell claimed that Victor's passing after the information was available prevented the defendants from cross-examining Victor or the opportunity to develop their affirmative defense of alternative exposure theory.

         {¶7} McCord subsequently joined in Honeywell's motion and also filed its own separate motion seeking exclusion of Victor's testimony. According to McCord, Victor's testimony identifying that Brawley used McCord gaskets during automotive repair was speculative, not based on personal knowledge, and would cause confusion to the jury.

         {¶8} Heaton opposed the motion, contending that the motion in limine was procedurally flawed because it should have been a request for sanctions pursuant to Civ.R. 37. Nevertheless, Heaton argued that no prejudice occurred to the defendants because the affidavit could be used at trial to discredit Victor, but excluding Victor's deposition testimony would be severely prejudicial to plaintiffs case. Heaton characterized the potential exclusion as being "the death penalty" to his case against McCord. In addition to its opposition to exclusion and as a compromise, Heaton offered stipulations of fact about Victor's testimony and Brawley's use of USG and Gold Bond All-Purpose joint compound. The stipulations included that the use of both joint compounds "was a significant exposure to asbestos which would [sic] was a substantial factor in causing his disease." Heaton's counsel emphatically maintained that the lack of disclosure was done in error, not done willfully or in bad faith, and any sanction imposed should be against him, and not his client. Finally, Heaton argued that the defendants could have, but chose not to, filed a motion to compel the testimony or called the court for instruction on whether Victor should be compelled to answer the questions that plaintiffs counsel prevented.

         {¶9} On October 2, 2015, at the oral hearing on the joint motions, Heaton's counsel reiterated the arguments made in his brief in opposition and maintained that any sanction should be levied against him personally, rather than excluding the evidence.

         The defendants applauded counsel's willingness to accept any sanction, but maintained that the prejudice to the defendants could not be cured with a sanction against the attorney. The trial court agreed. The court noted that it attempted to determine a less drastic remedy, but based on his experience presiding over asbestos litigation, apportionment of liability under the circumstances could be problematic. Therefore, after considering the relevant case law regarding discovery violations, weighing the relevant factors, and comparing the circumstances of the case to other cases that the trial judge presided over, the court orally ruled that Victor's deposition testimony would be excluded at trial.

         {¶10} Following the court's decision, McCord again moved for summary judgment contending that with the exclusion of Victor's testimony, no evidence existed to support Heaton's claim that Brawley was ever exposed to any asbestos-containing product manufactured or sold by McCord. Accordingly, McCord maintained that no genuine issue of material fact exists and it is entitled to judgment as a matter of law.

         {¶11} While McCord's summary judgment was pending, Heaton moved to reopen discovery for the purposes of the parties to depose Brawley's brother-in-law, Roy Heaton ("Roy). According to Heaton, Roy could testify about the drywall work that Brawley and Victor performed in 1971 and 1972. The purpose for this testimony was to cure any prejudice that the nondisclosure of the Victor affidavits caused, thus remedying the error. Additionally, Heaton asked for reconsideration of the trial court's exclusion order due to Roy's testimony. McCord opposed both motions contending that Roy was not a newly discovered witness with new information, and he was never named as a product-identification witness. McCord pointed out that Heaton testified at his own deposition about the work Brawley performed with and for Roy, and none of it pertained to home remodeling, only automotive and agricultural repair.

         {¶12} Following a February 22, 2016 hearing on Heaton's motion for reconsideration, the trial court issued a written opinion denying the request. In the opinion, the court found and concluded that Heaton failed to meet his burden on reconsideration. The court noted that the failure to timely disclose the Victor affidavits following counsel's prevention of Victor from testifying at deposition could not be cured by any stipulation or new facts.

         {¶13}On April 13, 2016, the court conducted a hearing on McCord's motion for summary judgment. During the hearing, Heaton again asked the court to reconsider its prior exclusion order and the denial of reconsideration because without Victor's deposition testimony, no evidence existed regarding Brawley's use of McCord's gaskets. The trial court summarily granted McCord's motion. At the request of Heaton, the trial court included Civ.R. 54(B) certification to this order, declaring no just reason for delay.

         {¶14} Heaton now appeals, raising three assignments of error.

         {¶15} This case revolves around the exclusion of Victor's deposition testimony, which is not disputed by the parties. What is disputed is the scope of the appeal and whether the court erred in granting summary judgment in favor of McCord based on the court's decision excluding the testimony.

         I. Scope of the Appeal

         {¶16} McCord filed a motion to limit the scope of the appeal, contending that the only order properly before this court is the trial court's decision granting summary judgment in its favor. According to McCord, any challenge to the underlying "Victor orders" - the orders excluding Victor's deposition testimony and the denial of reconsideration - are improper, untimely, and are not reviewable because those decisions affect defendants that are not parties to the appeal. Therefore, McCord asks this court to limit the scope of the appeal to only review the summarily decided second motion for summary ...


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