Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
KATHLEEN ANN KEOUGH, A.J.
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.
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.
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.
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.
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."
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.
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.
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.
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
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.
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.
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.
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.
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.
Heaton now appeals, raising three assignments of error.
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.
Scope of the Appeal
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 ...