Summary Judgment Reversed in Finding Co-Worker Testimony Personal Knowledge, Not Hearsay Court of Appeals of Ohio, Ninth District, Summit County, May 31, 2017

Plaintiff Ruth Williams filed suit against multiple defendants, including Akron Gasket, as a result of her late husband’s development of mesothelioma. Specifically, the plaintiff alleged that Mr. Williams was exposed to asbestos tape made by Akron while working at PPG Industries and Goodyear Tire and Rubber. Summary judgment was granted in favor of Akron. The plaintiff appealed, arguing that the trial court erred in finding that co-worker testimony was hearsay and that medical causation could not be proven.

The court began its analysis by reminding of the standard for summary judgment. Summary judgment is appropriate when 1) there is no material issue of fact in dispute 2) the movant is entitled to summary judgment and 3) viewing the evidence most strongly in favor of the non-moving party, the reasonable person would conclude the moving party is entitled to summary judgment. Of course, the burden falls upon the moving party. As for an asbestos case, the plaintiff has the burden to prove exposure to asbestos “that was manufactured, supplied, installed, or used by the defendant and that the product was a substantial contributing factor in causing the plaintiff’s injury.” Here,  the plaintiff took the position that the trial court erred in deciding the testimony of Mr. Williams’ co-worker was not based on personal knowledge and was therefore hearsay. Reviewing the case de novo, the court noted that the evidence showed a different picture. Specifically, the co-worker testimony demonstrated a dispute as to material issue of fact as to whether Akron Gasket supplied Goodyear with asbestos containing tape. The trial court found that the co-worker’s knowledge was based on what had been relayed to him by his supervisors. The court disagreed that that was the source of his knowledge. Rather, his knowledge was based on his own recollection of the company’s name being stamped on the tape. Akron argued that the co-worker’s testimony on “common knowledge” as to asbestos containing products was hearsay. The court disagreed and pointed out that without meeting its evidentiary burden, this argument creates the very issue of fact in dispute. Hence the reason summary judgment should not have been granted.

The plaintiff also argued that the trial court should not have denied summary judgment on a finding that the plaintiff could not sustain her burden as to substantial factor. The trial court did not consider her experts’ affidavits on causation. The trial court reached this conclusion since it had decided the plaintiff could not meet substantial factor through the co-worker’s testimony. The court noted that because that decision was “built upon the court excluding the co-worker’s testimony” the issue on causation was also made in error. The court declined to review the third asserted error on the issue of weighing the evidence in a light most favorable to the plaintiff. Accordingly the court reversed and remanded.

Read the full decision here.


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