Wife’s Testimony on Decedent’s Use of Brake Product and Expert Causation Testimony Held Sufficient to Defeat Summary Judgment

In this federal court case, decedent Richard Bell alleged exposure to asbestos while performing car maintenance from 1964 through the late 1970s. Defendant Honeywell, as successor of Bendix, moved for summary judgment, arguing that the decedent’s wife’s deposition testimony that the decedent used Bendix brakes with the word “asbestos” on the packaging was hearsay; that the testimony could not be used against it to oppose summary judgment since it was taken prior to Honeywell becoming a party; and that the plaintiff failed to show the exposure was a substantial factor in causing the decedent’s asbestosis and lung cancer.

The court denied the motion. On the hearsay issue, the court held that the decedent’s wife’s testimony “…is not a ‘statement’ as defined by the hearsay rule. Her testimony recounts her memory of her husband and his actions based on her own recollection, rather than an inadmissible hearsay ‘statement.’ Under the Federal Rules of Evidence, a witness is allowed to testify to matters of which she has personal knowledge. See Fed. R. Evid. 602. Here, Plaintiff is a witness who has personal knowledge that the Decedent used Bendix brakes.” The court also allowed the testimony as discovery was still open when Honeywell was brought into the action, stating: “Courts in similar situations have held that depositions taken prior to joinder of a party can be considered affidavits for summary judgment purposes.”

On the causation issue, the court reviewed testimony of the plaintiff’s expert, Dr. Vuskovich, and found it to be “consistent with the differential etiology methodology recognized as reliable by the Seventh Circuit because he considered other causal factors — specifically, the causal effect of cigarette smoking. He opined that it is not possible to determine a threshold for exposure and asbestosis and that ‘every exposure’ to asbestos is ‘non-trivial’ in asbestosis. Additionally, he concluded that occupational asbestos exposure and asbestosis caused and significantly contributed to Decedent’s lung cancer.” The court also found that the “frequency, regularity, and proximity test” was satisfied from the evidence of the multiple brake jobs the plaintiff did and from the expert testimony of Jerome Spear that “…Decedent was likely exposed to asbestos above ‘historical’ and ‘current standards, while using Bendix brakes.”

Read the full decision here.