Gasket Manufacturer’s Summary Judgment Affirmed Where Plaintiff Failed to Timely Disclose Exposure Affidavits of Fact Witness Court of Appeals of Ohio, Eighth District, Cuyahoga County, September 7, 2017

Plaintiff Paul Heaton sued multiple defendants including an automotive gasket manufacturer and Honeywell International alleging his decedent, Robert Brawley, developed mesothelioma for which defendants were responsible.

Fact witness Michael Victor was deposed on Brawley’s use of the gasket manufacturer’s gaskets on shade tree mechanic work from 1974-2010. The deposition lasted three days. On day one of Victor’s deposition, he denied having any knowledge regarding Brawley’s work on home renovations. However, Honeywell probed on that issue later during the deposition. The plaintiff’s counsel refused to permit the witness to answer based on his prior answer concerning knowledge of home repair. A few months after the deposition, Victor passed away.

Remarkably, it was later learned that Victor had executed an affidavit that Brawley had in fact used the products that counsel for Honeywell had probed, i.e., joint compound. The affidavit averred that Brawley had used USG joint compound. Yet a second affidavit claiming that Brawley used Gold Bond joint compound was also signed by Mr. Victor but not learned about by the defendants until a year later. The affidavits were contra to the discovery responses signed by the plaintiff.

The gasket manufacturer moved for summary judgment, claiming that Victor’s testimony was speculative. Honeywell moved in limine seeking the exclusion of Victor’s testimony as the affidavits were not provided as supplemental discovery of which the plaintiff had knowledge. The gasket manufacturer also joined the in limine motion. The plaintiff opposed the motion stating that the omission was out of error rather than from intent. A hearing was held and the plaintiff’s counsel offered to have sanctions placed against himself. The trial court was not persuaded by the offer and ruled to bar Victor’s testimony. The gasket manufacturer quickly moved for summary judgment, arguing the plaintiff could not maintain his claim without the testimony.

The plaintiff then sought to reopen the discovery for the deposition of Brawley’s brother-in-law, Roy Heaton. The plaintiff stipulated that Roy Heaton would be able to testify about home renovation projects in an effort to fix the omission of the affidavits. The court denied the plaintiff’s request to reopen discovery and granted summary judgment in favor of the gasket manufacturer. The plaintiff then appealed.

On appeal, the gasket manufacturer argued that the scope of the appeal should be limited to the grant of summary judgment and should not include the issue of the trail court denial of the plaintiff’s motion for reconsideration or exclusion of Victor’s testimony.

The court began its analysis and stated that the grant of summary judgment was a final order and appealable. The court noted the lack of clarity when an order is final if it does not dispose of all defendants. As the order to exclude the testimony led to the grant of summary judgment for the gasket manufacturer and that order affected other defendants, the court would not limit the scope and concluded that the “merit” of the trial court orders would also be considered.

As for the striking of Victor’s testimony, the court noted the broad discretion conferred to the trial court. As the decision did not dismiss the remaining defendants, the court decided to review under the abuse of discretion standard. Although the plaintiff’s counsel vehemently stated that no intent to withhold the affidavits was present, the court stated that the effect of the omission is more important than intent. The plaintiff also argued the that trial court could have utilized other sanctions rather than excluding Victor’s testimony. However, the court pointed out that the trial court gave the parties an opportunity to compromise but warned that exclusion would be the result should agreement not be reached. Additionally, the plaintiff’s failure to supplement discovery with the affidavits took away “alternate exposures” especially against the backdrop of the witness’ failing health. Relying on Tiburzi, the plaintiff took exception that he had no violated any court order. According to the court, Tiburzi was misplaced because “no court order is required before a court can impose sanctions for failing to supplement or correct prior discovery responses.” Even though the plaintiff offered to stipulate with additional testimony from the brother in law, the trial court found the appropriate sanction according to the court.

The plaintiff also assigned error for the trial court’s denial of his motion for reconsideration. Specifically, the plaintiff argued that since alternate exposure was found, the effect of omitting the affidavits was less prejudicial to the gasket manufacturer. The court stated that review of this issue was also abuse of discretion. However, the court was not persuaded because Roy’s anticipated testimony was limited and general in nature whereas the affidavits were specific as to products. Accordingly, the record illustrated that nothing could substitute the striking of the testimony.

Summary judgment was therefore affirmed.

Read the full decision here.

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