Summary Judgment Denied to Asbestos Clothing Manufacturer Based on Plaintiff ‘s Contradictory Affidavit United States District Court, N.D. Ohio, Eastern Division, March 12, 2019

OHIO –The plaintiff Donald MacLachlan brought suit against several defendants including American Optical (AO) alleging he developed mesothelioma as a result of exposure to asbestos while working at the Weirton Steel plant from 1971-2008. He was deposed in 2015 and also alleged exposure to steam turbines manufactured by General Electric. As for AO, The plaintiff testified that he wore asbestos containing thermal gloves and coats manufactured by that defendant beginning in 1979 while working as a cast house helper. The plaintiff was adamant that the coat and mittens contained asbestos. Further, the plaintiff stated that he recalled seeing AO in large block letters “on the back of the coat up there on the collar.” He received a new coat every few years while working at Weirton.  AO moved for summary judgment arguing that it made asbestos containing clothing but nothing related to the plaintiff’s description. AO’s president compared the product line and stated that AO did not place its logo on the outside of the clothing. The plaintiff submitted an affidavit stating that he testified to the best of his ability and is now able to identify the clothing he wore.

The court reminded the standard for summary judgment and stated that summary judgment is appropriate when there is no genuine issue of material fact in dispute. Specifically, AO contends that the plaintiff failed to “present evidence of exposure” to AO’s products. Further, AO argues that the plaintiff’s affidavit should be struck as a sham since it contradicted his original testimony. The court noted that the plaintiff testified he was positive he wore AO’s coat and mittens. The court also pointed out that AO conceded it made asbestos containing protective clothing. As for the affidavit, the court agreed that it “materially altered” his original testimony. However, that fact did not necessarily require that the court strike the affidavit. Here, the plaintiff was suffering from mesothelioma and was shown a catalog that he did not have at the time of his original testimony according to the court. The contradiction was therefore explainable. In sum, the plaintiff sufficient enough evidence to survive summary judgment according to the court.

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