Plaintiffs Stephen and Marilyn Charlevoix brought this asbestos-related action against various defendants, including Fiat Allis North America, on July 10, 2015, in the Delaware Supreme Court. They alleged that Stephen Charlevoix developed mesothelioma as a result of naval and occupational exposure to asbestos between 1961 and 1978. During this time, Charlevoix worked as boiler tender, maintenance worker, and equipment installer. Charlevoix also ran his own logging business from the late 1960s up until the filing of the lawsuit at issue. The case was removed to the U.S. District Court for the District of Delaware on August 21, 2015.
Mr. Charlevoix’s deposition was conducted on December 15, 2015 and additional co-workers were deposed on May 24, 2016 and May 26, 2016. During Mr. Charlevoix’s deposition, he identified Fiat as the manufacturer of a front-end loader vehicle, which he used in the operation of his logging business. However, further testimony regarding this vehicle, including any asbestos-containing components was limited. Co-worker testimony also did not identify Fiat with any asbestos containing products.
Fiat moved for summary judgment on September 30, 2016. The plaintiff failed to oppose the motion and on January 9, 2017, Fiat further sought dismissal from the court in light of the plaintiffs’ non-response.
In addressing this motion, the court first noted that a plaintiff’s failure to respond is not alone a sufficient basis for the entry of a summary judgment. Even where a party does not file a responsive submission to oppose the motion, the court must still find that the undisputed facts warrant judgment as a matter of law. In other words, the court must still determine whether the unopposed motion for summary judgment has been properly made and supported.
In the case at bar, as a federal court sitting in diversity is required to apply substantive law of the state whose laws govern the action, both parties agreed that Michigan substantive law applied to all land-based claims, which included those against Fiat. Under Michigan law, a plaintiff must establish that a particular defendant’s conduct was a substantial factor in causing the plaintiffs injury. The frequency and intensity of exposure to asbestos-containing products, in the scope of the entire work history, should be considered in determining whether the defendant’s conduct was a substantial contributing factor. Moreover, the plaintiff must show the manufacturer’s asbestos product was used at the specific site within the workplace where the plaintiff worked. It is not enough for the plaintiff to show that the defendant’s product was present somewhere at his workplace.
After reviewing all the evidence, the court recommended granting Fiat’s motion for summary judgment. Although Mr. Charlevoix testified that he owned a Fiat vehicle, the following evidence was not sufficient to establish a genuine issue of material fact as to whether Mr. Charlevoix was exposed to an asbestos-containing product made by Fiat:
- Mr. Charlevoix testified that he had the engine overhauled in the vehicle, in which he removed and reinstalled the engine;
- Mr. Charlevoix did not testify that he was exposed to any asbestos in the course of that work;
- Co-worker testified that gaskets had to be removed during the engine overhaul process, and that Mr. Charlevoix was present during the removal;
- Co-worker did not know who manufactured the gaskets that were removed or who manufactured the gaskets that were installed; and
- Co-worker did not know the composition of the gaskets and could not say if they contained any asbestos.
Therefore, the deposition testimony of Mr. Charlevoix and Mr. Milligan failed to create a material issue of fact as to whether, under Michigan law, Fiat’s products were a substantial contributing factor to Mr. Charlevoix’s injury. Summary judgment was granted.