KENTUCKY — Rojelio Surita brought this action against several defendants alleging his decedent, Nancy Surita, developed mesothelioma from exposure to asbestos containing products for which Defendants were liable. Nancy Surita gave deposition testimony stating that she assisted in brake jobs on the family farm while growing up in Illinois. She also recalled maintenance on vehicles while serving in the National Guard. Later she testified as to working on military trucks. Although she recalled Caterpillar as the manufacturer of the transmissions, she testified that she did not perform transmission work. As for the brakes, she was unable to recall the brands of the removed or replacement brakes. Caterpillar removed the case to the United States District Court. The defendants moved for summary judgment. The plaintiff filed no opposition.
The court reviewed the standard for summary judgment and stated that summary judgment “ is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Of course, the burden falls upon the party seeking summary judgment. And where a party fails to file an opposition, the moving party still must establish the plain language of the rule for summary judgment. The motions filed by the defendants all made the same argument that the plaintiff had failed to establish causation as there was nothing establishing that defendants’ products were a substantial factor in causing Ms. Surita’s mesothelioma. Certain defendants also moved for summary judgment as to the plaintiff’s claims on misrepresentation as moot. In analysis of the facts, the court concluded that the plaintiff must show that the “product of each defendant was a substantial factor in bringing about” the illness. Although the complaint made those allegations, the plaintiff did not illustrate how those products “probably caused” the illness. The court also noted that he did not file an opposition to establish the same. Relying on the Moeller case, the court analyzed another similar case whereby exposure to another product may have caused the plaintiff’s illness as opposed to establishing that the exposure “probably” caused the illness. From that case, the court noted the distinction between what may have caused and probably caused and concluded that the plaintiff had not established substantial factor as to any of the defendants. Accordingly, summary judgment was granted as to the moving the defendants. Further, the plaintiff’s claims for misrepresentation also failed as a derivative from lack of causation. Finally, the plaintiff’s count for punitive damages and loss of consortium were denied as moot.