DocketNumber: C.A. No. PC 07-4811
Judges: GIBNEY, P. J.
Filed Date: 5/9/2011
Status: Precedential
Modified Date: 7/6/2016
At his deposition, Mr. Brandt testified that he was exposed to asbestos through various products at a number of worksites between 1940 and 1993. His testimony indicates that from 1948 through 1952, Mr. Brandt was employed with the U.S. Army, where he worked as a heavy truck driver. As a truck driver, he worked with, or was around people who worked with, products including, but not limited to, clutches, brakes, drums, sanders, and gaskets. His exposure chart specifies Mack as a company producing trucks that Mr. Brandt recalled during this work. At his deposition, Mr. Brandt confirmed the accuracy of the exposure chart and indicated that he had made a change to the chart to ensure its accuracy.
Furthermore, Mr. Brandt testified that during his four years in the Army, he assisted in working on brakes in trucks. He continued by explaining that he did not work only on his own truck but also helped with an approximate total of six brake jobs. He additionally testified that he aided other co-workers or soldiers with mechanical work when his truck was broken down. Mr. Brandt conveyed that he assisted on clutch jobs on approximately two occasions. During this deposition, however, he did not explicitly identify Mack.
Mack now moves for summary judgment arguing that Plaintiff cannot meet her prima facie burden of product identification. Mack contends that Mr. Brandt's deposition testimony does not contain any assertions which identify its products; therefore, Mack argues that summary judgment is warranted. *Page 3
Although it need not disclose all of its evidence, the nonmoving party "`cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.'" Zanni,
In civil actions or proceedings, statements made by an unavailable witness are admissible as an exception to the hearsay rule because at the time of the statement, the witness believed "that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impending death." R.I.R. Evid. 804 (b)(2). This rule exists out of both necessity and "a belief that impending death induces a person to speak the truth." R.I.R. Evid. 804 (b)(2) Advisory Committee Note. To demonstrate that the declarant made statements under a belief of imminent death, a party may employ the declarant's express language or the surrounding circumstances. State v. Scholl,
In the instant matter, Mr. Brandt was suffering from end-stage malignant mesothelioma. At his deposition, Mr. Brandt testified that when his doctor diagnosed *Page 5 him with mesothelioma, that doctor also conveyed to Mr. Brandt that he had less than a year to live. (Brandt Deposition Testimony, Aug. 24, 2007, at 17.) Mr. Brandt also stated that he believed that he would not be alive much longer and that he feels like "everything's just shutting down."Id. at 17-18. He further testified that he was sworn under oath that morning when he reviewed and signed his exposure chart and that he had ensured its accuracy. Id. at 22. Moreover, he explained that he made a change to the exposure chart because the owner of a company was incorrectly listed. Id. at 22-23. Mr. Brandt died six days after this deposition.
Given these statements and the surrounding circumstances of Mr. Brandt's deposition, this Court finds that Mr. Brandt believed that he was facing imminent death as a result of his exposure to asbestos. See R.I.R. Evid. 804 (b)(2). At that time, six days before his death, he swore to the accuracy of the exposure chart and made a change to ensure its accuracy. Accordingly, that exposure chart, as sworn to on August 24, 2007, is admissible to identify Mack pursuant to R.I.R. Evid. 804 (b)(2) as a dying declaration.See Quackenbos v. American Optical Corp., No. PC 04-6504,
In asbestos litigation, a plaintiff must identify the defendant's asbestos product and then establish that the product was the proximate cause of his or her injury. Clift v. Vose Hardware,Inc.,
As Mack recognizes, this Court has previously looked toWelch v. Keene,
Thus, it is enough for Plaintiff, through Mr. Brandt's exposure chart, to show that "he worked with or in close proximity to, defendant's asbestos products." See id. As Mr. Brandt's exposure chart names Mack and his deposition testimony, albeit not explicitly identifying Mack, confirms the general context for that exposure, Plaintiff has shown sufficient evidence of identification to reach a jury. Therefore, after reviewing the material submitted by both parties in the light most favorable to the Plaintiff, this Court is satisfied that factual issues exist to warrant that this case proceed to trial.
Mack, however, argues that Defendant has failed to show that any exposure to asbestos from Mack products is de minimis and, therefore, summary judgment is appropriate. For this proposition, it relies on Morin v. AutoZone Ne., Inc.,
Similarly, in the instant matter, Mr. Brandt's primary job with the U.S. Army was not repairing brakes or clutches; rather, he was employed as a truck driver. Thus, he assisted in brake or clutch jobs on only approximately eight occasions during his four years in the U.S. Army. Nevertheless, Mack is not only identified in Mr. Brandt's exposure chart, but Mack has also admitted that it ceased using asbestos-containing product in its new trucks in 1991.See id. at 501 (citations omitted) (finding defendant company's admission that it carried asbestos-containing brake and clutch parts until some time in the 1980s to be persuasive and supporting a denial of judgment for one defendant). As a result of these distinctions, Mack's reliance on Morin for the proposition that Mr. Brandt's alleged exposure to asbestos from Mack products was insignificant is misplaced. As Plaintiff has presented Mr. Brandt's exposure chart and the potential for Mack trucks to have carried asbestos-containing products, she has established a triable issue of fact regarding Mr. Brandt's exposure to Mack asbestos-containing products.
Furthermore, questions of whether a product contains asbestos and whether a plaintiff was affected by any exposure to that product will not only involve an expert witness and thus credibility determinations for a jury, but also proximate causation, which is "usually a question for the trier of fact that cannot be determined on summary judgment." Robert B. Kent, et al., 1 Rhode IslandCivil and Appellate Procedure § 56:2 (citing Martin v.Marciano,
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Welch v. Keene Corp. , 31 Mass. App. Ct. 157 ( 1991 )
Hill v. National Grid , 11 A.3d 110 ( 2011 )
Zanni v. Voccola , 13 A.3d 1068 ( 2011 )
Gorman v. Abbott Laboratories , 599 A.2d 1364 ( 1991 )
Estate of Giuliano v. Giuliano , 949 A.2d 386 ( 2008 )
Classic Entertainment & Sports, Inc. v. Pemberton , 988 A.2d 847 ( 2010 )
Mitchell v. Mitchell , 756 A.2d 179 ( 2000 )
Kirshenbaum v. Fidelity Federal Bank , 941 A.2d 213 ( 2008 )
State v. Scholl , 661 A.2d 55 ( 1995 )
Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield ... , 994 A.2d 54 ( 2010 )
Martin v. Marciano , 871 A.2d 911 ( 2005 )
Clift v. Vose Hardware, Inc. , 848 A.2d 1130 ( 2004 )
Parker v. Byrne , 996 A.2d 627 ( 2010 )
Palmisciano v. Burrillville Racing Ass'n , 603 A.2d 317 ( 1992 )