Franklin et al v. Dana Holding Corporation et al

Filing 83

MEMORANDUM OPINION AND ORDER - The court DENIES Danas motion to file a successive motion for summary judgment, and DENIES Danas motion for reconsideration of the MDL courts decision denying its first motion for summary judgment. The court will enter a separate order setting a trial date, scheduling a pretrial conference, and setting a deadline for the parties to file a pretrial order. Signed by Judge Annemarie Carney Axon on 8/1/2018. (KEK)

FILED
2018 Aug-01 AM 09:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
DONNA FRANKLIN, Administratrix
of the Estate of Ray Franklin, deceased
Plaintiff,
v.
DANA COMPANIES, LLC, f/k/a Dana
Corporation, et al.,
Defendants.

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1:11-cv-02731-ACA

MEMORANDUM OPINION AND ORDER
This matter comes before the court on a motion for summary judgment and
“supplemental briefing” filed by Defendant Dana Companies (Dana). (Docs. 47,
75). Before this motion for summary judgment, Dana had already filed a motion
for summary judgment, which was denied, two motions for reconsideration of that
denial, which were denied, and a motion for leave to file a renewed motion for
summary judgment, which was denied.

The court construes this motion for

summary judgment to (1) seek permission to file a successive motion for summary
judgment and (2) seek reconsideration of the denial of Dana’s first motion for
summary judgment.
For the reasons set out in this opinion, the court DENIES the motion
because Dana raised its current argument in its first motion for summary judgment,

and Dana has not presented the court with any evidence warranting
reconsideration.
I.

BACKGROUND

On May 5, 2011, Ray and Donna Franklin filed this action in the Calhoun
County Circuit Court, naming a number of defendants, including Dana. (Doc. 1 at
2). The complaint alleged various claims arising from Mr. Franklin’s exposure to
asbestos. (Doc. 1-2 at 16–64). The defendants removed the action on July 29,
2011. (Id.). In September 2011, the United States Judicial Panel on Multidistrict
Litigation (MDL) transferred the action to the Eastern District of Pennsylvania for
inclusion in the coordinated or consolidated pretrial proceedings being conducted
there. 1 (Doc. 16).
On October 23, 2011, Mr. Franklin died of respiratory failure caused in part
by asbestosis. (MDL Doc. 8-1). Ms. Franklin, as Administratrix of Mr. Franklin’s
estate, continued to prosecute the action, adding claims for wrongful death and loss
of consortium. (MDL Doc. 23; see also MDL Doc. 20-1).
The MDL court entered a scheduling order requiring the parties to complete
discovery by November 30, 2012, but permitting the parties to serve their expert
reports outside the discovery deadline. (MDL Doc. 37). Ms. Franklin’s expert

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The case number in the Eastern District of Pennsylvania was 2:11-cv67659-ER. The court will cite to documents from that court’s docket as “MDL
Doc __.”
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reports were due by December 31, 2013, and Dana’s expert reports were due by
February 24, 2013. (Id.; MDL Docs. 63, 67). Dispositive motions were due by
March 14, 2013. (MDL Doc. 37).
Dana timely moved for summary judgment (the “first motion for summary
judgment”) on the basis that there was insufficient evidence Mr. Franklin had ever
been exposed to asbestos fiber from a Dana product or that a Dana product was a
substantial cause of Mr. Franklin’s illness and death. (MDL Docs. 69, 69-1). The
MDL court denied Dana’s motion for summary judgment, relying in part on an
affidavit from a former co-worker of Mr. Franklin named Beverly Olds. (MDL
Doc. 101 at 6–7). Specifically, the MDL court found that:
Plaintiff has provided evidence that [Mr. Franklin] worked with
asbestos-containing Dana clutches while performing (and around
others who were performing) clutch removal and replacement work.
He also states that sometimes other employees would blow off the
clutches, spreading dust. . . .
[T]here is evidence that, beginning in 1994, [Mr. Franklin] did
removal and replacement work with Dana asbestos-containing
clutches, and because it is common knowledge that such work results
in creation and disturbance of dust from the product (from friction,
etc.), a reasonable jury could conclude from the evidence that
[Mr. Franklin]’s illness was caused by exposure that was attributable
to [Dana].
(Id. at 7).
Dana moved twice for reconsideration of that decision, and the MDL court
denied both motions. (MDL Docs. 104, 110, 116, 124). Dana’s first motion for

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reconsideration rested on the argument that the MDL court erred in relying on an
affidavit of Mr. Olds that the court had struck in an earlier order. (MDL Doc.
104). The MDL court, in denying the first motion for reconsideration, stated that
“even without the stricken affidavit of Beverly Olds, Plaintiff has pointed to
deposition testimony of Mr. Olds, in the record, that provides the necessary
testimony of asbestos exposure from Dana clutches.” (MDL Doc. 110 at 1 n.1). In
its second motion for reconsideration, Dana argued that Mr. Olds’ deposition
testimony did not establish that he had any knowledge about whether Dana
clutches contained asbestos or whether Mr. Franklin worked with or around any
Dana clutches. (MDL Doc. 116 at 10). The MDL Court denied the second motion
for reconsideration on the basis that Dana had not shown an intervening change in
the controlling law, the availability of new evidence, or the need to correct a clear
error of law or to prevent manifest injustice. (MDL Doc. 124).
In November 2014, the MDL court suggested remand to the Northern
District of Alabama for resolution of all matters except punitive damages. (MDL
Doc. 125). In December, the MDL panel entered a conditional remand order. (See
Doc. 75-3 at 1; Doc. 72-2). Dana moved to vacate the conditional remand order
because (1) “the parties did not have an opportunity to conduct discovery regarding
the opinions expressed in the expert reports” and (2) it had recently discovered that
Ms. Franklin had filed another lawsuit seeking damages for the same claims

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asserted in the MDL case, but she had not disclosed the existence of that second
action. (Doc. 75-3 at 3). Ms. Franklin responded that she had “no objection to
further discovery, for example, of experts, to take place in the present case.” (Doc.
75-1 at 2). Noting that pretrial proceedings did not have to be completed before
remand, the MDL panel remanded the action to the Northern District of Alabama.
(Doc. 75-2 at 2).
In March 2016, back in the Northern District of Alabama, Dana moved for
leave to file a renewed motion for summary judgment. (Doc. 37). The magistrate
judge assigned to the case denied Dana’s motion, explaining that no change of
circumstances in the case justified reconsidering the MDL court’s denial of
summary judgment. (Doc. 40 at 4–6). However, after denying the motion, the
magistrate judge entered a scheduling order allowing the parties to file “dispositive
motions, limited to the issue of causation.” (Doc. 43).
After completing additional discovery, Dana moved for summary judgment
(the “second motion for summary judgment”), contending that Ms. Franklin had
presented no evidence showing that Mr. Franklin had been exposed to asbestos
from a Dana product. (Docs. 47, 47-1). Dana’s motion was primarily based on
two “new” pieces of evidence. First, Dana presented a transcript from a 2014
deposition of Mr. Olds taken in Ms. Franklin’s other lawsuit. (Doc. 47-1 at 8–13).
Dana argued that Mr. Olds’ 2014 testimony “reaffirmed” that his “unfounded and

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incompetent opinion” could not establish that Dana exposed Mr. Franklin to
asbestos. (Id. at 23–24). Second, Dana presented an expert report and deposition
testimony by Mary Finn, a certified industrial hygienist, who opined that
Mr. Franklin’s work for Dana did not increase his risk for developing asbestosis.
(Doc. 47-1 at 14–16).
Ms. Franklin moved to strike the second motion for summary judgment.
(Doc. 48).

The magistrate judge recommended granting the motion to strike

because the second motion for summary judgment was “in reality a renewed
motion for summary judgment which depends on the same arguments presented to,
and repeatedly rejected by, the Eastern District of Pennsylvania,” and she had
already denied Dana permission to file such a motion. (Doc. 52 at 2). Dana filed
objections to that recommendation and, while those objections were pending, the
case was reassigned to a district judge. (Docs. 54, 59).
The district court held a hearing on Dana’s objections. (Doc. 69). At the
hearing, Ms. Franklin argued that Dana’s second motion for summary judgment
was based on an issue that Dana could have—but did not—raise before the MDL
court in the first motion for summary judgment. (Doc. 74 at 80). After the
hearing, the court ordered Dana “to file a motion and brief on . . . why the issues it
wants to raise before the Court could not have been raised during the MDL
proceedings; alternatively, [it] can also move to reconsider the findings from the

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MDL court.”2 (Doc. 73 at 1–2). The court ordered Ms. Franklin to “respond on
procedural grounds, if [she] so [chooses] (i.e. that these issues could have been
raised before the MDL and should not be heard here).” (Id. at 2).
As ordered by the court, Dana filed a “supplemental brief” in support of its
second motion for summary judgment, addressing (1) whether it may file a
successive motion for summary judgment based on Dr. Finn’s expert opinion;
(2) whether Dr. Finn’s expert opinion entitles it to summary judgment; and
(3) whether the court should reconsider the MDL court’s denial of Dana’s first
motion for summary judgment. (Doc. 75 at 1–2). Because the court ordered the
parties to brief only the first and third issues, the court will not address Dana’s
arguments about the substantive merit of its second motion for summary judgment.
Instead, the court construes Dana’s motion and briefing to seek permission to file a
successive motion for summary judgment and to seek reconsideration of the MDL
court’s denial of Dana’s first motion for summary judgment.

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After the hearing, the court entered an order stating that “[t]he Amended
Objections . . . are GRANTED in part, and otherwise DENIED, as set out in the
hearing.” (Doc. 73 at 1). The case has since been reassigned to the undersigned.
(See Doc. 79). The undersigned has reviewed the transcript of the hearing
referenced in that order and is unsure what parts of the objections the court granted
and denied. In any event, the court construes Dana’s motion and supplemental
briefing as set out above. To the extent the court’s construction of Dana’s motion
conflicts with the court’s rulings at the hearing, this order supersedes those rulings.
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II.

DISCUSSION

1.

Motion to File a Successive Motion for Summary Judgment

The court has authority to consider successive motions for summary
judgment, but such motions are generally disfavored. See Allstate Fin. Corp. v.
Zimmerman, 296 F.2d 797, 799 (5th Cir. 1961)3 (“While we certainly do not
approve in general the piecemeal consideration of successive motions for summary
judgment, since defendants might well normally be held to the requirement that
they present their strongest case for summary judgment when the matter is first
raised, we do not believe the rules prohibit the consideration by a trial court of a
second motion of this nature.”).
Dana argues that the court should permit it to file a successive motion for
summary judgment because “the issue of whether summary judgment is warranted
based on the parties’ experts was not ripe for consideration in [the MDL court] due
to the lack of expert discovery at that stage of the proceedings.” (Doc. 75 at 3).
The problem with Dana’s argument is that Dana not only could have presented its
current causation defense to the MDL court, it did present that defense to the MDL
court.

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In Bonner v. City of Prichard, 661 F.2d 1206,1209 (11th Cir.1981) (en
banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions
handed down before October 1, 1981.
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In Dana’s first motion for summary judgment, it contended that “there is no
evidence that a Dana product was a substantial cause of Mr. Franklin’s illness and
death.” (MDL Doc. 69 at 2). In support of that assertion, Dana presented an
expert report from an industrial hygienist, Gayla McCluskey, who opined that:
Any asbestos exposure Mr. Franklin may have received from
the installation or removal of clutches or brake[s] associated with
axles would have been minimal and of the same level as background
exposure.
For these reasons, and to a reasonable degree of scientific
certainty, Mr. Franklin’s exposure, if any, to asbestos originating in
Dana and Spicer replacement parts would not have increased his risk
of developing an asbestos-related disease.
(MDL Doc. 69-2 at 51). The MDL court rejected that argument. (See MDL Docs.
101, 110, 124).
To be sure, Dr. Finn’s opinion is broader than Ms. McCluskey’s opinion.
Ms. McCluskey limited her opinion to Mr. Franklin’s exposure to “Dana and
Spicer replacement parts”; Dr. Finn opines that Mr. Franklin was not at a
significant risk for developing asbestosis based on any of his work “with and/or
around gaskets, clutches, axles, and transmissions.” (Doc. 47-10 at 33). But Dana
cannot resurrect an already-rejected argument simply by retaining a new expert to
offer a more comprehensive opinion, to correct what it perceived to be the flaw in
its earlier attempt at summary judgment.

As the former Fifth Circuit said,

“defendants might well normally be held to the requirement that they present their

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strongest case for summary judgment when the matter is first raised.” Allstate Fin.
Corp., 296 F.2d at 799. The court will hold Dana to that requirement in this case.
The court DENIES Dana’s request to file a successive motion for summary
judgment.
2.

Motion for Reconsideration

Dana also requests that this court reconsider the MDL court’s denial of the
first motion for summary judgment based on Mr. Olds’ 2014 testimony in a
different case. (Doc. 75 at 11–12). Specifically, it asserts that Mr. Olds’ 2014
testimony contradicts the testimony on which the MDL court relied in denying
Dana’s first motion for summary judgment, making the MDL court’s ruling
erroneous. (Id. at 19).
The court has authority to reconsider an earlier decision, even if a different
judge entered the earlier decision. Fernandez v. Bankers Nat’l Life Ins. Co., 906
F.2d 559, 569 (11th Cir. 1990). But the court will reconsider a decision only
“when a party presents the court with evidence of an intervening change in
controlling law, the availability of new evidence, or the need to correct clear error
or manifest injustice.” Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F. Supp. 2d
1350, 1355 (M.D. Ala. 2003); see also Cummings v. Dep’t of Corr., 757 F.3d
1228, 1234 (11th Cir. 2014) (“A motion for reconsideration cannot be used to

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relitigate old matters, raise argument or present evidence that could have been
raised prior to the entry of judgment.”) (quotation marks omitted).
Contrary to Dana’s contention, Mr. Olds’ 2014 testimony does not
contradict his earlier testimony. In 2012, defense counsel asked Mr. Olds: “You
wouldn’t necessarily be able to look at some automobile part and decipher
whether, by looking at it, that part contains asbestos fiber or not?” (Doc. 47-7 at
43–44; MDL Doc. 69-2 at 28–29). Mr. Olds responded: “No.” (Doc. 47-7 at 44;
MDL Doc. 69-2 at 29). In 2014, Mr. Olds’ testified that he “[didn’t] know the
difference between asbestos and cardboard.” (Doc. 47-8 at 13). Accordingly,
Mr. Olds’ 2014 testimony, while newly available since Dana filed its first motion
for summary judgment, is not the type of new evidence that warrants
reconsideration of an earlier decision. The court DENIES Dana’s request to
reconsider the MDL court’s denial of its first motion for summary judgment.
III.

CONCLUSION

The court DENIES Dana’s motion to file a successive motion for summary
judgment, and DENIES Dana’s motion for reconsideration of the MDL court’s
decision denying its first motion for summary judgment.
The court will enter a separate order setting a trial date, scheduling a pretrial
conference, and setting a deadline for the parties to file a pretrial order.

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DONE and ORDERED this August 1, 2018.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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