Bell v. ABB Group, Inc. et al

Filing 354

ORDER DENYING Motion for Summary Judgment and Integrated Memorandum in Support filed by Honeywell International Inc. [Doc. 229]. Signed by Judge Staci M. Yandle on 10/2/15. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

SHARON BELL, Executor of the Estate of
Mr. Richard W. Bell, Deceased,
Plaintiff,
vs.
THE ABB GROUP, INC., et al.,
Defendants.

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Case No. 13-CV-1338-SMY-SCW

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter comes before the Court on Defendant Honeywell as successor of Bendix
Corporation’s Motion for Summary Judgment (Doc. 229). For the following reasons, the Motion
is DENIED.
In this case, Plaintiff Sharon Bell asserts that Richard W. Bell (“Decedent”) was injured
as a result of exposure to asbestos-containing products attributable to Defendants, including
Defendant Honeywell. Honeywell filed its Motion for Summary Judgment arguing that evidence
offered by Plaintiff is inadmissible under Rule 32(a) of the Federal Rules of Civil Procedure and
Rule 801(c) of the Federal Rules of Evidence. Honeywell further argues that even if this
evidence were admitted, Plaintiff has not presented evidence establishing that Decedent was
exposed to and harmed by Honeywell’s products.
Plaintiff alleges that the Decedent was exposed to asbestos while performing car
maintenance using brakes manufactured by Honeywell (Doc. 265-2, p. 2). From 1964 through
the late 1970’s, Plaintiff claims that Decedent changed dozens of brakes for multiple family

vehicles and breathed the dust released from the brakes’ lining as he replaced old brakes with
new ones (Doc. 265-2, p. 2). Asbestos was listed on the packaging by Bendix brakes (Doc. 2652, p. 2). Plaintiff claims Decedent’s use of Bendix brakes was a substantial factor in causing his
asbestosis and lung cancer.
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute to any material fact and is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind. Inc.,
211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light
most favorable to the nonmoving party and draw all reasonable inferences in favor of that party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d
678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. A nonmoving party who bears the burden of
proof “may not rest its pleadings but must affirmatively demonstrate, by specific factual
allegations, that there is a genuine issue of material fact which requires trial.” Beard v. Whitely
County Remc, 840 F.2d 405 (7th Cir. 1988); Fed. R. Civ. P. 56(e)(2). A genuine issue of
material fact is not demonstrated by the mere existence of “some alleged factual dispute between
the parties,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), or by “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded
jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477
U.S. at 252.
Citing Logan v. Catepillar, 246 F.3d. 912, 925 (7th Cir. 2001), Honeywell first argues
that Plaintiff’s deposition is hearsay and that “hearsay is inadmissible in summary judgment
proceedings to the same extent that it is inadmissible in a trial” (Doc. 229). The hearsay rule

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defines a “statement” as a “person’s oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.” Fed. R. Evid. 801(a).

However, Plaintiff’s deposition

testimony is not a “statement” as defined by the hearsay rule. Her testimony recounts her
memory of her husband and his actions based on her own recollection, rather than an
inadmissible hearsay “statement.” Under the Federal Rules of Evidence, a witness is allowed to
testify to matters of which she has personal knowledge. See Fed. R. Evid. 602. Here, Plaintiff is
a witness who has personal knowledge that the Decedent used Bendix brakes.
Next, Honeywell cites to Kessel v. Cook County, 2002 WL 1021560 (N.D. Ill. May 21,
2002) in arguing that depositions taken prior to the joinder of a party in a lawsuit cannot be used
as depositions against that party on a summary judgment motion. In Kessel, the Court denied
joinder of two additional defendants who had not been previously deposed because discovery
would be extended and joinder would cause further delay and expense. Id at *8.
Plaintiff counters that the “weight of authority is that depositions can be the equivalent of
affidavits, and are therefore admissible at the summary judgment stage.” Alexander v. Casino
Queen, Inc., 739 F.3d 972, 978 (7th Cir. 2014) (citing Hoover v. Switlik Parachute Co., 663 F.2d
964, 966 (9th Cir. 1981)). “Depositions, even those taken without notice to or the presence of
the later non-moving party on summary judgment, can satisfy Rule 56’s requirement for an
affidavit.” Id (quoting Vondriska v. Cugno, 368 Fed.Appx. 747, 765 (10th Cir. 2006)).
Here, unlike the defendant in Kessel, Honeywell was added before the discovery deadline
– Honeywell was served on Nov 13, 2014, and the discovery deadline was February 20, 2015
(see Doc. 81). Further, as the court reasoned in Hoover, it would be wasteful to have the same
witness who was deposed file an affidavit, if the affidavit requirements are already met. Hoover,
663 F.2d at 966-967. Courts in similar situations have held that depositions taken prior to

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joinder of a party can be considered affidavits for summary judgment purposes. Id. at 967-68
(citing Tormo v. Yormack, 398 F. Supp. 1159 (D.N.J. 1975); United States v. Fox, 211 F. Supp.
25 (E.D. La. 1962) aff’d, 334 F.2d 449 (5th Cir. 1964)).
In addition, both Alexander requirements are met for the Plaintiff’s deposition testimony
to be considered an affidavit for evidentiary purposes. First, pursuant to Rule 56(c)(4) of the
Federal Rules of Civil Procedure, Plaintiff’s testimony is based on her own personal knowledge
and sets forth facts that would be admissible at trial. Second, the summary judgment procedural
requirement for supporting factual positions under Rule 56(c)(1)(A) is met because Plaintiff’s
deposition is part of the record in the present case (Doc. 265-2, p. 2).

Accordingly, the Court

will consider Plaintiff’s deposition an affidavit for summary judgment proceedings in this case.
Next, with respect to Honeywell’s challenges to the sufficiency of Plaintiff’s causation
evidence, the Court notes that to prove cause-in-fact in asbestos cases, a plaintiff must meet two
burdens. Johnson v. Owens-Corning Fiberglass Corp., 672 N.E.2d 885, 888 (Ill App. Ct. 1996);
(citing Thacker v. UNR Indus., 603 N.E.2d 449 (Ill. 1992)). First, medical causation requires
evidence that asbestos exposure caused or contributed to the injury. Johnson at 888. Second, a
plaintiff must show that the defendant’s asbestos was a cause of the injuries. Id.

A plaintiff

cannot present his case to the jury unless there is sufficient evidence for the jury to conclude the
defendant’s conduct was a cause of the plaintiff’s injury. Id at 890.
Medical causation and asbestos exposure may depend on the admissibility of expert
testimony under Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993). The Seventh Circuit
recognizes method of differential diagnosis and differential etiology as a generally accepted
means for evaluating the cause of a plaintiff’s injury. Schultz v. Azko Nobel Paints, LLC, et al.,
721 F.3d 426, 431 (7th Cir. 2013) (citing Myers v. Illinois Cent. R.R. Co., 629 F.3d 639, 664 (7th

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Cir. 2010)).

In a differential etiology all potential causes are ruled in then those that do not

apply are systemically ruled out. Schultz, 721 F.3d at 433 (citing Myers 629 F.3d at 644).
Reliability under Daubert is decided on a case-by-case basis, depending on which potential
causes should be considered. Id. The trial court is “limited to determining whether expert
testimony is pertinent to an issue in the case and whether methodology underlying that testimony
is sound…whether the expert is credible or whether his or her theories are correct…is a factual
one that is left for the jury to determine.” Schultz, 721 F.3d at 431 (quoting Smith v. Ford Motor
Co., 215 F.3d 713, 719 (7th Cir.2000)).
In asbestos litigation, some courts have found the “any exposure” theory to be
inadmissible. Betz v. Pneumo Abex LLC, 44A.3d at 56, Moeller v. Garlock Sealing, 660 F.3d
950, 955 (2011) (expert opinion that “every exposure to asbestos, however slight, was a
substantial factor in causing injury,” where the plaintiff presented no evidence quantifying
decedent’s exposure to the defendant’s product). However, there are significant distinctions to
be made between exposure theories, especially when expert testimony includes a discussion of
the cumulative effect of asbestos related disease and uses language that is similar or included in
the “any exposure” theory. See Quirin v. Lorrillard, 2014 WL 804305 at* 3 (N.D. Ill Feb. 28
2014) (Expert testimony was not that of an “any minimal” exposure approach because it gave the
opinion that regular exposure should be considered “significant” exposure that contributed to
injury).
Here, Dr. Vuskovich’s expert testimony is consistent with the differential etiology
methodology recognized as reliable by the Seventh Circuit because he considered other causal
factors – specifically, the causal effect of cigarette smoking (Doc. 265-3, p. 4). He opined that it
is not possible to determine a threshold for exposure and asbestosis and that “every exposure” to

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asbestos is “non-trivial” in asbestosis (Doc. 265-3, p. 6).

Additionally, he concluded that

occupational asbestos exposure and asbestosis caused and significantly contributed to Decedent’s
lung cancer (Doc. 265-3, p. 4).
Expert testimony that includes discussion of “every exposure” or inability to identify a
minimum threshold of safety for asbestos exposure are not automatic triggers for inadmissibility.
Rather, methodology as a whole is evaluated under Daubert standards as applied in the Seventh
Circuit. Because Dr. Vuskovich’s opinions meet those standards, his testimony is admissible.
The credibility to be afforded his theories is an issue to be determined by the jury.
Finally, for a defendant’s conduct to be a cause of an event, it must be a material element
and a substantial factor in bringing the event about. Thacker, 603 N.E.2d at 455. To satisfy the
“de minimus rule,” a plaintiff must show more than a casual or minimum contact with the
product. Id at 457. The “frequency, regularity, and proximity test” requires proof that (1) the
plaintiff worked regularly in an area where the defendant’s asbestos was frequently used, and (2)
the plaintiff did, in fact, work sufficiently close to this area as to come into contact with the
defendant’s product. Id.
Here, to show frequency and regularity, Plaintiff presented evidence that from 1964
through the late 1970’s, Decedent changed dozens of brakes for multiple family vehicles.
Plaintiff has also presented evidence that Decedent breathed the dust released from the brake’s
lining as he replaced the old brakes with new ones. She relies on expert testimony from Jerome
Spear to show that Decedent was likely exposed to asbestos above “historical” and “current
standards” while using Bendix brakes (Doc. 265-4). Honeywell argues that Plaintiff does not
meet her burden, but does not specifically say why these facts are insufficient under Thacker.

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The Court finds that there are sufficient facts in the affidavits and expert reports to
establish that Decedent was exposed to asbestos from Honeywell’s products with the frequency,
regularity, and proximity required by Illinois law. Honeywell has not affirmatively shown that
the materials cited by Plaintiff fail to create genuine issues of material facts as required by Rule
56(c)(1). Based on the evidence viewed in the light most favorable to Plaintiff, a fair-minded
jury could return a verdict for Plaintiff. Therefore, Honeywell’s Motion for Summary Judgment
is denied.
IT IS SO ORDERED.
DATED: October 2, 2015
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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