Maclachlan et al v. General Electric Company et al

Filing 95

Opinion and Order. Defendant American Optical Corporation's Motion for Summary Judgment (Related doc #81 ) is granted in part and denied in part. Judge Christopher A. Boyko on 3/12/2019. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DONALD O. MACLACHLAN, et al.,
Plaintiffs,
vs.
A.W. CHESTERTON, INC., et al.,
Defendants.

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CASE NO. 1:15CV10001
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #81) of Defendant
American Optical Corporation for Summary Judgment. For the following reasons, the
Motion is granted in part and denied in part.
I. BACKGROUND
Plaintiffs Donald O. MacLachlan and Pat S. MacLachlan filed the captioned lawsuit
against numerous manufacturers claiming injury due to exposure to asbestos-containing
products. The Complaint was filed originally in Cuyahoga County Common Pleas Court and
was placed on the inactive docket for non-malignant cases between 2006 and 2014. Donald
MacLachlan was diagnosed with mesothelioma in 2014 and the case was re-activated.

At Plaintiff’s deposition in May of 2015, he claimed exposure to a piece of military
equipment manufactured by General Electric (“GE”), that is, a main propulsion steam turbine
aboard the USS Kennedy, a United States Navy warship. GE raised the defense of acting
under the direction and control of a federal officer or agency (Department of the Navy) in the
manufacture of the marine turbines to which Plaintiff claimed exposure. Thus, the captioned
case was properly removed to U.S. District Court under the federal officer removal statute, 28
U.S.C. § 1442.
As part of his work history, Plaintiff worked at Weirton Steel from 1971 until his
retirement in 2008. His work in the blast furnace there necessitated the use of protective
clothing to combat the extreme heat and to protect from the molten splash. In his preliminary
product identification disclosure, Plaintiff stated that he wore American Optical clothing at
some point at Weirton Steel.
At his depositions in September 2014 and May 2015, Plaintiff testified that as a cast
house helper in the Weirton Steel blast furnace, he believed that he was exposed to asbestos
via the thermal protective coats and gloves that he wore. Plaintiff worked as a cast house
helper beginning approximately in 1979. In the May 2015 deposition, Plaintiff associated the
protective coats he wore with Defendant American Optical.
Plaintiff recalled that his superintendent told him that American Optical “used to
supply [their] cast house equipment,” including “coats, mittens, and leggings, and hoods.”
When pressed as to which items of clothing contained asbestos, he responded: “The coat and
mittens, I’m positive.”
Plaintiff also remembered seeing the letters “AO” in large, black block letters “on the

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back of the coat up there on the collar.” He described the coats as aluminized with a
blue/gray leather or suede band around the collar. Plaintiff testified that he wore the coat
every day in the blast furnace. On average, Plaintiff wore the coat four times a day for at least
45 minutes at a time. Plaintiff remembered that the “gray, fuzzy” lining of the coat would
clump off in half-inch balls. Watching an asbestos training video years later, Plaintiff
testified that asbestos pipe insulation reminded him of the lining of the coats. Every couple of
years at Weirton, Plaintiff would receive replacement coats from his employer.
Defendant American Optical admits that it manufactured both asbestos- and nonasbestos-containing protective wear. However, Defendant argues that Plaintiff’s description
does not match American Optical products nor identify asbestos-containing products. For
example, Defendant’s expert, Jeffrey O. Stull, President of International Personnel Protection,
compared American Optical’s clothing catalogs to Plaintiff’s testimony and noted that
American Optical’s aluminized coats had a wool collar, not leather or suede. (Stull Affidavit,
Exhibit D). Stull added that American Optical did not place its logo on the outside of the
collar but had a tag on the inside of the back collar. Id. The materials in American Optical’s
protective coats were encapsulated so that loose asbestos would not be released under
ordinary wearing conditions. Id. None of the materials in the linings looked like pipe
insulation nor would flake into balls or clumps as Plaintiff described. Id.
Stull also noted that American Optical stopped making asbestos-containing clothing in
1976 and sold its protective clothing business to Racine Glove Company in 1977. Id. This
would have been two years before Plaintiff was supplied aluminized asbestos protective coats
at Weirton Steel.

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In his Brief in Opposition, Plaintiff offers an affidavit he executed in 2018. (ECF
DKT #88-2). He states that he was previously deposed over two eight-hour days and that he
testified to the best of his ability at the time. Id. Plaintiff adds, upon reflection, that the
approximate time period in which he worked in the Weirton Steel blast furnace actually
included several occasions prior to 1977. Id. Plaintiff states that he was not presented any
photographs or drawings of American Optical products at his depositions. Now, looking at
the 1970 and 1973 American Optical Protective Clothing Catalogs, Plaintiff is able to identify
the “very coat” worn during his employment at Weirton Steel. Id.
Defendant American Optical moves for judgment in its favor. Defendant argues that
Plaintiffs lack colorable evidence of exposure to an asbestos-containing American Optical
product. Defendant asserts that Donald MacLachlan’s Affidavit should be excluded as
subsequent contradictory testimony offered without reasonable explanation. In addition,
Defendant submits that Plaintiffs’ claim for punitive damages (Count VI) is not a separate
claim for relief under Ohio law and that Plaintiffs’ common law claims (Counts I, II and IV)
are abrogated or prohibited by the Ohio Product Liability Act, R.C. § 2307.71, et seq.
II. LAW AND ANALYSIS
Standard of Review
Summary judgment shall be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” See Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must

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either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but must come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at
1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party
fails to make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary
judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distributors Benefits Ass 'n v. Northfield Ins. Co., 323
F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).

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Abrogation of common law claims
Plaintiffs do not submit any response to Defendant’s argument that the Ohio Product
Liability Act abrogates their Negligence, Strict Liability and Implied Warranty Claims.
The district court’s power to grant dispositive motions because they are unopposed is
firmly settled. Demsey v. R.J. Reynolds Tobacco Co., 2005 WL 1917934, *2 (N.D.Ohio
2005); Peacock v. Bayview Loan Serv., 2005 U.S. Dist. LEXIS 10276, *9-10 (N.D.Ohio
2005) (both citing to Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir.2000)). A
party’s “failure to respond” may be deemed a “confession” to the motion’s merit. Cacevic,
id. Any further review by this Court would be an inefficient use of the Court’s limited
resources. Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff’d, 474 U.S. 140 (1985); Howard
v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991); United States v.
Walters, 638 F.2d 947 (6th Cir.1981).
Therefore, Defendant’s Motion for Summary Judgment as to Plaintiffs’ common law
claims in Counts I, II and IV is granted.
Punitive Damages
Defendant asserts that Count VI of Plaintiffs’ Complaint, titled “Punitive Damages”,
does not state a separate cause of action. State ex rel. Board of State Teachers Retirement
System of Ohio, 113 Ohio St.3d 410 (2007). In their Brief in Opposition (ECF DKT #88 at
12), Plaintiffs admit that under Ohio law, “punitive damages are not a separate claim but
merely an issue in the overall claim for damages.”
The Court agrees that Count VI does not recite a cause of action, but rather a form of
potential recoverable damages. Defendant’s Motion is granted in this regard also.

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Product Liability - Asbestos exposure
Defendant contends that Plaintiffs have failed to present evidence of exposure to an
asbestos-containing American Optical product that was a substantial factor in causing their
alleged injuries. Defendant cites to R.C. § 2307.96 which requires the trier of fact to consider
certain factors in determining whether a particular defendant’s asbestos product was a
substantial factor in causing a plaintiff’s injury or loss:
(1) The manner in which the plaintiff was exposed to the defendant’s asbestos;
(2) The proximity of the defendant’s asbestos to the plaintiff when exposure
occurred;
(3) The frequency and length of the plaintiff’s exposure to the defendant’s
asbestos; and
(4) Any factors that mitigated or enhanced the plaintiff’s exposure.
Plaintiffs counter that R.C. § 2307.96 became effective on September 2, 2004 and is
not applicable to their Complaint which was originally filed in 2003. R.C. § 2307.96 (C)
provides: “This section applies only tort actions that allege any injury or loss to persons
resulting from exposure to asbestos and that are brought on or after the effective date of this
section.”
Plaintiffs also contend that the R.C. §2307.96 framework is overly burdensome and
that the appropriate standard for asbestos product liability actions is found in Horton v.
Harwick Chemical Corporation, 73 Ohio St.3d 679 (1995). According to the Horton court:
“A plaintiff need not prove that he was exposed to a specific product on a regular basis over
some extended period of time in close proximity to where the plaintiff actually worked in

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order to prove that the product was a substantial factor in causing his injury.” Id. at 686.
Although Defendant insists that the statute can apply because Plaintiffs’ mesothelioma
claims did not arise until 2014, both parties agree that to establish causation in a multidefendant case like the one at bar, the burden rests with Plaintiffs to come forward with
evidence of exposure to each individual Defendant’s asbestos-containing product and that the
exposure was a substantial factor in causing Plaintiffs’ injury or loss.
In his deposition, Plaintiff Donald Maclachlan recalled wearing asbestos-containing
safety clothing while working in the Weirton Steel Blast Furnace. He testified that he was
“positive” that the coat and mittens he was provided contained asbestos. He also testified that
his superintendent/supervisor told him that American Optical supplied the cast house
equipment, such as coats, mittens, leggings and hoods. He was required to wear the
protective clothing on the job in the blast furnace at least four times a day.
Defendant American Optical admits that for a period of time up until 1976 or 1977, it
manufactured asbestos-containing protective clothing. In the affidavit submitted with
Plaintiffs’ Brief in Opposition, Donald MacLachlan swears that he worked in the Weirton
blast furnace on several occasions prior to 1977, and states that he was able to visually
identify the type of coat he wore in 1970 and 1973 American Optical catalogs which he had
not seen prior to or during his depositions.
Defendant asserts that Plaintiff’s “revisionist” affidavit contradicts his earlier
deposition testimony without any reasonable explanation. Therefore, Defendant asks the
Court to strike the changed product identification testimony under the “sham affidavit”
doctrine, which precludes a party from filing “an affidavit that contradicts his earlier sworn

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testimony” after a summary judgment motion has been filed. France v. Lucas, 836 F.3d 612,
622 (6th Cir. 2016); Jones v. General Motors Corp., 939 F.2d 380, 385 (6th Cir. 1991).
Plaintiff Donald MacLachlan explains that he was deposed over two grueling days
while suffering with the symptoms of mesothelioma. Nevertheless, he was able to recall that
he was required by his blast furnace job to wear an aluminized American Optical coat.
Dealing with ill health and intense questioning about his complete work history, including
dates of employment, locations, job responsibilities and asbestos-containing products he saw,
Plaintiff concedes that at his depositions he misstated the extent of the time frame he wore
Defendant’s protective coat in the Weirton Steel blast furnace. (ECF DKT #88-2). However,
he adds that for purposes of his affidavit he was shown American Optical Protective Clothing
Catalogs which he did not have the benefit of seeing at the time of his depositions. Id.
A party “cannot create a genuine issue of fact sufficient to survive summary judgment
simply by contradicting his or her own previous sworn statement (by, say, filing a later
affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the
contradiction or attempting to resolve the disparity.” Cleveland v. Policy Mgmt. Sys. Corp.,
526 U. S. 795, 806 (1999).
In his subsequent affidavit, Plaintiff Donald Maclachlan materially alters the dates that
he was exposed to Defendant’s protective clothing, pushing the timeline back to before 1977.
He states that he is now able to circle images in catalogs of American Optical protective coats
similar to the ones he wore; but the examples he identifies have wool (not leather or suede)
collars, no prominent logo on the back of the collars and may or may not be styles containing
asbestos. Thus, the Court finds that the 2018 affidavit directly contradicts Plaintiff’s prior

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sworn deposition testimony.
However, that finding does not automatically mandate that the affidavit should be
stricken. The Court must inquire whether the party opposing summary judgment has
provided a persuasive justification for the contradiction. Aerel, S.R.L. v. PCC Airfoils, LLC.,
448 F.3d 899 908-09 (6th Cir. 2006). The Court must look into whether Plaintiff Donald
MacLachlan had access to pertinent evidence at the time of his earlier testimony and also
whether there was justifiable confusion, mistake or lapse in memory. Samuels v. Allstate
Property & Casualty Insurance Company, 310 F.Supp.3d 847, 869-870 (E.D.Mich. 2018)
(collecting cases).
The Court recognizes that these product liability cases, where an asbestos-related
illness may not appear for decades, often involve extensive employment histories and
recollection of multiple workplaces, job responsibilities and products used or simply observed
by plaintiffs. Plaintiff Donald MacLachlan was asked about a job he held over thirty years
earlier. He is now suffering with mesothelioma symptoms and somewhat advanced age. He
was shown pictures of protective coats in an American Optical catalog which he did not see at
the time of his depositions.
Thus, the Court determines that the contradictions in the supplemental affidavit can be
reasonably explained by confusion, memory lapses and new pertinent evidence. Moreover,
the Court concludes that the contradictory evidence should more appropriately be sorted out
by the jury. These “variations” go to the weight and credibility of testimony and the Court
declines to identify the testimonial differences as falsehoods rendering the subsequent
affidavit a sham. See Samuels, 310 F.Supp.3d at 870.

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Plaintiffs have presented sufficient evidence to create a jury question as to whether
Plaintiff Donald MacLachlan was exposed to the asbestos-containing protective clothing
manufactured by Defendant American Optical and whether that exposure was a substantial
factor in causing Plaintiffs’ injury and loss.
III. CONCLUSION
For these reasons, the Motion (ECF DKT #81) of Defendant American Optical
Corporation for Summary Judgment is granted in part and denied in part.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 12, 2019

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