 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schmidt v. A-Best Products Co.11/22/2004
J & L facility where he worked. (Renshaw Depo. at 30-34) He further testifies that the products were marked with a warning that such products may contain carcinogens.
(Renshaw Depo. at 33) Mr. Renshaw does not, however, testify with regard to dust produced or released by the products. Nor does he testify with regard to any exposure to such product by Plaintiff's decedent." Nunc Pro Tunc Judgment Entry, Nov. 18, 2003, at 4.
{ } Clearly, as to Dana Corporation and Lincoln Electric, the trial court concluded there was no evidence that appellant's decedent was ever exposed to asbestos-containing products manufactured by either Dana Corporation or Lincoln Electric. However, as to Industrial Holdings and Garlock, the trial court specifically found that a question of material fact exists regarding the issue of product identification and proceeded to address the issue of causation. See Judgment Entry granting Industrial Holdings' motion for summary judgment, Nov. 10, 2003, at 5 and Judgment Entry granting Garlock's motion for summary judgment, Nov. 10, 2003, at 4.
{ } Appellant claims the trial court prematurely addressed the issue of causation. Although the case management order provided otherwise, Industrial Holdings' and Garlock's motions for summary judgment did address the issue of causation. Appellant attempted to respond to the causation issue by submitting the affidavit of Dr. Edward Holstein that supports a fiber drift theory. Appellant did not seek a continuance, pursuant to Civ.R. 56(F), in order to submit supporting affidavits regarding the issue of causation.
{ } "Pursuant to Civ.R. 56(F), a party opposing a motion for summary judgment may obtain a continuance pursuant to Civ.R. 56(F) by submitting affidavits which state a factual basis and which provide sufficient reasons for the lack of supporting affidavits and the need for additional time to permit affidavits to be obtained or further discovery to be had. Gates Mills Invest. Co. v. Pepper Pike (1978), 59 Ohio App.2d 155, 168-169. A trial court has discretion to grant or deny a request for a continuance pursuant to Civ.R. 56(F), and its decision will not be overruled absent an abuse of discretion. [Citation omitted.] Coleman v. Cleveland School Dist. Bd. of Educ., Cuyahoga App. Nos. 84274, 84505, 2004-Ohio-5854, at 20.
{ } In the case sub judice, appellant attempted to address the issue of causation. If appellant believed appellees prematurely raised the issue of causation, in their respective motions for summary judgment, appellant could have requested a continuance, under Civ.R. 56(F), in order to submit affidavits to support her claims. However, appellant failed to do so. Therefore, we conclude appellant waived this issue for purposes of appeal by not first seeking relief in the trial court.
{ } Appellant's First Assignment of Error is overruled.
II.
{ } Appellant maintains, in her Second Assignment of Error, the trial court erred when it granted summary judgment to each of the appellees because genuine issues of material fact exist. We disagree.
{ } The leading case, in Ohio, regarding asbestos litigation is Horton, supra. In Horton, the Ohio Supreme Court held as follows concerning the issues of exposure, causation and summary judgment in asbestos cases:
{ } "1. For each defendant in a multidefendant asbestos case, the plaintiff has the burden of proving exposure to the defendant's product and that the product was a substantial factor in causing the plaintiff's injury .
{ } "2. A plaintiff need not prove that he was exposed to a specific product on a regular basis over some extended period of time in
Page 1 2 3 4 5 6 Ohio Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|