 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schmidt v. A-Best Products Co.11/22/2004
close proximity to where the plaintiff actually worked in order to prove that the product was a substantial factor in causing his injury. (Lohrmann v. Pittsburgh Corning Corp. [C.A.4, 782 F.2d 1156, disapproved.]
{ } "3. Summary judgment is proper in an asbestos case in the same circumstances as in any other case, i.e., when, looking at the evidence as a whole, (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, construed most strongly in favor of the nonmoving party, that reasonable minds could only conclude in favor of the moving party." Horton at paragraphs one, two and three of the syllabus.
{ } The Court adopted the definition of "substantial factor" contained in Restatement of the Law 2d, Torts (1965), Section 431, Comment a. This definition provides:
{ } "The word 'substantial' is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in a popular sense, in which there always lurks the idea of responsibility, rather than the so-called 'philosophical sense,' which includes every one of the great number of events without which any happening would not have occurred."
{ } As in appellant's brief, we will address the granting of summary judgment as it pertains to each appellee.
A. Industrial Holdings
{ } The trial court granted Industrial Holdings' motion for summary judgment on the basis that appellant failed to present evidence that an Industrial Holdings' product was a substantial factor in causing the decedent's injury and subsequent death. Judgment Entry, Nov. 10, 2003, at 6.
{ } On appeal, appellant relies upon the affidavit of Dr. Edward Holstein to establish that exposure to Industrial Holdings' asbestos-containing products was a substantial factor in the decedent's injuries and resulting death. Dr. Holstein's affidavit sets forth a generic fiber drift theory. The trial court struck Dr. Holstein's affidavit and refused to rely upon it for the following reasons:
{ } "Plaintiff offers a copy of the 1985 affidavit of Dr. Edward Holstein. The Court cannot find where the original affidavit has been offered for evidence in this case. Further, the affidavit is void of any specifics with regard to Mr. Schmidt or the J&L;Steel facility, in that it was issued almost 18 years prior to the commencement of the instant lawsuit. Plaintiff is asking this Court to make a giant leap from the testimony of Mr. Renshaw to the generic fiber drift theory of Dr. Holstein in proposing that the same constitutes 'evidence' that an Industrial Holdings product was a substantial factor in causing Plaintiff's decedent's injuries. This Court is unwilling to jump to such a conclusion based upon the evidence presented." Judgment Entry, Nov. 10, 2003, at 5.
{ } Without Dr. Holstein's affidavit, appellant's offer of proof regarding the issue of causation is deficient. Further, appellant did not avail herself of Civ.R. 56(F) in order to submit additional affidavits on the issue of causation. Nor has appellant appealed the trial court's decision to strike Dr. Holstein's affidavit. Accordingly, the trial court properly granted Industrial Holdings' motion for summary judgment on the issue of causation.
B. Garlock
{ } The trial court granted Garlock's motion for summary judgment because there was no evidence of the decedent's exposure to an asbestos-containing product attributable to Garlock and therefore, no evidence that any alleged exposure was a substantial factor in causing
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.
|
|