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Garland v. Certainteed Corporation2/7/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Martha Garland, individually and as Executrix of the estate of Horace Garland (hereinafter the Garlands) appeals an order granting summary judgment entered by the McCracken Circuit Court in an asbestos product liability case. We affirm.
The Garlands filed a complaint on June 12, 2001, alleging that Horace suffered adverse health conditions, specifically malignant mesothelioma, as a result of his exposure to asbestos products at his place of employment. The Garlands' complaint named thirty-three (33) defendants that they alleged manufactured, sold or distributed asbestos products in and around McCracken County, Kentucky, and which caused Horace's medical condition. Certainteed Corporation, Pfizer, Inc., and Quigley Company (hereinafter collectively the Appellees) filed answer and denied all allegations.
Discovery in the form of interrogatories, requests for production of documents, requests for admissions and three separate depositions of Horace followed. Also for approximately two months (October 16, 2001 – December 19, 2001) the action was transferred to the United States District Court before being remanded when a third-party complaint against the Tennessee Valley Authority was dismissed.
On January 25, 2002, Appellees filed a motion for an order compelling discovery and/or a motion for summary judgment. The motion was set for hearing on March 1, 2002. At the hearing, the trial court first denied the motion and gave the Garlands four (4) additional months to complete discovery. However, the court, after hearing arguments from the Appellees that the Garlands had failed to produce any evidence that Horace had been exposed to Appellees' products, changed its ruling and granted Appellees' motion for summary judgment. The order granting summary judgment was entered on March 8, 2002, and this appeal followed.
As stated in the Garlands' appellant brief (page 6), "On appeal, the issue is whether the trial court provided Appellants [the Garlands] with the opportunity to complete discovery before it concluded that no genuine issue as to any material fact existed and entered judgment as a matter of law to Certainteed, Quigley and Pfizer [the appellees]." The Garlands contend they were not afforded the opportunity to complete discovery and develop the facts and circumstances of Horace's exposure to the Appellees' asbestos products. The Appellees, on the other hand, argued in their motion for summary judgment (trial record pages 1295-1296) that " he reality is the plaintiffs have had over 20 years to try to develop a case against [appellees] and have failed to do so. [Counsel for the Garlands] has had almost a year from the filing of this case to find a single witness who can testify that [appellees] somehow contributed to Mr. Garland's alleged injury and has failed. Almost certainly, there exists no good faith basis for the suit against [appellees], and [counsel] should be allowed no further leeway to subject [appellees] to this oppressive and costly fishing expedition".
The Garlands countered by contending that they were not given an opportunity to complete discovery despite the fact that they were proceeding in good faith and in a timely manner. At the hearing on the summary judgment motion, they requested an additional four months to complete discovery which would include taking the deposition of corporate representatives of the Appellees and developing evidence of exposure to Horace by Appellees' products. Appellees respond that based on their answers to interrogatories and production of documents, the Garlands' responses to interrogatories and Horace's three depositions, there is no proof in
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