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Weakley v. Burnham Corp.4/14/2005
Argued October 7, 2004
Basil F. Weakley, Jr., was employed as a boiler service worker in the Washington, D.C., metropolitan area from approximately 1964 to 1979. He contracted asbestosis many years later. Weakley brought this action for negligence, failure to warn, and strict liability against eight boiler manufacturers, alleging that the manufacturers were legally responsible for his asbestosis and were therefore liable to him in damages. In three separate orders, the Superior Court granted summary judgment in favor of the manufacturers, concluding principally that Weakley had presented insufficient evidence of causation.
Weakley has appealed from the judgments in favor of five of the manufacturers: Burnham Corporation, Cleaver Brooks, Foster Wheeler, L.L.C., The Marley Company, and Oakfabco, Inc. Weakley contends that summary judgment was improper because, (1) in his answers to interrogatories and attachments thereto, in his deposition, and in a subsequent affidavit, he presented proof that " and [each of] the defendants' [asbestos-containing] products were in the same place at the same time," as required by our decision in Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374, 1384-85 (D.C. 1995); and (2) Weakley's expert witness, M. Anthony Casolaro, M.D., a pulmonologist, stated in his affidavit, to a reasonable degree of medical certainty, that as a result of Weakley's regular exposure to asbestos while working on boilers, he developed asbestosis, and that "each and every exposure to asbestos from boilers containing, or covered with, asbestos materials was a significant causative factor in the development of asbestosis in Mr. Weakley." We agree with Weakley that summary judgment should not have been granted.
Weakley also appeals from orders of the Superior Court, issued without opinion, granting the motions of defendants Burnham and Foster Wheeler to preclude Weakley from taking the depositions of corporate designees of these defendants pursuant to Super. Ct. Civ. R. 30 (b)(6). By means of these depositions, Weakley had sought to ascertain, inter alia, whether any of the companies' boilers had been installed in the Washington, D.C., metropolitan area, and the identities of any boilers (or of other products containing asbestos) which these defendants may have sold to Weakley's principal employers during the period that Weakley serviced boilers. We conclude that the dispute over these protective orders should be resolved in conformity with Covington v. Abex Corp., 1990 U.S. Dist. LEXIS 16197 (D.D.C. 1990):
efore [defendants] need furnish information that may be relevant to the instant litigation, [Weakley] must provide [defendants] with a list of the places where [Weakley] worked, the companies with whom [Weakley] was employed, and the duration of [Weakley's] employment with those companies in the years that he was allegedly exposed to [the defendant's] products.
Weakley has represented under oath that he has frequently worked with Burnham and Foster Wheeler boilers and has regularly been exposed to asbestos in doing so. Given the decades that have elapsed between his alleged encounters with these defendants' products and his contraction of asbestosis, we conclude that to demand more from Weakley before permitting him to conduct even limited discovery would place on Weakley, and on most plaintiffs in similar circumstances, an all-but unsustainable burden, for a plaintiff cannot reasonably be expected to recall, decades later, exactly where and when he encountered a particular manufacturer's product.
I. FACTUAL BACKGROUND
Weakley began his career servicing boilers in 1964, and for the next two years he worked princip
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