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Parker v. Henry A. Petter Supply Co.4/1/2005
in the statute. The legislature did not choose to require solvency of a manufacturer before sellers are relieved of liability. Moreover, Petter Supply points out that the Johns-Manville bankruptcy case actually established a mechanism for first-party and third-party claims to be asserted -- which was used in this case to allow Petter Supply to join the Johns-Manville Personal Injury Trust Fund.
Parker next argues that the trial court erroneously determined under the middleman statute that there was no evidence Petter Supply and Hannan Supply knew or should have known the product was defective. Parker claims the dangers of asbestos were known in the scientific and medical community at the time he was exposed to asbestos, and this created a question of fact which precluded summary judgment. Whether this is a fact issue to be resolved by a jury depends on whether the plaintiff alleged the existence of any fact from which such knowledge could be inferred. Funk v. Wagner Machinery, Inc., 710 S.W.2d 860, 862 (Ky.App. 1986). A litigant need not be required to try his case on a motion for summary judgment, but he has the burden of showing that a fact issue exists. Id.
Parker showed that the medical and scientific community was aware of defects as early as the time that Parker was exposed to asbestos products. Parker's expert, Dr. Pohl, testified in his deposition that if asked about it at trial he would testify about when the medical and scientific community knew or should have known of the dangers of asbestos. He stated that he had testified in other cases that the medical community has known about asbestosis as of 1930, about lung cancer and asbestos exposure as of 1943, and the link between asbestos and mesothelioma sometime between 1953 and 1960. He stated that he would testify, if asked, about when manufacturers and distributors knew or should have known of the dangers of asbestos in terms of "state of the art," or scientific knowledge at different points in time, which would be a reflection of what they would, could or should have known.
As to when manufacturers and distributors acquired knowledge, Dr. Pohl testified that scientific knowledge was available to anyone through medical libraries or publications as well as through lay publications in the 1940s and 1950s, and he could testify to that. He stated that he was aware of some manufacturers and distributors and their knowledge about asbestos, although he did not have specific awareness of Petter Supply's knowledge. He stated that instead he would testify as to what was known in the medical literature as well as what was being published in the lay literature that was available to anybody, even suppliers.
The standard is whether Petter Supply or Hannan Supply knew or should have known. We conclude that the grant of summary judgment was premature. Parker's evidence presented at least an issue of fact that Parker should have been allowed to develop in continued discovery. As stated above, all doubts are to be resolved in favor of the party opposing the motion for summary judgment. Steelvest, 807 S.W.2d at 480. Thus, we vacate the trial court's grant of summary judgment.
As to Mine Equipment & Mill Supply, Parker argues that it should not have been dismissed as a defendant because it is the legal successor to Mine and Mill Supply which supplied asbestos products to Parker's employer. The trial court found in its order dismissing that Mine Equipment & Mill Supply was incorporated four years after Parker retired from his job at SKW. It found that Mine Equipment & Mill Supply had no liability in that it had only purchased assets from IRECO, which had purchased same or similar from Mine and Mill Supply
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