Heather Isringhausen Gvillo Aug. 21, 2014, 10:10am

TACOMA, Wash. (Legal Newsline) – A Washington appeals court has reversed a trial court’s judgment in an asbestos case, concluding the defendant only identified one issue in its summary judgment request, which was insufficient.

Judge Rich Melnick delivered the July 22 opinion in the Court of Appeals for the State of Washington, Division II. Judges Lisa R. Worswick and Jill Johanson concurred.

Plaintiffs Jack Don and Sandra Kennedy filed the appeal in the Court of Appeals for the State of Washington, Division II, after the trial court granted defendant Saberhagen Holdings summary judgment.

The trial court granted summary judgment after concluding Kennedy failed to present sufficient evidence to create a reasonable inference that he was exposed to asbestos provided by Tacoma Asbestos, Saberhagen’s predecessor.

However, the appeals court agreed with the plaintiffs, stating Kennedy presented sufficient evidence to avoid summary judgment. As a result, the case was remanded for further proceedings.

Kennedy filed the complaint in January 2012 after being diagnosed with mesothelioma in November 2011.

He alleges he was exposed to asbestos on the Tacoma waterfront at Pier 23 between 1964 and 1968 while employed with the Washington Army National Guard, where he worked near others who installed and maintained insulation containing asbestos.

He also claims asbestos exposure while working aboard military vessels, where he was near asbestos insulation repair and installation.

Kennedy testified that when the vessel’s supply shop ran out of insulation, he was instructed to get materials from Tacoma Boat Building. He then personally poured the asbestos insulation product into buckets with water to make insulating asbestos cement and applied it with his bare hands.

Kennedy claims the defendant, an insulation supplier and contractor in Tacoma during the 1960s, supplied asbestos to Tacoma Boat.

On appeal, Kennedy claimed summary judgment was improper, arguing he provided sufficient circumstantial evidence to create a genuine issue of material fact showing he was exposed to asbestos supplied by Saberhagen.

Melnick wrote that generally, asbestos claimants in Washington may establish exposure to a certain product through circumstantial evidence alone.

“Due to the long latency of asbestos related diseases, a plaintiff’s ability to recall specific manufacturers of asbestos he was exposed to may be seriously impaired,” he wrote.

In order for circumstantial evidence to be appropriate, it must be sufficient for a reasonable fact finder to conclude that the claimant was exposed to a defendant’s product, the court said.

The appeals court found that “it would be reasonable for a fact finder to find that Kennedy came in contact with Saberhagen’s product.”

However, Saberhagen argued the evidence led to speculation that Kennedy was exposed to its insulation materials.

The court remained unconvinced.

Melnick added that Saberhagen only identified one issue on summary judgment, failing to mention its argument that Kennedy did not identify sufficient admissible evidence showing his harm was a result of asbestos-containing products supplied by the defendant.

“Saberhagen’s motion was clearly focused on exposure, arguing that Kennedy could not prove he was exposed to Saberhagen’s product,” he wrote. “It merely mentioned the words ‘harmed by’ or ‘causing his illness’ without providing argument on the causation issue.”

As a result, Melnick explained that the court ruled only on the exposure issue.

“Here, the mere mention of the words ‘harmed by’ or ‘causing his injury’ was insufficient to raise the issue of causation with particularity,” Melnick wrote. “Saberhagen provided insufficient notice to the other party that causation was one of the grounds for the relief sought. “

Therefore, the appeals court reviewed summary judgment only on sufficiency of evidence regarding Kennedy’s alleged asbestos exposure from Saberhagen’s products, reversing the trial court’s ruling and remanding the case for further proceedings.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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