Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Franklin v. Caterpillar Inc.

United States District Court, N.D. Alabama, Eastern Division

February 10, 2015

Donna FRANKLIN, Individually and as Personal Representative of the Estate of Ray Franklin, deceased, Plaintiff,
v.
CATERPILLAR INC., et al., Defendants.

MEMORANDUM OPINION

KARON OWEN BOWDRE, Chief District Judge.

This asbestosis case comes before the court on Defendant Honeywell International Inc.'s "Motion for Summary Judgment, " (Doc. 22); Defendant Carlisle Industrial Brake & Friction, Inc.'s "Motion for Summary Judgment, " (Doc. 24); Defendant Caterpillar Inc.'s "Motion for Summary Judgment, " (Doc. 26); Carlisle's "Motion to Strike Affidavit of Beverly Olds, " (Doc. 39); Caterpillar's "Motion to Strike, " (Doc. 40); Plaintiff Donna Franklin's Rule 56(d) motion to continue contained in her "Response and Opposition to Motions for Summary Judgment, " (Doc. 32); and the court's "Order to Show Cause" as to why Defendant Federal-Mogul should not be dismissed for failure to prosecute, (Doc. 53).

For the reasons discussed below, the court GRANTS in part and DENIES in part Carlisle's motion to strike, (Doc. 39); and GRANTS in part and DENIES in part Caterpillar's motion to strike, (Doc. 40). The court DENIES the Plaintiff's Rule 56(d) motion to continue contained in her consolidated response to the Defendants' motions for summary judgment, (Doc. 32). The court GRANTS Honeywell's motion for summary judgment, (Doc. 22); GRANTS Carlisle's motion for summary judgment, (Doc. 24); and GRANTS Caterpillar's motion for summary judgment, (Doc. 26). Finally, the court DISMISSES Federal-Mogul WITHOUT PREJUDICE at the Plaintiff's direction.

I. Background

This case concerns Plaintiff Donna Franklin's deceased husband, Ray Franklin. According to the Plaintiff, Ray Franklin's exposure to asbestos led to his death. Ray Franklin spent his working years as a heavy equipment mechanic at various locations near Oxford, Alabama, including Hub Trucking, Inc.; Gold Kist, Inc.; and Thompson Tractor Company, a Caterpillar dealership from 1980 to 2009. According to the Plaintiff, Ray Franklin worked at these locations with asbestos-containing products that were manufactured by Caterpillar, Carlisle, and Honeywell. The alleged asbestos-containing products included brake pads, engine gaskets, and clutch bases.

On May 5, 2011, prior to his death, Ray Franklin filed his first complaint related to asbestos exposure in the Circuit Court of Calhoun County, Alabama entitled Ray and Donna Franklin v. Gold Kist Holdings, Inc., No. CV 2011-153, asserting products liability claims related to his asbestosis against many defendants not joined in this case. These defendants subsequently removed the case to federal court and the court transferred it to the asbestos MDL in the Eastern District of Pennsylvania. See Franklin v. Dana Holding Corp., No. 1:11-cv-02731-PWG (N.D. AL Sept. 6, 2011) (Doc. 16). That case is currently pending before the Judicial Panel for Multidistrict Litigation regarding the Eastern District of Pennsylvania's remand order.

On March 29, 2013, the Plaintiff filed her complaint in this case in the Circuit Court of Calhoun County, Alabama entitled Donna Franklin v. Caterpillar Inc, CV 2013-183, asserting similar products liability claims related to Ray Franklin's asbestosis against Caterpillar, Honeywell, and Carlisle. The Plaintiff lists five counts in her complaint, including "Alabama Extended Manufacturer's Liability Doctrine, " "Negligence and Intentional Tort, " "Negligence in the Course of Employment, " "Fraudulent Concealment/Misrepresentation/Alteration of Medical Studies/Conspiracy/Aiding and Abetting Conspiracy, " and "Product Liability, Combined and Concurring Negligence, Intentional Tort and Conspiracy." (Doc. 1-1). The defendants removed the case to this court on May 10, 2013 based on proper diversity jurisdiction pursuant to 28 U.S.C. ยง 1332.

The Defendants argue that Ray Franklin may or may not have been exposed to asbestos through his work, but that no evidence links Ray Franklin to products manufactured by these Defendants and, thus, summary judgment is appropriate. The court agrees with the Defendants. Before addressing the Defendants' summary judgment motions, however, the court must rule on several motions to determine the record before it for summary judgment purposes.

II. Motions to Strike

In her consoldiated response to the Defendants' motions for summary judgment, the Plaintiff attaches two new affidavits from Donna Franklin and Beverly Olds. (Doc. 32). Defendants Caterpillar and Carlisle have moved to strike the affidavits as either not admissible under the Federal Rules of Evidence or as sham affidavits. The court agrees that some of Olds' statements in his affidavit are shams. However, the court will consider the remainder of Olds' affidavit and Donna Franklin's affidavit.

A. Donna Franklin

The Plaintiff, Donna Franklin, was married to Ray Franklin. Caterpillar moves to strike the following statement from Donna Franklin's affidavit:

None of those houses [lived in by Ray Franklin] had any Asbestos in them to the best of my knowledge. Ray did not work with any Asbestos at home or in any hobby that he ever had. He was eventually diagnosed in 2010, as having Asbestosis, and there is no other place that I know of that he could have gotten the exposure to Asbestos, other than from his jobs.

(Doc. 32-2, 2).

A witness may testify to a matter only if the witness had personal knowledge of the matter. See Fed.R.Evid. 602. Whether her homes contained asbestos or whether Ray Franklin had any hobby involving asbestos products are matters within Donna Franklin's personal knowledge. Donna Franklin was married to Ray Franklin and lived with him for many years. She is able to testify, to the "best of [her] knowledge, " regarding the homes they shared and Ray Franklin's hobbies.

Further, Donna Franklin's conclusion that "there is no other place that [she] know[s] of that [Ray Franklin] could have gotten the exposure to Asbestos" is rationally based on her perception and is not, as Caterpillar suggests, expert testimony. She is not making a medical or expert judgment. Rather, she is stating what she saw over their years together. Her statement is not barred under Fed.R.Evid. 701 and 702.

Therefore, the court DENIES Caterpillar's motion to strike Donna Franklins' statement.

B. Beverly Olds

Beverly Olds worked with Ray Franklin at Thompson Tractor as a heavy equipment mechanic and he provided an affidavit on August 6, 2014. Carlisle and Caterpillar argue that Olds' affidavit is a "sham" because it directly contradicts, without explanation, his prior deposition testimony from November 30, 2012 and March 5, 2014. The Plaintiff disagrees, arguing that Olds' affidavit is not inconsistent and would be helpful to a jury.

Carlisle and Caterpillar move to strike the following five statements from Olds' affidavit:

1. I remember using new and removing old Carlisle brakes and clutches in addition to the other brakes and clutches that we removed and replaced. I remember using Bendix brakes too, and I understand that under its present ownership by Honeywell, Bendix still manufactures those brakes today.
2. A big part of any mechanic's job was to change and repair brake shoes, clutches, and gaskets, all of which contained asbestos.
3. This dust contained significant amounts of asbestos from products and materials made with asbestos, like the brake shoes, gaskets and clutches. This dust floated throughout the work bays constantly, exposing all of us who worked there to the asbestos fibers.
4. All of the mechanics, including Ray, worked on private equipment that was very old. Those old gaskets were difficult to get off and would have to be ground out, and blown out by an air hose. The asbestos dust would fill the air in the whole shop when we were working on those gaskets.
5. Ray Franklin worked at Thompson Tractor Company, Inc., in that asbestos filled environment, for fourteen years.

(Doc. 32-3 (emphasis added)).

The court will strike the portions of the five statements in bold type above because they are inconsistent with Olds' prior deposition testimony. However, the court will not strike the remainder of Olds' affidavit including the normal type sections of the five statements above because they are consistent with Olds' prior deposition testimony.

"When a party has given clear answers to unambiguous questions which negate the existence of any issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Van T. Junkins & Assoc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984); see Santhuff v. Seitz, 385 F.Appx. 939, 945 (11th Cir. 2010) (finding the sham affidavit doctrine also applies to non-parties).

The sham affidavit doctrine "is applied sparingly because of the harsh effect it may have on a party's case." Allen v. Bd. of Pub. Educ. for Bibb County, 495 F.3d 1306, 1316 (11th Cir. 2007) (quoting Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987)). Failure of memory or variations in testimony are not sufficient to strike the affidavit; rather, the affidavit and prior testimony must be "inherently inconsistent." Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir. 1986). Thus, the court must make "[a] definite distinction... between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence." Id. at 953.

For example, in Lane v. Celotex Corp., another case involving the testimony of a coworker in an asbestos case, the court found the coworker's affidavit not to be a sham. See 782 F.2d 1526, 1532 (11th Cir. 1986). The court focused on the clarity and structure of Celotex's questioning and whether the affidavit and deposition testimony could both logically be true. See Lane, 782 F.2d at 1532; see Tippens, 805 F.2d at 954 (finding statement not a sham because affidavit and deposition testimony not in "irreconcilable conflict").

Thus, Olds' affidavit statements are not shams unless the statements and prior testimony are inherently inconsistent and not merely distinctions or elaborations that go to the weight and credibility of the testimony.

1. New Product Brands

First, the court reviews the following challenged statement from Olds' affidavit:

1. I remember using new and removing old Carlisle brakes and clutches in addition to the other brakes and clutches that we removed and replaced. I remember using Bendix brakes too, and I understand that under its present ownership by Honeywell, Bendix still manufactures those brakes today.

(Doc. 32-3, 2-3).

This statement is consistent with Olds' deposition testimony. In Olds' 2012 deposition, he stated that he could not name any particular brand of brake assembly, brake shoe, or clutch that Ray Franklin would have removed or installed. Olds' testified:

Q: Are you able to testify under oath that you have a specific recollection of Ray Franklin working around a brake assembly that was manufactured by a particular company?
A: No.
Q: You would be speculating?
A: Exactly.
...
Q: My question was that, even if you could say that, you wouldn't have a way of knowing whether the brake pad that was on that brake assembly came from the brake manufacturer or came from a refurbisher, correct?
A: Right.
...
Q: Are you able-on the six times that you recall doing a clutch replacement work hands-on with Ray Franklin, are you able to testify who the manufacturer of the clutch that was being removed was?
A: No.
Q: You would be speculating?
A: Speculating. I couldn't remember. I've done probably a thousand clutch jobs in 40 years. And it's hard to remember six out of a thousand.

(Doc. 24-9, 15-16).

However, on further examination in 2014, Olds testified that he could recall personally working with Carlisle brake pads. Olds testified:

Q:... Do you remember working with any brake products at all called Carlisle Brake and Friction or Motion Control?
A: During my career?
Q: During your career?
A: Yes, sir.
...
Q: Mr. Olds, I think you told us a minute ago that you had recalled replacing some refurbished brake shoes that you thought were done by Carlisle?
A: I didn't say they were done by Carlisle. I said that they had Carlisle pads on them.
...
Q: How could you tell if a brake-refurbished brake shoe was, or pad or-was a Carlisle versus somebody else?
A: Unless I put them on there, I wouldn't know.

(Doc. 24-3, 32, 44).

Further, in 2014 Olds testified that he could recall personally working with Honeywell/Bendix air compressors, a brake component.

Q: Okay. Now, do you remember using parts that had the Bendix name on it during your work at Thompson Caterpillar?
A: Yeah.
Q: And what kind of parts would that be, Mr. Olds?
A: The only ones that I remember actually handling or dealing with myself were air compressors.
...
Q: Oh, okay. The air compressor that worked ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.