United States District Court, N.D. Alabama, Eastern Division
DONNA FRANKLIN, Administratrix of the Estate of Ray Franklin, deceased Plaintiff,
DANA COMPANIES, LLC, f/k/a Dana Corporation, et al., Defendants.
MEMORANDUM OPINION AND ORDER
matter comes before the court on a motion for summary
judgment and “supplemental briefing” filed by
Defendant Dana Companies (Dana). (Docs. 47, 75). Before this
motion for summary judgment, Dana had already filed a motion
for summary judgment, which was denied, two motions for
reconsideration of that denial, which were denied, and a
motion for leave to file a renewed motion for summary
judgment, which was denied. The court construes this motion
for summary judgment to (1) seek permission to file a
successive motion for summary judgment and (2) seek
reconsideration of the denial of Dana's first motion for
reasons set out in this opinion, the court
DENIES the motion because Dana raised its
current argument in its first motion for summary judgment,
and Dana has not presented the court with any evidence
5, 2011, Ray and Donna Franklin filed this action in the
Calhoun County Circuit Court, naming a number of defendants,
including Dana. (Doc. 1 at 2). The complaint alleged various
claims arising from Mr. Franklin's exposure to asbestos.
(Doc. 1-2 at 16-64). The defendants removed the action on
July 29, 2011. (Id.). In September 2011, the United
States Judicial Panel on Multidistrict Litigation (MDL)
transferred the action to the Eastern District of
Pennsylvania for inclusion in the coordinated or consolidated
pretrial proceedings being conducted there. (Doc. 16).
October 23, 2011, Mr. Franklin died of respiratory failure
caused in part by asbestosis. (MDL Doc. 8-1). Ms. Franklin,
as Administratrix of Mr. Franklin's estate, continued to
prosecute the action, adding claims for wrongful death and
loss of consortium. (MDL Doc. 23; see also MDL Doc.
court entered a scheduling order requiring the parties to
complete discovery by November 30, 2012, but permitting the
parties to serve their expert reports outside the discovery
deadline. (MDL Doc. 37). Ms. Franklin's expert reports
were due by December 31, 2013, and Dana's expert reports
were due by February 24, 2013. (Id.; MDL Docs. 63,
67). Dispositive motions were due by March 14, 2013. (MDL
timely moved for summary judgment (the “first motion
for summary judgment”) on the basis that there was
insufficient evidence Mr. Franklin had ever been exposed to
asbestos fiber from a Dana product or that a Dana product was
a substantial cause of Mr. Franklin's illness and death.
(MDL Docs. 69, 69-1). The MDL court denied Dana's motion
for summary judgment, relying in part on an affidavit from a
former co-worker of Mr. Franklin named Beverly Olds. (MDL
Doc. 101 at 6-7). Specifically, the MDL court found that:
Plaintiff has provided evidence that [Mr. Franklin] worked
with asbestos-containing Dana clutches while performing (and
around others who were performing) clutch removal and
replacement work. He also states that sometimes other
employees would blow off the clutches, spreading dust. . . .
[T]here is evidence that, beginning in 1994, [Mr. Franklin]
did removal and replacement work with Dana
asbestos-containing clutches, and because it is common
knowledge that such work results in creation and disturbance
of dust from the product (from friction, etc.), a reasonable
jury could conclude from the evidence that [Mr.
Franklin]'s illness was caused by exposure that was
attributable to [Dana].
(Id. at 7).
moved twice for reconsideration of that decision, and the MDL
court denied both motions. (MDL Docs. 104, 110, 116, 124).
Dana's first motion for reconsideration rested on the
argument that the MDL court erred in relying on an affidavit
of Mr. Olds that the court had struck in an earlier order.
(MDL Doc. 104). The MDL court, in denying the first motion
for reconsideration, stated that “even without the
stricken affidavit of Beverly Olds, Plaintiff has pointed to
deposition testimony of Mr. Olds, in the record, that
provides the necessary testimony of asbestos exposure from
Dana clutches.” (MDL Doc. 110 at 1 n.1). In its second
motion for reconsideration, Dana argued that Mr. Olds'
deposition testimony did not establish that he had any
knowledge about whether Dana clutches contained asbestos or
whether Mr. Franklin worked with or around any Dana clutches.
(MDL Doc. 116 at 10). The MDL Court denied the second motion
for reconsideration on the basis that Dana had not shown an
intervening change in the controlling law, the availability
of new evidence, or the need to correct a clear error of law
or to prevent manifest injustice. (MDL Doc. 124).
November 2014, the MDL court suggested remand to the Northern
District of Alabama for resolution of all matters except
punitive damages. (MDL Doc. 125). In December, the MDL panel
entered a conditional remand order. (See Doc. 75-3
at 1; Doc. 72-2). Dana moved to vacate the conditional remand
order because (1) “the parties did not have an
opportunity to conduct discovery regarding the opinions
expressed in the expert reports” and (2) it had
recently discovered that Ms. Franklin had filed another
lawsuit seeking damages for the same claims asserted in the
MDL case, but she had not disclosed the existence of that
second action. (Doc. 75-3 at 3). Ms. Franklin responded that
she had “no objection to further discovery, for
example, of experts, to take place in the present
case.” (Doc. 75-1 at 2). Noting that pretrial
proceedings did not have to be completed before remand, the
MDL panel remanded the action to the Northern District of
Alabama. (Doc. 75-2 at 2).
March 2016, back in the Northern District of Alabama, Dana
moved for leave to file a renewed motion for summary
judgment. (Doc. 37). The magistrate judge assigned to the
case denied Dana's motion, explaining that no change of
circumstances in the case justified reconsidering the MDL
court's denial of summary judgment. (Doc. 40 at 4-6).
However, after denying the motion, the magistrate judge
entered a scheduling order allowing the parties to file
“dispositive motions, limited to the issue of
causation.” (Doc. 43).
completing additional discovery, Dana moved for summary
judgment (the “second motion for summary
judgment”), contending that Ms. Franklin had presented
no evidence showing that Mr. Franklin had been exposed to
asbestos from a Dana product. (Docs. 47, 47-1). Dana's
motion was primarily based on two “new” pieces of
evidence. First, Dana presented a transcript from a 2014
deposition of Mr. Olds taken in Ms. Franklin's other
lawsuit. (Doc. 47-1 at 8-13). Dana argued that Mr. Olds'
2014 testimony “reaffirmed” that his
“unfounded and incompetent opinion” could not
establish that Dana exposed Mr. Franklin to asbestos.
(Id. at 23-24). Second, Dana presented an expert