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Franklin v. Dana Companies, LLC

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

August 1, 2018

DONNA FRANKLIN, Administratrix of the Estate of Ray Franklin, deceased Plaintiff,
DANA COMPANIES, LLC, f/k/a Dana Corporation, et al., Defendants.


         This 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 summary judgment.

         For the 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 warranting reconsideration.

         I. BACKGROUND

         On May 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.[1] (Doc. 16).

         On 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. 20-1).

         The MDL 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 Doc. 37).

         Dana 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).

         Dana 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).

         In 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).

         In 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).

         After 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 ...

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