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Olds v. 3M Co.

United States District Court, Ninth Circuit

December 10, 2013

PAUL OLDS, Plaintiff,
v.
3M COMPANY (aka MINNESOTA MINING & MANUFACTURING COMPANY, et al. Defendants.

UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF GRANTING DEFENDANT PNEUMO ABEX LLC'S MOTION FOR SUMMARY JUDGMENT

MANUEL L. REAL, District Judge.

The Court's ruling granting Defendant Pneumo Abex LLC's ("Abex") Motion for Summary Judgment is based on the findings of Uncontroverted Facts and Conclusions of Law, as set forth below, and for the reasons stated on the record at the November 25, 2013 hearing on Abex's Motion for Summary Judgment.

CONCLUSIONS OF LAW

1. Summary judgment is appropriate when the pleadings, discovery, and disclosure materials show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c)(2). "A motion for summary judgment will not be defeated by the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
2. The fundamental threshold issue in this asbestos litigation is whether Mr. Olds was exposed to asbestos placed into the stream of commerce by Abex. See Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 975 (1997); McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098, 1103 (2002). Plaintiff must establish exposure to asbestos from products actually supplied by Abex and cannot rely on evidence that they may have placed such products into the stream of commerce. Mullen v. Armstrong World Industries, Inc., 200 Cal.App.3d 250, 257 (1988).
3. Causation is the nexus of any products liability action. Here, it would require speculation and a stream of conjecture and surmise to establish causation and find that Mr. Olds was exposed to asbestos from Abex friction products. McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098, 1105 (2002); Dumin v. Ownes-Corning Fiberglas Corp., 28 Cal.App.4th 650, 656 (1994); Whitmire v. Ingersoll-Rand Co., 184 Cal.App.4th 1078, 1093-1095 (2010).
4. Contradictor declarations must be disregarded. "The general rule in the Ninth Circuit is that party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th. Cir. 1991)). Known as the "sham affidavit" rule, this rule is necessary to maintain the integrity of the summary judgment procedure. See id. Sham testimony is "testimony that flatly contradicts earlier testimony in an attempt to create' an issue of fact and avoid summary judgment." Kennedy, 952 F.2d at 266. The two criteria for invoking the "sham affidavit" rule are (1) contradiction must be clear and unambiguous and (2) the contradictory affidavit must not be an attempt to explain or clarify earlier testimony. Van Asdale, 577 F.3d at 998-999. Mr. Olds' declaration, served in opposition to Abex's Motion for Summary Judgment, is a sham declaration. The declaration unambiguously contradicts his prior sworn deposition testimony.

Plaintiff has not provided and cannot reasonably obtain competent and admissible evidence establishing that Abex is liable for Mr. Olds' injuries under any theory of liability. Therefore, judgment shall be entered in favor of Abex based on the Uncontroverted Facts and Conclusions of Law.


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