Opinion
C.A. No. 09C-03-197 ASB.
January 13, 2011.
UPON DEFENDANT CLEAVER-BROOKS, INC., f/k/a AQUA-CHEM'S MOTION FOR SUMMARY JUDGMENT, DENIED.
This 13th day of January, 2011, it appears to the Court that:
Upon review of the record and the parties' filings, the Court concludes that Defendant Cleaver-Brooks, Inc. ("Cleaver-Brooks") is not entitled to summary judgment. Contrary to assertions contained in the motion before the Court, the record includes admissible evidence from which a jury could conclude that Plaintiff was exposed to asbestos from Cleaver-Brooks products present in the Park City Hospital. In particular, product identification witness David Raschke provided testimony supporting that he was familiar with asbestos and its applications as a result of on-the-job training and experience, and that he identified asbestos-containing products based upon his personal observations of the products while they were in use, as well as observations of which products were subsequently removed from the facility during asbestos remediation efforts. Furthermore, Raschke's testimony that the Cleaver-Brooks boiler gaskets and packing contained asbestos was also based upon non-hearsay admissions of a Cleaver-Brooks servant or agent describing the products. While other of Plaintiff's witnesses indulged in impermissible speculation, such as stating that insulation materials must have contained asbestos based upon unfounded assumptions about the unavailability of alternative materials, Plaintiff has presented sufficient admissible evidence to avoid summary judgment.
David Raschke Dep. (Apr. 28, 2010), at 64:10-64:23; see D.R.E. 701; Perman v. C.H. Murphy/Clark-Ullman, Inc., 185 P.3d 519, 523 (Or. Ct. App. 2008) ("Although decedent was not an `asbestos expert,' his testimony makes clear that, during his employment as a welder and sheet metal worker, he had seen asbestos before and, based on the combination of that experience and his perceptions, had substantial and rational reason to believe that the `white material [that was] kind of * * * woolish' in the gloves was asbestos. In sum, decedent's statement was `[r]ationally based on [his] perception' and would be helpful to the trier of fact, [Oregon Evidence Code] 701, and, thus, is admissible.").
David Raschke Dep., 48:2-5 ("That's what they told us when the serviceman came from Cleaver Brooks. I asked `What is it made of?' He said, `Asbestos.' He said, `They last long, and they take the heat.'"), 83:17-19 ("Howie, the manufacturer told me [the Cleaver-Brooks gaskets] were asbestos, and that was the best insulator for heat"), 112:24-113:5; see D.R.E. 801(d)(2).
Accordingly, Cleaver-Brooks's Motion for Summary Judgment is hereby DENIED.
IT IS SO ORDERED.