[Cite as Williams v. Goodyear Tire & Rubber Co., 2017-Ohio-4052.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

RUTH WILLIAMS                                             C.A. No.   28253

        Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
GOODYEAR TIRE & RUBBER                                    COURT OF COMMON PLEAS
COMPANY                                                   COUNTY OF SUMMIT, OHIO
                                                          CASE No.   AC-2014-04-2035
        Defendant

        and

AKRON GASKET & PACKING
ENTERPRISES

        Appellee

                                DECISION AND JOURNAL ENTRY

Dated: May 31, 2017



        TEODOSIO, Judge.

        {¶1}    Appellant, Ruth Williams, appeals the order of the Summit County Court of

Common Pleas granting summary judgment in favor of Akron Gasket & Packing Enterprises,

Incorporated. This Court reverses and remands.

                                                     I.

        {¶2}    On April 17, 2014, Ruth Williams, individually and as the executrix for the estate

of Donald Williams, filed a complaint for product liability, negligence, wrongful death, and

intentional tort against multiple defendants stemming from her husband Donald Williams’

potential exposure to asbestos-containing materials during his employment at PPG Industries and
                                                2


Goodyear Tire & Rubber Company (“Goodyear”). This exposure was alleged to have caused

Mr. Williams’ subsequent illness and death. Appellee, Akron Gasket & Packing Enterprises,

Inc. (“Akron Gasket”), was alleged to have supplied asbestos-containing tape to which Mr.

Williams was exposed during his employment at Goodyear.

       {¶3}    On April 20, 2016, the trial court granted Akron Gasket’s motion for summary

judgment, finding that no evidence had been presented to suggest that Mr. Williams had been

exposed to asbestos as the result of any product supplied to Goodyear by Akron Gasket. Ms.

Williams now appeals, raising three assignments of error.

                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
       FAVOR OF AKRON GASKET AND PACKING COMPANY ON THE BASIS
       [THAT] CO[-]WORKER TESTIMONY WAS HEARSAY AS NOT BASED ON
       PERSONAL KNOWLEDGE.

       {¶4}    In her first assignment of error, Ms. Williams argues the trial court erred in

finding that the testimony of Mr. Williams’ co-worker was hearsay and in granting summary

judgment on that basis. We agree.

       {¶5}    Appellate review of an award of summary judgment is de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment is appropriate under Civ.R. 56

when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is

entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of

the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is

adverse to the nonmoving party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977),

citing Civ.R. 56(C). A court must view the facts in the light most favorable to the non-moving

party and must resolve any doubt in favor of the non-moving party. Murphy v. Reynoldsburg, 65
                                                3


Ohio St.3d 356, 358–359 (1992). A trial court does not have the liberty to choose among

reasonable inferences in the context of summary judgment, and all competing inferences and

questions of credibility must be resolved in the nonmoving party’s favor. Perez v. Scripps–

Howard Broadcasting Co., 35 Ohio St.3d 215, 218 (1988).

       {¶6}    The Supreme Court of Ohio has set forth the nature of this burden-shifting

paradigm:

       [A] party seeking summary judgment, on the ground that the nonmoving party
       cannot prove its case, bears the initial burden of informing the trial court of the
       basis for the motion, and identifying those portions of the record that demonstrate
       the absence of a genuine issue of material fact on the essential element(s) of the
       nonmoving party’s claims. The moving party cannot discharge its initial burden
       under Civ.R. 56 simply by making a conclusory assertion that the nonmoving
       party has no evidence to prove its case. Rather, the moving party must be able to
       specifically point to some evidence of the type listed in Civ.R. 56(C) which
       affirmatively demonstrates that the nonmoving party has no evidence to support
       the nonmoving party’s claims. If the moving party fails to satisfy its initial
       burden, the motion for summary judgment must be denied. However, if the
       moving party has satisfied its initial burden, the nonmoving party then has a
       reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that
       there is a genuine issue for trial and, if the nonmovant does not so respond,
       summary judgment, if appropriate, shall be entered against the nonmoving party.

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

       {¶7}    With regard to an asbestos liability case, the plaintiff has the burden of proving

exposure to asbestos that was manufactured, supplied, installed, or used by the defendant and

that the product was a substantial factor in causing the plaintiff’s injury. Horton v. Harwick, 73

Ohio St.3d 679 (1995), syllabus; R.C. 2307.96(B).

       {¶8}    The evidence before the trial court on the motion for summary judgment consisted

in large part of the deposition testimony of one of Mr. Williams’ co-workers. In its judgment

entry, the trial court found that the co-worker had “no personal knowledge concerning whether

asbestos-containing tape that was used [sic] supplied by [Akron Gasket]” or if “it was a
                                                 4


substantial factor that ultimately led to Mr. Williams’ death.” The trial court went on to find that

the co-worker “provide[d] hearsay testimony concerning the asbestos tape in use at Goodyear,”

and that “such is not satisfactory evidence for * * * summary judgment analysis.” The trial court

further explained: “[T]he plaintiff cannot now establish that those products in use at Goodyear

were supplied by [Akron Gasket].        Without such product identification, there can be no

determination that the tape was a substantial factor in causing Mr. Williams’ illness and death.”

The trial court then reiterated:

               The evidence presented demonstrates that although the defendant may
        have sold, produced, supplied and/or manufactured some asbestos-containing
        products, the plaintiff has failed to demonstrate that Mr. Williams used or came
        into contact with those specific asbestos-containing products while working at
        Goodyear and that those products were a substantial factor in causing his illness
        and subsequent death. No evidence has been presented to suggest that Mr.
        Williams was exposed to asbestos as a result of any product supplied to Goodyear
        by [Akron Gasket].

These findings made by the trial court—indicating that the co-worker had no personal

knowledge of the supplier of the tape to Goodyear—are not supported by the evidence.

        {¶9}    The co-worker’s deposition testimony provides the following:

        Q. So is it your testimony that Akron Gasket supplied the tape --

        A. Yes.

        Q. -- that Mr. Williams used in the industrial products building?

He further testified:

        Q. So you actually -- did you actually personally observe Mr. Williams working
        with tape, cement and insulation?

        A. Yes.

        Q. Okay. And are those all the asbestos-containing products you observed him
        working on, tape, cement, insulation?

        A. Yes.
                                                   5



       ***

       Q. Do you know the supplier of the tape that Mr. Williams used in 371-H?

       A. Akron Gasket.

During his second deposition, he also testified:

       Q. Pursuant to your testimony in July for this matter, you testified Akron Gasket
       [was] a supplier of tape Mr. Williams worked with in two locations at Goodyear,
       [department] 214-B and [department] 317-H, correct?

       ***

       A. I was remiss if I didn’t mention Chemigum as well, 345-D.

       Q. Okay. We’ll get to that.

       A. But yes, on those two.

       ***

       Q. And do you know who supplied that tape that Mr. Williams would have
       worked with or around in the Chemigum?

       A. Akron Gasket.

       ***

       Q. And am I correct in saying that your sole basis for associating Akron Gasket
       with the tape in these locations is that you saw the name on -- was it a stamp or
       was it a tag?

       A. It was a tag with a metal -- metal tie on it, a piece of wire, probably 2 inches
       by 4 inches with a company name on it.

       ***

       Q. Let’s talk about the wire. You said about 2 by 4?

       A. 2 inches by 4 inches, a wire tag with a piece of cardboard on the end of it.

       Q. And was anything -- what was written -- was it actually on the cardboard, or
       was it the tag?
                                                 6


       A. It was like a manila folder thickness. I can probably draw you what one of
       these cards looked like.

       Q. What was written on that tag?

       A. The company Akron -- supplied by Akron Gasket.

       {¶10} The co-worker’s testimony provides non-hearsay evidence that sets forth specific

facts demonstrating that a genuine issue exists as to whether Akron Gasket supplied Goodyear

with tape used by Mr. Williams. The trial court’s finding that the co-worker testified “that the

basis for his opinion that Akron Gasket provided tape to Goodyear was that he had been told by

this supervisors and that it was common knowledge among Goodyear employees” is not

supported by the record.

       {¶11} With regard to whether the tape contained asbestos, Akron Gasket again argues

that the co-worker’s testimony was hearsay. It is as to this question that the co-worker offered

testimony stating that his belief that the tape at issue contained asbestos was based upon

“common knowledge” and that his supervisor had told him the tape contained asbestos.

However, on this issue, Akron Gasket has not met its burden in pointing to evidentiary materials

that demonstrate there is no genuine issue as to the facts. While Akron Gasket disputes the

specific issue of whether it provided tape to Goodyear, it does not dispute the general fact that it

was a supplier of tape containing asbestos. The testimony of the company owner from 2001

provided that although it did offer supplies of asbestos tape, Akron Gasket did not provide any

tape to Goodyear. As we have noted, there is conflicting testimony as to whether Akron Gasket

provided tape to Goodyear, thus creating a genuine issue of material fact. In the event that

Akron Gasket had supplied tape to Goodyear, it provided no evidence to refute the testimony that

it was commonly known to contain asbestos.
                                                7


       {¶12} Finally, on the issue of whether there is evidence that Mr. Williams was exposed

to tape supplied by Akron Gasket, the co-worker’s testimony provided that he saw Mr. Williams

working with asbestos-containing tape and removing asbestos tape at Goodyear. He specifically

testified that the supplier of the tape that Mr. Williams used in 371-H was Akron Gasket, and

further stated: “I definitely saw him using tape. We all used tape. At one period of time,

asbestos tape was only to be put on by pipe coverers and then they relaxed that because it wasn’t

efficient enough for their operation.”

       {¶13} Viewing the evidence in a light most favorable to Ms. Williams, genuine issues of

material fact remain to be litigated. The trial court therefore erred in granting the motion for

summary judgment.

       {¶14} Ms. Williams’ first assignment of error is sustained.

                                ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
       THE BASIS THAT A NON[-]EXPERT CO[-]WORKER WAS UNABLE TO
       STATE THAT A PRODUCT WAS A SUBSTANTIAL FACTOR IN
       PLAINTIFF’S DISEASE AND DEATH, BY STATING THAT THE “COURT
       CANNOT CONCLUDE ANY PRODUCT WAS A SUBSTANTIAL FACTOR”
       AND BY NOT CONSIDERING PLAINTIFF’S EXPERT AFFIDAVITS ON
       THIS ISSUE.

       {¶15} In her second assignment of error, Ms. Williams argues the trial court erred in

finding that it could not conclude that any product was a substantial factor in Mr. Williams’

illness and death and by not considering expert affidavits on the issue. We agree.

       {¶16} The trial court found:

       [Mr. Williams’ co-worker] provide[d] hearsay testimony concerning the asbestos
       tape in use at Goodyear. [Ms. Williams’ industrial expert] relie[d] on that hearsay
       to provide additional hearsay testimony, on which, in turn, [Ms. Williams’
       medical expert] offers the hearsay testimony concerning medical causation. Such
       is not satisfactory evidence for trial and accordingly for summary judgment
       analysis.
                                               8



Consequently, the trial court went on to conclude that Ms. Williams failed to demonstrate that

the tape was a substantial factor in causing her husband’s illness and subsequent death.     The

basis of the trial court’s conclusion with regard to causation was built upon the court excluding

the co-worker’s testimony as hearsay, with the court determining that the subsequent expert

testimony was founded upon the co-worker’s hearsay testimony and therefore inadmissible.

Because we have determined that the trial court erred in its hearsay determination of the co-

worker’s testimony, the court’s subsequent exclusion of the expert testimony on that basis was

also in error.

        {¶17} Ms. Williams’ second assignment of error is sustained to the extent that the trial

court based its decision on an improper hearsay analysis as set forth in our disposition of Ms.

Williams’ first assignment of error.

                               ASSIGNMENT OF ERROR THREE

        THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT
        WHEN IT TOOK OVER THE ROLE OF THE JURY AND WEIGHED THE
        EVIDENCE PRESENTED, DETERMINED THE CREDIBILITY OF
        CONFLICTING WITNESSES AND FAILED TO VIEW THE EVIDENCE IN
        FAVOR OF THE PLAINTIFF AS THE NON[-]MOVING PARTY AFTER
        ACKNOWLEDGING THAT SOME EVIDENCE EXISTED.

        {¶18} In her third assignment of error, Ms. Williams argues the trial court erred in

weighing the evidence, determining credibility, and in failing to view the evidence in a light

most favorable to the non-moving party.       We decline to address these arguments, as our

resolution of Ms. Williams’ first and second assignments of error will necessitate a new ruling

and analysis by the trial court.
                                                 9


                                                III.

       {¶19} Ms. Williams’ first and second assignments of error are sustained. The judgment

of the Summit County Court of Common Pleas is reversed and remanded for further proceedings

consistent with this decision.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.
                                          10



APPEARANCES:

JESSICA M. BACON, Attorney at Law, for Appellant.

LAURA KINGSLEY HONG and BRENDAN P. KELLEY, Attorneys at Law, for Appellee.
