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Weakley v. Burnham Corp.

April 14, 2005

BASIL F. WEAKLEY, JR., APPELLANT,
v.
BURNHAM CORPORATION, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia. (CA524-02). (Hon. Joan Zeldon, Motions Judge). (Hon. Herbert B. Dixon, Jr., Motions Judge).

Before Schwelb, Reid and Glickman, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge.

Argued October 7, 2004

Basil F. Weakley, Jr., was employed as a boiler service worker in the Washington, D.C., metropolitan area from approximately 1964 to 1979. He contracted asbestosis many years later. Weakley brought this action for negligence, failure to warn, and strict liability against eight boiler manufacturers, alleging that the manufacturers were legally responsible for his asbestosis and were therefore liable to him in damages. In three separate orders, the Superior Court granted summary judgment in favor of the manufacturers, concluding principally that Weakley had presented insufficient evidence of causation.

Weakley has appealed from the judgments in favor of five of the manufacturers: Burnham Corporation, Cleaver Brooks, Foster Wheeler, L.L.C., The Marley Company, and Oakfabco, Inc. Weakley contends that summary judgment was improper because, (1) in his answers to interrogatories and attachments thereto, in his deposition, and in a subsequent affidavit, he presented proof that "[he] and [each of] the defendants' [asbestos-containing] products were in the same place at the same time," as required by our decision in Claytor v. Owens-Corning Fiberglas Corp., 662 A.2d 1374, 1384-85 (D.C. 1995); and (2) Weakley's expert witness, M. Anthony Casolaro, M.D., a pulmonologist, stated in his affidavit, to a reasonable degree of medical certainty, that as a result of Weakley's regular exposure to asbestos while working on boilers, he developed asbestosis, and that "each and every exposure to asbestos from boilers containing, or covered with, asbestos materials was a significant causative factor in the development of asbestosis in Mr. Weakley." We agree with Weakley that summary judgment should not have been granted.

Weakley also appeals from orders of the Superior Court, issued without opinion, granting the motions of defendants Burnham and Foster Wheeler to preclude Weakley from taking the depositions of corporate designees of these defendants pursuant to Super. Ct. Civ. R. 30 (b)(6). By means of these depositions, Weakley had sought to ascertain, inter alia, whether any of the companies' boilers had been installed in the Washington, D.C., metropolitan area, and the identities of any boilers (or of other products containing asbestos) which these defendants may have sold to Weakley's principal employers during the period that Weakley serviced boilers. We conclude that the dispute over these protective orders should be resolved in conformity with Covington v. Abex Corp., 1990 U.S. Dist. LEXIS 16197 (D.D.C. 1990):

[B]efore [defendants] need furnish information that may be relevant to the instant litigation, [Weakley] must provide [defendants] with a list of the places where [Weakley] worked, the companies with whom [Weakley] was employed, and the duration of [Weakley's] employment with those companies in the years that he was allegedly exposed to [the defendant's] products.

Weakley has represented under oath that he has frequently worked with Burnham and Foster Wheeler boilers and has regularly been exposed to asbestos in doing so. Given the decades that have elapsed between his alleged encounters with these defendants' products and his contraction of asbestosis, we conclude that to demand more from Weakley before permitting him to conduct even limited discovery would place on Weakley, and on most plaintiffs in similar circumstances, an all-but unsustainable burden, for a plaintiff cannot reasonably be expected to recall, decades later, exactly where and when he encountered a particular manufacturer's product.

I. FACTUAL BACKGROUND

Weakley began his career servicing boilers in 1964, and for the next two years he worked principally for Fairfax County Public Schools. Subsequently, he was employed by Allen Mitchell & Co. and by Capital Boiler Works. Weakley alleges that the components of boilers on which he worked, e.g., insulation on pipes, fire-retardant bricks, and gaskets, contained asbestos, and that he was frequently exposed to asbestos dust. According to Weakley, there were no warning labels on any of the boilers which he serviced, and neither the manufacturers nor his employers apprised him of the dangers of working with asbestos. As a result, Weakley never wore respiratory protection, nor was he advised to do so by anyone.

Weakley filed this action on January 24, 2002, more than thirty-seven years after he began servicing boilers, and more than twenty-three years after he discontinued working with them. It is a matter of common knowledge that asbestosis takes a great many years to develop.*fn1 At the time he was working with boilers, Weakley had no reason or incentive to record the names of manufacturers, or any other identifying information, for he had no idea that, decades later, he would become ill as a result of his exposure to asbestos products. Thus, although it is undisputed that Weakley developed asbestosis, and although he has presented expert testimony that working on boilers exposed him to this disease, Weakley must now attempt to reconstruct, so far as he can, whose boilers he was servicing, where he was doing so, and with whom, all well over a quarter of a century ago. These realities provide the ever-present context of Weakley's appeal, and we cannot be blind to them as we consider both the propriety of summary judgment and the level of information that Weakley should be required to produce before being permitted to conduct any discovery and, specifically, before having the opportunity to take even limited Rule 30 (b)(6) corporate designee depositions.

Shortly after the complaint (later amended) was filed, the defendants propounded interrogatories to Weakley and noticed the taking of his deposition. After responding to these interrogatories, Weakley appended his answers in a seven-page chart captioned "Work History of Basil Weakley, Jr." Weakley stated that he "worked with and around boilers laden with asbestos-containing pipe insulation manufactured by . . . Burnham Corporation, Cleaver Brooks Boilers, Foster Wheeler Corporation, [Oakfabco], . . . and [Marley]," i.e., the five appellees in this case. As to some of his alleged exposures to asbestos, Weakley was able to include in his Work History

1. the approximate time of the claimed exposure;

2. the identity of his employer at the time;

3. the jobsite at which the boiler was allegedly serviced;

4. the identity of the manufacturer of the boiler (or, if this information was unknown to Weakley, the specific type of asbestos-containing component encountered by Weakley at the site); and

5. the name of a co-worker.

Weakley was, however, unaware of the identities of the manufacturers of some of the boilers with which he came into contact. In some instances, Weakley remembered working with a particular brand of boiler but did not recall where and when this occurred.

In October and November 2002, following the close of discovery on October 5, the defendants filed motions for summary judgment. All of the defendants contended, inter alia, that Weakley had failed to show that their conduct had caused any injury to Weakley. The defendants asserted that no genuine issue of material fact had been presented by Weakley, and that they were entitled to judgment as a matter of law.

Weakley, however, supplemented his answers to interrogatories after the defendants had filed their motions. Weakley issued subpoenas to Fairfax County Schools, where he worked from 1964-65, and to L'Enfant Plaza, where he worked while employed by Allen Mitchell in the late 1960s and early 1970s. Based on the responses to these subpoenas, Weakley was able, on November 1, 2002, to file a Revised Work History, which contained considerably more detail regarding his contacts with some of the defendants' products.*fn2 In the Revised Work History, Weakley identified numerous projects and boilers with which he had been involved during his career. Finally, on December 9, 2002, as a supplement to his opposition to the defendants' motions for summary judgment, Weakley filed a detailed affidavit, summarizing his contacts with the defendants' products.*fn3

Beginning with his initial Work History, Weakley represented under oath that he had come into contact with boilers manufactured by each of the moving defendants. In his subsequent affidavit, Weakley reiterated that "[a]mong the asbestos-containing boilers that I frequently serviced and which caused me to be exposed regularly to significant amounts of asbestos dust in the manner described above were those manufactured by Burnham Corporation, Cleaver Brooks Boilers, Foster Wheeler Corporation, [Oakfabco], . . . and [Marley]." In other words, Weakley represented not only that he was in the same immediate area as the defendants' asbestos-containing products, but that he frequently worked on them as well.

In further support of his opposition to the summary judgment motions, Weakley filed the affidavit of an expert pulmonologist, M. Anthony Casolaro, M.D. In his affidavit, Dr. Casolaro explained that "no level of exposure [to asbestos] has been demonstrated below which ...


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