JOHN A. PARKINS, JR., Judge.
Plaintiff alleges that she was exposed to asbestos when she used Jelenko's asbestos tape
One of the issues arises from contradictory testimony in Plaintiff's deposition. There are two issues before the court. First, whether there is evidence in the record creating a genuine issue of material fact as to Plaintiff's asbestos exposure in dental hygienist school. Second, whether there is evidence in the record that Plaintiff used asbestos tape sold by Defendant to a sufficient degree to withstand a motion for summary judgment.
The practice in asbestos cases pending in this court is for plaintiffs' counsel to first take a deposition of the plaintiff. Later, often the same day, the parties take a discovery deposition of the plaintiff. Plaintiffs in asbestos cases are often gravely ill, and this seemingly backward deposition procedure helps ensure that the plaintiff's trial testimony is preserved for trial.
At her trial deposition Plaintiff testified that Jelenko asbestos tape was used at dental hygienist school: "we had Kerr and Dentsply, Ransom & Randolph, and Jelenko are the only ones that I'm aware of that we ever used."
Q: When you told your attorney on the video tape that you remember those three names from Dental Hygienist School were you mistaken?
Plaintiff counsel did not inquire further during counsel's subsequent examination.
Plaintiff also testified regarding her exposure while she worked for Dr. Smithloff. She was asked to breakdown the suppliers of dental tape by the amount used in the office. In reference to Jelenko's tape, she stated "I think they, they had it occasionally, like a roll. But I'm trying to think, because there was something else that we ordered a lot of from Jelenko. I have to think about it for a minute. But it wasn't tape."
The first issue before the court is whether there is sufficient evidence for the court, on a motion for summary judgment, to conclude that a reasonable trier of fact could find that Plaintiff was exposed to Jelenko asbestos tape while in dental hygienist school. This requires the court to consider the quantum of evidence necessary to create a "genuine" dispute of material fact for purposes of summary judgment.
Not all disputes of fact will defeat a motion for summary judgment. Rule 56 provides summary judgment be granted if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law."
In the instant case Plaintiff has not adduced sufficient evidence to create a factual issue. It is true that during her trial deposition Plaintiff testified that she was exposed to Jelenko asbestos-containing tape at dental hygienist school. Later, in her discovery deposition, she recanted that testimony says she was mistaken. Although her testimony may contain a scintilla of evidence that she was exposed in dental hygienist school in is not the quantum of evidence which would allow a reasonable trier of fact to conclude she was.
Plaintiff disputes the above reasoning, citing two Delaware Supreme Court cases for the proposition that a contradiction in testimony creates a genuine issue of material fact. Both cases are distinguishable and do not persuade this court that the above reasoning is erroneous. Plaintiff refers the court to In re Asbestos Litigation Collins
The second issue is whether there is sufficient evidence of exposure in Atlanta to satisfy Georgia's causation standard. The Georgia Supreme Court addressed the causation standard in the asbestos context in John Crane, Inc. v. Jones.
In considering a motion for summary judgment the court views the facts in the light most favorable to the nonmoving party and will only grant summary judgment when "the moving party has demonstrated that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law."