HADLOCK, J.
Plaintiff appeals a judgment for defendants, challenging the trial court's grant of summary judgment in defendants' favor on claims arising from decedent Russell Greer's alleged exposure to asbestos on home-construction sites during the 1960s and 1970s.
Summary judgment is proper where "the pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact." ORCP 47 C. There is no genuine issue of material fact if, "based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party." Id. In accordance with that standard, we describe the evidence in the light most favorable to plaintiff, the nonmoving party, and draw all inferences in his favor. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997).
Decedent initiated this litigation in 2008 when he was in his mid-80s and allegedly suffering from mesothelioma caused by exposure to airborne asbestos fibers. The first amended complaint named 19 defendants, each an alleged manufacturer, designer, processor, marketer, seller, or distributor of asbestos fibers or asbestos-containing products. A chart attached as Exhibit A to that complaint traced decedent's career from 1946, when he worked with the United States Army in Japan, through 1978, when he worked as a self-employed contractor in Bend, Oregon. Each row in Exhibit A represented a location where decedent had worked for a number of years, and each row also included information about the work activities in which decedent had engaged at that location, as well as a list titled "Asbestos Containing Products" and a list of the defendants allegedly associated with those products.
As pertinent to this appeal, Exhibit A encompassed an allegation that decedent had used Georgia-Pacific "[t]ape, mud, [and] joint compounds" during his work as a home-construction contractor in Kalispell, Montana, during the 1960s. Exhibit A also included allegations against distributors Miller and Backstrom related to decedent's work building homes in Bend, Oregon, from 1969 to 1978. The exhibit did not specify what asbestos-containing products decedent allegedly had purchased from those defendants. Rather, it listed various insulation, roofing, flooring, "[a]dhesives, tape, mud, [and] joint compounds" manufactured by other defendants that decedent allegedly had used in his contracting work, and it suggested that decedent had obtained those products through several distributors, including Backstrom and Miller.
After the parties engaged in discovery, including the deposition of decedent, defendants moved for summary judgment. Georgia-Pacific has acknowledged that it manufactured joint compound that contained asbestos. Nonetheless, it asserted that it was entitled to summary judgment because decedent could not "set forth any specific evidence that he worked with or
In their summary judgment motions, Miller and Backstrom argued that decedent had not offered any evidence that he had purchased asbestos-containing products from their stores. Miller asserted that decedent had not been able to identify "any asbestos products purchased from Miller Lumber" during his deposition. Miller quoted excerpts from decedent's deposition suggesting that he could not recall having purchased roofing, sheetrock, vinyl flooring, joint compound, or finishing compound from Miller. Also citing decedent's deposition testimony, Backstrom asserted that decedent remembered buying roofing products, joint compound, and finishing compound from Backstrom, but could not recall the brand names of any of those products. Backstrom concluded that it was entitled to summary judgment because decedent could recall only the types of products he had purchased from Backstrom, not the brand names of those products, and because decedent could not establish that the products he purchased must have contained asbestos.
In response to defendants' summary judgment motions, decedent offered the sworn testimony of several witnesses regarding the types of products that Miller and Backstrom had sold during the relevant time period, as well as evidence about the types of products that had been purchased from those suppliers for use at decedent's construction sites. In addition, decedent submitted declarations stating generally that he knew he had used asbestos-containing versions of defendants' products. Specifically, if somewhat cryptically, the declarations that decedent submitted in opposition to Backstrom's and Miller's summary judgment motions (the "Backstrom declaration" and the "Miller declaration") each asserted:
(Emphasis added.)
Similarly, decedent submitted a declaration in opposition to Georgia-Pacific's motion for summary judgment (the "Georgia-Pacific declaration") in which he asserted:
(Emphasis added.) Defendants suggested that the trial court should strike or disregard all three of those declarations on the ground that they were inconsistent with decedent's earlier deposition testimony.
The trial court granted defendants' motions for summary judgment on the basis that decedent had failed to put forth evidence demonstrating genuine issues of material fact as to whether he had been exposed to asbestos-containing
On appeal, plaintiff contends that the trial court erred in granting defendants' summary judgment motions. Plaintiff first challenges the trial court's ruling that it would not consider the declarations described above.
We begin our analysis by reviewing other asbestos-liability cases in which we have addressed the type of evidence sufficient to create a genuine dispute of material fact regarding a plaintiff's exposure to an asbestos-containing product manufactured or supplied by a particular defendant. In Abendroth v. Asbestos Corporation, Ltd., 201 Or.App. 705, 709, 120 P.3d 535 (2005), the trial court granted summary judgment in favor of the defendant. We reversed, concluding that there was a genuine issue of fact as to whether the plaintiff had been exposed to the defendant's asbestos-containing product. In that case, a retired drywaller who claimed to have suffered from an asbestos-related disease sued a company that manufactured drywall materials. The facts, stated in the light most favorable to the plaintiff, showed that, for 15 years, all of the defendant's taping compounds contained asbestos, and that, during that period, on at least one job, the plaintiff used a taping compound manufactured by the defendant. Id. at 709-12, 120 P.3d 535. Those facts reasonably permitted the inference that the plaintiff had been exposed to an asbestos-containing taping compound manufactured by the defendant.
In West v. Allied Signal, Inc., 200 Or.App. 182, 113 P.3d 983 (2005), the plaintiff alleged that the decedent, who had worked in a foundry, had been exposed to asbestos gloves provided by the defendant, an industrial supply company. The trial court granted summary judgment for the defendant on the ground that the plaintiff had not shown that the defendant provided the asbestos gloves worn by the decedent. As in Abendroth, we reversed. Viewed in the light most favorable to the plaintiff, the record showed that (1) the foundry provided asbestos gloves to the decedent, (2) the defendant sold industrial products, including asbestos gloves, and (3) the foundry purchased a substantial amount of industrial products from the defendant. Further, the record revealed no other supplier of industrial products to the foundry. Id. at 192, 113 P.3d 983. We concluded that a juror could infer from that evidence that the "defendant was the probable source of the asbestos gloves that decedent and his coworkers wore," as the record did not include
In Perman v. C.H. Murphy/Clark-Ullman, Inc., 220 Or.App. 132, 185 P.3d 519 (2008), the plaintiff asserted that the decedent, a welder and sheet metal mechanic, had been exposed to asbestos-containing gloves provided by the defendant, a welding supply company. The trial court granted summary judgment in the defendant's favor, concluding that the plaintiff had failed to present evidence sufficient to create an issue of material fact, and we reversed. Stated in the light most favorable to the plaintiff, the testimony in that case established that (1) the defendant supplied silver gloves to the decedent's employer, (2) the decedent used silver gloves that the defendant had supplied, and (3) the decedent, who was familiar with asbestos-containing products, believed that the silver gloves he used had contained asbestos. Id. at 136-37, 141, 185 P.3d 519. That evidence, we held, would allow a juror to infer that the defendant was the source of asbestos-containing silver gloves to which decedent had been exposed.
In each of those cases — Abendroth, West, and Perman — the summary judgment record created a genuine issue of material fact because it included evidence from which a juror reasonably could infer that the plaintiff or decedent had been exposed to a particular asbestos-containing product sold or manufactured by the defendant. Our holdings in those cases, therefore, are consistent with the general principle that, once a defendant in an asbestos-liability case moves for summary judgment on the ground that the plaintiff cannot establish that he or she was exposed to "specific asbestos products" for which the defendant is responsible, the plaintiff has "the burden of producing product identification evidence" in opposition to the summary judgment motion. Weihl v. Asbestos Corporation, Ltd., 204 Or.App. 255, 265, 129 P.3d 748, rev. den., 342 Or. 254, 149 P.3d 1213 (2006).
Here, the Backstrom and Miller declarations did not meet that standard because they did not identify any specific asbestos-containing product that plaintiff alleged was obtained from Backstrom or Miller for use on one of decedent's Bend home-construction sites. Nor did the Georgia-Pacific declaration satisfy the "specific asbestos product" requirement; it, too, failed to identify any particular asbestos-containing Georgia-Pacific product used in decedent's contracting work in Montana. Rather, the declarations merely asserted that "some" of the Georgia-Pacific products that decedent used, and "some" of the products he purchased from Backstrom and Miller, contained asbestos. Those averments amount to little more than paraphrasing of the ultimate facts that decedent had alleged in his first amended complaint. Such conclusory restatements of ultimate facts are not "specific facts showing that there is a genuine issue * * * for trial." ORCP 47 D. Cf. Allen v. Kaiser Foundation Hospital, 76 Or.App. 5, 9, 707 P.2d 1289 (1985) ("Plaintiff was required, in order to avoid summary judgment, to show that there were genuine issues of fact. Her expert's conclusory statement that there was negligence in the particulars stated in the complaint
Nor has plaintiff established that other evidence in the record created a genuine dispute of material fact regarding decedent's exposure to any asbestos-containing product manufactured or sold by defendants. With respect to Backstrom, plaintiff points to the following additional evidence:
Plaintiff contends that a juror could conclude from that evidence "that Backstrom sold asbestos-containing products for use by Russell Greer, that Russell Greer used them, and that the products contributed to his disease."
The difficulty with plaintiff's argument is that, at most, it establishes that a reasonable juror could have found two broad facts: (1) that decedent purchased some roofing and sheetrocking materials from Backstrom, and (2) that Backstrom sold some roofing and sheetrocking materials that contained asbestos. But plaintiff has not pointed to any evidence showing an overlap between those two sets of building materials, i.e., that the materials that decedent purchased from Backstrom included some of the asbestos-containing materials that Backstrom sold. Nor has plaintiff identified any evidence from which a juror could infer that all of the roofing or sheetrocking materials that Backstrom sold contained asbestos, meaning that the materials that decedent purchased necessarily must have contained asbestos. Consequently, only guesswork could lead a juror to conclude that decedent actually purchased asbestos-containing materials from Backstrom that were used on his job sites in Bend. That kind of speculation would not be sufficient to support a verdict in plaintiff's favor, and the trial court ruled correctly that it was not sufficient to defeat Backstrom's summary judgment motion.
For similar reasons, plaintiff has not established that the trial court erred when it granted summary judgment to Miller. In addition to the Miller declaration (discussed above), plaintiff points to evidence that decedent bought certain construction materials, including roofing and sheetrocking materials, from Miller, and to evidence that Miller stocked asbestos-containing roofing and sheetrocking materials during the same period in the 1960s and 1970s. Again, however, plaintiff has pointed to no evidence from which a juror could infer — rather than guess — that the products that decedent bought from Miller were those products that contained asbestos.
The evidence regarding decedent's use of materials manufactured by Georgia-Pacific also was insufficient to overcome that defendant's summary judgment motion. Plaintiff acknowledges that, during decedent's deposition, he talked about the sheetrock work he did in Montana and was able to identify only "3M" as one brand of joint compound he used in that work. Nonetheless, plaintiff argues, decedent's deposition testimony was sufficient, along with his declaration and Georgia-Pacific's admission that its joint compound contained asbestos, to create a genuine issue of material fact:
(Citations omitted.) The referenced deposition testimony cannot bear the weight that plaintiff places on it. Decedent did not, in his deposition, testify that he recalled having used Georgia-Pacific joint compound when he did sheetrock work in Montana. Rather,
In sum, plaintiff has not established that the record included evidence that could support an inference that decedent used any specific asbestos-containing product manufactured by Georgia-Pacific or supplied by Miller or Backstrom. The trial court ruled correctly in granting those defendants' motions for summary judgment.
Affirmed.