Bergstrom v. Welco Mfg. Co.

• Decision Date: 22 September 2015
• Docket Number: No. ED 102125,ED 102125
• Citation: 487 S.W.3d 5
• Parties: David Bergstrom and Kaye Bergstrom, Appellants, v. Welco Manufacturing Company, Respondent.
• Court: Missouri Court of Appeals

487 S.W.3d 5

David Bergstrom and Kaye Bergstrom, Appellants,

v.Welco Manufacturing Company, Respondent.

No. ED 102125

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: September 22, 2015 Motion for Rehearing and/or Transfer to Supreme Court Denied November 5, 2015

Benjamin R. Schmickle, 701 Market Street, Suite 1575, St. Louis, MO 63101, Michael A. Gross, 231 S. Bemiston Avenue, Suite 250, St. Louis, MO 63105, for Attorneys for Appellant.

Mary Ann Hatch, 100 N. Broadway, 100 N. Broadway, 14th Floor, St. Louis, MO 63102, Carl P. McNulty II, 150 South Wacker Drive, Suite 1025, Chicago, IL 60606.

ROBERT G. DOWD, JR., Presiding Judge

David and Kaye Bergstrom¹(“Bergstrom”) appeal from the trial court's grant of Welco Manufacturing Company's (“Welco”)motion for summary judgment.We reverse and remand.

Bergstrom worked as a contractor installing dry-wall for various companies throughout Minnesota and other states from 1962 until 2011.In June of 2013, he was diagnosed with mesothelioma.Bergstrom eventually filed a petition against Welco and other companies for having sold, distributed, and/or installed asbestos containing products, which he alleges caused his mesothelioma.Bergstrom asserted causes of action for strict liability, negligence, willful and wanton misconduct, conspiracy, and loss of consortium.Welco subsequently filed a motion for summary judgment.Welco contended Bergstrom did not present any evidence identifying any asbestos or asbestos-containing products manufactured or distributed by Welco to which he was exposed.Bergstrom filed a response to Welco's motion for summary judgment in which he alleged he presented evidence of his exposure to Welco's asbestos-containing products, and, as a result, Welco was not entitled to summary judgment.

The trial court granted Welco's motion for summary judgment.In its judgment, the trial court noted Bergstrom stipulated during a deposition that he would not have had any exposure to asbestos-containing joint compound after 1979.The trial court also pointed to testimony where Bergstrom allegedly admitted he was not exposed to Welco products before 1979.

Bergstrom, however, contends that he did not make a clear admission and that that testimony was contradicted by other testimony.Bergstrom also filed a correction to his deposition testimony, asserting he misspoke and that he meant to say he worked with Welcote joint compound, a Welco product, prior to 1979.However, the trial court found this testimony was insufficient to create a triable issue of fact as to whether Bergstrom was exposed to Welco's asbestos-containing product, which was allegedly a substantial factor in causing his injury.²

Bergstrom then filed a motion requesting that the trial court reconsider its grant of summary judgment.Welco filed a motion to strike Bergstrom's motion to reconsider.The trial court initially declined to hear Bergstrom's motion to reconsider.Bergstrom then filed a motion to amend the judgment, through which it essentially sought to have the trial court reverse its grant of summary judgment.

The trial court issued a “Memorandum and Order” addressing Bergstrom's motion to reconsider the grant of summary judgment and his motion to amend the judgment.The trial court reexamined the record on the motion for summary judgment and found: Bergstrom concedes he was not exposed to any asbestos-containing joint compounds after 1979.There is no question Welco manufactured and sold asbestos-containing joint compound known as Welcote prior to 1976.Moreover, there is no question Bergstrom worked with Welcote during his career.

Then the trial court considered the remaining question: does the record create a genuine issue of material fact as to whether Bergstrom worked with Welcote asbestos-containing joint compound prior to 1979?According to the trial court, the record clearly shows, between 1976 and 1979, Welco manufactured and sold two types of joint compound, one with and one without asbestos.Further, the trial court found Bergstrom's testimony established he worked with Welcote joint compound during his career, but it did not establish he worked with asbestos-containing Welcote joint compound at any specific time.The trial court further noted the record only established Bergstrom worked with Welcote at some time prior to 1979, but Bergstrom's testimony does not establish exactly when he worked with Welcote.In the trial court's view, this evidence fell short of creating a genuine issue of material fact as to whether asbestos-containing Welcote caused or contributed to his injury, and the burden was on Bergstrom to show exposure to the asbestos-containing Welcote rather than the non-asbestos-containing Welcote.Bergstrom failed to meet that burden.As a result, the trial court denied Bergstrom's motions to reconsider and amend its earlier judgment.This appeal follows.³

In determining whether a trial court has properly granted summary judgment, we review the matter de novo and give no deference to the trial court's decision.McClain ex rel. Rutledge v. James,453 S.W.3d 255, 265(Mo.App.S.D.2014).We employ the same criteria the trial court should have used in deciding whether to grant the motion.Id.To establish a right to summary judgment, a defending party must show: (1) facts that negate any one of the plaintiff's elements facts, (2) that the plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the plaintiff's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the respondent's properly-pleaded affirmative defense.Id.We review the record in the light most favorable to the party against whom judgment was entered and accord the non-movant the benefit of all reasonable inferences.Id.The rule that the non-movant is “given the benefit of all reasonable inferences” means that if the movant requires an inference to establish his right to judgment as a matter of law, and the evidence reasonably supports any inference other than (or in addition to)the movant's inference, a genuine dispute exists and the movant's prima facie showing fails.ITT Commercial Finance Corp. v. Mid–America Marine Supply Corp.,854 S.W.2d 371, 382(Mo. banc 1993)

A genuine issue exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.Id. at 265–66.Summary judgment is an extreme and drastic remedy and we exercise great caution in affirming it because the procedure cuts off the opposing party's day in court.Id. at 266.

In his sole point, Bergstrom argues the trial court erred in granting Welco's motion for summary judgment because Welco failed to establish there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law in that (1) there was sufficient evidence to support a finding that Bergstrom worked with or around asbestos-containing joint compound supplied by Welco, and (2) there was insufficient evidence to establish conclusively that Welco removed asbestos from its joint compound products by 1976.We agree.

Bergstrom testified by deposition that he had been a professional drywaller since the late 1960s up to 2011.Over the course of his career, he testified, he worked with numerous joint compounds, including Welcote.Bergstrom stated “over the...