Clare v. Saberhagen Holdings, Inc.

¶14 (dissenting) — I respectfully dissent. I disagree with the conclusion that Saberhagen Holdings, Inc., (Saberhagen) and General Motors Corporation (GMC) met their burden on summary judgment and that a single isolated and ambiguous entry in a medical record establishes as a matter of law that Clifford Clare and his family knew or should have known the essential facts to support each of the elements of their tort claims. Green v. A.P.C., 136 Wn.2d 87, 100, 960 P.2d 912 (1998); Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992).

Schindler, J.

¶15 One month before he died of malignant meso-thelioma, Clifford Clare saw Dr. Michael Rooney for

*606shortness of breath and chest discomfort in his right side. In the emergency consultation report under the section entitled “Habits” Dr. Rooney states:

HABITS:
Tabacco; smoking until 1962, at which he abruptly quit and has not resumed. Alcohol; he is a nondrinker.
There has been no significant overt asbestos exposure, although he did work as a truck mechanic for about 30 years, including brake repair, which might have exposed him to asbestos dust.[16]

fl6 Saberhagen and GMC relied exclusively on Dr. Rooney’s statement that Clare “might have been exposed to asbestos dust” to establish that reasonable minds could only reach the conclusion that as a matter of law Clare and his family knew or should have known that Saberhagen and GMC were responsible for Clare’s exposure to asbestos when he worked as a truck mechanic and repaired brakes. The majority similarly relies on Dr. Rooney’s statement to reach the same conclusion.

117 There is no evidence about what Dr. Rooney told Clare or that Dr. Rooney told Clare or Clare’s family that he might have been exposed to asbestos products as a truck mechanic.17 Dr. Rooney’s entry is subject to competing inferences and reasonable minds cannot reach only one conclusion based on this entry. “[W]here different inferences may be drawn from evidentiary facts as to ultimate facts such as knowledge, summary judgment is not warranted.” Aduddell v. Johns-Manville Corp., 42 Wn. App. 204, 207, 709 P.2d 822 (1985) (citing Preston v. Duncan, 55 Wn.2d 678, 681-82, 349 P.2d 605 (I960)). See also Hash v. Children’s Orthopedic Hosp. & Med. Ctr., 110 Wn.2d 912, 915-16, 757 P.2d 507 (1988).

¶18 There are factual questions about what Clare and his family members knew and the timing of that knowl*607edge.18 On this record, dismissal of Clare’s lawsuit on summary judgment is not appropriate.

Review denied at 155 Wn.2d 1012 (2005).

Clerk’s Papers at 66.

Saberhagen and GMC did not depose Dr. Rooney, Clare’s treating doctors, or any of Clare’s family members to find out what Clare was told.

Reichelt does not compel a different result. In Reichelt the undisputed facts showed Reichelt’s in-depth knowledge that asbestos was an unreasonably dangerous product and his knowledge of the identity of the manufacturers of the product.