United States District Court, W.D. Kentucky, Paducah
ROJELIO SURITA, individually and as Representative of the Estate of NANCY LYNN SURITA, deceased PLAINTIFF
ARVINMERITOR, INC., ET AL. DEFENDANTS
B. Russell, Senior Judge
matter is before the Court on motions for summary judgment by
Defendants Meritor, Inc. and Arvinmeritor, Inc., [R. 95],
Goodyear Tire and Rubber Company, [R. 96], Trane U.S., Inc.
and Meritor WABCO Vehicle Control Systems, [R. 97],
Caterpillar, Inc., [R. 98], and Navistar, Inc., [R. 99].
Furthermore, Genuine Parts Company brings a Motion for
Summary Judgement Based on Lack of Proof of Exposure, [R.
100], and a Motion for Summary Judgment Based on Lack of
Jurisdiction and Improper Venue, [R. 101]. Plaintiff Rojelio
Surita (“Plaintiff”) did not respond, and the
time to do so has passed. This matter is now ripe for
adjudication. For the reasons stated herein, Meritor, Inc.
and Arvinmeritor, Inc.'s Motion for Summary Judgment, [R.
95], is GRANTED. Goodyear Tire and Rubber
Company's Motion for Summary Judgment, [R. 96], is
GRANTED. Trane U.S., Inc. and Meritor WABCO
Vehicle Control Systems' Motion for Summary Judgment, [R.
97], is GRANTED. Caterpillar, Inc.'s
Motion for Summary Judgment, [R. 98], is
GRANTED. Navistar, Inc.'s Motion for
Summary Judgment, [R. 99], is GRANTED.
Genuine Parts Company's Motion for Summary Judgement
Based on Lack of Proof of Exposure, [R. 100], is
GRANTED. Genuine Parts Company's Motion
for Summary Judgment Based on Lack of Jurisdiction and
Improper Venue, [R. 101], is DENIED AS MOOT.
The Court will enter a separate Order and Judgment consistent
with this Memorandum Opinion.
matter arises from the claims of Plaintiff's Decedent,
Nancy Lynn Surita (“Surita”), who alleged that
she was exposed to asbestos-containing products while working
on vehicles, both in her personal and professional life. [R.
1-1 at 10 (Complaint).] She later suffered from an
irreversible lung disease, mesothelioma, and died on December
23, 2015. [Id. at 12; R. 98-5 at 11:13-15 (Surita
grew up in the 1970's and 1980's in a farming
community in Shabbona, Illinois. [R. 98-5 at 68:8-9.] She
recalled helping her father maintain the family vehicles,
including six to eight brake jobs. [Id. at
135:4-17.] Looking back, Surita could not recall the brands
of the brakes her father purchased, [Id. at
137:11-19], the brands of the brakes removed, [Id.
at 139:11-12], or whether the boxes containing the new brakes
illustrated that the products contained asbestos,
[Id. at 140:9-11].
1988, Surita joined the National Guard, [Id. at
70:8-10], and in October of 1989, she relocated to Fort
Leonard Wood, Missouri, where she was trained to perform
preventative maintenance and to drive military vehicles,
[Id. at 74:14-75:13]. Surita suspected that she was
exposed to asbestos at that time from asbestos dust in the
wheel wells of some of the vehicles. [Id. at
April of 1990, Surita was transferred to active duty military
and moved to Fort Campbell, Kentucky, where she maintained an
old M915 truck, manufactured by Cummins, Chrysler, and
Caterpillar, and two M872 trailers. [Id. at
17:5-18:8.] Surita thought that Caterpillar specifically
manufactured either the transmission or the engine,
[Id. at 86:25-87:1], however, she testified that she
never worked on the transmission or engine, [Id. at
129:22-130:2]. Surita's duties consisted of handing the
mechanics any materials or tools they needed, [Id.
at 88:10-14], and performing preventative maintenance,
including three brake jobs, [Id. at 93:4-5]. She
could not recall the brands of the brakes removed or replaced
on the truck and trailers. [Id. at 93:10-15].
was deployed to Saudi Arabia, along with her truck and two
trailers, in October of 1990, where she transported food,
ammunition, and supplies to support the 82nd and 101st
Airborne Divisions. [Id. at 100:8-16.] She was also
responsible for general maintenance of her truck and
trailers, including changing flat tires and working on the
brakes. [Id. at 103:1-104:9]. Surita was not aware
of who manufactured the replacement parts she acquired from
“maintenance” or scavenged from other U.S.
military trucks. [Id. at 106:3-13].
returning to the United States in 1991, [Id. at
109:11], Surita alternated between maintaining her truck and
trailers and working in an office due to her pregnancy with
her daughter, [Id. at 114:24-115:4]. She testified
that she helped with a total of six brake jobs in the period
between May 1991 and September 1993. [Id. at
173:11-174:10]. For the remaining three years of her career
in the army, Surita worked as an executive administrative
assistant. [Id. at 119:6-12].
April of 2015, Surita was diagnosed with mesothelioma,
[Id. at 11:13-15], and she passed away in December
of that same year, [R. 1-1 at 12]. On March 25, 2016,
Plaintiff, Surita's husband, filed suit in Christian
Circuit Court individually and as Representative of the
Estate of Nancy Lynn Surita. [See Id. at 4]. Roughly
a month later, Defendant Caterpillar, Inc.
(“Caterpillar”) removed the case to the United
States District Court for the Western District of Kentucky
pursuant to 28 U.S.C. §§ 1332, 1441, 1442, and
1446. [R. 1 at 2 (Notice of Removal).]
judgment is appropriate when the record, viewed in the light
most favorable to the nonmoving party, reveals “that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists
where “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). The Court “may not make
credibility determinations nor weigh the evidence when
determining whether an issue of fact remains for
trial.” Laster v. City of Kalamazoo, 746 F.3d
714, 726 (6th Cir. 2014) (citing Logan v. Denny's,
Inc., 259 F.3d 558, 566 (6th Cir. 2001); Ahlers v.
Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The
ultimate question is ‘whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.'” Back v. Nestlé USA,
Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting
Anderson, 477 U.S. at 251-52).
parties moving for summary judgment, the defendants must
shoulder the burden of showing the absence of a genuine
dispute of material fact as to at least one essential element
of Plaintiff's claims. Fed.R.Civ.P. 56(c); see also
Laster, 746 F.3d at 726 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)). Assuming each
defendant satisfies its burden of production, Plaintiff
“must-by deposition, answers to interrogatories,
affidavits, and admissions on file- show specific facts that
reveal a genuine issue for trial.” Laster, 746
F.3d at 726 (citing Celotex Corp., 477 U.S. at 324).
as here, the nonmoving party decides not to file a response,
the Court still holds “the moving party to the burden
established by the plain language of [Civil] Rule 56.”
Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 410
(6th Cir. 1992). In other words, the Court cannot
“grant summary judgment in favor of the movant simply
because the adverse party has not responded.”
Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991).
Instead, the Court is required, at a minimum, “to
examine the movant's motion for summary judgment to
ensure that he has discharged [his] burden.”
Id. In performing its task, though, the Court may
“rely on the moving party's unrebutted recitation
of the evidence, or pertinent portions thereof, in reaching a
conclusion that certain evidence and inferences from ...