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Joint Compound Manufacturer's Summary Judgment Overturned on Appeal Based on Issue of Fact of Plaintiff's Contradictory Testimony Court of Appeals of Missouri, Eastern District, Division One, September 22, 2015

In this case, the plaintiff,  David Bergstrom, claimed exposure to asbestos while working as a contractor installing drywall for various companies between 1962 and 2011. The trial court granted the defendant, joint compound manufacturer Welco, summary judgment based on the plaintiff’s testimony that he did not have any exposure to joint compound after 1979 and was not exposed to Welco’s product, Welco, prior to 1979. In opposition to the motion, the plaintiff alleged that he did not make such a clear admission, that his testimony was contradicted by other testimony, and that he misspoke and did work with Welco products prior to 1979. The trial found the opposition insufficient to raise a triable issue of fact.
 
On appeal, the  plaintiff argued that Welco failed to establish its entitlement to summary judgment as a matter of law since there was sufficient evidence that he worked with and around Welco asbestos-containing products, and there was insufficient evidence that Welco removed asbestos from its products by 1976. The appellate court agreed, stating: “…for Welcote to prevail, we have to make an inference that Bergstrom did not work with asbestos-containing Welcote joint compound between 1962 and 1976. However, our standard of review prevents us from making such an inference because it is at least equally probable that Bergstrom worked with asbestos-containing Welcote joint compound between 1962 and 1976. As a result, we must construe the inference in favor of Bergstrom. Moreover, doing so creates a genuine issue of material fact that precludes a grant of summary judgment. To withstand summary judgment on the issue of causation, a plaintiff must demonstrate there are genuine issues of material fact regarding whether exposure to asbestos-containing Welcote joint compound was both the cause in fact and the proximate cause of plaintiff's injury.   Bergstrom has demonstrated such a genuine issue of fact here.” (Citation omitted.)

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