Kathleen Rafter V American Biltrite: New Trial for Estate of James T. Butler

STATE OF WASHINGTON — June 9, 2008 — The Washington State Court of Appeals reversed a summary judgment and remanded the case of the Estate of James T. Butler and defendants American Biltrite, Inc., et al., to the Superior Court of the State of Washington in King County.

A wrongful death action was originally filed in the Washington State Superior Court by the James T. Butler estate against several entities, including American Biltrite, Inc., alleging that the flooring materials that Mr. Butler used in his flooring business contained asbestos and caused him to develop and die from mesothelioma and other asbestos-related diseases.

Declaration Testimony Center of Appeal

During the deposition of witness Douglas Stewart, Stewart did not specifically mention Biltrite as a supplier of products the flooring company used, nor was he asked specifically about Biltrite. At one point, Stewart stated that the list of manufacturers he mentioned was exhaustive, but later said he could not remember all the products the company used. In his declaration, Stewart stated that he had a personal recollection of Mr. Butler installing Biltrite products sold under the name Amtico. Biltrite argued the trial court should not consider the Stewart declaration because it contradicted his earlier testimony and the trial court agreed. The estate appealed contending the trial court erred in refusing to consider the Stewart declaration. The appeals court agreed stating that a witness’ recall of specific facts in a declaration opposing summary judgment does not necessarily amount to a contradiction of his earlier testimony. Because he left open the possibility that he might later recall other products, his later recall of Biltrite products did not contradict his deposition testimony. The court reversed the summary judgment and remanded the case for trial.

Brayton Purcell’s appellate department appeared on behalf of Ms. Rafter and the Butler estate.