By

Richard E. Fennelly, III

When a party is faced with a motion for summary judgment or a motion to dismiss, sometimes it can be difficult to prepare a compelling objection. In this situation, the nonmoving party may choose to avoid addressing the substance of the motion. Instead, the nonmoving party may argue that discovery is still incomplete and thus it would be premature to consider the motion. In Shirley D’Amico, Executrix for the Estate of Frank D’Amico, et al. v. A.O. Smith Corporation, et al., the Rhode Island Superior Court, Gibney, J., addressed this scenario.

This action was brought by Shirley D’Amico, the wife of the late Frank D’Amico. As the plaintiff alleged, Mr. D’Amico died of mesothelioma “caused by years of occupational exposure to asbestos.” In D’Amico, one of the defendants, Grover S. Wormer Company (“Wormer”), filed a motion to dismiss arguing that the Michigan’s Business Corporation Act barred the plaintiff’s claims for liability.[1] In response, the Plaintiff did not contest the applicability of the Act. Rather, the plaintiff argued that Wormer “had not provided sufficient discovery for [the] Court to resolve whether the Statute of Repose applies.” In addition, the plaintiff argued that Wormer had “sole custody and control” of the information she needed to oppose the motion.

The Court rejected the plaintiff’s argument. In doing so, the Court acknowledged that there are instances when a dispositive motion is premature because there has been insufficient time for discovery. In the instant case, however, the Court noted that the plaintiff had two-and-half years to serve Wormer with discovery. Accordingly, the Court addressed the merits of the motion.

D’Amico has important implications for asbestos litigants because dispositive motions are commonly invoked. D’Amico stands for the proposition that lack of discovery, at times, is a sufficient basis for postponing addressing a dispositive motion. However, the Courts will not allow plaintiffs to postpone such motions when they have had sufficient time to obtain discovery. As such, D’Amico reminds defense counsel challenges to dispositive motions based on lack of discovery are not necessarily fatal.



[1]The Court converted the motion to dismiss to a motion for summary judgment pursuant to Rhode Island’s Superior Court Rule of Civil Procedure 12(b).