FILED: NEW YORK COUNTY CLERK 04/17/ :28 PM INDEX NO /2016 NYSCEF DOC. NO RECEIVED NYSCEF: 04/17/2018

Transcription

1 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY Index Number : /1999 PART STRAUCH, NELSON A. JR. VS A.C. 8 S. INDEX NO. Sequence Number : 001 MOTION DATE SUMMARY JUDGMENT MOTION SEQ. NO. The following papers, numbered 1 to, were read on this motion to/for Notice of Motion/Order to Show Cause - Affidavits - Exhibits No(s). Answering Affidavits - Exhibits No(s). Replying Affidavits No(s). Upon the foregoing papers, it is ordered that this motion is 44wh CC W 5 0 I 0 > 8 Z 0 co 0 V Z z E u. Dated:, J.S.C. hon.p MOUL H.. 1. CHEC K ONE:... O CASE DISPOSED NON-FINAL DISPOSI 2. CHECK AS APPROPRIATE:...MOTION IS: U GRANTED ENIED O GRANTED IN PART D OTHER 3. CHECK IF APPROPRIATE:... O SETTLE ORDER O SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT REFERENCE ~.C.

2 SUPREME COURT OF THE STATE OF NEW YORK: Part 50 ALL COUNTIES WITHIN THE CITY OF NEW YORK X Index /1999 IN RE NEW YORK CITY ASBESTOS LITIGATION Motion Seq X NELSON A. STRAUCH, JR., and PATRICIA STAUCH -against- Plaintiff A.C. and S, INC. (ARMSTRONG CONTRACTING 4 SUPPLY), et al. Defendants X Peter H. Moulton J.S.C. In this asbestos personal injury action, defendant Cleaver-Brooks, Inc., (hereafter "defendant") moves for summary judgment dismissing Nelson Strauch, Jr. and Patricia Strauch's complaint and any cross-claims against it. Defendant contends that the motion should be granted because its products could not have been a substantial contributing factor to the causation of plaintiff's lung cancer, citing Matter of New York City Asbestos Litig. (48 Misc 3d 460 [Sup. Ct., New York County 2015] (hearafter Juni). Defendant notes that plaintiff Nelson Strauch (hereafter "plaintiff") was a life long smoker claiming exposure to nineteen different products throughout his career as a steamfitter on commercial and residential sites from approximately 1953 until Defendant criticizes plaintiffs deposition testimony by indicating that he found it hard to describe how he was exposed to asbestos because a number of things "would have" contributed to his illness from installing or removing pumps and boilers (and insulation), to pipe work and the removal of flanges and scrapping of gaskets. Defendant criticizes the manner in which plaintiff identified Cleaver-Brooks boilers, asserting that he volunteered defendant's name "out-of-context." Defendant also criticizes plaintiff's failure to recall such things as the first or last time he encountered defendant's boilers, or a specific boiler description, or the work he did on each. Finally, defendant asserts that opinions of its experts Kyle B. 1

3 Dotson and Dr. Andrew J. Ghio should be adopted, and plaintiffs expert opinions should be rejected, because they lack foundation or are actually consistent with the narrow and specific opinions of defendant's experts. Dotson opines that asbestos naturally occurs in the environment, and, based on his review of all of the evidence, plaintiff's exposure to defendant's products "was negligible and less than any OSHA workplace exposure guidelines." Dr. Ghio opines that plaintiff did not have an increased risk for lung cancer, because his asbestos exposure from defendant's product was minimal, and because plaintiff did not suffer from asbestosis. Defendant complains that, unlike defendant's experts, plaintiff's expert Dr. Strauchen "does not attempt to quantify" plaintiff's exposure to a particular product. Dr. Strauchen's opinion, that all the exposures over a background level contributed to a cumulative dose of asbestos rendering each product a substantial contributing factor to the development of plaintiff's disease, should be rejected because Dr. Strauchen fails to quantify plaintiffs exposure. Defendant similarly complains that while plaintiff's expert Dr. Gibilaro opines that plaintiff's exposure to asbestos products significantly contributed to the development of primary lung cancer, Dr. Gibilaro does not connect plaintiff's cancer to defendant's products. Thus, according to defendant, its experts express a scientific methodology for their causation opinions, while plaintiff's experts do not. Plaintiff opposes the motion, asserting that it is a motion in limine masquerading as a summary judgment motion. Additionally, plaintiff maintains that this type of issue is best reserved for the trial judge, after that judge hears the testimony and any cross-examination. Even if the motion is properly considered as one for summary judgment, defendant has failed to meet its burden to demonstrate that its products could not have caused plaintiff's illness. Plaintiff further asserts that defendant misinterprets Parker v Mobil Oil Corp. (7 NY3d 434 [2006]), which noted that a plaintiff need not quantify exposure levels precisely or use a doseresponse relationship. Plaintiff points out that Parker relied upon Westberry v Gislaved Gummi 2

4 AB (178 F3d 257 [4th Cir 1999]), a CaSe which allowed expert testimony demonstrating that a plaintiff contracted sinus disease from airborne talc based on a qualitative, not quantitative, analysis. Plaintiff also complains that defendant seeks to disregard long-settled appellate precedent such as Penn v Amchem (85 AD3d 375 [1st Dept 2011]; Weigman v A.C. & S, Inc. (24 AD3d 375 [1st Dept 2005] and Lustenring v AC & S, Inc. (13 AD3d 69 [1st Dept 2004]). Furthermore, plaintiff asserts that Juni is distinguishable because it involved friction products. Plaintiff cites to medical evidence that as of 1955 there was a general consensus that asbestos exposure causes lung cancer. Plaintiff also cites to medical evidence bolstering the argument that there is no known level of asbestos exposure below which cancer does not occur and, that each dose above a background level causes asbestos cancers. Plaintiff maintains that his testimony demonstrates that he was regularly exposed to asbestos dust from defendant's products for a prolonged period of time. He cities his testimony regarding his work with Cleaver-Brooks boilers, gaskets and insulation (Tr at ). Plaintiff cites his deposition testimony regarding his removal of boilers and his exposure to dust (Tr at , ). In reply, defendant maintains that the motion is not a premature motion in limine. Defendant also contends that plaintiff has not shown that he had "substantial exposure to asbestos dust." To support this conclusion, defendant cites to plaintiffs inability to recall various details, such as when or where he encountered defendant's products or the specific (as opposed to general) descriptions ofits boilers. Discussion When moving for summary judgment, a defendant must first establish its prima facie entitlement to judgment by demonstrating the absence of material issues of fact (see Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). An affidavit from a corporate representative which is "conclusory and without specific factual basis" does not meet the burden (Matter of 3

5 New York City Asbestos Litig. (DiSalvo), 123 AD3d 498 [1st Dept 2014]). Additionally, a defendant cannot obtain summary judgment merely by "pointing to gaps in plaintiffs' proof' (see Torres v. Industrial Container, 305 AD2d 136, 136 [1st Dept. 2003]). Therefore, the motion must be denied regardless of the sufficiency of plaintiff's opposing papers (id.). The First Department recently reiterated this holding in two asbestos cases, Koulermos v. A.O. Smith Water Prods. (137 AD3d 575 [1st Dept 2016]) and Ricci v A.O. Smith Water Prods (2016 NY Slip Op [October 13, 2016]). In Koulermos, the court held that "pointing to gaps in an opponent's evidence is insufficient to demonstrate a movant's entitlement to summary judgment" (id. at 576). The court further noted that the failure to present evidence, such as affidavits, which affirmatively demonstrate the merit of the defense is enough to deny summary judgment (id.). In Ricci, the court held that Cleaver-Brooks failed to establish entitlement to summary judgment by "merely pointing to perceived gaps in plaintiff's proof, rather than submitting evidence showing why his claims fail"(2016 NY Slip Op 06741, supra). Even testimony proffered by a long-tenured company witness is insufficient if that person did not have knowledge during the relevant time periods (see Matter of New York City Asbestos Litig., 2016 NY Slip Op [2016] *21 ["[a]lthough Admiral Sargent had ample experience with Navy procurement practices, he gained personal knowledge of those practices only once he started working on procurement for the Navy more than a decade after Dummitt's work on Crane's valves ended and several decades after the Navy bought the valves. As a result, Admiral Sargent had no personal knowledge of the effects of the Navy procurement practices that existed when Crane might have tried to provide warnings to Dummitt and similarly situated workers"]). It is only after the burden of proof is met that plaintiff must then show "facts and conditions from which the defendant's liability may be reasonably inferred" (Reid v Georgia- Pacific Corp., 212 AD2d 462, 463 [1st Dept 1995]). To defeat summary judgment, a plaintiff's 4

6 evidence must create "[a] reasonable inference" that plaintiff was exposed to a specific defendant's product (see Comeau v. W R. Grace 4 Co.-Conn), 216 AD2d 79 [1st Dept. 1995]). Issues of credibility are for the jury (Cochrane v Owens-Corning Fiberglass Corp., 219 AD2d 557, ). Where "[t]he deposition testimony of a litigant is sufficient to raise an issue of fact... [t]he assessment of the value of a witnesses' testimony constitutes an issue for resolution by the trier fact, and any apparent discrepancy between the testimony and the evidence of the record goes only to the weight and not the admissibility of the testimony" (Dollas v. Grace & Co., 225 AD2d 319, 321 [1st Dept. 1996] [internal citations omitted]). As recently as this month, the First Department cited to both Penn v Amchem (85 AD3d 375, supra) and Lustenring v AC & S, Inc. (13 AD3d 69, supra), and upheld jury verdicts based on a plaintiffs testimony of regular exposure to asbestos dust and expert testimony that such exposure was the proximate cause of a plaintiffs mesothelioma (see Matter of New York City Asbestos Litig. (2016 NY Slip Op [1st Dept October 6, 2016] [plaintiff electrician worked on installing, renovating and demolishing boilers, asbestos-containing insulation and mixing asbestos concrete powder]; Matter of New York City Asbestos Litig. (2016 NY Slip Op [1st Dept October 6, 2016] [plaintiff mechanic and electrician worked on removing asbestoscontaining insulation from valves and mixing asbestos insulation cement]). Defendant's motion is denied because defendant has failed to demonstrate that its boilers (which it concedes that it sold during the relevant times) "could not have contributed to the causation of plaintiffs injury" (Matter of New York City Asbestos Litig. (Berensmann), 122 AD3d 520 [1st Dept 2014]); Reid, 212 AD2d 462, supra; Matter of New York City Asbestos Litig. (DiSalvo), 123 AD3d 498 [1st Dept 2014]). While defendant asserts that plaintiff has failed to demonstrate that his exposures to its products were substantial, it is not plaintiff's burden on summary judgment to do so. 5

7 Even assuming that defendant met its burden of proof based on its expert opinions (which it did not), issues of fact exist for trial. Certified industrial hygienist Dotson's opinion is based on his conclusion that plaintiff's exposure to defendant's product is "zero" or a worst-case scenerio of "zero to negligible" in light of the "specific testimony" regarding plaintiff's work on defendant's boilers. Dr. Ghio's opinion is based on plaintiffs "minimal" fiber exposure to chrysotile asbestos which again is based on the expert's interpretation of plaintiff's testimony. It is the jury who must evaluate plaintiff's testimony of exposure to dust from defendant's product over his twenty plus year career as a steamfitter and decide, with the aid of expert testimony, whether plaintiff's exposure to defendant's products was a substantial factor in causing his lung cancer (see Penn, 85 AD3d 375, supra; Lustenring, 13 AD3d 69, supra; Matter of New York City Asbestos Litig., 2016 NY Slip Op 06557, supra and Matter of New York City Asbestos Litig., 2016 NY Slip Op 06558, supra). The court cannot choose between conflicting expert opinions. Contrary to defendant's argument, plaintiffs expert opinions do not fail to satisfy the requirements of Parker. As Parker acknowledges "often, a plaintiffs exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value" (7 NY3d at 447). Therefore, Parker holds that "it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community" (id. at 448). Things such as the intensity of the exposure may be more important than the cumulative dose, and work history can be considered in order to estimate the exposure (id. at 449). Ironically, defendant criticizes plaintiff for not pinpointing an exact numerical value based upon a scientific methodology, but defendant's scientific expression of plaintiff's exposure of "zero" to "minimal" is completely dependant on the expert's non-scientific interpretation of plaintiff's testimony. 6

8 It is hereby ORDERED that defendant's motion for summary judgment is denied in its entirety. Dated: October 26, 2016 This Constitutes the Decision and Order of the Court. J.S.C. pm~"<»' HON. PETES!L MOULTON ",:,~ I,3 i" SUPREME COURT JUSTICe 7