Prokocimer v Avon Prods., Inc NY Slip Op 33219(U) December 12, 2018 Supreme Court, New York County Docket Number: /17 Judge: Manuel J.

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1 Prokocimer v Avon Prods., nc. 218 NY Slip Op 33219(U) December 12, 218 Supreme Court, Ne York County Docket Number: 193/17 Judge: Manuel J. Mdez Cases posted ith a "3" idtifier, i.e., 213 NY Slip Op 31(U), are republished from various Ne York State and local governmt sources, including the Ne York State Unified Court System's ecourts Service. This opinion is uncorrected and not selected for official publication.

2 [* FLED: 1] NEW YORK COUNTY CLERK 12/13/218 9:3 AM NDEX NO. 193/217 NYSCEF DOC. NO. 75 RECEVED NYSCEF: 12/13/218 SUPREME COURT OF THE STATE OF NEW YORK- NEW YORK COUNTY PRESENT: MANUELJ.MENDEZ PART 13 -~- Justice N RE: NEW YORK CTY ASBESTOS LTGATON LOS PROKOCMER and WLLAM PROKOCMER Plaintiffs, - against - AVON PRODUCTS, NC., et al., Defdants. NDEX NO. MOTON DATE MOTON SEQ. NO. MOTON CAL. NO. The folloing papers, numbered 1 to~ ere read on this motion by defdant R.J. Reynolds and Hollingsorth & Vose for Partial Summary Judgmt: Notice of Motion/ Order to Sho Cause - Affidavits - Exhibits... Ansering Affidavits - Exhibits Rep yin g Affidavits Cross-Motion :-.--r-::-y-=-e-s--=-=x:--::n:--:-o / PAPERS NUMBERED z o< _ t- a::: <!> ::::> z.., - 3: t-q c...j...j a::: a::: u.. WW u.. :::c t a::: a::: >-...Ju.....J ::::> u.. t- o.. a::: < -z j::: ~ upon a reading of the foregoing cited papers, it is ordered that Defdants R.J. Reynolds Tobacco Company, as successor by merger to Lorillard Tobacco Company (hereinafter "R.J. Reynolds") and Hollingsorth & Vose Company's ( hereinafter "H& V") motion pursuant to CPLR 3212 for partial summary judgmt dismissing Plaintiffs' claims for failure to arn, loss of consortium and punitive damages is granted solely to the extt of dismissing the loss of consortium claims. Dismissal of the failure to arn and punitive damages claims is died. Plaintiff, Lois Prokocimer, claims that she developed Pleural mesothelioma as a result of smoking Kt cigarettes in the 195's that ere manufactured ith an asbestos containing filter. From March 1952 until May 1956or1957 Kt cigarettes ere manufactured ith a filter containing crocidolite asbestos. The asbestos containing filter used in Kt cigarettes as purchased from H&V Specialties, Co., nc., a former subsidiary of H&V. Plaintiff commced an action against the defdants, including R.J. Reynolds and H&V to recover for her physical injuries, asserting claims for failure to arn based on negligce ( count 1 ), failure to arn based on strict products liability( count 2), loss of consortium (count 3) and for punitive damages (count 4). R.J. Reynolds and H&V no move for partial summary judgmt dismissing these causes of action in the complaint. They claim that failure to arn counts 1 and 2 should be dismissed because Lorillard and H&V had no duty to arn of dangers that ere unknon and unknoable in the 195's. They claim that the spousal loss of consortium claim, count 3, should be dismissed because counsel has agreed to ithdra Mr. Prokocimer as a party, and has stipulated that they do not intd to pursue any claim on Mr. Prokocimer's behalf. Finally they claim that the punitive damages claim, count 4, should be dismissed because plaintiff cannot prove that either Lorillard or H&V gaged in the requisite conduct under Ne York La, and because an aard of punitive damages ould not advance Ne York's overriding policy interest of punishmt and deterrce. n support of their motion R.J. Reynolds and H&V provide excerpts of Lois Prokocimer's ansers to interrogatories ( Exhibit B), correspondce from plaintiffs' counsel herein they purport to stipulate to ithdra the claims made by Mr. Prokocimer and remove him from the case ( Exhibit F) and the unsorn declaration of Dr. All R. Gibbs, a non-licsed foreign doctor and a fello at the Royal College of pathologists ho opines that: (1) n the 195's the knon risks of asbestos exposure as related to prolonged, intse and heavy direct occupational exposure to asbestos causing asbestosis, and there as no 1 1 of 4

3 [* FLED: 2] NEW YORK COUNTY CLERK 12/13/218 9:3 AM NDEX NO. 193/217 NYSCEF DOC. NO. 75 RECEVED NYSCEF: 12/13/218 acceptance in the medica_ community at the time that exposure to asbestos alone, ithout the pr~sce of asbestos1~, oul~ cause lung cancer or mesothelioma; (2) until the Doll report m 1955 bronchogemc carcinoma as not convincingly associated ith asbestos exposure; (3) Mesothelioma as not definitely linked to asbestos exposure until 196 h the Wagner study as published; (4) t as not until Dr. Selikoff's study of insulators in 1964 that d users of asbestos products ere knon to be at risk for asbestos related diseases; (5) Until the late 196's, there as a continuing geral belief that exposure to a~b~stos belo the TLV of the time period of 5 million particles per cubit foot ("mppcf") of air did not represt a hazard to orkers. There as no geral recognition ithin the occupational h':a~th community that the use of asbestos at levels belo 5 "mppcf" of asbestos contammg dust ould result in asbestosis or other injury at any time during the 194's or 195's. ( Exhibit E). R.J. Reynolds and H&V argue that these exhibits make their prima facie case for titlemt to partial judgmt dismissing the first through fourth causes of action in the complaint as a matter of la. To prevail on a motion for summary judgmt, the propont must make a prima facie shoing of titlemt to judgmt as a matter of la, through admissible evidce, eliminating all material issues of fact (Klein v City of Ne York, 81 NY2d 833, 652 NYS2d 723 [1996]). Once the moving party has satisfied these standards, the burd shifts to the oppont to rebut that prima facie shoing, by producing contrary evidce, in admissible form, sufficit to require a trial of material factual issues (Amatulli v Delhi Constr. Corp., 77 NY2d 525, 569 NYS2d 337 [1999]). n determining the motion, the court must construe the evidce in the light most favorable to the non-moving party (SSBS Realty Corp. v Public Service Mut. ns. Co., 253 AD2d 583, 677 NYS2d 136 [1st Dept. 1998]); Martin v Briggs, 235 AD2d 192, 663 NYS2d 184 [1st Dept. 1997]). Thus, a party opposing a summary judgmt motion must assemble and lay bare its affirmative proof to demonstrate that guine triable issues of fact exist (Kornfeld v NRX Tech., nc., 93 AD2d 772, 461 NYS2d 342 [1983], aff'd 62 NY2d 686, 465 NE2d 3, 476 NYS2d 523 [1984]). Regarding asbestos, a defdant must "make a prima facie shoing that its product could not have contributed to Plaintiff's injury" (Comeau v W.R. Grace & Co.- Conn. (n re N.Y.C. Asbestos Litig.), 216 AD2d 79, 628 NYS2d 72 [1st Dept. 1995]). n opposing the motion plaintiff submits 161 exhibits, including plaintiff's deposition transcript, defdants' responses to requests to admit, transcript of deposition and trial testimony of Harold Knudson, Dr. Harris Parmele, Mr. William Thompson an account executive ith Young and Rubican in charge of the Kt advertising campaign, Elise Comproni a Massachusetts health inspector, Dr. William Smith, non-party itness Douglas Hallgre, Thomas Jonathan Revere and Lee Revere, Gerald Kelly, report of examination of Kt cigarette smoke by Wanda K. Farr and Althea Revere, articles on dangers of cigarette smoke and filters from the AMA and JAMA, and reports from Plaintiff's experts Dr. Murray Finkelstein and Dr. Jacqueline Moline. The exhibits submitted by plaintiff raise an issue of fact as to hether during the period plaintiff smoked Kt cigarettes ith an asbestos-containing filter, defdants kne or should have knon that asbestos as a harmful carcinog. Dr. William Smith testified that in 1952 he met ith a man from "Kt" and told him about his rect trip to England and that there as evidce linking asbestos ith cancer, and that he advised the man from Kt that it ould be prudt to use some other material besides asbestos in Kt cigarette filters. Mr. Hallgre stated that studies done in 1954 on smoke from Kt cigarettes containing an asbestos Micronite filter found asbestos in the smoke and that this information as transmitted to Lorillard along ith the report from Fullam's laboratories confirming these findings. Mr. Revere in summarizing information obtained from his mother, Althea Revere, regarding studies she performed on smoke from Kt cigarettes, stated in his deposition that his mother discovered asbestos in the smoke, that she believed if inhaled by a human being it ould ter the lungs and some of them become embedded in lung tissue and that it as part of her summary report to Lorillard that continuing use of the Kt Micronite filter posed a severe health risk. Ms. Lee Revere stated that her mother talked about ho Kts ere advertised as such a great safe filter h they ere extremely dangerous. Mr. Gerald kelly testified that Ms. Althea Revere told 2 2 of 4

4 [* FLED: 3] NEW YORK COUNTY CLERK 12/13/218 9:3 AM NDEX NO. 193/217 NYSCEF DOC. NO. 75 RECEVED NYSCEF: 12/13/218 hi"!l in an i~tervie for the Martha's Vineyard Nespaper, that she had orked for Kt do1!1g studies on ~moke, that the smoke contained asbestos and that she had raised a major fuss about 1t because she kne the dangers of the material. H & V as informed by Dr. Harris Parmele of asbestos in the smoke from the Kt cigarette. Mr. ~chry_ testi!ied_that Dr. Parmele as concerned ith litigation and claims from asbestos m the M1cromte filter and that Dr. Parmele as orried about inhaling the fibers and lung cancer; he as concerned about the dangers of inhaling asbestos fibers. By 1954, and after receiving the Fullam laboratories report finding asbestos in the smoke from Kt cigarette, H & V intded to eliminate the use of asbestos in their filter. Mr. Knudson, the techr:iically or scitifcally most educated person at H & V during the 195's, h asked hat did he kno about the health hazards of asbestos in the 1952 to 1954 period ansered"... not a hole lot but obviously as aare of the fact that inhalation of any dust of material of that sort as not desirable... " Despite having this information Lorillard continued to advertise the Kt cigarette ith the asbestos Micronite filter as safe, and embarked in an advertising campaign in medical journals, television, nespapers and magazines touting the Kt cigarette ith the Micronite filter as offering the greatest health protection. Summary judgmt must be died h the plaintiff has "prested sufficit evidce, not all of hich is hearsay, to arrant a trial" (Ok v A.C. & S. (n re N.Y.C. Asbestos Litig.), 7 AD3d 285, 776 NYS2d 253 [1st Dept. 24]). Plaintiff raises issues of fact to be resolved at trial. Plaintiff has prested "facts from hich R.J. Reynolds and H & V's liability may be reasonable inferred" to arrant dial of their motion for summary judgmt. These submissions by plaintiff raise guine triable issues of fact requiring that the motion to dismiss the failure to arn claim based on negligce (count 1) and strict products liability claim (count 2) be died. Plaintiff has also raised an issue of fact requiring dial of summary judgmt dismissing the punitive damages claim. The purpose of punitive damages is not to compsate the plaintiff but to punish the defdant for anton, reckless and malicious acts, thereby discouraging the defdant and others from acting in a similar ay in the future (n re Street Crane Collapse Litigation 154 A.D.3d 139, 62 N.Y.S.3d 11 [1 5 t. Dept. 217]). Plaintiff has prested sufficit evidce from hich a jury can conclude that defdants had knoledge, from at least 1952, of the hazards of exposure to asbestos from smoking their asbestos-containing Micronite filter cigarette, that defdants kne that there as asbestos in the smoke from their cigarette and that this asbestos posed a health risk to the d user. A jury prested ith these facts could very ell find defdants to be anton and reckless titling the plaintiff to an aard for punitive damages. Hoever, there has be no argumt by plaintiff against defdants' motion to dismiss the loss of consortium claim. ACCORDNGLY, it is ORDERED that Defdants R.J. Reynolds Tobacco Company, as successor by merger to Lorillard Tobacco Company (hereinafter "R.J. Reynolds") and Hollingsorth & Vose Company's ( hereinafter "H& V") motion pursuant to CPLR 3212 for partial summary judgmt dismissing Plaintiff's claims for failure to arn, loss of consortium and punitive damages is granted solely to the extt of dismissing the loss of consortium claim, and it is further ORDERED that the loss of consortium claim on behalf of William Prokocimer asserted as the Third cause of action in the complaint is severed and dismissed, and it is further ORDERED that the motion to Dismiss the claims asserted in the complaint for failure to arn based on negligce ( count 1 ), for failure to arn based on strict products liability ( count 2) and for punitive damages ( count 4) is died, and it is further 3 3 of 4

5 [* FLED: 4] NEW YORK COUNTY CLERK 12/13/218 9:3 AM NDEX NO. 193/217 NYSCEF DOC. NO. 75 RECEVED NYSCEF: 12/13/218 ' 1 ORDERED that the clerk of court is directed to ter partial judgmt dismissing the loss of consortium claim.,! Dated: December 12, 218 ' ENTER: r-::\ MArQUEL J. MENDEZ J.S.C. MANUELJ.MENDEZ J.S.C. Check one: FNAL DSPOSTON X NON-FNAL DSPOSTON. Check if appropriate: D DO NOT POST D REFERENCE i. '.! of 4