Middleton v Amchem Prods. Inc.

Annotate this Case

Download PDF

Middleton v Amchem Prods. Inc. 2013 NY Slip Op 32424(U) October 3, 2013 Supreme Court, New York County Docket Number: 190367/12 Judge: Sherry Klein Heitler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 10/08/2013 1] INDEX NO. 190367/2012 NYSCEF DOC. NO. 218 RECEIVED NYSCEF: 10/08/2013 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY HON. SHERRY KLEIN HEITLER PRESENT: 3o PART Justice r Index Number: 190367/2012 INDEX NO. MIDDLETON, DARRYL W. 110 3f.o?It Z., MOTION DATE _ _ __ vs. AMCHEM PRODUCTS, INC. SEQUENCE NUMBER : 007 MOTION SEQ. NO. 00] SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - No(s). _ _ _ __ Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits---------------- Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - I I No(s). _ _ _ __ I No(s). _ _ _ __ Upon the foregoing papers, it is ordered that this motion is is decided in accordance with the . memorandum decision dated (!J) ct ; 'VJ I 3 w (.) j:: :::> .., "' ~ c w a: a: w u.. w a: >..:.:.. ..J !!!. ..J z ::::> 0 u.. "' I- .ct (.) w w a: 3; (!) a: ~ w z Vi! fl 0 0 :E u.. ?}Ii/ Dated: . J.S.C. HON. SHERRY KLEIN HEITLER 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ 0 0 0 0 CASE DISPOSED GRANTED 0 SETILE ORDER ODO NOT POST DENIED NON-FINAL DISPOSITION 0 GRANTED IN PART 0 OTHER 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 30 --------------------------------------------------------------------------)( DARYL W. MIDDLETON and BELINDA MIDDLETON, Plaintiffs, Index No. 190367112 Motion Seq. 007 DECISION & ORDER -againstAMCHEM PRODUCTS INC., n/k/a RHONE POULENC AG COMPANY, n/k/a BAYER CROPSCIENCE INC., et al., Defendants. -------------------------------------------------------------------------)( SHERRY KLEIN BEITLER, J: In this asbestos-related personal injury action, defendant Maremont Corporation ("Maremont") moves pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross-claims against it on the ground that there is no evidence to show that plaintiff Daryl Middleton was exposed to asbestos fibers released from a product manufactured, sold, supplied, or distributed by Maremont. For the reasons set forth below, the motion is denied. BACKGROUND Daryl Middleton was diagnosed with lung cancer in June of 2012. On August 14, 2012, Mr. Middleton and his wife Belinda Middleton commenced this action to recover for injuries allegedly caused by his exposure to asbestos-containing products. Mr. Middleton provided deposition testimony concerning his alleged asbestos exposure on October 3, 2012 and October 4, 2012. 1 Portions of Mr. Middleton's deposition transcripts are submitted on the motion as defendant's exhibits C and D and as plaintiffs' exhibit 2. At the court's direction a complete copy of the [* 3] In relevant part,.Mr. Middleton testified that he was employed as a mechanic at Meineke Car Care Center, also known as Meineke Discount Mufflers and Meineke Discount Mufflers and Brakes (collectively, "Meineke"), from 1980 to 1984 and again from late 1989 to about 1995. He was responsible for the installation and removal of asbestos-containing engine pipes, mufflers, and brakes manufactured by various companies, including Maremont. Mr. Middleton testified that dismantling old mufflers as well as fitting new ones involved cutting their necks which released asbestos-containing dust. He further stated that he was exposed to asbestos as a result of cutting engine pipes and sanding brakes. Defendant argues that there is no evidence to show that Mr. Middleton was exposed to asbestos from a Maremont product. In this regard, Maremont submits the affidavit, sworn to June 5, 2013, of Carl Liggett, former Vice President of Operations for Maremont's friction products division from November 1973 to July 1, 1997 (defendant's exhibit F) as well as Maremont's Responses to Plaintiffs' Product Identification Interrogatories and Document Requests (defendant's exhibit E) to show that Maremont ceased manufacturing friction products under the brand name "Grizzly," including brakes, as of June 30, 1977, two and a half years before Mr. Middleton began working for Meineke. The Liggett affidavit also alleges that Maremont ceased using its encapsulated asbestos-containing paper in certain of its mufflers in 1978. Maremont also submits the deposition testimony in an unrelated action venued in Oregon of its muffler division quality control manager Robert T. McBride, who testified that asbestos was not used by Maremont' s muffler division as of the late 1970's, and that Maremont engine deposition transcript was submitted by defendant post submission ("Deposition"). 2 [* 4] pipes never contained asbestos. (Defendant's Exhibit G). Defendant argues that its asbestoscontaining mufflers were stamped or embossed with the words "Asbestos Wrapped" (Defendant's Exhibit F, ~ 9) and that since Mr. Middleton failed to testify that he saw any such stamp or embossment, he could not have been exposed to asbestos from a Maremont muffler. Plaintiffs contend that Mr. Middleton clearly testified to asbestos exposure from Maremont mufflers, and whether Maremont may have ceased making asbestos-containing products shortly before Mr. Middleton began working at Meineke does not alleviate the issue of residual use of such products in the marketplace. Plaintiffs further argue that any conflict between Mr. Middleton's testimony and defendant's witnesses creates triable issues of fact that must be resolved by a jury. DISCUSSION Summary judgment is a drastic remedy that must not be granted if there is any doubt as to the existence of a triable issue of fact. Tron/one v Lac d 'Amiante du Quebec, Ltee, 297 AD2d 528, 528-29 (1st Dept 2002). In asbestos-related litigation, the moving defendant must make a prima facie showing of entitlement to judgment as a matter of Jaw before plaintiffs must demonstrate that there was actual exposure to asbestos fibers released from the defendant's product. Cawein v Flintkote Co., 203 AD2d 105, 106 (1st Dept 1994). Jn this regard, it is sufficient for plaintiffs to show facts and conditions from which the defendant's liability may be reasonably inferred (Reidv Georgia-Pac{fic Corp., 212 AD2d 462, 463 [1st Dept 1995]) and all reasonable inferences should be resolved in the plaintiffs' favor (Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 205 [1st Dept 1990]). Any doubt must be resolved against summary resolution. Henderson v New York, 576 AD2d 129, 130 (1st Dept 1991). 3 [* 5] In this case, Mr. Middleton testified that he worked with Maremont mufflers which consequently exposed him to asbe.stos (Deposition, pp. 77-78, 495): Q. You also told me you believe you were exposed to asbestos as a result of the mufflers, -- A. Right. ... Q. Why would you have to wrap the mufflers? A. No, I didn't say I had to wrap the mufflers. The mufflers, especially that 19 line of Maremont, I know had, were wrapped inside. They were double wrapped and they had asbestos on the inside ... **** Q. Do you know who manufactured any of the mufflers, the old mufflers you removed from these vehicles? A. Some of them were Maremont, some of them are original equipment, some of them were Walker. Q. Do you know who manufactured any of the new mufflers you installed? A. Same ones. **** Q. Now, with respect to the Maremont muffler you installed, did you have to cut through or otherwise alter the muffler during the course of installation? A. Yes .... Q. And when you had done that, when you would cut through, did this create any sort of dust? A. Yes. Mr. Middleton also testified that he was exposed to asbestos from Maremont engine piping and Maremont brakes (Deposition pp. 76, 77, 79, 80, 82, 89): Q. When you replaced the engine pipes, did you also have to do the muffler at the same time or were there times that you just did the engine pipes? A. There were times I just did the engine pipes. 4 [* 6] Q. When you did the engine pipes, when you had to install a new engine pipe into any of these vehicles, -- A. Yes. Q. -- who manufactured the new engine pipe? A. It could be Maremont or the dealer themselves ... **** Q. Do you know who manufactured any of the old engine piping that you removed from these vehicles? A. Most of the time the original dealership, if it's a replacement that we had to do, then - if it was from us, then we'll do that and that came from Maremont or Walker. **** Q. You told me about the engine pipes and muffler work that you did at Meineke. A. Yes. Q. Do you believe you were exposed to asbestos in any other way at Meineke? A. At that time, no. **** Q. Do you have any reason to believe you were exposed to asbestos as a result of the brake work at Meineke? A. Yes. **** Q. Do you know where Meineke obtained any of their brakes from, the suppliers? A. Local -- how do you call it -- auto parts places and sometimes dealerships. Q. Do you remember the names of any of the local auto parts places? A. Yes ... And they did get brakes through Maremont. **** Q. How do you believe you were exposed during that time period? 5 [* 7] A. Because I was still doing the same exact jobs, sanding the brakes down after [sic] got the car up ... blowing the dust out. The defendant's challenge to Mr. Middleton's testimony on the ground that Maremont stopped producing asbestos-containing mufflers and brakes prior to Mr. Middleton working at Meineke is unavailing on this motion. Although Mr. Liggett's and Mr. McBride's conclusions on that issue are stated to be based in part on their review of corporate documents, not a single catalog, specification, or other relevant documentation accompanies defendant's submissions in this regard, and the defendant's assertions are merely conclusory. See Ayotte v Gervasio, 81 NY2d 1062 ( 1993). Furthermore, Mr. Middleton testified that he worked with Maremont products whereas Mr. Liggett's affidavit addresses asbestos-containing fiiction products which Maremont manufactured under the "Grizzly" brand name. Where summary judgment is concerned, it is the defendant's initial burden to show there is no issue of material fact that requires the fact finder's determination. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). The most that Mr. Liggett's and Mr. McBride's submissions do is create a conflict as between their and Mr. Middleton's testimony. Issues of credibility must be determined by the trier of fact. See Dallas v WR. Grace & Co., 225 AD2d 319, 321 (1st Dept 1996). Similarly unavailing is Maremont's position that Mr. Middleton could not have been exposed to asbestos from one of its mufflers because Mr. Middleton did not see the words "Asbestos Wrapped" on the mufflers he handled. Again, Maremont's failure to supports its corporate representatives' un-cross examined submissions with documentary support renders this an impermissible conclusory assertion. (Ayotte, supra, at 1063). 6 [* 8] Accordingly, it is hereby ORDERED that Maremont Corporation's motion for summary judgment is denied. This constitutes the decision and order of the court. DATED: I 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.