Gonzales v A.O. Smith Water Prods. Co.

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Gonzales v A.O. Smith Water Prods. Co. 2015 NY Slip Op 31449(U) August 4, 2015 Supreme Court, New York County Docket Number: 190282/2012 Judge: Peter H. Moulton 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK : Paii 50 ALL COUNTIES WITHIN THE CITY OF NEW YORK -----------------------------------------------------------------------------)( IN RE NEW YORK CITY ASBESTOS LITIGATION Index 190282/2012 Motion Seq. 001 -----------------------------------------------------------------------------)( RUSSELL GONZALES AND PATRICIA GONZALES, Plai11tiff DECISION & ORDER -againstA.O. SMITH WATER PRODUCTS CO., et al Defe11dants -----------------------------------------------------------------------------)( Plaintiff Russell Gonzales ("plaintifr) was diagnosed with rnesothelioma i11 2009. He claims that his disease steins for1n his alleged asbestos exposl1re while working with and around asbestos products, incl11ding insulation, used in conjunction witl1valves1nan11factured and sold by Defendant Cra11e Co. ("defe11dant" or "Crm1e"). Plaintiff passed away fro1n co1nplications associated with his mesothelio1na before 11e was able to be deposed in corn1ection with this case. Instead, plaintiffs for1ner co-\vorker, Joseph Zgo1nbic ("Zgombic"), testified that l1e and plaintiff handled asbestos at various sites throughout New York City during their work togetl1er in the 1970s. Specifically, Zgon1bic testified tl1at l1e and plaintiff were responsible for insttlatio11 equip1nent, including valves 111anufactured by Crane. Zgombic further testified that he m1d plainti1ffrequently worked arottnd otl1er trades1nen, so1ne of who1n worked on Crane valves in their presence, generating dust i11 tl1e process that plaintiff, a1nong otl1ers, wottld inhale. In short, plaintiff clai1ns that he was exposed to asbestos-containing insulation and packing used on Cra11e valves. Defendant is alleged to 11ave n1anufactt1red and sold valves in which asbestos-containing 1naterials \Vere installed. Plai11tiff asserts that Crane was neglige11t in failing to warn about the 1 [* 2] known dangers of tl1ose products, ai1d that Crane encouraged them to be used i11 conjm1ctio11 \Vi th Crane valves. Crane n1oves, ptirsuant to CPLR 3212, for summary judgn1ent dismissing plaintiffs con1plaint and all clai1ns and cross-claims against it. Defe11dant argues tl1at plaintiff has failed to prove that he was exposed to asbestos released by a product for whicl1 Crane is legally responsible (Defendru1t's Men1 of La\V at 2). Fttrtl1er111ore, citing Malter of Nev.' York City Asbestos Litig. (Konstantin) (121 AD3d 230 [!st Dept 2014]), defendant asserts that "Crm1e Co. cannot be held liable for asbestos-containing products it neitl1er n1ade nor sold or over whicl1 it did not exercise a significant role, interest, or iI1fltience" (id). 1 In short, there was nothing unsafe about defendant's "bare inetal" prodtict. Arguments Defenda11t contends that it has satisfied its burde11 here by showing that plai11tiffhas failed to prodtice a11y evidence that it ma11ufactured, supplied or otherwise placed into tl1e stream of comn1erce a prodttct that released any asbestos fibers to wl1ich plai11tiff 1nay have been exposed. Defe11dant fu1ther asserts that its burden has been n1et by plaintiff's alleged failttre to produce a11y evidence that it exercised a role, let alone a sig11ificant role, interest, or influence, over the insulation of products that third parties applied to its valves, along with numerous otl1er types of equipment, Matter o_fNeiv York City Asbestos Lilig. contains a detailed analysis concerning the orbit of· respo11sibility for a "bare metal" product. The ter1n "bare metal" prodttct is used to refer to a defense that tl1e product (nor111ally made of metal) \Vas placed i11 the strean1 of co1n1nerce without asbestos-containing materials, i.e., was made of bare 111etal only (see Matter o_f New York City Asbestos Litig., 2013 NY Slip Op 32846 (U) [New York County2013]). The decision was appealed to the Court of Appeals (Docket Number APL-2014-00209), and will likely be argued in September Briefs are available on tl1e Court of Appeals website u11der or October, 2015. ht tps ://YV\\'\\'. nvco urts. gov Ieta pps/co u1tnass/[) ock ct. as px. 2 [* 3] prior to plaintiff ei1cou11teri11g thein. Crane also stresses that because asbestos-co11tai11ing i11aterials were 011 otl1er equip1nent, plai11tiff cannot ide11tify the defendant's valves as the so11rce of his exposure. To ineet its pri1na facie case, defendant cites tl1e testimo11y of Anthony Pantaleo11i, its corporate representative in a11other asbestos litigatio11. He testified to 111e effect that boilers did i1ot have to be insulated (although they could be) and that pumps can function with asbestos or nonasbestos gaskets or packing. In response to the question "I-lave you ever seen a Crane Co. document recon11nending asbestos insulation for use on pun1ps and valves?" he respo11ded "No, just boilers." Pantaleoni also teslified tl1at it was tl1e "custo1ner" \Vllo would make the ultirnate decision as to whether to i11sulate a boiler, pump, or valve. Plai11tiff opposes tl1e motion on the basis tl1at although Crm1e valves \Vere not 1nanufactured containing asbestos, an issue of fact is raised as to plaintif"f allegatio11s tl1at "Crane recon11nended, endorsed and specified" tl1at asbestos products be ttsed with its valves for "applications involving high-heat contexts" wl1ere "its valves certainly needed insulation to function i11 a nor1nal and correct 1nanner" and that Crane "endorsed and specified asbestos insulation for such contexts" (Affl11 Opp iJ 3). Furtl1er, plaintiff n1ai11tains tl1at Crane knew or should have known of the dangers of asbestos due to its historical affiliations with, and leadership roles in, n1imerous safety organizations (id.). To support plaintiffs argument tl1at an issue of fact is raised regarding Cra11e's reco1n1nendatio11, endorsen1ent and specification of the use of asbestos prod1icts with its own, plainti11'sub1nits numero1is 1nanuals, catalogues, specifications and other docu1nents spanning from 1925 to 1981. Plaintiff cites to the following: I) a 1925 course study 111anual wl1ich explained why insulatio11 is needed on eq11ip1nent sucl1 as boilers (it cuts down on heat loss); 2) a 1938 catalogue 3 [* 4] which recommended asbestos boiler jackets over a jacket of galvanized steel for tl1ose customers who wished for a inetal casing 011Jy; m1d 3) a11 undated catalogue which touted defendant's boiler with a "handson1e metal jacket" that had "a 11eavy conugated asbestos it1sulation keeping tl1e heat inside." In another catalogue, defe11dant recon1mended "tl1at all Boilers be tl1oroughly protected by a substantial coveri11g of asbestos" and explained ho\v to apply asbestos cement it1sulation. Two other catalogs refer to an oil burning boiler which contained 1 1/2" asbestos air cell ins1dation that insured against 11eat loss. In a 1944 catalogue, Crane offered a wide array of asbestos-contai11ing 111aterials. Plai11tiff also cites a 1946 Navy 1nanual acki1owledging the input of Crane regarding t11e "variety of conditions such as pressures a11d ten1perat1u·es" affecti11g valves, and the benefits of it1sulatio11 and a variety of asbestos products. In a 1949 brochure, Crane announced that its gas po\vered boilers are "fully it1sulated vvith asbestos witl1 surrounds tl1e boiler" while a11other type of boiler "also has thick air cell asbestos insulation on tl1e front, top, side and rear, which is firmly attacl1ed to the jacket." Tl1rough tl1e 1950s Crane sold asbestos insulation products, some for piping and equipn1e11t in office b1lildi11gs. In Crm1e's 1964 pump manual, Crane specified the use of asbestos gaskets and packing for Crane's pun1ps and for the equip1nent used in connection with Crane pu1nps. Asbestos was a req11ire1nent fortl1e "best performance and longest life for the p1u11p." Also in 1964, Crane recon1mended the use of asbestos co1nponent parts for its pump prod11cts ii1 an e11gineering mm1ual. Plaintiff points to Crane's 1973 parts catalog which indicated that "Crane cast steel pressure-seal valves all 11se a packing that consists of a loose core of asbestos ... and a single braided jacket of' AAA' asbestos yarn." Further, a 1974 parts manual for Jersey Central Power & Ligl1t Con1pany reflected a packing con1ponent sold by defendant known as "braided asbestos rings." Plaintiff poi11ts to a11 internal Crane memorandun1 dated May 24, 1976 whicl1 referenced a Crane line 4 [* 5] of asbestos contai11i11g gaskets a11d packing for sale. Also cited is Crane's 1981 chart specifyi11g the use of asbestos gaskets for flange joints for welding fittings. A 1981 internal Crane manual reflected the con1pany's preference for asbestos with packing a11d gaskets due to its low cost, and indicated a rel11ctance to 11egotiate the use of i1011-asbestos products because "then all the valve plants are in trouble." Plaintiff points to Crane's knowledge of the dangers of asbestos which could be inferred fro1n Crane's extensive 111emberships ru1d affiliations with safety and healtl1 organizations. Crane l1ad a 111edical department in 1896 whicl1 was headed by Dr. Andrew Magee I-Iarvey, who founded the A111erican Association of Industrial Pl1ysiciru1 & Surgeo11s i11 1916. Crane was affiliated with organizations starting i11 tl1e early 1900s and those organizations published articles as early as tl1e 1930s about the hazards of asbestos. F1uther, plaintiff cites tl1e testimony of At1to11y Pantaleoni, Crane's corporate witness for the proposition that various Crane management personnel knew of asbestosis diseases as far back as the 1930s. In reply, defendant reiterates that it is not liable for asbestos prodttcts it did not sell, ru1d tl1at sales of such products do not translate i11to Crane endorsi11g tl1eir use witl1 its valves. Defe11dant f1uther states that"[d]espite subn1itting tho11sands of pages of exhibits to this Court, Plaintiff did not proffer one docu1ne11t relevant to this case" (see Reply Aff. at 'ii 9). Specifically, defendant argttes that "there is i101 011e document that is re1notely conte111poraneous witl1 Mr. Gonzales's work [nor is [sic] there any docu111ents regarding any ofl1is worksites because Mr. Zgo1nbic could i1ot identify any location where he and Mr. Gonzales encountered a Crane Co. valve J id.). Defendant makes no ftniher argun1ent regarding plaintiffs alleged inability to ide11tify Crane values as a source of exposure. 5 [* 6] Discussion A. Duty To Warn Generally, a 1nanufacturer l1as no duty to warn "about another n1anufacttrrer's prodtict when the first inanufacturer produces a sound product which is compatible for use \Vi th a defective product of tl1e other mru1ttfactttrer" and where the n1anufacturer had "no control of the production ... 110 role it1 placing that [product} i11 the stremn of co1nn1erce, a11d derived no benefit from its sale" (Rastelli v Goodyear Tire Co., 79 NY2d at 297-298 [1992]) [a tire manufacturer has no liability for a defective riI11 which exploded becattse the defendant did not mru1t1facturer the rim which was later attached by a third party to its tire after tl1e tire was sold]). SiI11ilarly, in tl1e asbestos context, where a defendant makes or sells a safe product, defe11dru1t does not have a duty to war11 of another's asbestos-containing product "where there is no evidence that a n1anufacturer had any active role, interest, or influence in t11e types of products to be used i11 co1rnectio11 with its own product after it placed its product into the stream of con1rnerce" (Matter of Nen1 York Cit;1 Asbestos Litig., 121 AD3d at 250, supra). However, there is such a duty "wl1ere a ma11ufacturer does have a sufficie11tly significant role, interest, or int1uence in tl1e type of component used with its prodt1ct after it ei1ters the strean1 of com1nerce, it may be held strictly liable if that component cattses injt1ry to ru1 end user of the product" (icl.; see also Berko1vilz v A. C. & S, Inc., 288 AD2d 148, [1st Dept 2001} ["Wl1ile it 111ay be tecl1nically true that its pumps could run without insulation, defendants' own witness indicated tl1at the governn1ent provided certain specifications involvi11g insulation, and it is at least questionable whether pumps transporting steam and hot liquids 011 board a ship could be operated safely without insulation, v,rl1icl1 [tl1e defendant] knew would be inade out of asbestos"). 6 [* 7] B. Summary Judgn1ent CPLR 3212 (b) provides, in relevant part: A 1notio11 for su1n1nary judgment shall be supported by affidavit, by a copy of the pleadings and by otl1er available proo1: sucl1 as depositions and written admissions. ·rhe affidavit sl1all be by a person l1aving knowledge of tl1e facts; it shall recite all the 1naterial facts; a11d it shall show that there is no defense to the cause of action or that the cattse of action or defense has no n1erit. The motion shall be granted if, upon all tl1e papers and proof st1b1nitted, the cause of actio11 or defe11se shall be established sufficiently to warrant the court as a matter of law i11 directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party sl1all show facts sufficient to require a trial of any issue of fact. A defendant movi11g for sum1nary judg1nent 1nust first establish its prima.f'acie entitlement to j"udgn1ent as a n1atter of law by den1onstrating the absence of material issues of fact (see Vega v Reslani Conslr. Corp., 18 NY3d 499 (2012]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Therefore, stnnmary judg1nent in defe11dant's favor is denied whe11 defe11dant fails "to u11equivocally establish that its product could not have co11trib11ted to the cat1satio11 ofplait1tiffs injury" (Reid v Georgia-Pac(fic Co1p., 212 AD2d 462, 463 [1st Dept 1995]; see also Matter ofNev\! }Tork Cit)1 Asbestos Litig. (Berens111ann), 122 AD3d 520 [1st Dept 2014)). A11 affidavit fro1n a corporate represe11tative wl1ich is "conclusory and without specific factual basis" does not 1neet the burden (Matter ~f New York City Asbeslos Lilig. (DiSa/vo), 123 AD3d 498 [!st Dept 2014]). It is only after tl1e burden of proof is met that plaintiff mt1st tl1en show "facts ru1d conditio11s from which t11e defendm1t's liability may be reasonably it1ferred" (Reid, 212 AD2d at 463, supra). To defeat su1nmary judg1nent, a plaintiffs evidence n1ust create a reasonable inference that plaintiff was exposed to a specific defendant's product (see Comeau v. W.R. Grace & Co.-Conn), 216 AD2d 79 [1st Dept. 1995]). Issues of credibility are for the jury (Cochrane v Owe11s-Corning Fiberglass 7 [* 8] Corp., 219 AD2d 557, 559-60). In cases involving the pron1otion of asbestos-co11taining co1nponent parts on an asbestos-free prodttct, the New York appellate courts l1ave yet to address whetl1er a defendant has the burden of proof on sun1mary judgme11t to de1nonstrate tl1at it did i1ot have "any active role, interest, or influence in the types of products to be 11sed in con11ectio11 witl1 its own prodttct after it placed its product into the strean1 of con1merce" (Matter o.f Ne'l-1' York City Asbestos Litig., 121 AD3d at 250, siq1ra). However, in cases such as Reid (212 AD2d at 463, supra), which did not involve a "bare metal" product, tl1e defendant was required to establish (unequivocally) that its product could not have caused plaintiffs injury. Therefore, looki11g at the defe11dant's product in isolation, tl1e burden has been met l1ere by Crane profferi11g sufficient evidence to show tl1at its bare metal product was safe (see 0 'Donnell v C'rane Co., Index 601183/13 [Nassau County 2015] [assuming, arguendo, that Crane's boilers contained i10 asbestos, plaintiff raised an "issue of fact" regarding whetl1er Crane intended that its boilers be used with asbestos-containi11g nlaterials made or sold by others J). In response to defendant's prima-facie showing, plaintiff has demonstrated tl1at an isstte of fact is raised as to whet11er Crane 11ad a "sufficiently sig11ificantrole, interest, or inflt1ence in the type of co1nponent used with its prodttct after it enters the stream of commerce" (Matter ofNew 1rork City Asbestos Litig., 121 AD3d at 250, szrpra). 2 While son1e of the proffered evidence relates to products other than valves, a reasonable i11terence nlay be drawn fro1n Crane's active role, interest, and 2 Defe11dant l1as failed to den1onstrate t11at Crm1e products "could not have co11tributed to t11e causatio11 of plaintiffs i11jttry" (Rei cl, 212 AD2d at 463, supra), Crane submitted no evide11ce in this regard, and plaintiffs for1ner co-worker, Zgornbic, identified Crane valves as a source of plaintiffs exposure at his deposition. Tl1us, that branch of defendant's argument has not merit. 8 [* 9] inilue11ce regarding those products to the product at issue here. Further, there is specific evide11ce relating to valves. The fact that certain evidence relates to periods of time that are 11ot co11ten1poraneous with plaintiffs work history does not inea11 tl1at such evidence could not be considered by a jury for a 11istorical or a wholistic context, or for other reasons. Contrary to defe11da11t's argun1ent, the 11olding inl~astelli v Goodyear Tire & Rubber Co. (79 NY2d 289 [1992]) does not dictate a contrary result. The Court of Appeals in Rastelli v Goodyear Tire Co. specifically pointed out that the defenda11t in tl1at case had "no control of the productio11 . . . no role in placing that [product] in tl1e strea1n of con1merce, and derived no benefit ffom its sale" (Rastelli v Goodyear Tire Co .• 79 NY2d at 297-298 [1992]). The Court would not have gone out of its \Vay to make tl1is point if under all circun1stances a i11anufacturer wot1ld not have a duty to warn when a known hazardous product is used in co1u1ection with its own safe product. The duty to warn arises fron1 tl1e bala11cing of va1iot1s policy co11cer11s. For i11stance, a n1m1ufacturer may l1ave a duty to warn oftl1e danger of a reasonably foreseeable unintended use or misuse of its own product which ·'arises fro1n a manufactt1rer's unique (and st1perior) positio11 to follow the use and adaptation of its product by const1n1ers ... Con1pared to purchasers and users of a product, a manufacturer is best placed to learn about post-sale defects or da11gers discovered in use" (Liria110 v Hobart Corp, 92 NY2d 232 [1998]). 1'he d11ty tt1ms "upo11 a ntunber of factors, i11cluding the harm that may result fron1 use of the product without notice, tl1e reliability and a11y possible adverse i11terest oftl1e person, if other thru1 the user, to wl10111 notice is give11, tl1e burden 011 the manufacturer or ve11dor involved in locating the persons to who1n notice is required to be give11, the attention which it can be expected a notice in the form given \.Vill receive from the recipient, the kind of product involved and the ntnnber t11anufactured or sold, a11d the steps taken, other tl1a11 tl1e giving of notice, to correct the 9 [* 10] problem" (Cover v Co/1e11, 61 NY2d 261, 276 [1984]). While Liricrno and Cover involved the manufacturer's product alo11e, the policy co11siderations discussed in those cases illustrate that sucl1 policies are not i11applicable 1nerely because a product is safe when it enters the market. It is hereby ORDERED that defendru1t's motion is denied in its entirety. This constitutes the Decision and Order of the Court. Dated: August 4, 2015 HO~· J.S.C. 10 MOULTON J.S.C.

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