Matter of Brown v A.O. Smith Water Prods.

Annotate this Case

Download PDF

Matter of Brown v A.O. Smith Water Prods. 2018 NY Slip Op 32646(U) October 15, 2018 Supreme Court, New York County Docket Number: 190012/2017 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 190012/2017 [*FILED: 1] NEW YORK COUNTY CLERK 10/16/2018 09:42 AM NYSCEF DOC. NO. 544 RECEIVED NYSCEF: 10/16/2018 i' S1UPREME COURT OF THE STATE OF NEW YORK - l1 PRESENT: Il MANUEL J. MENDEZ NEW YORK COUNTY PART_,1=3_ _ Justice IN 1RE: NEW YORK CITY ASBESTOS LITIGATION STACEY LYNN BROWN, as Administratrix of the Estate of STEVEN LEROY HALL, deceased, Plaintiff(s), , ,. - against - Ii INDEX NO. MOTION DATE 190012/2017 10/10/2018 007 MOTION SEQ. NO. A.O. SMITH WATER PRODUCTS, eta/., I '. MOTION CAL NO. Defendants. J • The following papers, numbered 1 to_§_ were read on this motion for summary judgment by American Biltrite, Inc.: · I; PAPERS NUMBERED Notice of Motion/ Order to Show Cause -Affidavits - I I; Exhibits 3-4 Replying Affidavits doss-Motion: z0 WCI) !:2~ I- a:: I/) (!) ;;~ 0 I- 0 s: fa :::l a::O et:: LL WW :C WI- LL et:: a:: >- 0 :::l :::> LL 1- () w ll.. I/) w a:: !!? w I/) ci: ~ z 0 j:: 0 :ii: LL 1- 2 I Ans\,,,ering Affidavits - Iii Exhibits... 5-6 D Yes X No ] .· Upon a reading of the foregoing cited papers, it is Ordered that Defendant American Biltrite, lnc.'s ("Amtico") motion for summary judgment pursuant to CPLR §~2,12 to dismiss Plaintiffs' complaint and all cross-claims against it is denied. . Plaintiff Steven Hall was diagnosed with mesothelioma on October 13, 2016 and pa~sed away on April 29, 2017. Mr. Hall alleges that he was exposed to asbestos in a va'rjety of ways when he renovated single-family homes from 1965-1979 (Hall Dep. at 91j-92, 96, 103-104). During his examination before trial, Mr. Hall identified Amtico floor tiles as a source of his exposure from 1969-1979 (Id. at 100, 102, 522-545, 1033-1037). Specifically, he testified that he was exposed to asbestos from "cut[ting] around the edges [of the tiles] ... , ... scor[ing] it and then break[ing] it loose .... [and] sand[ing] it straight so it fit up against the wall" (Id. at 99:24-100:3). He also testified that there would be dust residue in the tile boxes (Id. at 102). Plaintiffs commenced this action on January 10, 2017 to recover for damages resulting from Mr. Hall's exposure to asl:Jestos. ]l Amtico now moves for summary judgment pursuant to CPLR §3212 to dismiss Plaintiffs' Complaint and all cross-claims against it. Amtico contends that Plaintiffs failed to proffer any expert opinion establishing general and specific causation that Amtico floor tiles caused Mr. Hall's mesothelioma. !; i 1 Plaintiffs oppose the motion contending that Amtico failed to make a prima facie showing that its floor tiles could not have caused Mr. Hall's disease, and in any event, contend that issues of fact remain as to whether Mr. Hall's exposure to asbestos from Amtico floor tiles caused his mesothelioma. I. l _ To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Klein v City of New York, 81 NY2d 833, 652 NYS2d 723 [1996]). Once the moving party has satisfied these standards, the burClen shifts to the opponent to rebut that pnma facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues (Altjatulli v Delhi Constr. Corp., 77 NY2d 525, 569 NYS2d 337 [1999]). In determining the motion, the court must construe the evidence in the light most favorable to the of 6Service Mut. Ins. Co., 253 AD2d 583, 677 non-moving party (SSBS Realty Corp. 1 v Public NYS2d 136 r1st Deot. 19981\: Martin v Briaas. 235 AD2d 192, 663 NYS2d 184 [1st Dept. INDEX NO. 190012/2017 [*FILED: 2] NEW YORK COUNTY CLERK 10/16/2018 09:42 AM NYSCEF DOC. NO. 544 RECEIVED NYSCEF: 10/16/2018 L 1~~7l). Thus, a !?arty opposing a summary judgment motion must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist (Kernfeld v NRX Tech., Inc., 93 AD2d 772, 461 NYS2d 342 [1983], affd 62 NY2d 686, 465 NE2d 30, 476 NYS2d 523 [1984]). 11 I: Summary judgment is a drastic remedy that should only be granted if there are na ,'triable issues of fact (Vega v Restani Cons tr. Corp., 18 NY3d 499, 942 NYS2d 13, 965 NE3d 240 [2012]). A defendant cannot obtain summary judgment simply by "pointing to gaps in plaintiffs' proof' (Torres v Indus. Container, 305 AD2d 136, 760 NYS2d 128 [1st Dept. 2003); see also Koulermos v A.O. Smith Water Prods., 137 AD3d 575, 27 NYS3d 15~ [1st Dept. 2016)). Regarding asbestos, a defendant must "make a prima facie showing that its product could not have contributed to the causation of Plaintiffs inNry" (Comeau v W.R. Grace & Co.- Conn. (In re N.Y.C. Asbestos Litig.), 216 AD2d 79, 62~ NYS2d 72 [1st Dept. 1995]). The defendant must "unequivocally establish that its p~oduct could not have contributed to the causation of plaintiffs injury" for the court to grant summary judgment (Matter of N.Y.C. Asbestos Litig., 122 AD3d 520, 997 NYS2d 381 [1st Dept. 2014]). Ii "Plaintiff is not required to show the precise causes of his damages, but only 1l show facts and conditions from which defendant's liability may be reasonably inferred" (R'eid v Ga.- Pacific Corp., 212 AD2d 462, 622 NYS2d 946 [1st Dept. 1995]). Summary judgment must be denied when the plaintiff has "presented sufficient evidence, not all of1V,.hich is hearsay, to warrant a trial" (Oken v A.C. & S. (In re N.Y.C. Asbestos Litig.), 7 AD3d 285, 776 NYS2d 253 [1st Dept. 2004]). I' j ; Amtico contends that summary judgment is warranted under Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584, 857 NE2d 1114 [2006) and Cornell v 360 West 51st Street Realty, LLC, 22 NY3d 762, 986 NYS2d 389, 9 NE3d 762 [2014)) because Plaintiffs arelunable to establish general and specific causation. !''. General Causation: l ~ In toxic tort cases, an expert opinion must set forth (1) a plaintiffs exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered (general causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin tolcause such injuries (specific causation) (see Parker v. Mobil Oil Corp., 7 NY3d 434, 44,8,, 824 NYS2d 584, 857 NE2d 11114 [2006]). I 1 Amtico contends that, unlike amphibole asbestos, no causal relationship exists betWeen chrysotile asbestos and the development of mesothelioma, and thus Plaintiffs caHnot establish general causation. In support, Amtico submits an expert affidavit and report from John W. Spencer, a certified industrial hygienist (Moving Papers Exh. B); ani expert affidavit and report from Dr. Stanley Geyer, a pathologist (Id. Exh. D; and an expert affidavit and report from Dr. James Crapo, a pulmonologist (Id. Exh. E). I, Dr. Spencer's report does not show a lack of causal relationship between chrysotile asbestos and mesothelioma (See Moving Papers Exh. B). Tellingly, Dr. Spencer cites the EPA's Final Rule from July 12, 1989 entitled "Asbestos: Man·ufacturing, lmporta!ion, Processing and Distribution in Commerce Prohibitions" (Id; 1,Ex. B, at 14 n.7), which states: ! , i' I: j, r' ,! ! Mesothelioma has been associated with occupational exposure to chrysotile, amosite, and crocidolite. All commercial forms of asbestos have been shown to produce lung tumors and mesothelioma in laboratory animals with no substantial differences between the form of asbestos forms in carcinogenic potency. (54 Fed. Reg. 29469 [July 12, 1989]). 2 of 6 2 INDEX NO. 190012/2017 [*FILED: 3] NEW YORK COUNTY CLERK 10/16/2018 09:42 AM NYSCEF DOC. NO. 544 RECEIVED NYSCEF: 10/16/2018 Available information indicates that the combined epidemiological and animal evidence fail t.o establish conclusively differences in mesothelioma hazard for the various types of asbestos fibers. In view of the inconsistencies and uncertainty regarding this issue, EPA believes that it is prudent and in the public interest to consider all fibers types as having comparable carcinogenic potency in its quantitative assessment of mesothelioma risk. (54 Fed. Reg. 29470 [July 12, 1989]). i j Like Dr. Spencer's report, the reports by Ors. Geyer and Crapo do not contest the, causal relationship between chrysotile asbestos and mesothelioma. Instead, their opinions challenge Mr. Hall's level of exposure-arguments which contest Plaintiffs' ability of establishing specific causation. J; Amtico's argument that summary judgment is warranted under Cornell v 360 51st Street Realty, LLC, 22 NY3d 762, 986 NYS2d 389, 9 NE3d 762 [2014] because Plaintiffs are unable to establish general causation is unavailing. In Cornell, the defendant-corporation established a prima facie case as to general causation. The d~fendant-corporation's expert, Dr. S. Michael Phillips, submitted an affidavit; esliiblishing that it was generally accepted within the relevant community of scientists that exposure to mold caused disease in three ways, none of which plaintiff claimed. Dr. !Phillips cited studies, and in particular, the American Academy of Allergy, Asthma & Immunology (AAAAI) report, to depict the current state of the art in support of his conclusions. Here, Amtico's own expert's report shows that the EPA recognizes a causal relationship between chrysotile asbestos and mesothelioma. In any case, Am~ico cannot meet its prima facie burden by pointing to gaps in Plaintiffs' proof (Koulermos, supra). We~t Specific Causation: ; '· Amtico states that its floor tiles did not produce breathable dust to a level sufficient to cause Mr. Hall's mesothelioma, and thus Plaintiffs are unable to establish spEfcific causation. In support, Amtico relies on the expert reports from Ors. Spencer, Geyer, and Crapo. i' , In toxic tort cases, an expert opinion must set forth "that the plaintiff was exp-osed to sufficient levels of the toxin to cause such injuries (specific causation) (see P~rker v. Mobil Oil Corp., 7 NY3d 434, 448, 824 NYS2d 584, 857 NE2d 11114 [2006]). 1 · Dr. Spencer states that the EPA considers asbestos-containing floor tiles as non-friable materials. He states that nonfriable materials "are encapsulated products with asbestos fibers bound into a matrix material, a process that significantly reduces or jeliminates the potential for release of fibers when damaged or disturbed" (Id. Exh. B at 1\t.). In support, he cites the National Emission Standards for Hazardous Air 1 Pollutants (NESHAP); Asbestos NESHAP Revision rules from November 20, 1990 (Id. at 14i ~.9). In relevant part, the rule states: I In 1973 when the asbestos NESHAP rules were first promulgated for the demolition of buildings, EPA's intention was to distinguish between materials that would readily release asbestos fibers when damaged or disturbed and those materials that were unlikely to result in the release of significant amounts of asbestos fibers. To accomplish this, EPA labeled as "friable" those materials that were likely to readily release fibers. Friable materials, when dry, could easily be crumbled, pulverized, or reduced to powder using hand pressure. (55 Fed. Reg. 48408 [November 20, 1990]). EPA stated in the January 10, 1989, Federal Register notice that certain 3 3of 6 INDEX NO. 190012/2017 [*FILED: 4] NEW YORK COUNTY CLERK 10/16/2018 09:42 AM NYSCEF DOC. NO. 544 RECEIVED NYSCEF: 10/16/2018 I: I ! 1· , ' nonfriable materials, such as floor tile[s] ... that are in good condition, can be left in buildings being demolished because fiber release from these materials, even if the materials are damaged, is relatively small compared to the fiber release from friable materials. (55 Fed. Reg. 48409). Most nonfriable materials can be broken without releasing significant quantities of airborne asbestos fibers. It is only when the material is extensively damaged, i.e., crumbled, pulverized, or reduced to powder, that the potential for significant fiber release is greatly increased. (Id). i 1 Dr. Spencer states that OSHA has made the same distinction between friable and non-friable materials (Moving Papers Exh. Bat 14 n.8). He cites OSHA's Construction Asbestos Standards, where OSHA states: i' I, ! ' :: I The potential for asbestos-containing product to release breathable fibers depends largely on its degree of friability. Friable means that the material can be crumbled with hand pressure and is therefore likely to emit fibers. (29 CFR 1926.1101 Appendix H, subsection C). Materials such as vinyl-asbestos floor tile ... are considered non-friable if intact and generally do not emit airborne fibers unless subjected to sanding, sawing and other aggressive operations. (Id). i 1 Dr. Spencer states that the American Conference of Governmental Industrial H}lgienists (ACGIH) and OSHA have established the occupational exposure limits for asb;estos (Moving Papers Exh. B at 15). Under 29 CFR 1926.1101 Appendix H, subsection D, OSHA established that the permissible "[e)xposure to airborne asbestos fib1e'rs may not exceed 0.1 fibers per cubic centimeter of air (0.1 flee) averaged over the 8-t\our workday, and 1 fiber per cubic centimeter of air (1.0 flee) averaged over a 30 min'ute work period." I; l· The Court of Appeals enumerated several ways an expert might demonstrate spebfic causation (See Parker, supra). For example, "exposure can be estimated thiidugh the use of mathematical modeling by taking a plaintiffs work history into account to estimate the exposure to a toxin (Id);" "[c]omparison to the exposure levels ofslubjects of other studies could be helpful provided that the expert made a specific comparison sufficient to show how the plaintiffs exposure level related to those of the ott\er subjects" (Id). In turn, the Appellate Division in In re New York City Abestos Litigation, 148 AD3d 233, 48 NYS3d 365 [1st Dept. 2017) held that the standards set by Parker and Cornell are applicable in asbestos litigation . .\ j ; In making a comparative exposure analysis, Dr. Spencer cites a study performed byiEnvironmental Profiles, Inc. (EPI) (see Moving Papers Exh. B at 21 n.43). EPI is a prill'ate entity and, like many of the relevant studies Dr. Spencer cites, it is not annexed to ~!s report (Id. at 21-25 nn.45-55). j 1 Dr. Spencer estimates Mr. Hall's cumulative exposure levels from Amtico floor tiles by conducting a mathematical modeling analysis (Id. at 25-26). In calculating Mr. Hall.'s exposure, Dr. Spencer assumes that "during the two-week renovation of his own home, Mr. Hall spent two days installing tile [sic]" (Id). He also assumes that "Mr. Hall spent four hours per week between 1969 and 1979 installing Amtico floor tile [sic]" (Id). He] estimated that "for every four hours spent installing floor tile [sic], he spent half an hour sanding tiles" (Id). He finally assumes that "Mr. Hall's exposure ... was similar to 1 i 4 of 6 4 INDEX NO. 190012/2017 [*FILED: 5] NEW YORK COUNTY CLERK 10/16/2018 09:42 AM I,' NYSCEF DOC. NO. 544 RECEIVED NYSCEF: 10/16/2018 ttle values reported in EPl's ABI ... studies" (Id). From thes~ assumptions and calculations, Dr. Spencer concludes that Mr. Hall's "cumulative exposure was calculated to be <0.0027 flee-yrs, .. an exposure level that was "1) indistinguishable from some lifetime cumulative exposures to ambient asbestos, 2) well below a working li~etime at the OSHA and WHO permissible exposure limits, and 3) also well below li~e time cumulative exposure at the USEPA clearance limit following an asbestos 1 abatement action" (Id). j ; Dr. Spencer's report, however, fails to establish Amtico's prima facie burden as to, specific causation. Because Dr. Spencer cites studies that were not conducted by hinJ and which are not annexed to his report, he does not "identify any text, scholarly a1icle, or scientific study ... that approves of or applies this type of [mathematical] methodology, let alone a 'consensus' as to its reliability (see Parker, supra, and Sean R. ex rel. Debra R. v BMW of North America, LLC, 26 NY3d 801, 28 NYS3d 656, 48 NE3d 937 [2016]). Thus, Dr. Spencer's report is insufficient to establish Amtico's prima facie butden. !' ; , The reports by Dr. Geyer and Dr. Crapo do not meet the foundational standards under Parker and Cornell to establish Amtico's prima facie burden as to specific causation. Dr. Geyer's and Dr. Crapo's opinions are conclusory. They do not annex any stu~ies showing a comparative analysis of Mr. Hall's exposure levels, any mathematical modeling analysis taking into account Mr. Hall's work history, or any other type of scientific analysis to establish lack of specific causation. Their reports are devoid "of any reference to a foundational scientific basis for its conclusions. No reference [is] made either to [Ors. Geyer's and Crapo's] own personal knowledge acquired through [their] practice or to studies or to other literature that might have pro~ided the [scientific] support for the[ir] opinions" (Romanov Stanley, 90 NY2d 444, 661: NYS2d 589, 684 NE2d 19 [1997]). Their reports are devoid of the "scientific 1 ex J>'.ression" requirement set by Parker and Cornell. t Even if Amtico were able to meet its prima facie burden, Plaintiffs raise issues of 1 fact to be resolved at trial. At his deposition, Mr. Hall sufficiently identified Amtico's flddr tiles as a source of his exposure (Hall Dep. at 100, 102, 522-545, 1033-1037). He recalled working with Amtico's "Zip Stik" floor tiles, which exposed him to asbestos fr~m cutting, scoring, breaking, and sanding them (Id. at 99:24-100:3, 526). , , Plaintiffs submit Amtico's interrogatory responses, which state that beginning in the [late 1970s Amtico warned against sanding its floor tiles (Moving Papers Exh. C at 13r14, Answer 22). Specifically, the warning stated: WARNING: DO NOT SAND EXISTING RESILIENT FLOORING, LINING FELT, OR BACKING. THESE PRODUCTS MAY CONTAIN ASBESTOS FIBERS WHICH ARE NOT READILY IDENTIFIABLE. INHALATION OF ASBESTOS DUST MAY CAUSE ASBESTOSIS OR OTHER SERIOUS BODILY HARM. (Id). , Plaintiffs submit an expert report by Dr. Holstein. Dr. Holstein's report also 1 raises issues of fact to be resolved at trial. He states that there is a causal relationship between chrysotile asbestos and mesothelioma. He cites the Collegium Ramazzini's release entitled "The Global Health Dimensions of Asbestos and Asbestos-Related Dis~ases," 18th Statement (June 24, 2015) (Id. at 4 n.3). In relevant part, it states: '' Since 1993, the Collegium Ramazzini has repeatedly called for a global ban on all mining, manufacture and use of asbestos. The Collegium has taken this position based on well-validated scientific evidence showing that all types of asbestos, including chrysotile, the most widely used form, cause cancers such as mesothelioma and lung cancer, and showing additionally that there is no safe level of exposure. 5 of 6 5 INDEX NO. 190012/2017 [*FILED: 6] NEW YORK COUNTY CLERK 10/16/2018 09:42 AM NYSCEF DOC. NO. 544 RECEIVED NYSCEF: 10/16/2018 (Collegium Ramazzini, The Global Health Dimensions of Asbestos and Asbestos-Related Diseases, http://www.collegiumramazzini.org/download/1,S_EighteenthCRStatement( 2015).pdf, 24 June 2015, at 1-2.) . Dr. Holstein also cites the WHO's Fact Sheet entitled "Asbestos: elimination of asbestos-related diseases," which states that "[a]ll forms of asbestos are carcinogenic to; tiumans. Exposure to asbestos, including chrysotile, causes cancer of the lung, larynx, and ovaries, and also mesothelioma (a cancer of the pleural and peritoneal linif!gs)" (WHO, Asbestos: elimination of asbestos-related diseases, http://www.who.int/news-room/fact-sheets/detail/asbestos-elimination-of-asbestos-relat ed-diseases, 15 February 2018). 1 , Thus, Plaintiffs have shown "facts and conditions from which [Amtico's] liability may be reasonably inferred" (Reid, supra), warranting denial of Amtico's motion for surpmary judgment. , · ACCORDINGLY, it is ORDERED that Defendant American Biltrite, lnc.'s ("Aintico") motion for summary judgment pursuant to CPLR §3212 to dismiss Plaintiffs' complaint and all cross-claims against it is denied. ENTER: Dated: October 15, 2018 I' L"\ .MANUEL J. IENDE2: MANlJELJ'. MENDEZ J.S.C. Check one: 0 FINAL DISPOSITION X NON-FINAL DISPOSITION Check if appropriate: 0 DO NOT POST 0 REFERENCE j ~ 66 of 6

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.