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

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Isernia v A.O. Smith Water Prods. Co. 2018 NY Slip Op 32647(U) October 15, 2018 Supreme Court, New York County Docket Number: 190071/2016 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. 190071/2016 [*FILED: 1] NEW YORK COUNTY CLERK 10/16/2018 09:38 AM NYSCEF DOC. NO. 172 II RECEIVED NYSCEF: 10/16/2018 . ,, SUPREME COURT OF THE STATE OF NEW YORK - Ii PRESENT: NEW YORK COUNTY PART_13 __ MANUEL J. MENDEZ Justice JI IN RE: NEW YORK CITY ASBESTOS LITIGATION JOHN ISERNIA and FRANCES ISERNIA, .! Plaintiff(s), 190071/2016 INDEX ND. l -against- MOTION 1 DAT~ 10/10/2018 002 MOTION SEQ.eNO. A.oJ SMITH WATER PRODUCTS CO., et al., 1 MOTION CAL NO. I Defendants. 1 Thej!ollowing papers, numbered 1 to_§_ were read on this motion for summary, judgment by American B1lt•l1te, Inc.: i I : Notice of Motion/ Order to Show Cause -Affidavits - Exhibits... , 11 · A ffi1dav1ts · - Exh1·b·its Answering 11 Ui z0 WCI) ~~ I- 0:: (/) (!) ~~ 0 3: 1-0 fa ::l o::O 0:: LL WW J: Wl- LL 0:: 0:: >- 0 ::l LL ::> LL 1(.) w ll. (/) w 0:: ~ w (/) <( (.) z 0 j:: 0 ::!! l D Yes 1- 2 3-4 Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___,,-- CUss-Motion: PAPERS NUMBERED X No 5-6 , J 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 §3'2:12 to dismiss Plaintiffs' complaint and all cross-claims against it is denied. 11 Plaintiff John lsernia was diagnosed with mesothelioma dn January 21, 2016 and away on July 6, 2017. Mr. lsernia alleges that he was exposed to asbestos in a va<riety of ways while he worked for Abraham and Straus (A&S) in the 1960s and 1970s (l~~rnia Dep. at 115-125, 131-135, 137-140). During his examination before trial, Mr. lser'nia identified Amtico floor tiles as a source of his exposure (Id. at 115-119, 134-135, 34;8;-356, 724-725). Specifically, he testified that he was exposed to asbestos from dust h~ created when "cleaning up ... , [and] picking up the strips that were cut" from Amtico flQor tiles (Id. at 724:18-725:23). He testified that he breathed that dust (Id). Plaintiffs commenced this action on March 11, 2016 to recover for damages resulting from Mr. ' lsernia's exposure to asbestos. pa~sed 11 Amtico now moves for summary judgment pursuant to CPLR §3212 to dismiss Pl;;tintiffs' Complaint and all cross-claims against it. Amtico contends that Plaintiffs fail~d to proffer any expert opinion establishing general and specific causation that Ar'ntico floor tiles caused Mr. lsernia's mesothelioma. 11 Plaintiffs oppose the motion contending that Amtico failed to make a prima facie showing that its floor tiles could not have caused Mr. lsernia's disease, and in any ev~ht, contend that issues of fact remain as to whether Mr. lsernia's exposure to asbestos from Amtico floor tiles caused his mesothelioma. 1l To prevail on a motion for summary judgment, the proponent must make a prima fac;ie 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, 652INYS2d 723 [1996]). Once the moving party has satisfied these standards, the bu<rtlen shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, sufficient to require a trial of material factual issues (Amatulli 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 non'-moving party (SSBS Realty Corp. v Public Service Mut. Ins. Co., 253 AD2d 583, 677 NY~2d 136 [1st Dept. 1998]); Martin v Briggs, 235 AD2d 192, 663 NYS2d 184 [1st Dept. Th~,• P'rty oppM;og • •umm•'Y j:dgmool motioo m~hmmblo •od ~y 1ir· 1 of 5 INDEX NO. 190071/2016 [*FILED: 2] NEW YORK COUNTY CLERK 10/16/2018 09:38 AM bJ~e its affirmative proof to demonstrate that genuine triable issues of fact exist (K:qrnfeld v NRX Tech., Inc., 93 AD2d 772, 461 NYS2d 342 [1983), aff'd 62 NY2d 686, 465 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 10/16/2018 ' II NE2d 30, 476 NYS2d 523 [1984)). I, I Summary judgment is a drastic remedy that should only be granted if there are no triable issues of fact (Vega v Restani Constr. 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 D~pt. 2003); see also Koulermos v A.O. Smith Water Prods., 137 AD3d 575, 27 NYS3d 157j[1st Dept. 2016)). Regarding asbestos, a defendant must "make a prima facie s~owing that its product could not have contributed to the causation of Plaintiff's inj~ry" (Comeau v W.R. Grace & Co.- Conn. (In re N.Y.C. Asbestos Litig.), 216 AD2d 79, 62.8 NYS2d 72 [1st Dept. 1995)). The defendant must "unequivocally establish that its pro'duct could not have contributed to the causation of plaintiff's injury" for the court to gr~ht summary judgment (Matter of N.Y.C. Asbestos Litig., 122 AD3d 520, 997 NYS2d 3811[1st Dept. 2014)). ' I J "Plaintiff is not required to show the precise causes of hi$ damages, but only show facts and conditions from which defendant's liability may be reasonably inferred" (Re'id v Ga.- Pacific Corp., 212 AD2d 462, 622 NYS2d 946 [1st Dept. 1995)). Summary ju~gment must be denied when the plaintiff has "presented sufficient evidence, not all ofj"ifhich is hearsay, to warrant a trial" (Oken v A.C. & S. (In re N.Y.C. Asbestos Litig.), 7 AID3d 285, 776 NYS2d 253 [1st Dept. 2004)). , I : lj Amtico contends that summary judgment is warranted under Parker v Mobil Oil Corip., 7 NY3d 434, 824 NYS2d 584, 857 NE2d 1114 [2006) and Cornell v 360 West 51st St~eet Realty, LLC, 22 NY3d 762, 986 NYS2d 389, 9 NE3d 762 [2014)) because Plaintiffs arelunable to establish general and specific causation. · General Causation: I In toxic tort cases, an expert opinion must set forth (1) a plaintiff's exposure to a toxin, (2) that the toxin is capable of causing the particular injuries plaintiff suffered (gi!heral causation) and (3) that the plaintiff was exposed to sufficient levels of the toxin tolc'ause such injuries (specific causation) (see Parker v. Mobil Oil Corp., 7 NY3d 434, , 448\ 824 NYS2d 584, 857 NE2d 11114 [2006)). 1 1 l Amtico contends that, unlike amphibole asbestos, no causal relationship exists between chrysotile asbestos and the development of mesothelioma, and thus Plaintiffs cahrot establish general causation. In support, Amtico submits an expert affidavit and report from John W. Spencer, a certified industrial hygienist (Moving Papers Exh. B); an' 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). 1 relati~nship 11 Dr. Spencer's report does not show a lack of causal between chrysotile asbestos and mesothelioma (See Moving Papers Ex. B). Tellingly, Dr. Spencer cites the EPA's Final Rule from July 12, 1989, entitled "Asbestos: Manufacturing, Importation, Processing and Distribution in Commerce Prohibitions" (Id. 'Exh. Bat 15 n.10), which states: · ir: i r ii Ii : 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)). Available information indicates that the combined epidemiological and II,I 2 2of 5 INDEX NO. 190071/2016 [*FILED: 3] NEW YORK COUNTY CLERK 10/16/2018 09:38 AM ' NYSCEF IrDOC. NO. 172 I I I RECEIVED NYSCEF: 10/16/2018 animal evidence fail to 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]). 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. lsernia's level of exposure-arguments which contest Plaintiffs' allility of establishing specific causation. 1 . I Amtico's argument that summary judgment is warranted under Cornell v 360 W~iit 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 defendant-corporation's expert, Dr. S. Michael Phillips, submitted an affidavit, es'tablishing 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 cdnclusions. Here, Amtico's own expert's report shows that the EPA recognizes a caHsal relationship between chrysotile asbestos and mesothelioma. In any case, Arhtico cannot meet its prima facie burden by pointing to gaps in Plaintiffs' proof (Kb'ulermos, supra). ' 1 I Specific Causation: j Amtico states that its floor tiles did not produce breathable dust to a level sufficient to cause Mr. lsernia's mesothelioma, and thus Plaintiffs are unable to estiiblish specific causation. In support, Amtico relies on the expert reports from Ors. Spencer, Geyer, and Crapo. , 11 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 Parker v. Mobil Oil Corp., 7 NY3d 434, 448, 824 NYS2d 584, 857 NE2d 11114 [2006]). 11 Dr. Spencer states that the EPA considers asbestos-containing floor tiles as no,ri-friable materials. He states that nonfriable materials "are encapsulated products wit!;\ asbestos fibers bound into a matrix material, a process that significantly reduces or;eliminates the potential for release of fibers when damaged or disturbed" (Id. Exh. B at 11~). In support, he cites the National Emission Standards for Hazardous Air Pqll,utants (NESHAP); Asbestos NESHAP Revision rules from November 20, 1990 (Id. at 141n.7). In relevant part, the rule states: , 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 nonfriable materials, such as floor tile[s] ... that are in good condition, 3 3of 5 INDEX NO. 190071/2016 [*FILED: 4] NEW YORK COUNTY CLERK 10/16/2018 09:38 AM NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 10/16/2018 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). , Ii 1 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. (lei). I 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 1 Construction Asbestos Standards, where OSHA states: l I it It 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. 'I (29 CFR 1926.1101 Appendix H, subsection C). 1 ·; 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. . !; I I (Id). I Dr. Spencer states that the American Conference of Governmental Industrial Hygienists (ACGIH) and OSHA have established the occupational exposure limits for asl>estos (Moving Papers Exh. Bat 15 n.8). Under 29 CFR 1926.1101 Appendix H, st.i't:Jsection D, OSHA established that the permissible "[e]xposure to airborne asbestos fitlers may not exceed 0.1 fibers per cubic centimeter of air (0.1 flee) averaged over the 8-hour workday, and 1 fiber per cubic centimeter of air (1.0 flee) averaged over a 30 minute work period." l j The Court of Appeals enumerated several ways an expert might demonstrate specific causation (See Parker, supra). For example, "exposure can be estimated through the use.of mathematical modelin~ by taking a plaintiffs work history into accbunt to estimate the exposure to a toxin (Id);" "[c]omparison to the exposure levels of'subjects of other studies could be helpful provided that the expert made a specific 1 co mparison sufficient to show how the plaintiffs exposure level related to those of the other 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. I J . In making a comparative exposure analysis, Dr. Spencer cites a study performed by Environmental Profiles, Inc. (EPI) (see Moving Papers Exh. 8, n.43). EPI is a private entity and, like many of the relevant studies Dr. Spencer cites, it is not annexed to his report (Id. at 22-25 nn.42-55). 1 ] ; Dr. Spencer estimates Mr. lsernia's cumulative exposure levels to Amtico floor tiles by conducting a mathematical modeling analysis (Id. at 26-27). In calculating Mr. lse~nia's exposure, Dr. Spencer assumes that "renovations at the department stores took place twice per year, that floor tile installation took one week each time, and that the "ooring portion of the Smithtown construction lasted two weeks" (Id). He also assumes that "Mr. lsernia was present in the work space for one hour each day" (Id). He assumes that the floor tile installers used Amtico floor tiles for "one fourth of the rer:deling work, and for one half of the co:struction work," based on Mr. lsernia's 4 of 5 INDEX NO. 190071/2016 [*FILED: 5] NEW YORK COUNTY CLERK 10/16/2018 09:38 AM NYSCEF DOC. NO. 172 I RECEIVED NYSCEF: 10/16/2018 testimony that he saw other floor tiles (see lsernia Dep. at 368-369). He also assumes a "similar ... average area exposure ... reported in [the] EPl's ABI installation study" (Id). F~qm these assumptions and calculations, Dr. Spencer concludes that Mr. lsernia's "cumulative exposure was calculated to be <0.000002 flee-yrs," an exposure level that was "1) indistinguishable from most lifetime cumulative exposures to ambient asbestos, 2) well below a working lifetime at the OSHA and WHO permissible exposure limits, and 3) also well below lifetime cumulative exposure at the USEPA clearance limit .follbwing an asbestos abatement action" (Id). I: 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 hirrl and which are not annexed to his report, he does not "identify any text, scholarly arti~le, 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 ~el. Debra R. v BMW of North America, LLC, 26 NY3d 801, 28 NYS3d 656, 48 NE3d 93,7~[2016]). Thus, Dr. Spencer's report is insufficient to establish Amtico's prima facie burden. ] ; 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 studies showing a comparative analysis of Mr. lsernia's exposure levels, any mathematical modeling analysis taking into account Mr. lsernia's work history, or any oth~r type of scientific analysis to establish lack of specific causation. Their reports are d~V,oid "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 acq'uired through [their] practice or to studies or to other literature that might have provj· 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 expression" requirement set by Parker and Cornell. I''i Even if Amtico were able to meet its prima facie burden, Plaintiffs raise issues of fact to be resolved at trial. At his deposition, Mr. lsernia sufficiently identified Amtico's flo0r tiles as a source of his exposure (lsernia Dep. at 115-119, 134-135, 348-356, 72:4~725). He testified that he was exposed to asbestos from the dust he created when he] cleaned up and picked up debris after floor tile installations (Id. at 724:18-725:23). He testified that he breathed that dust (Id). Thus, Plaintiffs have shown "facts and coh'ditions from which [Amtico's] liability may be reasonably inferred" (Reid, supra), warranting denial of Amtico's motion for summary judgment. I j ACCORDINGLY, it is ORDERED that Defendant American Biltrite, lnc.'s ("Amtico") motion for summary judgment pursuant to CPLR §3212 to dismiss Plaintiffs' complaint and all cross-claims against it is denied. I: , I I1 ENTER: MANUEL J. Mi;NDEZ Dated: October 15, 2018 If I i, ' 1· J.S,.. MANUELJ:'MENDEZ J.S.C. Check one: 0 FINAL DISPOSITION X NON-FINAL DISPOSITION 0 REFERENCE Check if appropriate: 0 DO NOT POST i' 5 of5 5

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