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

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Oakes v A.O. Smith Water Prods. Co. 2019 NY Slip Op 33709(U) December 20, 2019 Supreme Court, New York County Docket Number: 190316/2016 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. [*FILED: 1] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT:MANUELJ.MENDEZ PART 13 Justice IN RE: NEW YORK CITY ASBESTOS LITIGATION DONALD A. OAKES INDEX NO. 190316/2016 MOTION DATE 12/18/2019 MOTION SEQ. NO. ---'0=0=3_ _ MOTION CAL. NO. Plaintiff, -againstA.O. SMITH WATER PRODUCTS CO., et al., Defendants. The following papers, numbered 1 to 5 were read on this motion to dismiss by BURNHAM LLC, pursuant to CPLR § 3211(a)(7): w (.) i= en ..,::> I- Q w a: a: w w LL a: >...:..:. en ..J ..J - LL z 0 t- en (.) ct WW a.. a: en IPAPERS 1 -N2UMBERED Answering Affidavits - E x h i b i t s - - - - - - - - - - - - - Replying Affidavits I _____;;,5_ _ __ CROSS-MOTION 0 ::> Notice of Motion/ Order to Show Cause-Affidavits - Exhibits... C!> ~z en ;: wO en ..J ct ..J (.) 0 ......_ LL zw D YES XNO Upon a reading of the foregoing cited papers, it is Ordered that Defendant Burnham, LLC's (hereinafter "Burnham") motion pursuant to CPLR § 3211 (a)(7) to dismiss plaintiff's complaint against it is granted solely to the extent of dismissing the causes of action against Burnham for breach of express and implied warranties (second cause of action), market share liability (fourth cause of action), common law negligence and labor law violations (fifth cause of action), and dust mask Defendants liability (sixth cause of action). The motion to dismiss the causes of action for failure to warn (first and third cause of action), loss of consortium (seventh cause of action), and punitive damages is denied. Plaintiff brings this action to recover for injuries sustained by Donald A. Oakes from his alleged exposure to asbestos from various Defendants' products. It is alleged that Mr. Oakes was exposed to asbestos while taking apart and demolishing asbestos-insulation and cement on Burnham boilers from 1966 through approximately 1973. Plaintiff commenced this action on October 20, 2016. 0 :I: - II- a: 00 :E 34 LL 1 of 8 [*FILED: 2] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 Burnham, pursuant to CPLR § 3211 (a)(7), seeks to dismiss plaintiff's complaint including the punitive damages claim asserted against it. Plaintiff does not oppose dismissal of the causes of action for breach of express and implied warranties (second cause of action), market share liability (fourth cause of action), common law negligence and labor law violations (fifth cause of action), and dust mask defendants' liability (sixth cause of action). Those causes of action are dismissed with prejudice, without opposition. Plaintiff opposes dismissal of the causes of action for failure to warn (first and third causes of action), the cause of action for loss of consortium (seventh cause of action), and punitive damages. Burnham argues that Plaintiff's claim for punitive damages are based on failure to warn in the face of a general awareness of potential human health risks, rendering it insufficient to meet the standard to sustain the claims. As per Maltese, Burnham argues that the claim for punitive damages should be dismissed because this case is not "singularly rare where extreme aggravating factors are present" and their conduct was not "egregious and willful." (Matter of New York City Asbestos Litig. (Maltese), 89 N.Y.2d 955, 678 N.E.2d 467, 655 N.Y.S.2d 855 [1997)). Burnham also argues that because it did not mine, mill, or manufacture asbestos, the claim cannot be sustained. Burnham argues that Plaintiff's failure to warn claims must be dismissed because the allegations are insufficient as a matter of law, since its boilers did not contain asbestos and at the time of Mr. Oakes' exposure, Burnham, a manufacturer, had no duty to warn end users about the hazards arising from the use of a third-party's product in conjunction with its product. Burnham also argues that since the failure to warn claim should be dismissed, the loss of consortium claim should also be dismissed because it is a derivative of the failure to warn claim. Plaintiff argues that their causes of action for failure to warn are properly pied, and factually and legally sufficient. They argue that although Burnham did not manufacture asbestos, it manufactured asbestos cement, promoted for decades, specified, and knew of the use of asbestos-containing materials for insulating its product. Mr. Oakes testified that he was exposed to asbestos when he took apart and demolished asbestos-containing insulation on Burnham boilers when he worked on various commercial and residential boilers from 1966 through approximately 1973. Mr. Oakes testified that he scraped off asbestos-containing insulation that covered Burnham boilers, and then sledgehammered the remaining asbestos-containing insulation off the body of the boilers. He stated that his work created visual asbestos dust that he inhaled. He further stated that Burnham never warned him regarding the dangers of asbestos. (Exhibit 9). Plaintiff further points to Burnham specifications requiring insulation of boilers to be covered with "plastic asbestos at least 1-1/2 inches thick" then "with a finishing coat." Further Burnham specifications required 17 feet asbestos wicking and five pounds of asbestos cement" and that spaces in sectional boilers be "filled between beads with asbestos cement as each section is set. .. " and providing "... sufficient 2 2 of 8 [*FILED: 3] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 asbestos cement with each boiler ... " (Exhibit 10). Burnham further admitted in its interrogatories that its boilers were asbestos-containing and that it sold such boilers at least through 1986, that it manufactured asbestos cement commonly used by insulation workers and pipe coverers to apply to joints or spread over exposed surfaces of the boiler (Exhibits 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, and 13). Plaintiff argues that since the failure to warn claim survives, so should its cause of action for loss of consortium. Plaintiff seeks punitive damages under multiple causes of action and assert that Burnham is liable for punitive damages because it placed corporate profits above the health and safety of Mr. Oakes, and that Burnham continually insisted that there was no asbestos exposure from its product. Dismissal pursuant to CPLR § 3211 (a)(7) requires a reading of the pleadings to determine whether a legally recognizable cause of action can be identified and is properly pied. A cause of action does not have to be skillfully prepared, but it does have to present facts so that it can be identified and establish a potentially meritorious claim. The facts alleged are given the benefit of every favorable inference. (Leon v. Martinez, 84 N.Y. 2d 83, 638 N.E. 2d 511, 614 N.Y.S. 2d 972 [1994]). Plaintiff's failure to warn and loss of consortium claims can be identified and are properly pied. Plaintiff has alleged sufficient facts and produced sufficient evidence in support of their allegations that Burnham sold asbestos containing boilers, and specified, knew of the use of, and sold asbestos-containing materials for insulating its boilers. (Exhibits 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, and 13). Mr. Oakes testified that he knew he was exposed while taking apart and demolishing asbestos-containing insulation on Burnham boilers. He stated that the old asbestos-containing insulation had to be removed and that he scraped and sledgehammered the remaining insulation off the Burnham boiler and pipes, and that this created visible dust that he breathed in. (Exhibit 9). These allegations and exhibits support Plaintiff's failure to warn and loss of consortium claims. (In re New York City Asbestos Litigation (Dummitt), 27 N.Y.3d 765, 59 N.E.3d 458, 37 N.Y.S.3d 723 [2016]; In re New York City Asbestos Litigation (Sweberg), 143 A.D.3d 483, 39 N.Y.S.3d 411[1st. Dept. 2016]; In re New York City Asbestos Litigation (Hackshaw), 143 A.D.3d 485, 39 N.Y.S.3d 130[1st. Dept. 2016]; Peraica v. A.O. Smith Water Products, Co., 143 A.D.3d 448, 39 N.Y.S.3d 392 [1st. Dept. 2016]; In re New York City Asbestos Litigation (Murphy-Clagett), 173 A.D.3d 529, 104 N.Y.S.3d 99 [1st. Dept. 2019]). Burnham argues that the Plaintiff's punitive damages claims are procedurally improper and fail to state a viable cause of action. Burnham argues that the punitive damages claims stated as prayers for relief in the Weitz & Luxenberg, P.C. -Standard Asbestos Complaint for Personal Injury No. 7, are not particularized as to Burnham or pied with specificity as to the individual Defendants. Burnham cites to the Case Management Order (CMO) Sections Vll-C (Pleadings Punitive Damages), IX-M (Discovery), as protocols requiring that Plaintiff inform Defendants that it intends to seek punitive damages and permitting Defendants to conduct discovery on any claims asserted for punitive damages. Burnham argues that Plaintiff's failure to notify Burnham of their intent to pursue punitive damages violated its due process rights, warranting dismissal. 3 3 of 8 [*FILED: 4] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 CMO Vll.C titled "Pleading Punitive Damages," only permits punitive damages claims on Active or Accelerated Docket cases where there is a good faith basis for doing so against a named defendant. It states in relevant part: "In cases on the Active or Accelerated Dockets, where the complaint already contains a prayer for punitive damages at the time that this Case Management Order becomes effective, plaintiff shall consider whether it intends to seek punitive damages against a named defendant or defendants. Plaintiff and defendants shall confer and where plaintiff agrees that it will not proceed with a punitive damages claim against a given defendant plaintiff shall sign a stipulation dismissing the prayer for punitive damages ...Where an existing complaint does not contain a prayer for punitive damages, plaintiff may amend the complaint to include punitive damages, if he or she has a good faith reason for doing so, without leave up to ten days prior to the date of plaintiffs application to be included in an Accelerated or Active Cluster.... After that time, but prior to the Trial Court setting a trial date, plaintiff may move before the Coordinating Judge to· amend the complaint to include punitive damages." Both parties, Plaintiff and Burnham, incorporated their Standard pleadings into their short form pleadings. CMO · Vll.C states that the Accelerated or Active Docket cases, such as this case, are required to contain a "prayer" for punitive damages. Black's Law Dictionary (11th Edition, 2019) defines "Prayer for Relief' as: "A request addressed to the court and appearing at the end of a pleading: esp., a request for specific relief or damages - Often shortened to prayer." CMO Vll.C does not require any specificity as to a named plaintiff or a named defendant. Plaintiff includes a prayer for punitive damages for approximately six causes of action in the Weitz & Luxenberg, P .C. - Standard Asbestos Complaint for Personal Injury No. 7, and complied with the requirements of the CMO Vll.C. To the extent that Burnham is arguing that CMO Vll.C does not strictly comport with the CPLR, the Appellate Division First Department in affirming the CMO stated that the lack of strict conformity is acceptable "so long as they do not deprive a party of its right to due process." (In re New York City Asbestos Litigation, 159 AD 3d 576, 74 NYS 3d 180 [1 5 t Dept. 2018]). Burnham argues that the CMO deprives it of due process and equal protection rights under the New York and Federal Constitution. Burnham's argument was previously made to the Appellate Division, First Department which stated: 4 4 of 8 [*FILED: 5] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 "Section XXIV and the other provisions (of the CMO) create rules for discovery and notice in connection with punitive damages claims so as to protect the defendants due process rights. We find these procedural protocols in the new CMO, as well as the other provisions challenged by defendants that were either present in preceding CMOs or appear for the first time in the new CMO, do not deprive defendants of their due process or other constitutional rights, even where they do not strictly conform to the CPLR ... " (In re New York City Asbestos Litigation, 159 AD 3d 576, supra pgs. 577-578). The resolution of an issue by the Appellate Court on a prior appeal is "law of the case" and is binding on the Supreme Court as well as the Appellate Court. No further examination of the issues can be made without a showing of subsequent evidence or a change in the law (Board of Managers of the 25 Charles Street Condominium v. Seligson, 106 AD 3d 130, 961 NYS 2d 152 [1st Dept. 2013] citing to J-Mar Serv. Ctr., Inc. v. Mahoney, Connor & Hussey, 45 AD 3d 809, 847 NYS 2d 130 [2nd Dept. 2007]). Plaintiff argues that defendants were aware of the prayer for punitive damages asserted in the Weitz & Luxenberg, P.C. - Standard Asbestos Complaint for Personal Injury No. 7, but failed to seek discovery on the issue until after the case was placed on the trial calendar. CMO IX.M titled "Discovery Concerning Punitive Damages," states: "Where plaintiff asserts a punitive damage claim against a defendant, plaintiff shall answer defendants' standard interrogatories and document requests seeking information related to punitive damages per the CPLR, and defendant shall answer plaintiffs' standard interrogatories and document requests seeking information related to punitive damages per the CPLR. The parties shall confer about the possibility of a stipulation dismissing the prayer for punitive damages ... before responding to standard interrogatories and document requests seeking information concerning punitive damages." CMO XXIV titled "Punitive Damages," under subsection B titled "Discovery on a Defendant's Financial Condition," permits plaintiff to seek financial disclosure from the defendant on a claim for punitive damages "no later than immediately prior to the commencement of jury selection, defendant shall provide plaintiff with reliable financial disclosure." Burnham should have sought discovery on punitive damages earlier in this case. The Weitz & Luxenberg, P.C. - Standard Asbestos Complaint for Personal Injury No. 7, incorporated into the Complaint and Amended Complaints, asserted the prayer for punitive damages. Burnham provides no proof of its own attempts to confer with plaintiff's counsel to obtain a stipulation withdrawing the punitive damages claims or summary judgment. Burnham attempts to place the onus of its failure to seek discovery on the plaintiffs for failure to confer. Plaintiff's inclusion of six prayers for punitive damages in its standard complaint for personal injury No. 7 sufficiently state a claim for punitive damages. 5 5 of 8 [*FILED: 6] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 Burnham argues that punitive damages should be dismissed because "their failure to warn in the face of a general awareness of potential human health risks" is insufficient to meet the standard to sustain the claims under Maltese, because this case is not "singularly rare and there are no extreme aggravating factors present." Furthermore, their conduct was not "egregious and willful." However, Burnham boilers containing asbestos and asbestos-containing insulation were in production and sold at least through 1986, and they manufactured and produced asbestos cement during the years of Mr. Oakes' exposure (Exhibits 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13). Maltese, as Burnham suggests it be applied does not support Burnham's argument. In Maltese, the Court of Appeals affirmed denial of a claim for punitive damages because the evidence presented to the jury at trial showed only that the corporation in question (Westinghouse), which manufactured asbestos-containing turbines, had a "general awareness" that exposure to high concentrations of asbestos could cause injury. The Court found that a "general awareness," without more, was insufficient to sustain an award of punitive damages (In Re New York City Asbestos Litigation (Maltese) 89 N.Y.2d 955, 678 N.E.2d 467, 655 N.Y.S.2d 855 [1997]). Burnham argues that under Maltese, their general awareness does not give rise to wanton, reckless, and malicious conduct, and an award for punitive damages. Although a general awareness alone may not give rise to the imposition of punitive damages, the complaint herein contains allegations that Burnham had more than a general awareness, and that their conduct was wanton, reckless, and malicious. (see Standard Complaint for Personal Injury No. 71[ 174, 185, 186, 187, 188, 189, 190, 191, and 192). The complaint alleges that Burnham "since the early 1900's has possessed medical and scientific data which indicates that their asbestos-containing products are hazardous to human health; and prompted by pecuniary motives ... has ignored and failed to act upon said medical and scientific data, and conspired to deprive the public and particularly the users, including the Plaintiff, of said medical and scientific data and therefore deprived the public at large and the Plaintiff in particular, of the opportunity of free choice as to whether or not to expose himself to [its] asbestos and asbestos-containing products; and further willfully, intentionally, and wantonly failed to warn Plaintiff of the serious bodily harm which would result from the inhalation of asbestos fibers and the dust from their asbestos-containing products." The Complaint alleges that Burnham knew and possessed medical and scientific data that asbestos in their product was hazardous. Burnham kept this information from the public and the Plaintiff, prompted by a pecuniary motive. In doing so, Burnham willfully, intentionally, and wantonly failed to warn Plaintiff and the public of the serious bodily harm that could result from inhalation of asbestos fibers and asbestos dust from their products, thereby depriving the public, and the Plaintiff in particular, of the opportunity of free choice as to whether or not to expose himself to asbestos in Burnham's product. 6 6 of 8 [*FILED: 7] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 The complaint alleges that Burnham had more than a general awareness. It describes conduct engaged in by Burnham evincing a high degree of moral culpability, manifesting a conscious disregard for the rights of others or so reckless as to amount to such disregard (Greenberg v. Meyreles, 155 A.D.3d 1001, 66 N.Y.S.3d 297 [2"d Dept. 2017]). "Accepting the facts as alleged in the complaint as true and according the Plaintiff the benefit of every possible favorable inference, the complaint sufficiently states a demand for punitive damages against [Burnham]. At this stage of the litigation, it is premature to conclude that the allegations in the complaint are insufficient to support the allegations that [Burnham] acted so willfully, intentionally, or wantonly as to warrant an award of punitive damages" (Gipe v. DBT Express, LLC, 150 A.D.3d 1208, 52 N.Y.S.3d 904 [2"d Dept. 2017]). Thus, dismissal of the punitive damages claim at this stage is unwarranted. A motion to dismiss the punitive damage claim may be made to the Trial Judge after submission of all the evidence (see Maltese, suprl.J). Plaintiff has sufficiently pied their causes of action for failure to warn, loss of consortium and punitive damages. Accordingly, it is ORDERED that Defendant Burnham, LLC's motion to dismiss Plaintiff's complaint pursuant to CPLR § 3211(a)(7) is granted to the extent of dismissing the causes of action against Burnham for breach of express and implied warranties (second cause of action), market share liability (fourth cause of action), common law negligence and labor law violations (fifth cause of action), and dust mask Defendants' liability (sixth cause of action), and it is further, ORDERED that the breach of express and implied warranties (second cause of action), market share liability (fourth cause of action), common law negligence and labor law violations (fifth cause of action), and dust mask Defendants' liability (sixth cause of action) in Plaintiff's complaint are severed and dismissed with prejudice, and it is further, ORDERED that the motion to dismiss the causes of action for failure to warn (first and third causes of action), loss of consortium (seventh cause of action), and punitive damages is denied, and it is further, 7 7 of 8 [*FILED: 8] NEW YORK COUNTY CLERK 12/20/2019 03:25 PM NYSCEF DOC. NO. 154 INDEX NO. 190316/2016 RECEIVED NYSCEF: 12/20/2019 ORDERED that the moving party serve a copy of this order with notice of .entry bye-filing protocol on Plaintiff's attorney, all remaining 'parties, the General Clerk's office (Room 119), and the. New York County Clerk (Room 1418), and it is further, ORDERED that the Clerk enter judgment accordingly. ENTER: Dated: December 20, 2019 MANUEL J. MENDEZ J.S.C. I MANUEL J.lMENDEZ · J.S.C. Check one: D FINAL DISPOSITION igi NON-FINAL DISPOSITION Check if appropriate: D DO NOT POST D REFERENCE 8 8 of 8

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