Greene v Amchem Prods., Inc.

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Greene v Amchem Prods., Inc. 2021 NY Slip Op 31853(U) June 1, 2021 Supreme Court, New York County Docket Number: 190200/2018 Judge: Adam Silvera 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 06/02/2021 02:24 PM NYSCEF DOC. NO. 296 RECEIVED NYSCEF: 06/02/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY I I. I: PRESENT: HON. ADAM SILVERA I: PART IAS MOTION 13 Justice ·----------------- ·-----------------------X ! 1 INDEX NO. 190200/2018 BONNIE JEAN GREENE, AS ADMINISTRATRIX FOR THE ESTATE OF FREDERICK F. LINDBERG, AND CHRISTINA L°INDBERG, INDIVIDUALLY, INDEX NO. MOTION DATE MOTION SEQ. NO. 190200/2018 09/03/2020 004 Plaintiff, I, lI - V - AMCHEM PRODUCTS, INC.,AMERICAN BILTRITE INC, BORGWARNER MORSE TEC LLC,BW/IP, INC. AND ITS WHOLLY OWNED SUBSIDIARIES, CBS CORPORATION, F/K/A VIACOM INC.,CERTAINTEED CORPORATION, CUYDE UNION, INC, COLUMBIA BOILER COMPANY OF P.OTTSTOWN, CRANE CO, CROWN BOILER CO, DEAN P,~MP DIVISION, FEDERAL- MOGUL ASBESTOS PERSONAL INJURY TRUST, FLOWSERVE US, INC.,FMC CQRPORATION, FORD MOTOR COMPANY, GARDNER DENVER, INC.GENERAL ELECTRIC COMPANY, GOODYEAR CANADA, INC, HONEYWELL l~jrERNATIONAL, INC.,IMO INDUSTRIES, INC, J.H. FRANCE REFRACTORIES COMPANY, KOHLER CO., OVVENS-ILLINOIS, INC, PEERLESS INDUSTRIES, INC, P:FilZER, INC. (PFIZER), PORT AUTHORITY OF NEW YORK AND NEW JERSEY, RW. BECKETT CORPORATION, ROPER PUMP COMPANY, SCHNEIDER E.UECTRIC USA, INC. FORMERLY KNOWN AS, s·~ANT/FIN CORPORATION, THE B.F. GOODRICH C0MPANY, (GOODRICH CORPORATION), THE FAIRBANKS COMPANY, THE GOODYEAR TIRE AND RUBBER COMPANY, U.S. RUBBER COMPANY (U~IROYAL), UNION CARBIDE CORPORATION, WEILMl!::LAIN, A DIVISION OF THE MARLEY-WYLAIN C(?MPANY, DECISION + ORDER ON MOTION Defendant. --------------------------------------------------------------------·---X Th~~ following e-filed documents, listed by NYSCEF document number (Motion 004) 209, 210, 21 ·1, 212, 213,214,215,216,217,218,219,220,221,267,268,269,270,271,287,288 wJr~ read on this motion to/for JUDGMENT - SUMMARY Upon review of the papers and after oral argument, it is ORDERED that defendant I I Columbia Boiler's ("Columbia") motion for summary judgment pursuant to CPLR 3212, :;ceking an ~rder dismissing the Complaint and all cross-claims, in their entirety, as they relate to Columbia I. I. 190200/2018 LINDBERG, FREDERICK F vs. AMCHEM PRODUCTS, INC., Motion No. 004 I I 1· 1 of 4 Page 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 06/02/2021 02:24 PM NYSCEF DOC. NO. 296 INDEX NO. 190200/2018 RECEIVED NYSCEF: 06/02/2021 I ank that this Court conduct a Frye hearing to determihe the foundational adequscy and i·· · ·fr s experts , opm1ons · · a d m1ss1·b·1· 1 1ty o f p 1amt1 regarding causation is denied. The underlying c,;.sc I. ste,hs from plaintiff Frederick Lindberg's ("Decedent") diagnosis of mesothelioma due to his eJhsure to asbestos which Ied to his death. Plaintiff alleges t~at Decedent was exposed to as besto, t~ough his work as a boiler mechanic for Federal Oil Company for approximately one arid a half ye1~s in the mid-l 950s where he performed work on Columbia brand boilers. Plaintiff and I detJndant experts disagree on the underlying science at issue. The fact that plaintiff and I defendant's experts disagree on the underlying science raises a credibility issue that cannot be I reJd1ved without jury consideration. Conflicting testimony raises credibility issues that c,vrnot be 1' re~dlved on papers and is a basis to deny summary judgme~t (Messina v New York City Transit I I. Authority 84 AD3d 439 [2011 ]). I I I In Marzigliano v Amchem Products, Inc., et al., Index No. 190134/2017 Motion Sequence I I 003; the Honorable Manuel J. Mendez ruled that conflicting affidavits regarding a plaintiffs I. ; exb~sure to chrysotile asbestos fibers raises issues of fact on general causation. Furthe:, &s to sp6cific causation the Court noted that "[p]laintiffs are not r~quired to show the precise causes of da~ages as a result of [plaintiff's] exposure to [defendant's I product, on! y 'facts and cm1d iti o r,c; fro 1~1 which defendant's liability may be reasonably inferred"'(id at 6). I I Here, like the plaintiff in Marzigliano, plaintiff cites to Decedent's testimony which idjJtified defendant's asbestos product as the source of their ~xposure to asbestos (Aff in Op, Exh I. 'I 1 Jt 1309). In support of their motion defendants submit the expert reports of Industrial Hygienist I : I. . Eric J. Rasmuson, who concluded that in the event Decedent worked with Columbia ;:,oilers, po!ential exposure, if any, would have been low level and, would not have placed Decdent at 190200/2018 LINDBERG, FREDERICK F vs. AMCHEM PRODUCTS, INC., Motion No. 004 I 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 06/02/2021 02:24 PM NYSCEF DOC. I,NO. 296 INDEX NO. 190200/2018 RECEIVED NYSCEF: 06/02/2021 I I .ml~ease ii d ns. k 1or .:- mesot he 1·10ma (Mot, Exh E at 10). Mr. Rasmuson concluded that "chrysotileind~ced mesotheliomas only occur with very high exposure" (id. at 8). In opposition, plaintiff submits the expert reports of Dr. David Y. Zhang who concluded, coh~rary to defendant's experts, that chrysotile asbestos fibers are capable of causing cancer. Pll~ntiff s deposition combined with the expert reports has. created "facts and conditions from wji:ch [defendant's] liability may be reasonably inferred" and raises issues of fact (Reid v G(i .. rJJifzc Corp., 212 AD2d 462 [l st Dept. 1995]). Thus, plaintiff has provided evidence of causation I; stating that defendant's product is capable of causing the underlying illness at issue, and the I coh~icting testimony warrants the denial of defendant's motion for summary judgment. Further, thj :court finds that the defendant has failed to demonstrate that plaintiffs expert report is not bal!d upon scientific methodologies, theories or processes that are generally accepted in tbc relLant scientific community. Thus, the branch of defendant's motion which seeks a Frye hearing to 1~termine the foundational adequacy and admissibility of plaintiffs experts' opinions regarding , caJ~ation is denied. . . I Accordingly, it is I: ORDERED that defendant's motion for summary judgment, pursuant to CPLR 3212, for I' a fi~ding in favor of defendant on the grounds that said defe~dant has made a prima facie case deMonstrating lack of causation and to dismiss plaintiffs Complaint and all cross-claims against 11 Colbmbia is denied; and it is further I: OIU)ERED that the branch of defendant's motion which seeks a Frye hearing is denied: !. andlit is further ' ORDERED that within 30 days of entry, plaintiff shall serve a copy of this De~ision/Order upon all parties with notice of entry. 1• I I: 190200/2018 LINDBERG, FREDERICK F vs. AMCHEM PRODUCTS, INC., Motion No. 004 I. 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 06/02/2021 02:24 PM NYSCEF DOC. NO. 296 INDEX NO. 190200/2018 RECEIVED NYSCEF: 06/02/2021 This Constitutes the Decision/Order of the Court. I; 6/01/2021 DATE CHECK ONE: i: A~1LICATION: CHECK IF APPROPRIATE: ! ADAM SILVERA, J.S.C. ~ CASE DISPOSED GRANTED 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN Fl~UCIARY APPOINTMENT • • OTHER REFERENCE I Ii I 'I I. I i I I.I l; 'I I II 4 of 4 INC., 190200/2018 LINDBERG, FREDERICK F vs. AMCHEM PRODUCTS, Page 4 of 4

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