Opinion
111152/99
06-24-2011
Carol E. Sawyer, Individually and as Executrix for the Estate of DONALD F. SAWYER, Plaintiffs, v. A.C. & S., Inc., et al., Defendants.
For Plaintiff:Michael Fanelli, Esq., Weitz & Luxenberg For Defendant:Eric R. L. Cottle, Esq., K & L Gates David Oxamendi, Esq.,
For Plaintiff:Michael Fanelli, Esq., Weitz & Luxenberg
For Defendant:Eric R. L. Cottle, Esq., K & L Gates David Oxamendi, Esq.,
Sherry Klein Heitler, J.
In this asbestos personal injury and wrongful death action, defendant Crane Co. moves pursuant to CPLR § 3212 for summary judgment dismissing the complaint and all other claims asserted against it. For the reasons set forth below, the motion is denied.
BACKGROUND
This action was commenced by Carol E. Sawyer, individually and as executrix of the estate of Donald F. Sawyer, to recover for personal injuries allegedly caused by Mr. Sawyer's exposure to asbestos-containing products while working as a plumber at the State University of New York at Oswego. Mr. Sawyer was not deposed prior to his death. On March 31, 2010, plaintiffs produced Mr. Sawyer's former co-worker, Mr. Robert Culeton, to provide testimony concerning Mr. Sawyer's work history and alleged exposure. Mr. Culeton testified that Mr. Sawyer worked as a pipefitter and plumber at SUNY Oswego during the 1960's and 1970's. He testified that Mr. Sawyer was exposed to asbestos from insulation used in conjunction with Crane Co. valves, but not from the valves themselves. According to Mr. Culeton, Crane Co. did not specify that its valves should be insulated with asbestos. He testified that the decision to insulate the valves would be made by an architect or engineer at the facility. He further testified that the insulation did not come packaged with Crane Co. valves.
Crane Co. does not dispute that Mr. Sawyer worked with its valves over the course of his career or that he was exposed to asbestos in connection with same. Instead, Crane Co. argues that it did not manufacture or supply any product that would release any asbestos fibers to which Mr. Sawyer may have been exposed. In this regard, Crane Co. contends that it had no duty to warn of the hazards associated with asbestos products that were incorporated into its products, which were manufactured by third parties, to wit, asbestos-containing insulation. In opposition, plaintiffs assert that Crane Co. had a duty to warn of the hazards associated with asbestos because it knew, recommended, endorsed, and specified that its valves should integrate and be insulated with asbestos-containing materials.
DISCUSSION
Summary judgment is a drastic remedy that must not be granted if there is any doubt about the existence of a triable issue of fact. Tronlone v Lac d'Aminate du Quebec, Ltee, 297 AD2d 528, 528-29 [1st Dept 2002]; Reid v Georgia Pacific Corp., 212 AD2d 462, 462 [1st Dept 1995]. To obtain summary judgment, a movant must establish its cause of action or defense sufficiently to warrant judgment in its favor as a matter of law, and must tender sufficient evidence to demonstrate the absence of any material issues of fact. Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; CPLR § 3212[b].
A plaintiff "may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product." Rastelli v Goodyear Tire & Rubber Co.,79 NY2d 289, 297 [1992]; see also Voss v Black & Decker Mfg. Co., 59 NY2d 102, 106 [1983]. A manufacturer "has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known." Liriano v Hobart Corp., 92 NY2d 232, 237 [1998]; see also Rogers v Sears, Roebuck & Co., 268 AD2d 245 [1st Dept 2000]; Baum v Eco-Tec, Inc., 5 AD3d 842 [3d Dept 2004]. Although a product may "be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn." Cover v Cohen, 61 NY2d 261, 275 [1984]. The existence and scope of an alleged tortfeasor's duty is a legal question to be determined by the trial court. Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]; Lynfatt v Escobar,71 AD3d 743, 744 [2d Dept 2010].
Defendant argues that it is not legally responsible for any gaskets, packing, or insulation applied by third parties to Crane Co. valves post-sale and urges this court to apply the holding in Rastelli, supra, 79 NY2d 289, to relieve it from liability for those asbestos-containing parts introduced into its product which it neither manufactured nor supplied for commercial use. In Rastelli, supra, the Court of Appeals declined to hold a tire manufacturer liable for injuries that resulted from a defective rim manufactured and installed on its tires by third parties. The Court held that the tire manufacturer "had no duty to warn about the use of its tire with potentially dangerous multipiece rims produced by another" where it "did not contribute to the alleged defect in a product, had no control over it, and did not produce it." The Court reasoned that the tire manufacturer "had no role in placing that rim in the stream of commerce, and derived no benefit from its sale." Id. at 298.
Conversely, in Berkowitz v A.C. & S., Inc., 288 AD2d 148, 148 [1st Dept 2001], the Appellate Division, First Department held that a pump manufacturer could be held liable for asbestos-containing insulation manufactured and installed by third parties post-sale where the manufacturer knew that asbestos-containing insulation ought to be or would be used with its pumps. The Berkowitz court opined that while the defendant's pumps might be able to run without insulation, it was at the very least questionable whether pumps used to transport steam and hot liquids could be operated safely on board ships without insulation, which the defendant knew would be made from asbestos, giving rise to the question whether there was a duty to warn. Cf. Penn v Jaros, Baum & Bolles, et al., 25 AD3d 402 [1st Dept 2006].
This court finds that Rastelli and Berkowitz are not mutually exclusive nor are they in conflict. As one New York court recently found, "these divergent holdings [rest] on consistent application[s] of the same forseeability principle." Curry v American Standard, et al., 201 US Dist LEXIS 142496, at *2 [SDNY Dec. 6, 2010, Gwin J]. Judge Gwin's analysis is instructive (Id. at 3):
The Court thus finds that a manufacturer's liability for third-party component parts must be determined by the degree to which injury from the component parts is foreseeable to the manufacturer. Accordingly, the issue of Crane's liability for third-party component products rests in the degree to which Crane could or did foresee that its own products would be used with asbestos-containing components. Where Crane's products merely could have been used with asbestos-containing components, the New York Court of Appeals holding in Rastelli cautions against imposing liability. Yet where, as in Berkowitz, Crane meant its products to be used with asbestos-containing components or knew that its products would be used with such components, the company remains potentially liable for injuries resulting from those third-party manufactured and installed components.
Indeed, Rastelli and Berkowitz address two different situations. In Rastelli, there was no duty to warn because the combination of a manufacturer's own sound product with another defective product somewhere in the stream of commerce was too attenuated to impose such a duty. In Berkowitz, however, if that same manufacturer knew or should have known that its product would be or ought to be combined with inherently defective material for its product's intended use, that gives rise to a duty to warn of known dangers attached to such use. In Curry, supra, the court applied Berkowitz and denied Crane Co.'s motion for summary judgment because, among other things: (1) expert testimony suggested that it was normal industry practice for Crane Co. valves to be insulated with asbestos; (2) flange gaskets used to connect Crane Co. valves to other equipment ordinarily contained asbestos; and (3) Crane Co.'s own product catalog lists asbestos-containing insulating materials approved for use with its valves.
Nevertheless, in reliance on the recent decision in Kosowski v A.O. Smith Water Products, et al., Index No. 000128/2010 [Sup. Ct., Oneida Co., McCarthy, J., Jan. 5, 2011, n.o.r.], defendant contends that summary judgment should be granted in its favor. The Kosowski court declined to hold Crane Co. liable for injuries which resulted from the plaintiff's alleged exposure to asbestos. Distinguishing Berkowitz and limiting its decision to the facts of its case, the court held that the plaintiff failed to produce any proof that the valves at issue "could not be operated safely without insulation, or that the moving defendant knew that such insulation would necessarily be made from asbestos, other than by inference." Id. at 4; cf. Berkowitz, supra. The court observed that the only proof offered by that plaintiff was the deposition testimony of Crane Co.'s corporate representative in an unrelated action, who testified that "some form of insulation would be required, and that [] some of Crane Co.'s valves were designed to be insulated." Kosowski, supra,at 4. On authority of Kosowski, supra, defendant argues in this case that the evidence produced by plaintiffs is not sufficient to impose liability on Crane Co. for any asbestos-containing insulation, gaskets, or components used with its valves to which Mr. Sawyer claims he was exposed.
To the contrary, the evidence presented by plaintiffs in this case is a far cry from that set forth in Kasowski, supra. Here, there is abundant evidence which in total indicates that Crane Co. at the very least knew or should have known about the hazards associated with asbestos and that its valves would be insulated with same for their intended use. Crane Co.'s answers to interrogatories, submitted in an unrelated action, concede that certain Crane Co. valves "had enclosed within their metal structure asbestos-containing gaskets, packing, or discs" until sometime in the 1970's or 1980's, well into the relevant time period. (See Opposition to Defendant's Motion for Summary Judgement, dated March 15, 2011 ("Opposition"), Exhibit 2, p. 6). Plaintiffs further submit excerpts from a 1925 study manual compiled by Crane Co. for its employees (Opposition, Exhibit 3), which describes how asbestos-containing coverings and asbestos-containing cements should be used on Crane Co. products in order to prevent heat loss/dissipation (pp. 157-59):
Insulation to prevent the loss of heat has been in use in connection with power heating and refrigeration installations for a number of years, and is today recognized as one of the necessities for economical operation of a plant (emphasis added).
* * * *
The real object of insulation is to prevent the flow of heat to outside surrounding air from the boiler, apparatus or pipe in which the heat may be generated, stored or conveyed, or, as in refrigerating systems, to prevent the flow of heat from the outside to fluids or solids which should be kept cool or at low temperatures.
* * * *
No type of covering suits all conditions, and as a consequence the several materials on the market are used for different services. The bases for the usual commercial coverings are asbestos . . . . Covering material is usually furnished in molded lengths in three-foot sections, split lengthwise, so that it may be applied readily to pipe. The joints are filled in with asbestos cement, which is also used to cover irregular surfaces, valves, etc., and the whole covered with canvas, which, when painted, presents a neat appearance (emphasis added).
Plaintiffs also submit an undated product catalog which further confirms Crane Co.'s recommendation that asbestos-containing materials be used in conjunction with its valves. This catalog shows pictures of "asbestos-sheet millboard", "asbestocel blocks", "finishing and insulating cements", and Cranite , all of which were recommended for use by Crane Co. The catalog provides in relevant part (Opposition, Exhibit 4, pp. 9-10):
Cranite was the name of Crane Co.'s standard asbestos sheet gasket material. (Opposition, Exhibit 4).
Asbestos Sheet Millboard is recommended for general uses requiring sheet or board for protection against fire, heat, acid fumes, etc. It is frequently used as a fireproof lining for floors, partitions, ceilings, elevator shafts, ranges, stoves, grates, etc. Millboard can be cut with shears to any size desired and fastened with nails or screws. Standard sheet size is 42 x 48 inches; cut pieces can also be furnished. Thicknesses of 1/32 to 1/2 inch are available.
* * * *
[Describing Asbestocel Blocks] An economical insulation for temperatures up to 300ºF. Ideal for boilers, warm air ducts, etc. The blocks are made of built-up asbestos felt layers, alternately plain and corrugated. Available in widths from 6 to 36-inch and in lengths from 36 to 96-inch. Coarse Blocks are furnished in thicknesses of 1 to 8 plies with four plies per inch of thickness. Fine blocks are furnished in thicknesses of 1 to 16 plies with six or eight plies per inch of thickness.
* * * *
Johns-Manville cements are unexcelled for insulation of irregular surfaces such as on valves, flanges, pipe fittings, etc., or as a surface finish over block or sheet insulations in order to seal joints and to provide a smooth durable finish.
It is undisputed that Johns-Manville products contained asbestos.
* * * *
Cranite Sheet Packing: Cranite Sheet Packing is made of an asbestos composition, using only selected long fiber asbestos, cross laminated to provide unusual tensile strength. It offers a very uniform and high resistance to compression, is exceptionally strong and rugged, and will not deteriorate with age. This packing is unhesitatingly recommended for multitude of services, such as steam, water, oil, dry air, acids, ammonia, alkali, gases, etc., and for temperatures up to 750ºF. (emphasis added).
There is evidence that Crane Co. knew that asbestos insulation actually would be used in high temperature applications. Plaintiffs submit a 1952 Naval Machinery Manual (Opposition, Exhibit 5) which credits Crane Co. with providing suggestions and materials. The Manual specifies that asbestos-based insulation should be used to insulate valves when they are utilized for high temperature applications:
Cements also find a ready use for surface finish over block or sheet forms of insulation, to seal all joints between the blocks and to provide a smooth, attractive finish over which asbestos or glass cloth lagging may be applied []. They are especially suitable, also, for insulating irregular surfaces such as valves, flanges, and pipe fittings . . . . The use of asbestos pads and blankets is important in the insulation of large irregular surfaces such as turbine casings and for insulating flanges or valves which must be taken down fairly often. (Emphasis Added).
Defendant argues that it did not direct its customers to use any type of replacement seal or insulation, that it had no control over whether its valves were insulated with asbestos-containing or non-asbestos-containing products, and that whether or not to insulate its products was a decision made not by it but by the owner of the valves. In support, Crane Co. submits the March 5, 2009 deposition testimony (Opposition, Exhibit D) and July 27, 2010 affidavit (Opposition, Exhibit E) of Anthony Pantaleoni. Mr. Pantaleoni, who served as Crane Co.'s Vice President of Environment, Health, and Safety, testified in an unrelated case that Crane Co. neither made recommendations regarding the use of insulation on its valves, nor specified that consumers should use asbestos-containing products on same. He averred that Crane Co. could not control whether its valves would have been insulated once they reached the buyer. He also affirmed that Crane Co. valves did not require asbestos-containing insulation to operate properly. In addition to the Pantaleoni testimony, Crane Co. submits the November 19, 2009 trial testimony of Dr. Richard Hatfield, an industrial hygienist who is said to have testified on behalf of a plaintiff in an unrelated asbestos personal injury action (Opposition, Exhibit G). According to defendant, Dr. Hatfield testified that Crane Co. valves do not require the use of asbestos-containing materials to operate properly.
Notwithstanding defendants' purported proofs, the documentary evidence submitted by plaintiffs indicates Crane Co.'s position that the use of Crane Co. valves without asbestos insulation in high-heat settings would have been incredibly inefficient. In fact, this is why Crane Co. "unhesitatingly recommended" its asbestos-based products to its customers. (Opposition, Exhibit 4, p. 7). Conversely, the Pantaleoni affidavit is deficient because there is no support for the conclusory assertions made therein. While Mr. Pantaleoni attests that the information provided in his affidavit is based upon his personal knowledge, a review of company records, and interviews with current Crane Co. employees, neither company records nor the names or titles of the purported individuals interviewed by Mr. Pantaleoni have been provided. Such unsupported, uncross-examined testimony is insufficient to form the basis of a motion for summary judgment. See Republic Nat. Bank of New York v Luis Winston, Inc., 107 AD2d 581, 582 [1st Dept 1985].
Similarly, the court does not agree with defendant's characterization of Dr. Hatfield's testimony. Dr. Hatfield indicated that while thermal asbestos insulation may not have been necessary for Crane Co. valves to open and close, it was required for other reasons (Defendant's Exhibit G, p. 1136):
Q:When a valve is sent by a manufacturer to a workplace like a shipyard, you wouldn't expect that valve to have asbestos insulation or any other type of insulation on it, would you, sir?
A:When it came there, I wouldn't expect it to have thermal insulation on it.
Q:In fact, valves don't need asbestos insulation to operate, do they?
A:Well, to open and close, but they need insulation for other reasons.
Q:For the ordinary purpose and function of a valve, they don't need asbestos or any other form of insulation, do they, sir?
A:For their function to allow liquids or steam to go through, they don't have to have thermal insulation on there, but it is put on there for other reasons.
No amount of artful profiling of Dr. Hatfield's testimony or plaintiffs' other proofs can mask that Crane Co. valves required insulation.
Apart from whether or not the valves required asbestos insulation to operate efficiently, defendant argues that it is nevertheless shielded from liability pursuant to the Restatement (Third) of Torts: Products Liability ("Restatement") § 5, which is known as the component-part supplier doctrine. This doctrine in general provides that a supplier of a component to a larger mechanical system is liable only for injuries caused by the component-part itself or the component-part supplier who contributes to the design of the injury-causing system. According to the Restatement, component-part suppliers are generally shielded from liability because "it would be unjust and inefficient to impose liability solely on the ground that the manufacturer of the integrated product utilizes the component in a manner that renders the integrated product defective." Restatement § 5, cmt. A. In addition, multi-use component and raw material suppliers should not have to "assure the safety of their materials as used in other companies' finished products." This would require suppliers to retain experts "in order to determine the possible risks associated with each potential use." Springmeyer v Ford Motor Co., 60 Cal. App. 4th 1541, 1554 [1st Dist. 1998].
"Components" include "raw materials, bulk products, and other constituent products sold for integration into other products." Restatement § 5, cmt. A.
Section 5 of the Restatement provides in pertinent part: "One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if: (a) the component is defective in itself and the defect causes the harm; or [¶] (b)(1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and [¶] [(b)](2) the integration of the component causes the product to be defective and [¶] [(b)](3) the defect in the product causes the harm.
As an example, a manufacturer of a hydraulic valve would not be liable for the product's incorporation into a defective log splitter. See Childress v Gresen Mfg. Co., 888 F.2d 45, 49 [6th Cir. 1989].
This court finds that the component-part supplier doctrine does not relieve Crane Co. from liability. In general, under the component-part supplier doctrine, component part manufacturers are exempt from liability because they manufacture products that are designed to be incorporated into a larger mechanical system. The component is then substantially altered by the customer or integrated into a larger, more complex product over whose design the manufacturer of the component has no control. See Restatement, § 5, cmt. A. Here, the evidence shows that while Crane Co. valves are integrated into large piping systems, they are not altered in any way by customers or combined with other "components" to create a new product. Indeed, the Crane Co. valves at issue were used as they were designed to be used, to wit, with asbestos insulation, asbestos packing, and asbestos cement, all of which were necessary to prevent heat/loss dissipation, and all of which would had to have been disturbed during routine repair and maintenance. (Opposition, Exhibits 3-5); see also Penn v Jaros, supra, 25 AD3d at 403; Rogers v Sears, supra, 268 AD2d at 246.
Defendant asks the court to rely on that portion of the Restatement which provides that "[s]ome components, such as raw materials, valves, or switches, have no functional capabilities unless integrated into other products." Id. § 5, cmt. A But defendant has offered this out of context. The component-part supplier doctrine is a "general rule," the purpose of which is to prevent a component seller from having to "scrutinize another's product which the component seller has no role in developing" and from having to "review the decisions of the business entity that is already charged with responsibility for the integrated product." Restatement § 5, cmt. A. In this regard, the Restatement provides the following illustration (§ 5, cmt. A):
ABC Chain Co. manufactures chains for a wide range of uses in industrial equipment. XYZ Mach. Co. purchases chains from ABC for use in conveyor-belt systems and informs ABC that the chains will be used for that purpose. In the design of a conveyor system by XYZ, part of the chain is exposed. The conveyor system as designed and manufactured by XYZ is defective in that it should include a safety guard . . . . XYZ sells a conveyor system to LMN Co. LMN's employee, E, while working near the conveyor, is injured when her shirt sleeve becomes entangled in the unguarded chain in the conveyor. ABC is not subject to liability to E.
Not all cases fall neatly into the above-quoted archetype. In Tellez-Cordova v Campbell-Hausfeld/Scott Fetzger Co., 129 Cal App 4th 577[2nd Dist 2004], the Court of Appeal of California for the Second Appellate District found that a manufacturer was not entitled to a component-part doctrine defense even though it produced only non-defective grinders, sanders, and saws because they were purportedly designed to be used with defective wheels and disks. These wheels and disks released toxic substances into the air to which the plaintiff was exposed. The court found that the component-part doctrine did not apply because the defendant did not manufacture "component parts to be used in a variety of finished products, outside their control, but instead . . . manufactured tools which were specifically designed to be used with the abrasive wheels or discs they were used with . . . ." Id. at 582. The court noted that the defendants were "not asked to warn of defects in a final product over which they had no control, but of defects which occur when their products are used as intended . . . ." Id. at 583.
The issue of whether a manufacturer can be held liable for products used in conjunction with its own product and the applicability of the component-part supplier doctrine thereto is currently on appeal before the California Supreme Court. See O'Neil v Crane Co., 177 Cal. App. 4th 1019 [2d Dist. 2009], petition for review granted, 223 P.3d 1 [Cal. 2009]; but see Walton v The William Powell Co., 183 Cal. App. 4th 1470 [2d Dist. 2010], petition for review granted, 232 P.3d 1201 (Cal. 2010); Taylor v Elliott Turbomachinery Co. Inc., 171 Cal. App. 4th 564, 586 [1st Dist. 2009].
As in Tellez-Cordova, supra, and whether or not the component-part supplier doctrine is recognized in New York, this case does not fit within its precepts. Here, there is no dispute that Crane Co. integrated asbestos into its Cranite gaskets and actively recommended that its customers use asbestos cement, asbestos gaskets, asbestos packing, and asbestos insulation with its valves because such add-ons were necessary for their efficient operation. Unlike the chain manufacturer in the Restatement illustration, Crane Co. knew exactly where and how its products were being used and was familiar with asbestos and asbestos-containing products as they were integral to its marketing program and product lines.
It has long been the law in New York that "[t]he risk reasonably to be perceived defines the duty to be obeyed." Palsgraf v Long Is. R.R. Co., 248 NY 339, 344 [1928]. In this regard, and based upon all of the foregoing, this court finds that Crane Co. had a duty to warn of the hazards associated with asbestos because it knew or should have known that its valves would be used in conjunction with asbestos-containing materials. Berkowitz, supra.
Accordingly, it is hereby
ORDERED that defendant's motion for summary judgment is denied
SHERRY KLEIN HEITLERJ.S.C.