Opinion
Index No. 809545/2019
01-19-2021
In Re: Eighth Judicial District Asbestos Litigation v. AIR & LIQUID SYSTEMS CORPORATION, As successor-by-merger to BUFFALO PUMPS, INC., et al Defendants VALERIAN GULCZEWSKI and LORRAINE GULCZEWSKI, Plaintiffs
Unpublished Opinion
DECISION AND ORDER
HON. DEBORAH A. CHIMES, J.S.C.
There are currently two motions for summary judgement before the court. Defendant Crosby Valve LLC, ("Crosby") moves for summary judgment dismissing plaintiff's complaint and all crossclaims (NYCEF No. 2). Crosby argues there is no evidence that plaintiff encountered a Crosby valve, and therefore plaintiff cannot establish that Crosby valves was a substantial factor in causing his lung cancer and that the plaintiff's expert proof is insufficient on the issue of causation.
Defendant McWane, Inc. ("McWane"), has moved on behalf of its division Clow Valve Company ("Clow"), for summary judgment dismissing plaintiffs' complaint and all cross-claims against them. (NYCEF No. 4) McWane argues there is no evidence that establishes plaintiff's, Valerian Gulcezewski, (hereinafter "plaintiff") was exposed to asbestos from a product manufactured, sold, supplied and/or distributed McWane and that the plaintiff's expert proof is insufficient on the issue of causation.
In support of its motion, Defendant Crosby submitted its Notice of Motion dated August 14, 2020, Affirmation of Jodie Ryan, Esq., with attached exhibits, and Reply Affirmation dated September 29. 2020. In opposition to the motion, plaintiffs submitted Affirmation in Opposition of Jason M. Weiner, Esq., dated September 21, 2020, with attached Exhibits.
Defendant McWane, in support of its motion, submitted a Notice of Motion dated August 21, 2020, Affirmation of Michael Waller, Esq., dated August 21, 2020, with attached Exhibits, and Reply Affirmation of Michael Waller, Esq., dated September 29, 2020. In opposition to the motion, plaintiffs submitted Affirmation of Jason Weiner, Esq., dated September 21, 2020, with attached Exhibits.
Plaintiffs brought this action to recover for damages associated with the lung cancer plaintiff claims was caused by his exposure to asbestos fibers. Plaintiff worked at Bethlehem Steel in Lackawanna, NY as a laborer, a coke oven operator and millwright from 1966 to 2002. Mr. Gulczewski recalled working on valves, pumps, gaskets, packing insulation and fiber. As his testimony relates to the moving defendants, Mr Gulczewski testified that part of his work included changing gaskets and packing on valves. He explained the purpose of the valves was to "stops your flow or adjust going through the pump". He recalled using a wire brush or scraper to scrape head gaskets and flange gaskets associated with valves, and that the gaskets that he removed and installed were manufactured by Garlock. For his work on packing, he would use a packing pull, stiff rod or pick to pull old packing out of a valve, which was dry and sometimes came out in pieces. He testified this work created visible dust and believed that both the gasket and packing work he performed on valves at Bethlehem Steel exposed him to asbestos.
Plaintiff testified he was exposed to Crosby valves, and recalled the valves had the name "Crosby" embedded on them. Mr. Gulczewski described his gasket work on a Crosby valve to include scraping gaskets off the two flanges of the valve, wire brushing the flanges and installing new gaskets. Mr. Gulczewski also recalled removing old packing and installing new packing "underneath the top bonnet" on Crosby valves and recalled the material flowing through the valve was hot. Mr Gulczewski identified the valve as a "butterfly valve".
Defendant Crosby through the affidavit of a corporate representative established it did not manufacture a "butterfly valve", but manufactured pressure relief valves. Further Defendant Crosby established it did not design, manufacture, supply or sell any type of pressure relief valve that used stem packing.
Defendant argues it met its burden for summary judgement in establishing the product identified as a "butterfly valve" was not manufactured by the defendant and therefore there was a misidentification and is no proof a Crosby valve caused the decedent plaintiff's injury.
Plaintiff, in opposition submitted deposition testimony wherein he identified Crosby as the manufacturer of the valve he worked on and described the work he performed on that valve to have created visible dust which he believed was asbestos. Further, plaintiff points to the defendant's interrogatory responses wherein plaintiff notes the defendant admitted to manufacturing valves and was aware asbestos gaskets and flanges were used with its valves. Specifically, Crosby's response to interrogatories stated that, "defendant's valves may have contained gaskets and packing manufactured by its suppliers, some of which may have contained, in part, encapsulated chrysotile asbestos." Crosby also acknowledged that in some instances it was supplied asbestos containing gaskets. Plaintiff also argues that although Crosby did not manufacture the gaskets, they did have the expectation that gaskets would be used and that "it was quite common to use asbestos gaskets in steam lines". Plaintiff argues Crosby therefore knew or should have known that asbestos gaskets and packing would be used with its valves and therefore had a duty to warn the ultimate consumers of the dangers of asbestos.
Plaintiff also argues the affidavit from Crosby's corporate representative, Robert Martin, is without probative value because it is unsubstantiated and not based on personal knowledge. Plaintiff notes that although Martin stated he worked for Crosby for 34 years and had no knowledge of them making butterfly valves, his employment started three years after plaintiff's alleged first exposure to asbestos from Crosby valves. Plaintiff also argues Mr. Martin previously testified that Crosby did not have a record retention policy and possibly some documents were destroyed.
Similar to the Crosby motion, McWane argues the plaintiff's evidence is insufficient and does not create a "reasonable inference" that he was exposed to asbestos from its product and therefore summary judgement should be granted in its favor. Defendant notes the plaintiff could not recall specifics about the location of its Clow valves or any details describing them, except for the one he identified in the "firehouse", which was described as a double flange gate valve that was round and above ground. McWane asserts plaintiff had only a "general recollection" of working on Clow valves and such recollection is insufficient to establish liability. Defendant contends that such general testimony requires the court to "assume" the plaintiff worked with the asbestos containing Clow valves.
Plaintiff opposes McWane's motion arguing the defendant did not meet its initial burden of proof, since a movant cannot meet its burden by pointing to gaps within plaintiff's proof. Plaintiff also notes the plaintiff testified that beginning in 1970 he began working on the Clow valves 6 times a month. He described the work he performed on the valves which he attested created visible dust. Further plaintiff argues he identified the valves by the name "Clow" being on the valve. When asked how many Clow valves were at the work site, plaintiff responded, "many of them" then clarified by stating "Hundreds". Although plaintiff did not remember where in the factory the Clow valves were located he testified some of them were located outside and some inside. The plaintiff further points out that McWane's responses to discovery indicate their valves were manufactured with asbestos containing gaskets and packing.
Finally, both Crosby and McWane argue the plaintiff cannot establish causation because the experts as disclosed do not meet the standards as elicited in Parker v Mobil Oil Corp, 7 N.Y.3d 7 N.Y.3d 434. Plaintiff argues the defendants' failure to submit their own expert proof on the issue of scientific causation is fatal to their motions. Plaintiff argues that defendants, as movants are required to submit expert proof to support its motion for summary judgement and not to merely point to gaps in the plaintiff's proof. Therefore, plaintiff argues the defendant failed to meet its initial burden. In the alternative, the plaintiff argues there is sufficient proof to raise a triable issue of fact.
It is well established in asbestos litigation that to go forward with a motion for summary judgment dismissing a complaint, a defendant must present admissible evidence showing that the complaint has no merit, (see Diel v Flintkote Co., 204 A.D.2d 53), or affirmatively establish the merit of its defense (see Higgins v Pope, 37 A.D.3d 1086; Refermat v A. C. AND S., Inc., 15 A.D.3d 928; Root v Eastern Refractories Co., Inc., 13 A.D.3d 1187; Matter of Eighth Jud. Dist. Asbestos Litig. [Takacs], 255 A.D.2d 1002; Reid v Georgia-Pacific Corp., 212 A.D.2d 462). With respect to the merits of the complaint, defendant must make a prima-facie showing that its products could not have contributed to the causation of decedent's illness (see Refermat, Root, Takacs). "[An asbestos] defendant's own failure, in the first instance, to unequivocally establish that its product could not have contributed to the causation of plaintiff's injury [requires] denial of its motion for summary judgment." Reid v Georgia-Pacific Corp., 212 A.D.2d 462, 463; see also Berensmann v. 3M Co., 122 A.D.3d 520, 521 Matter of N.Y.C. Asbestos Litig., 122 A.D.3d 520).
Further, moving for summary judgment on the ground of product identification bears a very heavy prima facie burden. (See, e.g., Matter of New York City Asbestos Litig., 7 A.D.3d 285, 285-86; Millerman v Georgia Pac. Corp., 214 A.D.2d 362, 362-63; Matter of New York City Asbestos Litig., 212 A.D.2d 463, 46) and a party cannot meet its burden by merely noting gaps or weakness in its opponent's proof. (Allen v General Elec. Co., 32 A.D.3d 1163, 1165, citing Orcutt v American Linen Supply Co., 212 A.D.2d 979, 980; Edwards v Arlington Mall Assocs., 6 A.D.3d 1136).
Once the moving party has met its burden of proof, the burden shifts to the opponent to rebut that prima facie showing, by producing contrary evidence, in admissible form, enough to require a trial of material factual issues. (Amatulli v Delhi Constru. Corp. 77 N.Y.2d 525). 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 A.D.2d 583). Thus, a party opposing a summary judgment motion must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist (Kornfeld v NRX Tech., Inc., 93 A.D.2d 772).
Though the defendant Crosby takes issue with the plaintiff's identification of the Crosby valve as a butterfly valve, the plaintiff identified the valve as having Crosby embossed on it and testified in detail to the work he performed on the valves and how such work created dust he believed to be asbestos. The assessment the plaintiff's deposition testimony and any arguments made regarding plaintiff's recollection of the type of valve he claims exposed him to asbestos goes to the weight of the evidence rather than its admissibility and cannot be dispositive on this motion (Dollas v W.R. Grace and Co., 225 A.D.2d at 321). Any conflict between plaintiff's testimony and defendant's assertions must be resolved by the trier of fact (Silva v Worby, Groner, Edelman, LLP, 54 A.D.3d 634). Plaintiff sufficiently raised a triable issue of fact on the issue of identification of the Crosby valve.
Similarly, McWane takes issue with plaintiff's lack of ability to describe the details of the Clow valves by way of color and location. However, as with his identification of the Crosby valve, the plaintiff testified the Clow name was on the valves and provided details regarding the work he performed on those valves. Like in Crosby, the defendant's challenge to the plaintiff's recollection goes to the weight of his testimony. A movant for summary judgement does not meet its initial burden by merely noting gaps or weakness in its opponent's proof (see Allen v General Elec. Co., 32 A.D.3d 1163, 1165 [2006], citing Orcutt v American Linen Supply Co., 212 A.D.2d 979, 980; Edwards v Arlington Mall Assocs., 6 A.D.3d 1136). Here, McWane points to the claimed deficiencies of the plaintiff's testimony but comes forth with no affirmative proof that its product could not have been the source of plaintiff's exposure or cause of the plaintiff's claimed injury. (O'Connor v. Aerco Intl., Inc., 152 A.D.3d 841; Blamowski v. Air & Liquid Systems, Inc., Erie County Index Number 808655/2014 (Decision and Order by this Court dated May 26, 2016). McWane therefore failed to meet its initial burden of proof on the issue of product identification.
Moreover, the plaintiff provided sufficient evidence to which both, Crosbys' and McWane's liability may reasonably be inferred. (see, Lloyd v WR Grace & Company, 215 AD 2d 177 ; see also, Reid v Georgia-Pacific Corp., 212 A.D.2d 462).
Finally, defendants argue plaintiffs expert proof is insufficient to establish general and specific causation. However, "[a]t the summary judgement stage, [defendant] had the initial burden of establishing that [plaintiff] lacked the necessary degree of exposure to its asbestos-containing products to cause her illness" (O'Connor v Aerco International, Inc. 152 A.D.3d 841, 844) absent such proof, the defendant fails to meet its initial burden and denial of summary judgement is warranted (O'Connor at 844). Here, neither defendant offers such proof. Instead they point to plaintiff expert's report to argue plaintiff cannot establish causation. As previously noted, the movant for summary judgement cannot establish entitlement to judgement simply by pointing gaps in plaintiffs proof.
WHEREFORE it is hereby
ORDERED, that defendant Crosby's motion is denied, and it is further herby
ORDERED, that defendant McWane's motion is denied.