Opinion
INDEX NO. 190392/2018
09-16-2019
IN RE: NEW YORK CITY ASBESTOS LITIGATION MICHAEL ROSEN, Plaintiff, v. BALTIMORE AIRCOIL COMPANY, INC., et al., Defendants.
NYSCEF DOC. NO. 230 PRESENT: MANUEL J. MENDEZ Justice MOTION DATE 08/28/2019 MOTION SEQ. NO. 007 MOTION CAL. NO. __________
Upon a reading of the foregoing cited papers, it is Ordered that Fisher Scientific Company, LLC's (hereinafter "Fisher") motion for summary judgment pursuant to CPLR §3212 to dismiss Plaintiffs' complaint and all cross-claims against it, alternatively to obtain a hearing as to plaintiff's experts methodology in forming their causation opinions, is denied.
Plaintiff Michael Rosen, M.D., Ph.D. was diagnosed with malignant mesothelioma in May of 2018 (Mot. Exhs. H and J). His alleged exposure to asbestos - as relevant to this motion - was from the use of Fisher's asbestos gloves and burner pads over a period of about ten years from 1968 through 1978.
Dr. Rosen was deposed over the course of three days, December 4, 5 and 6, 2018 and his de bene esse deposition was conducted on April 9, 2019. Dr. Rosen testified that he was exposed to Fisher's heat resistant asbestos gloves and burner pads during his studies as an undergraduate chemistry major at Franklin & Marshall College from 1968 through 1970, and at Farleigh Dickinson University where his exposure continued through his graduation in 1973 (Opp. Exh. A, pgs. 34-37, 41-44, 184, 270-272 and 464). He stated that the use of Fisher asbestos products was "very consistent" in the chemistry lab classes which were about five hours long, three to four days a week (Opp. Exh. A, pgs. 38, 42-43). Dr. Rosen stated he also used Fisher's asbestos gloves and burner pads during chemistry classes taken on a compressed schedule at Columbia University for three summers while he was a student at Farleigh Dickinson University. The chemistry lab classes at Columbia University took place all day long (Opp. Exh. A, pgs. 47-49 and 170).
Dr. Rosen testified that he attended graduate school at Columbia University immediately after graduating college, he claims that after four semesters he changed programs and attended the Medical College of Virginia, obtaining his Ph.D. in clinical biochemistry after four years. He states that he continued to use Fisher asbestos containing gloves and burner pads in the same manner as he had as an undergraduate during his studies at Columbia University and the Medical College of Virginia Ph.D. program (Opp. Exh. A, pgs. 53-60 and 161-162). Dr. Rosen claims that as a Ph.D. candidate he ordered asbestos containing materials from the Fisher catalog, which were sent to him in a cardboard box bearing the Fisher name with a Fisher bill of lading inside (Opp. Exh. A, pgs. 251-257). Dr. Rosen stated that he was also exposed to Fishers heat resistant asbestos gloves and burner pads when he worked at Metpath as a bench tech for one summer between 1974 and 1975 (Opp. Exh. A, pgs. 100-103). Dr. Rosen subsequently graduated from medical school at the Medical College of Virginia in 1981, with a specialty in pathology. He claims that he did not have exposure to Fisher's asbestos containing products during his time in medical school (Opp. Exh. A, pgs. 60-61).
Dr. Rosen described the Fisher asbestos containing gloves as off-white, quilted, having a lumpy texture, and extending a few inches below the wrist (Opp. Exh. A, pgs. 163-165). He claims that he knew they contained asbestos because that is what they were called and because that is how they were referred to in the Fisher catalog (Opp. Exh. A, pgs.166-167). Dr. Rosen testified that the Fisher asbestos gloves did not last very long because they frayed, reducing protection from the heat and requiring they be thrown out and replaced (Opp. Exh. A, pg. 393).
Dr. Rosen described the Fisher asbestos burner pads as a square like "a screen door," with a thicker asbestos disc impressed in the center that would turn brown or tan when exposed to heat, and then became "fragile" or "kind of ratty." He stated that the worn out pads frayed, leaving dust and small pieces in his hands that he wiped off. He remembered the burner pads were referred to as "asbestos burner pads" in the Fisher catalog (Opp. Exh. A, pgs. 172-176, 246, 393-394 and 471).
Fisher provides the April 5, 2019 affidavit and excerpts from the June 14, 2019 deposition of Doris Lipscomb (Mot. Exhs. F and G). Ms. Lipscomb's Affidavit states that from 1971 through 1991 she was a buyer in the purchasing department of the Medical College of Virginia. Ms. Lipscomb's Affidavit states that several supply companies were used, and Ms. Lipscomb specifically recalled VWR, Scientific Products and Arthur H. Thomas. She had "no knowledge or information that Fisher Scientific ever supplied consumable laboratory supplies or products, including any heat-resistant pads or heat-resistant gloves (Mot. Exh. F). At her deposition Ms. Lipscomb testified that she had no knowledge of purchases prior to 1975, and confused "Fisher Scientific" with "Scientific Products." She then testified, "I don't really recall. Whatever the department ordered I processed." Ms. Lipscomb did not recall Dr. Michael Rosen as a graduate student and had no personal knowledge of the laboratory products he used (Mot. Exh. G, pgs. 32-33, and 37-39).
Plaintiff commenced this action on October 16, 2018 (Mot. Exh. A and NYSCEF Docket No. 1). Fisher served its Verified Answer with counterclaims on November 12, 2018 (Mot. Exh. B). The parties proceeded with discovery before the Special Master. On May 23, 2019 plaintiffs filed the Note of Issue and certified that this case is ready for trial (Mot. Exh. D).
Fisher now seeks an Order granting summary judgment pursuant to CPLR §3212, dismissing the plaintiffs' complaint and all cross-claims asserted against it alternatively, to obtain a hearing as to plaintiff's experts methodology in forming their causation opinions.
Fisher claims that: (1) plaintiff was not able to specifically state the periods he used the company's asbestos containing products; (2) plaintiff is unable to prove that the schools he attended or that Metpath exclusively purchased Fisher products; (3) that plaintiff cannot show that he only used Fisher asbestos products; (4) Fisher's three expert witnesses establish that any exposure plaintiff had to Fisher's chrysotile containing laboratory products did not cause or contribute to his mesothelioma; and (5) that plaintiff is unable to prove or otherwise establish causation.
To prevail on a motion for summary judgment the proponent must make a prima facie 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, 652 NYS2d 723 [1996]). It is only after the burden of proof is met that the burden switches to the non-moving party 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 by giving the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (SSBS Realty Corp. v Public Service Mut. Ins. Co., 253 AD2d 583, 677 NYS2d 136 [1st Dept. 1998]).
To the extent Fisher seeks to use Ms. Lipscomb's affidavit and deposition testimony as proof that plaintiff did not use its asbestos containing products while attending the graduate school program at Medical College of Virginia, her own testimony is contradictory and does not cover the entire period of Dr. Rosen's exposure. The conflicting testimony raises credibility issues that cannot be resolved on papers and is a basis to deny summary judgment (Messina v. New York City Tr. Auth., 84 A.D. 3d 439, 922 N.Y.S. 2d 76 [2011]).
Fisher argues that plaintiff failed to proffer any expert opinion or other evidence establishing general and specific causation that its asbestos gloves and burner pad products caused his mesothelioma. Fisher relies on the November 11, 2018 report of plaintiffs' expert, Dr. David Y. Zhang, M.D.,Ph.D. M.P.H., a pathologist specializing in occupational medicine, that summarizes plaintiff's pathology reports and reviewed slides and pathology findings (Mot., Exh. K).
A defendant cannot obtain summary judgment simply by "pointing to gaps in plaintiffs' proof"(Ricci v. A.O. Smith Water Products, 143 A.D. 3d 516, 38 N.Y.S. 3d 797 [1st Dept. 2016] and Koulermos v. A.O. Smith Water Products, 137 A.D. 3d 575, 27 N.Y.S. 3d 157 [1st Dept., 2016]). Regarding asbestos, a defendant must make a prima facie showing that its product did not contribute to the causation of plaintiff's illness (Comeau v. W.R. Grace 6 Co. - Conn.(Matter of New York City Asbestos Litigation), 216 A.D. 2d 79, 628 N.Y.S. 2d 72 [1st Dept., 1995] citing to Reid v. Georgia - Pacific Corp., 212 A.D. 2d 462, 622 N.Y.S. 2d 946 [1st Dept., 1995], Di Salvo v. A.O. Smith Water Products (In re New York City Asbestos Litigation), 123 A.D. 3d 498, 1 N.Y.S. 3d 20 [1st Dept., 2014] and O'Connor v. Aerco Intl., Inc., 152 A.D. 3d 841, 57 N.Y.S. 2d 766 [3rd Dept., 2017). Fisher must unequivocally establish that the plaintiff's level of exposure to its asbestos containing products, was not sufficient to contribute to the development of his mesothelioma (Berensmann v. 3M Company (Matter of New York City Asbestos Litigation), 122 A.D. 3d 520, 997 N.Y.S. 2d 381 [1st Dept., 2014]).
To the extent Fisher relies on Dr. Zhang's November 11, 2018 report to support its argument that plaintiff will not present any admissible evidence as to causation, Fisher is attempting to "point to gaps" in plaintiffs' evidence and fails to establish a prima facie basis for summary judgment.
Fisher argues that summary judgment is warranted under Parker v Mobil Oil Corp., 7 NY3d 434, 824 NYS2d 584, 857 NE2d 1114 [2006], Cornell v 360 West 51st Street Realty, LLC, 22 NY3d 762, 986 NYS2d 389, 9 NE3d 762 [2014] and In the Matter of New York City Asbestos Litigation (Juni), 32 N.Y. 3d 1116, 116 N.E. 3d 75, 91 N.Y.S. 3d 784 [2018], because plaintiff is unable to establish general and specific causation. Fisher relies on the reports of its experts to establish lack of causation (Mot. Exhs. H, I and J).
General Causation:
In toxic tort cases, expert opinion must set forth (1) a plaintiff's level of exposure to a toxin, and (2) whether the toxin is capable of causing the particular injuries plaintiff suffered to establish general causation (Parker v. Mobil Oil Corp.,7 NY3d 434, 448, supra).
Fisher argues that no causal relationship exists between the chrysotile asbestos in its gloves and burner pads and Dr. Rosen's mesothelioma, eliminating any general causation. To establish lack of causation Fisher relies on the April 18, 2018 report of its expert Dr. Bret L. Finley, Ph.D., DABT, a pharmacology/toxicologist (Mot. Exh. H); the April 18, 2019 report of John Henshaw, MPH, CIH, an industrial hygienist (Mot. Exh. I); and the July 1, 2019 report of Suresh Moolgavkar, M.B.B.S., Ph.D., an epidemiologist and research scientist, with a medical degree from the United Kingdom, who is not licensed to practice medicine in the United States (Mot. Exh. J).
Dr. Finley's April 18, 2019 report cites to studies and states that chrysotile asbestos fibers, as in those used in Fisher's asbestos gloves and burner pad products, are less potent than amphibole asbestos fibers and may not even be a risk factor for mesothelioma. He claims that although regulatory agencies and other organizations have not established fiber-specific occupational or environmental standards for different asbestos fibers many groups have acknowledged that differences exist. Dr. Finley cites to Occupational Health and Safety Administration (OSHA) reports and standards as stating that it would be "highly impractical" and "infeasible" to require employers to distinguish between asbestos fiber types as the reason for the single exposure standard used by the agency. Dr. Finley cites to the Environmental Protection Agency (EPA) and the International Agency for Research on Cancer (IARC) as also identifying clear differences in carcinogenicity of the different asbestos fibers, with chrysotile creating the lesser risk. Dr. Finley also refers to multiple studies and reports of testing performed by private entities, choosing to rely on specific studies and test results that he determined are more closely related to the plaintiff's alleged exposure. Dr. Finley concludes that any exposure plaintiff had to chrysotile asbestos would be extremely low and well below background levels and OSHA Permissible Exposure Limits (PEL) for periods over a 45 year career. Dr. Finley further concludes that plaintiff's exposure to asbestos from Fisher's laboratory products would have been too low to increase the risk of developing mesothelioma (Mot. Exh. H).
Mr. Henshaw's April 18, 2019 report provides a brief history of asbestos in the United States, and industrial and regulatory standards including OSHA and the EPA. He also cites to private studies conducted on potential health risks for different fields of employment, including the insulation trades and brake mechanics. Mr. Henshaw also states that there is a difference between amphibole and chrysotile asbestos fibers with the lesser risk from chrysotile asbestos fibers which clear the lung quickly as they are not as durable as amosite and crocidolite asbestos fibers. Mr. Henshaw also assesses the risks using Fisher's asbestos containing gloves and burner pads against the OSHA laboratory standards. He also assesses the standards provided by the EPA, which Mr. Henshaw states currently "has no existing bans on most existing asbestos products" including "asbestos clothing." Mr. Henshaw states that Fisher stopped selling asbestos containing laboratory equipment in 1980 and concludes that Fisher acted responsibly and properly under the industry standards and scientific knowledge about asbestos products in existence in the 1960's and 1970's. He further concludes that in any case plaintiff's cumulative exposure to Fisher's asbestos containing products would be well below ambient exposure and not be associated with any increased risk of asbestos related disease (Mot. Exh. I).
Dr. Moolgavkar describes himself as an epidemiologist and research scientist. He cites to a series of private reports and studies in assessing the epidemiology of asbestos, and states that mesothelioma can occur without asbestos exposure. Dr. Moolgavkar's July 1, 2019 report cites to his own studies and those of others stating that the issue of whether pure chrysotile asbestos uncontaminated by amphiboles can cause mesothelioma is unsettled and then proceeds to refer to his perceived deficiencies in plaintiff's expert reports. He claims that studies show that the risk of mesothelioma is not increased amongst vehicle mechanics, which suggests that low level exposure to chrysotile does not increase the risk of contracting mesothelioma. Dr. Moolgavkar cites to his own research and states that spontaneous mesothelioma increases with age. He claims that plaintiff, due to his age, was at an increased risk of spontaneous mesothelioma. Dr. Moolgavkar further states that any alleged exposure to chrysotile asbestos from Fisher laboratory products did not contribute to the plaintiff's development of mesothelioma (Mot. Exh. H).
Plaintiff relies on the July 18, 2019 report of Dr. Jacqueline Moline, M.D., M.Sc., F.A.C.P., F.A.C.O.E. M., an internal and occupational medicine specialist (Opp. Exh. N). Dr. Moline's July 18, 2019 report cites to a series of privately conducted epidemiological studies and reports as establishing that all asbestos fiber types, including chrysotile, can cause mesothelioma. Dr. Moline cites to various governmental agencies as also establishing that chrysotile asbestos can cause mesothelioma (she specifically refers to The World Health Organization (WHO), Osha and the EPA). Dr. Moline also cites to private studies assessing the release of asbestos fibers from asbestos gloves as significant and sufficient to be capable of causing mesothelioma. Dr. Moline concludes that the plaintiff's exposure to Fisher's asbestos containing products over the course of ten (10) years was a substantial contributing factor to the development of plaintiff's mesothelioma (Opp. Exh. N).
Fisher argues that summary judgment is warranted under Cornell v. 360 West 51st Street Realty, LLC, 22 NY3d 762, 986 NYS2d 389, 9 NE3d 762 [2014] because plaintiff is unable to establish general causation. In Cornell, 22 NY3d 762, supra, the defendant-corporation established a prima facie case as to general causation establishing generally accepted standards within the relevant community, of scientists and scientific organizations, that exposure to mold caused disease in three ways, none of which were claimed by the plaintiff. This case is distinguishable because plaintiffs' expert Dr. Moline relies on some of the same scientists and scientific organizations as Fisher's experts ( Dr. Finley, Mr. Henshaw and Dr. Moolgavkar) in support of general causation.
Summary judgment is a drastic remedy that should not be granted where conflicting affidavits cannot be resolved (Millerton Agway Cooperative v. Briarcliff Farms, Inc., 17 N.Y. 2d 57, 268 N.Y.S. 2d 18, 215 N.E. 2d 341 [1966] and Ansah v. A.W.I. Sec. & Investigation, Inc.,129 A.D. 3d 538, 12 N.Y.S. 3d 35 [1st Dept., 2015]). Conflicting testimony raises credibility issues that cannot be resolved on papers and is a basis to deny summary judgment (Messina v. New York City Tr. Auth., 84 A.D. 3d 439, 922 N.Y.S. 2d 76 [2011]).
Fisher's experts Dr. Finley and Mr. Henshaw rely on governmental studies and reports to establish that there is no causal relationship between Fishers asbestos gloves and burner pads and plaintiff's mesothelioma because of the limited amount of exposure. . Plaintiffs' expert, Dr. Jacqueline Moline, also relies on studies and reports in part from the same scientific organizations including, OSHA, and the EPA, to establish that plaintiff's exposure to asbestos in Fisher's asbestos containing laboratory products was above average, not ambient, and part of cumulative exposure that could have caused his mesotheiloma. These conflicting affidavits raise credibility issues, and issues of fact on general causation.
Dr. Moolgavkar's report does not reference or cite to governmental studies and mostly relies on his own testing. Dr. Moolgavkar's attempt to point out potential perceived errors or gaps in the plaintiffs' expert's report fails to make a prima facie case. Defendants' primary burden is to establish lack of causation, not rebuttal of plaintiffs' evidence (DiSalvo v. A.O. Smith Water Products (In re New York City Asbestos Litigation), 123 A.D. 3d 498, supra at pg. 499, Berensmann v. 3M Company (Matter of New York City Asbestos Litig.),122 A.D. 3d 520, supra at pg. 521, and Koulermos v. A.O. Smith Water Prods., 137 A.D. 3d 575, supra at pg. 576).
Special Causation:
Fisher argues that plaintiff's exposure to asbestos in its asbestos containing laboratory products was minimal, below ambient level and insufficient to cause plaintiff's mesothelioma, and it is therefore entitled to summary judgment on special causation.
The Court of Appeals has enumerated several ways an expert might demonstrate special causation. For example, "exposure can be estimated through the use of mathematical modeling by taking a plaintiff's work history into account to estimate the exposure to a toxin;" "[c]omparison to the exposure levels of subjects of other studies could be helpful, provided that the expert made a specific comparison sufficient to show how the plaintiff's exposure level related to those of the other subjects" (Parker v. Mobil Oil Corp., 7 NY3d 434, 448, 824 NYS2d 584, 857 NE2d 11114 [2006). The Appellate Division in the case In re New York City Asbestos Litigation, 148 AD3d 233, 48 NYS3d 365 [1st Dept. 2017] held that the standards set by Parker and Cornell are applicable in asbestos litigation.
Dr. Finley's April 18, 2019 report makes assumptions based on plaintiff's testimony and separately calculates the level of exposure to asbestos in Fisher's asbestos containing gloves and burner pads (Mot. Exh. H, pgs. 20-26). Dr. Finley relies on testing done in 2001 by Dr.Longo and Dr. Hatfield and in 2005 by Dr. Cheerie as to asbestos containing gloves and mittens. Dr. Finley calculates plaintiff's exposure from Fisher's asbestos containing gloves as 0.043f/cc (Mot. Exh. H, pgs. 20-21). Dr. Finley relies exclusively on testing done in 2007 by Spencer evaluating exposure to asbestos with wire gauze pads with asbestos centers. Dr. Finley calculates plaintiff's exposure to Fisher asbestos containing burner pads as 0.031 f/cc (Mot. Exh. H, pgs. 21, and 23-26). Dr. Finley concludes that plaintiff's cumulative exposure to asbestos from Fisher's asbestos containing laboratory products is 0.007f/cc-yr. (Mot. Exh. H, pg. 26). Dr. Finley summarizes that plaintiff's cumulative exposure to chrysotile asbestos fibers in Fisher's asbestos containing laboratory products was well below OSHA PEL and would have been too low to increase the risk of developing mesothelioma (Mot. Exh. H, pg. 30).
Mr. Henshaw's April 18, 2019 report makes assumptions based on plaintiff's testimony, reports and studies and Mr. Henshaw's own judgment to calculate the level of upper bound exposure to asbestos in Fisher's asbestos containing gloves and burner pads (Mot. Exh. I, pgs. 35-48). Mr. Henshaw relies on the testing done in 2005 by Cheerie to calculate plaintiff's average potential exposure to asbestos in Fisher's asbestos containing gloves as 0.057f/cc (Mot. Exh. I, pg.42). Mr. Henshaw relies exclusively on testing done in 2007 by Spencer evaluating exposure to asbestos with wire gauze pads with asbestos centers. Mr. Henshaw calculates plaintiff's cumulative exposure to Fisher asbestos containing gloves and burner pads as between 0.0030 and 0.011 f/cc-yr, or lower. Mr. Henshaw states that this exposure is minimal (Mot. Exh. I, pg. 48). Mr. Henshaw opines that plaintiff's cumulative lifetime exposure to asbestos from Fisher's asbestos containing laboratory products is minimal and not associated with an increased risk of mesothelioma (Mot. Exh. I, pgs. 49-50).
Dr. Moolgavkar's July 1, 2019 report incorporates the cumulative exposure estimates prepared by Dr. Finley and Mr. Henshaw. Dr. Moolgavkar also relies on his personal analysis that determined a substantial fraction of pleural mesothelioma as among men in the United States have spontaneous mesothelioma without an asbestos etiology. Dr. Moolgavkar states "The risk of spontaneous pleural mesothelioma increases strongly with age, and the risk at age 67, when Dr. Rosen was diagnosed with mesothelioma, is approximately thirty-fold the risk at age 30." (Mot. Exh. J, pgs. 34-35). Dr. Moolgavkar states that plaintiff's estimated cumulative exposure to chrysotile asbestos as calculated by Dr. Finley and Mr. Henshaw are "far lower than vehicle mechanics." Dr. Moolgavkar opines that plaintiff's alleged exposures to chrysotile asbestos from Fisher asbestos containing laboratory products made no contribution to his mesothelioma (Mot. Exh. J, pg. 35).
Plaintiff's expert, Dr. Moline's July 18, 2019 report relies on published studies and reports of testing done on asbestos containing gloves by, J. Milliette in 1982, Samimi and Williams in 1981, and Anderson in 1982. Dr. Moline states that the cited reports show: that asbestos containing gloves are typically comprised of 50% and 85% chrysotile asbestos fibers; that dropping an asbestos containing glove on a bench resulted in a release of respirable fibers as high as twelve (12) fibers per cubic centimeter (f/cc); and that concentrations of asbestos fibers from the use of asbestos gloves in university laboratories were measured as high as 2.93 fibers/cc (Opp. Exh. N). Dr. Moline specifically cites to a Millette 1992 study on a simulation stating that clapping asbestos gloves together resulted in a release of asbestos fibers as high as 577 fibers/cc. Dr. Moline relies on these studies as indicating that Fisher's asbestos containing products used by plaintiff were capable of causing exposure levels that were above ambient and capable of causing plaintiff's mesothelioma when generated on a regular basis over the course of ten years (Opp. Exh. N).
Plaintiffs are only required to show "facts and conditions from which defendant's liability may be reasonably inferred." The opposition papers have provided sufficient proof to create an inference as to specific causation for Fisher's asbestos containing laboratory products (Reid v Ga.- Pacific Corp., 212 A.D. 2d 462, 622 N.Y.S. 2d 946 [1st Dept. 1995] and Oken v A.C. & S. (In re N.Y.C. Asbestos Litig.), 7 A.D. 3d 285, 776 N.Y.S. 2d 253 [1st Dept. 2004]).
Plaintiffs cite to decedent's deposition testimony, as showing that he identified Fisher's asbestos containing gloves and burner pads as a source of his exposure to asbestos. He also described the manner of his exposure (Opp. Exh. A, pgs. 34-38, 41-44, 47-49, 53-62, 100-103, 161-167, 170, 172-176, 184, 246, 251-257, 270-272, 393-394, 464 and 471). Plaintiff's deposition testimony, combined with the other evidence he presents creates "facts and conditions from which [Fisher's] liability may be reasonably inferred" (Reid v Ga.- Pacific Corp., 212 A.D. 2d 462, supra), and raises issues of fact. Summary judgment must be denied when the plaintiff has "presented sufficient evidence, not all of which is hearsay, to warrant a trial" (Oken v A.C. & S. (In re N.Y.C. Asbestos Litig.), 7 AD3d 285, supra [1st Dept. 2004]). Fisher and its experts evidence is not specifically a result of testing on Fisher's asbestos containing laboratory products or consistent, and is contradictory. Plaintiff's expert report, to the extent it contradicts and relies on different testing and studies than Fisher's experts, creates credibility issues and issues of fact as to causation, warranting denial of summary judgment.
To the extent Fisher seeks the alternative relief of a hearing to determine plaintiff's experts methodology in forming their causation opinions, there is no need for such a hearing. Plaintiff has provided evidence of causation, and the conflicting expert testimony warrants denial of summary judgment.
Accordingly, it is ORDERED, that that Fisher Scientific Company, LLC's motion for summary judgment pursuant to CPLR §3212 to dismiss Plaintiffs' complaint and all cross-claims against it, alternatively to obtain a hearing as to plaintiff's experts methodology in forming their causation opinions, is denied Dated: September 16, 2019
ENTER:
/s/_________
MANUEL J. MENDEZ
J.S.C.