Opinion
Index No. 190062/2021 Motion Seq. No. 013
12-06-2024
COREY G. TIPPIN, Plaintiff, v. 3M COMPANY, ALCAT, INCORPORATED, AMERICAN INTERNATIONAL INDUSTRIES, AVON PRODUCTS, INC., BOURJOIS, LTD, BRENNTAG NORTH AMERICA, INC., BRENNTAG SPECIALTIES, LLC, BRISTOL-MYERS SQUIBB COMPANY, CHANEL, INC., CHATTEM, INC., COLGATE-PALMOLIVE COMPANY, COTY INC., GLAMOUR INDUSTRIES CO., JOHNSON & JOHNSON, JOHNSON & JOHNSON CONSUMER INC., KERR CORPORATION, KRYOLAN CORPORATION, L'OREAL USA, INC., MAX FACTOR CO., INC., MAYBELLINE, INC., PFIZER INC. R.T. VANDERBILT HOLDING COMPANY, INC., REVLON, INC., THE NESLEMUR COMPANY, UNION CARBIDE CORPORATION, VANDERBILT MINERALS, LLC, WHITTAKER CLARK & DANIELS, INC., YVES SAINT LAURENT AMERICA, INC., BLOCK DRUG COMPANY, INC., IND. AND AS SUCCESSOR-IN-INTEREST TO THE GOLD BOND STERILIZING POWDER COMPANY, A/K/A THE GOLD BOND COMPANY, BLOCK DRUG CORPORATION IND. AND AS SUCCESSOR-IN-INTEREST TO THE GOLD BOND STERILIZING POWDER COMPANY, A/K/A THE GOLD BOND COMPANY, JANSSEN PHARMACEUTICALS, INC., INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO JOHNSON & JOHNSON SUBSIDIARIES NAMED JOHNSON & JOHNSON CONSUMER INC., JOHNSON & JOHNSON HOLDCO (NA) INC., F/K/A JOHNSON & JOHNSON CONSUMER INC., KENVUE INC., INDIVIDUALLY AND AS SUCCESSOR-ININTEREST TO JOHNSON & JOHNSON CONSUMER INC. LTL MANAGEMENT LLC Defendant.
Unpublished Opinion
PRESENT: HON. ADAM SILVERA, Justice|
DECISION + ORDER ON MOTION
HON. ADAM SILVERA, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 013) 535, 536, 537, 538, 539, 540, 541, 542, 543, 544, 545, 546, 547, 548, 549, 550, 551, 552, 553, 554, 569, 575, 576, 577, 578, 579, 580, 581, 582, 583, 584, 585, 586, 587, 588, 589, 590, 591, 592, 593, 594, 595, 596, 597, 598, 599, 600, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611,612, 613, 614, 615, 616, 617, 618, 619, 620, 621,622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 633, 634, 635, 636, 637, 638, 639, 640, 641, 642, 643, 644, 645, 646, 647, 648, 649, 650, 651, 652, 653, 654, 655, 656, 657, 658, 659, 660, 661, 662, 663, 664, 665, 666, 667, 668, 669, 670, 1016, 1017, 1026, 1027, 1031, 1037, 1038, 1039, 1040, 1041, 1042, 1043, 1053, 1054 were read on this motion to/for PARTIAL SUMMARY JUDGMENT.
Upon the foregoing documents and for the reasons set forth below, the Court grants the portion of defendant American International Industries's ("Defendant") motion seeking partial summary' judgment, pursuant to CPLR § 3212, on punitive damages and denies the remainder of the motion.
A court must grant summary judgment if the movant establishes its claim "as a matter of law" and no "issue of fact" warranting trial remains. CPLR § 3212(b). The movant has the initial burden to show "entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). The movant's failure to meet its initial burden requires denial of the motion without probing the sufficiency of the opponent's papers. See id. Furthermore, even if the movant makes a prima facie showing of entitlement to judgment as a matter of law, the court must deny a summary judgment motion if the opponent's papers present admissible evidence establishing that a "material issue[] of fact" remains. Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 (1986).
"In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility." Garcia v J.C. Duggan, Inc., 180 A.D.2d 579, 580 (1st Dep't 1992), quoting Dauman Displays, Inc. v Masturzo, 168 A.D.2d 204, 205 (1st Dep't 1990). The court's role centers on "issue-finding, [not] issue-determination." Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957), quoting Esteve v Abad, 271 AD 725, 727 (1st Dep't 1947) (internal quotation marks omitted). As a result, and because it is a "drastic remedy," Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 (2012), summary judgment is rarely granted in negligence actions unless no conflict exists in the evidence. See Ugarriza v Schmieder, 46 N.Y.2d 471,475-476 (1979).
In toxic tort cases, as here, a plaintiff must show that he was exposed to a toxin by the defendant, "that the toxin is capable of causing a particular illness (general causation) and that [he] was exposed to sufficient levels of the toxin to cause the illness (specific causation)." Dyer v Amchem Prods. Inc., 207 A.D.3d 408, 410 (1st Dep't 2022), quoting Parker v Mobil Oil Corp., 7 N.Y.3d 434, 448 (2006). To win punitive damages in these cases, a plaintiff must show that the defendant "intentionally" and "unrcasonabl[y] ... disregarded] ... a known or obvious risk that was so great as to make it highly probably that harm would follow' and [did] so with conscious indifference to the outcome." Matter of New York City Asbestos Litig. v Westinghouse Elec. Corp. (Maltese), 89 N.Y.2d 955, 956-957 (1997), quoting Saarinen v Kerr, 84 N.Y.2d 494, 501 (1994) (internal quotation marks omitted).
When a defendant moves for summary judgment in toxic tort cases, "the burdens of proof are virtually reversed." Lopez v Gem Gravure Co., Inc., 50 A.D.3d 1102, 1108 (2d Dep't 2008, Lifson, J.P., dissenting). Thus, for the moving defendant to meet its initial burden on summary judgment, it must do more than "point[] to gaps in [the] opponent's evidence"; it must '"affirmatively demonstrate the merit"' of its position. Koulermos v A.O. Smith Water Prods., 137 A.D.3d 575, 576 (1st Dep't 2016), quoting Dalton v Educ. Testing Serv., 294 A.D.2d 462, 463 (2d Dep't 2002); see also Dyer. 207 A.D.3d at 409 (noting that a summary judgment movant does "not meet its prima facie burden by merely pointing to gaps or deficits in [the] plaintiffs case"); Reid v Georgia-Pac. Corp., 212 A.D.2d 462, 463 (1st Dep't 1995) (denying summary judgment when the defendant "fail[ed] ... to unequivocally establish that its product could not have contributed to the ... plaintiff s injury"). As detailed, the Court first decides that there are issues for trial on causation and then decides that there are no issues for trial on punitive damages.
1. Causation
Here, Defendant argues that the plaintiff, Corey Tippin ("Plaintiff'), cannot establish that Defendant's product, Clubman Talc, exposed him to asbestos or that any alleged exposure caused his mesothelioma. See Memorandum of Law in Support of Defendant American International Industries' Motion Pursuant to CPLR §3212 for Summary Judgment, or, Alternatively, Partial Summary Judgment ("Motion") at 4, 12-14. Citing to the testimony of its corporate representative, Mr. Charles Loveless, Defendant claims that its products have never used asbestos. See id. at 4, citing Affirmation in Support of Defendant American International Industries' Motion for Summary Judgment or, Alternatively, Partial Summary Judgment ("Defendant's Affirmation"), Exh. C, Affidavit of Charles Loveless, dated December 9, 2022, ¶¶ 17, 20. Moreover, relying on studies that did not find an increased risk of mesothelioma in workers exposed to cosmetic talc at work, Defendant argues that less frequent exposure to a better-quality, pharmaceutical-grade talc, as here, must pose less risk and that Plaintiffs exposure, even under worst-case assumptions, was insufficient to cause his cancer. See id. at 5, citing Defendant's Affirmation, Exh. D, Expert Report of Kenneth A. Mundt, dated October 14, 2022; id. at 7-8, 12-16. Then, assuming it has met its initial burden and poking holes in Plaintiffs expert testimony, Defendant claims that Plaintiff fails to establish that a material issue of fact remains. See id. at 8, 14-18.
In opposition, Plaintiff argues that Defendant did not meet its initial summary judgment burden because it did not submit expert evidence that its talc was asbestos-free and instead only relied on Mr. Loveless's testimony. See Memorandum of Law in Opposition to Defendant American International Industries Motion for Summary Judgment ("Opposition") at 39. Plaintiff also challenges the assumptions in Defendant's worst-case scenario analysis. See id. at 29. And even if Defendant has met its initial summary judgment burden, Plaintiff argues that it has established that issues of fact remain as to the extent of Defendant's responsibility for Plaintiffs cancer. See id. at 24-31, 44-45.
In this case, the parties' "competing causation evidence" is the "classic 'battle of the experts,'" sufficient to raise a question of fact and, thus, to preclude summary judgment. Sason v Dykes Lbr. Co., Inc., 221 A.D.3d 491,492 (1 st Dep't 2023), quoting Shillingford v New York City Tr. Aulh., 147 A.D.3d 465, 465 (1st Dep't 2017). It is the jury's job, not the Court's, to "pass on issues of credibility." Garcia, 180 A.D.2d at 580, quoting Dauman, 168 A.D.2d at 204. Defendant has failed "to unequivocally establish that its product could not have contributed to the ... [P]laintiff s injury." Reid, 212 A.D.2d at 463. As Defendant has failed to meet its initial burden, and issues of fact exist, summary judgment must be denied.
II. Punitive Damages
Here, Defendant argues that it did not possess the heightened state of mind required for punitive damages, as it had no reason to believe that its talc was contaminated with asbestos until litigation commenced against it in the 2000s. See Motion at 19-21. In fact, Defendant had reason to believe the very opposite, as its talc suppliers certified that the talc that Defendant purchased was asbestos-free. See id. at 20.
In opposition, Plaintiff argues that Defendant knew or should have known of the risks associated with asbestos and of the possibility that its talc contained asbestos for several reasons: First, the suppliers' certifications suggest that Defendant was aware of the possibility that Clubman Talc was contaminated with asbestos-otherwise, why require the certifications at all? See Opposition at 34. Second, Defendant had a safety department, responsible for overseeing the safe handling of asbestos by its workers, and a regulatory department, responsible for complying with federal regulations, but did not have a consumer safety department. See id. at 31-33, 35. Third, Defendant conducted due diligence when it purchased Clubman Talc from its predecessor, which should have alerted it to the possibility that Clubman Talc contained asbestos because its predecessor conducted general, preemptive research on asbestos in talc. See id. at 33-34. And fourth, Defendant was generally aware of relevant laws and regulations in the 1980s and 1990s, which should have put it on notice of ongoing research as to the possible presence of asbestos in talc. See id. at 35-37.
Plaintiffs arguments do not pass muster and do not reflect the law. Defendant should not be punished with punitive damages for having robust internal controls to try to minimize risk and for following the law. Defendant sought to promote worker safety through its safety program and to promote consumer safety by adhering to relevant laws and regulations and by purchasing talc certified to be free of asbestos. These facts, especially the suppliers' certifications that the talc was asbestos-free, are sufficient to shift the burden onto Plaintiff to establish a material issue of fact as to punitive damages, which it has not done. Plaintiff has not show'n that Defendant "intentionally" and "unreasonabl[y] ... disregarded] ... a known or obvious risk that was so great as to make it highly probably that harm would follow' and [did] so with conscious indifference to the outcome." Maltese, 89 N.Y.2d at 956-957, quoting Saarinen, 84 N.Y.2d at 501 (internal quotation marks omitted). Defendant's "general awareness that exposure to high concentrations of asbestos over long periods of time could cause injury" and that there was some possibility that talc generally-and some remote possibility that Defendant's talc specifically- contained asbestos is insufficient to create an issue of fact.
By Plaintiffs logic, Defendant would have been better off by not having any internal controls, by not conducting due diligence, by flouting federal law, and by not requiring its suppliers to preemptively test talc for asbestos. Plaintiffs logic would incentivize defendants to turn a blind eye to safety and to the law. Such logic, of course, would present defendants with the ultimate catch-22, rendering them damned-if-they-do, damned-if-they-don't: don't be diligent, and get hit with punitive damages; be diligent, and get hit with punitive damages nonetheless. In other words, Plaintiff suggests that defendants who are conscientious of employee and public safety, and who have taken steps to ensure such safety, are equally deserving of punitive damages as are defendants who have done nothing to ensure, or who have intentionally ignored, public safety. Because that is not the law-nor should it be-Plaintiffs arguments fail.
The law is well settled that "[t]he purpose of punitive damages is not to compensate the plaintiff but to punish the defendant for wanton and reckless, malicious acts and thereby to discourage the defendant and other people [and] companies from acting in a similar way in the future." Matter of 91st St. Crane Collapse Litig., 154 A.D.3d 139, 156 (1st Dep't 2017), quoting PJI 2:278 (cleaned up). Here, Defendant's acts do not rise to the level of maliciousness sufficient to warrant punitive damages, and Plaintiff has failed to raise issues of fact regarding punitive damages. As such, the portion of Defendant's motion for partial summary judgment on punitive damages must be granted.
Accordingly, it is
ORDERED that the portion of Defendant's motion for partial summary judgment on punitive damages is granted and Plaintiffs claim for punitive damages is hereby dismissed as to Defendant; and it is further
ORDERED that the remainder of Defendant's motion for summary judgment is denied; and it is further
ORDERED that within 30 days of entry Plaintiff shall serve all parties with a copy of this Decision/Order with notice of entry'.
This constitutes the Decision/Order of the Court.