~ourt of >appeals
OF THE STATE OF NEW YORK
APL-20 14-00209
New York County Index N!! 190196/10
IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION
DORIS KAY DUMMITT, Individually and as Executrix
of the Estate ofRONALD DUMMITT, deceased,
Plaintiff-Respondent,
-against-
A.W. CHESTERTON, et al.,
Defendants,
CRANE CO.,
Defendant-Appellant.
BRIEF OF AMICI CURIAE ENVIRONMENTAL WORKING GROUP,
CITIZEN ACTION OF NEW YORK, CITIZENS' ENVIRONMENTAL
COALITION, ASBESTOS DISEASE AWARENESS ORGANIZATION,
EMPIRE STATE CONSUMER PROJECT, CANCER ACTION NY,
INSTITUTE FOR HEALTH AND THE ENVIRONMENT AT THE
UNIVERSITY AT ALBANY, NEW YORK SUSTAINABLE BUSINESS
COUNCIL INITIATIVE, NEW YORK PUBLIC INTEREST RESEARCH
GROUP, INC., CLEAN AND HEALTHY NEW YORK, INC., CENTER FOR
ENVIRONMENTAL HEALTH, FOOD AND WATER WATCH, NEW
YORK ENVIRONMENTAL LAW AND JUSTICE PROJECT, TRAUMA
FOUNDATION, ARTS, CRAFTS AND THEATER SAFETY, AND
HEALTHY SCHOOLS NETWORK, INC. IN SUPPORT OF PLAINTIFF-
RESPONDENT
Stephen Halpern, Esq.
20 Argyle Park
Buffalo, New York 14222
716.867.7217
Russ Haven, Esq.
New York Public Interest Research
Group, Inc.
1 07 Washington A venue, 2nd Floor
Albany, New York 12210
518.436.0876
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
CORPORATE DISCLOSURE STATEMENT ........................................................ 1
STATEMENTOFINTEREST ................................................................................. 1
BACKGROUND ..................................................................................................... 11
ARGUMENT .......................................................................................................... 16
CRANE HAD A DUTY TOW ARN UNDER NEW YORK LAW ................... 16
A. The Appellate Division's Ruling Is Based on Well-Established New
YorkLaw .......................................................................................................... 16
B. Policy Considerations Fully Support the Rulings Below ....................... 29
C. Scores of Asbestos Cases Have Relied Upon and Applied the Liriano-
Berkowitz Jurisprudence .................................................................................. 33
CONCLUSION ....................................................................................................... 47
-1-
TABLE OF AUTHORITIES
Cases
Appalachian Ins. Co. v. General Electric Co., 8 N.Y.3d 162 (2007) .................... 32
Battipaglia (Susino) v. A.O. Smith Water Prods., Index .NQ 190303/11, slip op.
2012 WL 9515266 (Sup. Ct., NY County, Dec. 21, 2012) ................................. 44
Baum v. Eco-Tec, Inc., 5 A.D.3d 842 (3d Dep't 2004) .......................................... 28
Berkowitz v. A. C. & S., Inc., 288 A.D.2d 148 (1st Dep't 2001) ............ 28, 29, 33, 34
Brdar v. Cottrell, Inc., 867 N.E.2d 1085 (Ill. App. 2007) ...................................... 18
Brinson v. Aurora Pump Co., Index .NQ 51789, slip op. (Sup. Ct., Warren County,
Sept. 11, 2009) ..................................................................................................... 37
Call v. Banner Metals, Inc., 45 A.D.3d 1470 (4th Dep't 2007) .............................. 17
Celella v. Crane Co., Index .NQ 2009-1158, slip op. (Sup. Ct., Schenectady County,
Nov. 7, 2011) ....................................................................................................... 40
Cobb v. A.O. Smith Water Prods., Index .NQ 10-3677, slip op. (Sup. Ct., Oswego
County, Apr. 13, 2011) ........................................................................................ 38
Cobb v. A.O. Smith Water Prods., Index .NQ 10-3677, slip op., at 4 (Sup. Ct.,
Oswego County, Mar. 30, 2011) ......................................................................... 37
Contento v. A.C.&S., Inc., Index NQ 121539/2001, slip op. 2012 WL 910305 (Sup.
Ct., NY County, Mar. 13, 2012) .......................................................................... 42
Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66 (1993) ..................................... 24
Cover v. Cohen, 61 N.Y.2d 261 (1984) ............................................................ 24, 25
-11-
Crescenzi v. Azrock Indus., Index .N2 190270/2012, slip op. 2013 WL 6638023
(Sup. Ct., NY County, Dec. 9, 2013) .................................................................. 45
Curry v. American Standard, slip op., .N2 7:08-cv-10228, 2010 U.S. Dist. LEXIS
142496 (S.D.N.Y. Dec. 6, 2010) ......................................................................... 34
DeFazio v. A. W Chesterton, Index .N2 127988/2002, 2011 WL 3667717 (Sup. Ct.,
NY County, Aug. 12, 2011) ................................................................................ 34
Erikson v. A.O. Smith Water Prods., Index .N2 190123/2011, slip op. 2012 WL
9436156 (Sup. Ct., NY County, Mar. 9, 2012) ................................................... 42
Fisher v. Braun, 227 A.D.2d 586 (2d Dep't 1996) ................................................ 21
Forth v. Crane Co., Index .N2 2008-0491 (Sup. Ct., Schenectady County, Sept. 12,
2011) .................................................................................................................... 38
Franck v. 84 Lumber Co., Index .N2 5716/2010, slip op. (Sup. Ct., Orange County,
Oct. 20, 2011) ...................................................................................................... 39
Gitto v. A. W Chesterton, slip op., .N2 7:07-cv-04771, 2010 U.S. Dist. LEXIS
144568 (S.D.N.Y. Dec. 7, 2010) ......................................................................... 35
Gogel v. A.O. Smith Water Prods., Index .N2 190332/2010, slip op. 2011 WL
11048029 (Sup. Ct., NY County, Nov. 2, 2011 ) ................................................. 40
Good v. A.O. Smith Water Prods., Index .N2 190263-2010, slip op. 2011 WL
11038775 (Sup. Ct., NY County, Sept. 23, 2011) .............................................. 38
In re City of New York, 475 F. Supp. 2d 235 (E.D.N.Y. 2007) .............................. 30
In re Eighth Judicial District Asbestos Litig.: Potter v. A. W Chesterton, Index .N2
138620 (Sup. Ct., Niagara County, Mar. 31, 2011 ) ............................................ 38
In re Eighth Judicial District Asbestos Litig.: Suttner v. A. W Chesterton Co., 115
A.D.3d 1218 (4th Dep't 2014) ............................................................................. 29
-111-
In re Eighth Judicial District Asbestos Litig.: Tucholski v. A. W. Chesterton Co.,
Index .NQ 2012-800161, slip op. 2013 WL 4771727 (Sup. Ct., Erie County, June
17, 2013) .............................................................................................................. 45
In re Eighth Judicial District Asbestos Litig.: Zimmerman v. Air & Liquid Sys.
Corp., Index .NQ 2011-880, slip op. 2012 WL 11963137 (Sup. Ct., Erie County,
Aug. 23, 2012) ..................................................................................................... 43
In reNew York City Asbestos Litig.: Peraica v. A. 0. Smith Water Prods., Inc.,
Index .NQ 190339/2011, 2013 NY Slip Op 32846(U), 2013 N.Y. Misc. LEXIS
5173 (Sup. Ct., N.Y. County, Nov. 7, 2013) ................................................. 35, 36
In re Sixth Judicial District Asbestos Litig.: Schmerder v. A. W. Chesterton Co.,
Index .NQ CA2010-000927, slip op. (Sup. Ct., Broome County, Sept. 26, 2011)39
In re World Trade Center Bombing Litig., 17 N.Y.3d 428 (2011) ........................ 20
Jacobs v. Helmsley-Spear, Inc., 121 Misc. 2d 910 (Civ. Ct., Queens County, 1983)
............................................................................................................................. 20
Kersten v. A. 0. Smith Water Prods., Inc., Index .NQ 190129/2010, 2011 WL
1096996 (Sup. Ct. NY County, Mar. 14, 2011) .................................................. 36
Liriano v. Hobart Corporation, 92 N.Y.2d 232 (1998) .................................. passim
MacPherson v. Buick Motor Company, 111 N.E. 1050 (N.Y. 1916) .................... 16
Maringione v. A.O. Smith Water Prods., Index .NQ 109016/2001, slip op. 2011 WL
11222014 (Sup. Ct., NY County, Nov. 14, 2011) ............................................... 40
Micallefv. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376 (1976) 17
Michalski v. A. 0. Smith Water Prods., Index .NQ 100021/2007, slip op. 2011 WL
11221893 (Sup. Ct., NY County, Nov. 18, 2011) ............................................... 41
Mosher v. A. W. Chesterton Co., Index .NQ 2010/7914, slip op. (Sup. Ct., Monroe
-IV-
County, Oct. 4, 2011) .......................................................................................... 39
Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507 (1980) ......................................... 20
Palazzo v. A.O. Smith Water Prods., Index .NQ 123182/2001, slip op. 2012 WL
9570551 (Sup. Ct., NY County, Jan. 10, 2012) .................................................. 41
Peraica v. A.O. Smith Water Prods., Index ,NQ 190339/11, slip op. 2012 WL
9436163 (Sup. Ct., NY County, Nov. 16, 2012) ................................................. 44
Pringle v. A.C.&S., Inc., Index .NQ 102509/2002, slip op. 2012 WL 9944411 (Sup.
Ct., NY County, Apr. 19, 2012) .......................................................................... 43
Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289 (1992) ................... passim
Reals Asbestos Matter, Index ,NQ 2010-1847, slip op. at 3, fn. 2 (Sup. Ct., Oswego
County, Aug. 8, 2011) ......................................................................................... 41
Ritucci v. Burnham, LLC, Index ,NQ 190124/2012, slip op. 2012 WL 10096255
(Sup. Ct., NY County, Apr. 24, 2013) ................................................................ 45
Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471 (1980) ... 19
Rogers v. Sears, Roebuck & Co., 268 A.D.2d 245 (1st Dep't 2000) .......... 25, 27, 28
Romero (McCarthy) v. A.C. & S., Inc., Index .NQ 1123260/01, slip op. 2012 WL
1776984 (Sup. Ct., NY County, May 11, 2012) ................................................. 43
Sage v. Fairchild-Swearingen Corporation, 70 N.Y.2d 579 (1987) ......... 17, 18, 20
Sawyer v. A. C. & S., Inc., 32 Misc.3d 1237(A) (Sup. Ct., NY County, June 24,
2011) .............................................................................................................. 33,34
Schuerch v. A.O. Smith Water Prods., Index ,NQ CA2011-000589, slip op. at 3
(Sup. Ct., Broome County, Apr. 12, 2012) ......................................................... 43
-v-
Skindell v. Air & Liquid Sys. Corp., Index N!! 2010-2411, slip op. 2011 WL
12539493 (Sup. Ct., Erie County, Mar. 22, 2011) .............................................. 37
Tansosch v. A.O. Smith Water Prods., Index N!! 190382/2010, slip op. 2012 WL
9391737 (Sup. Ct., NY County, Jan. 30, 2012) .................................................. 42
Tuttle v. A. W. Chesterton Co., Index N!! 5602-2006, slip op. (Sup. Ct., Oswego
County, Nov. 15, 2007) ....................................................................................... 37
Vespe-Benchimol v. A.O. Smith Water Prods., Index N!! 190320/2010, slip op.
2011 WL 12306673 (Sup. Ct., NY County, Nov. 15, 2011) .............................. 44
Zachmann v. A.D. Smith Water Prods., Index N!! 190140/2001, slip op. 2012 WL
9436158 (Sup. Ct., NY County, Jan. 26, 2012) .................................................. 42
Zoyhofski v. A. C. & S., Inc .. D. Smith Water Prods., Index N!! 106242/2002, slip op.
2011 WL 11535875 (Sup. Ct., NY County, Nov. 14, 2011) .............................. 41
Statutes
RESTATEMENT (SECOND) OF TORTS§ 353 (1965) ................................................... 21
RESTATEMENT (SECOND) OF TORTS§ 402A (1965) ................................................ 23
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY§ 2 (1998) ...................... 23
RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILI1Y § 10 (1998) .................... 24
Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972) ............ 30
-Vl-
CORPORATE DISCLOSURE STATEMENT
Amici Curiae disclose that they are nonprofit corporations or organization
with no parents, subsidiaries or affiliates as those terms are used for corporations
and unincorporated business entities or organizations under New York law.
STATEMENT OF INTEREST
Amici, 16 nonprofit public health, environmental protection and injury
prevention organizations, urge that this Court affirm the lower court decisions
herein and hold that manufacturers that know or should know of the extreme
occupational, health and environmental dangers posed by their products to the
public, including workers such as Mr. Dummitt, are charged with a legal duty to
issue effective and adequate warnings. Indeed, in this case the record conclusively
proves that continued use of asbestos in conjunction with Crane's products was
not simply foreseeable, but inevitable. Amici believe that under well-established
law and critically important public policy considerations, manufacturers have a
duty to warn product users from exposures to extraordinarily toxic hazards
intended and meant to be used with products that will result in preventable illness,
disease, injury and especially death. That duty is especially warranted where, as
Page 1
here, there is a factual finding that the manufacturer had a "significant role,
interest or influence" over the type of components used with its product after it
entered the stream of commerce. A sophisticated manufacturer with such a
"significant role, interest and influence" over component parts has a heightened
duty to warn of the foreseeable dangers posed by the use of those parts with its
product.
ENVIRONMENTAL WORKING GROUP ("EWG") is a nonprofit research
organization based in Washington D.C., staffed by scientists, engineers, policy
experts, lawyers and computer programmers, and dedicated to protecting human
health and the environment. In addition to EWG' s ground breaking investigations
and research on toxic substances and environmental health, food and agriculture,
and water and energy, EWG has been deeply involved in efforts to protect citizens
from ultrahazardous asbestos exposure, and to help seek justice for victims of such
exposures. As such, EWG is fully interested in this appeal, and particularly in the
need to sustain the Appellate Division's holding that product sellers such as the
appellant herein have a duty to warn of the extreme dangers they know will attend
the use of their products.
CITIZEN ACTION OF NEW YoRK ("Citizen Action") is a nonprofit, grassroots
membership organization that advocates for social, racial, economic and
Page2
environmental justice with thousands of members in New York State. Among the
most prominent concerns of Citizen Action are consumer protection, health care,
product safety and workers' rights. Founded in 1983, Citizen Action has chapters
in seven regions ofNew York State: Long Island, New York City, the Hudson
Valley, the Capital District, the Southern Tier, the Finger Lakes (Rochester) and
Western New York (Buffalo).
CITIZENS' ENVIRONMENTAL COALITION ("CEC"), founded in 1983, along
with thousands of individual members, advocates on behalf of community, labor,
civic, health and environmental groups to protect New York's environment and to
improve public health and our economy. CEC's mission is to: create safe, healthy
communities, schools and workplaces by advocating pollution prevention;
advance policies that protect public health; promote robust democratic
participation and grassroots advocacy; defend social justice values; foster
corporate and government accountability; and educate and organize the public for
action. CEC acts as a resource for residents and groups across the state, providing
technical assistance on toxins, health and public policy issues. In furtherance of
these goals, CEC issues reports and presents testimony on proposed regulations
and legislation at the local, state and federal levels.
The ASBESTOS DISEASE AWARENESS ORGANIZATION ("ADAO"), a 501(c)(3)
Page 3
nonprofit, is the largest United States-based independent asbestos victims'
organization in existence. ADAO's network includes over 40,000 individuals
eager to live in a world without asbestos, a known human carcinogen. ADAO's
vision is to eliminate asbestos-related diseases, including mesothelioma. ADAO
works with public health organizations and passionate leaders throughout the
world to prevent consumer, environmental, and occupational exposure to asbestos.
ADAO's efforts focus on public education, including speaking each year at
international conferences and events, including the American Public Health
Association's (APHA) Annual Meeting and Exposition and the International
Mesothelioma Interest Group (iMig) Conference. ADAO also hosts an annual
International Asbestos Awareness Conference, where world-renowned experts and
asbestos victims present the latest advancements in disease prevention, global
advocacy, and treatment for asbestos-caused diseases. ADAO also has worked at
uniting patients and families for prevention and community support, resulting in a
dramatic shift from isolation to community, as families and professionals offer
support and resources to others in need.
EMPIRE STATE CONSUMER PROJECT is a 50l(c)(3) registered not-for-profit
organization based in Rochester, New York and dedicated to reducing the use of
chemicals toxic to human and environmental health. Empire State Consumer
Page4
Project accomplishes this by educating consumers and industry, conducting
product testing, reporting test results to the public and policymakers, and by
advocating for regulation where needed to protect the public interest. In 1984
Empire State Consumer Project helped expose the failure of five Monroe County
public schools to comply with a U.S. Environmental Protection Agency rule
requiring disclosure of the presence of friable asbestos in the schools, deemed an
"imminent health hazard."
CANCER AcTION NY is a nonprofit organization dedicated to eliminating the
release of carcinogens to the environment. Cancer Action NY works to prevent
cancer by educating the public about ways to avoid the carcinogenic pollutants in
our air, water and food, including creating community-based cancer prevention
education campaigns. The organization's work emphasizes the connections
between environmental toxic exposures and cancer, including via air, water, food
and consumer products. Cancer Action NY advocates for all levels of government
to take aggressive measures to inform the public about cancer risks and be
proactive in efforts to reduce these prevalent risks.
The INSTITUTE FOR HEALTH AND THE ENVIRONMENT AT THE UNIVERSITY AT
ALBANY (the "Institute for Health and the Environment") promotes and supports
interdisciplinary research and grants in the broad area of environment and public
Page 5
health among both professional researchers and students. The Institute for Health
and the Environment recognizes that changes in the natural environment caused by
chemical pollution, rapid industrialization, war, and climate change are
dimensions that have been largely overlooked as significant contributors to human
health. The Institute for Health and the Environment works to conduct research
that sheds light on the impacts of these factors on communities and resident
quality of life.
The NEW YORK SUSTAINABLE BUSINESS COUNCIL INITIATIVE is a project of
the American Sustainable Business Council, a nonprofit alliance of business
organizations and businesses from New York and across the nation committed to
advancing a vibrant, just, and sustainable economy. The organization promotes
strategies and policies designed to build strong local economies, prioritize
investment and innovation in clean technologies from green chemistry to
renewable energy sources, and advance the development of sustainable
communities in New York State.
The NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC. ("NYPIRG") is a
nonprofit research and advocacy organization formed and directed by New York
State college and university students. NYPIRG provides educational and training
opportunities for college studies through its work on environmental quality,
Page6
consumer product safety, public health/injury prevention, corporate accountability
and social justice issues. NYPIRG was a leader in the successful efforts to change
New York's civil practice laws to allow victims of toxic chemical exposures,
including exposure to asbestos and Agent Orange, to access the justice system
based on the date of discovery of their injuries. NYPIRG has worked to educate
the public about dangerous products, including children's toys that contain toxic
chemicals, and press for changes in the marketplace and through policy reforms at
the local, state and federal levels of government.
CLEAN AND HEALTHY NEW YoRK, INC. ("CHNY") is a New York-based
nonprofit organization dedicated to protecting public health and the environment
by eliminating the use of toxic chemicals and promoting the use of safe
alternatives. CHNY educates the public; acts as a resource to community,
advocacy and worker safety groups; coordinates product testing studies and
reports on toxic chemical presence in consumer products; and advocates for
policies that reduce toxic chemical usage. CHNY has been a leader in advancing
national, state and local chemical policies and market reforms in response to the
widely-acknowledged failure of the federal Toxic Substances Control Act to
ensure that public health and the environment are safeguarded from the presence
of toxic chemicals in consumer products, in communities, at schools and in the
Page 7
workplace.
The CENTER FOR ENVIRONMENTAL HEALTH ("CEH") is a nonprofit
corporation dedicated to protecting people from toxic chemicals and promoting
business products and practices that are safe for public health and the
environment. CEH is based in Oakland, California, with an East Coast regional
office in New York City. In furtherance of its goals, CEH's work includes
educating and organizing the public; initiating legal action; and advocating before
legislative and regulatory bodies.
FOOD & WATER WATCH is a nonprofit organization that advocates for
common-sense policies that will result in healthy, safe food and access to safe and
affordable drinking water. With 15 offices in the United States and offices in Latin
America and the European Union (where the organization is known as Food &
Water Europe), through research and public education Food and Water Watch
advances policies to ensure that these shared resources are regulated in the public
interest rather than for private gain. Food and Water Watch supports effective
regulation of toxic chemicals and believes that consumers deserve to know that
they are purchasing and using products that have been demonstrated safe by
manufacturers.
The NEW YORK ENVIRONMENTAL LAW AND JUSTICE PROJECT ("NYELJP") is
Page 8
a nonprofit public interest organization based in Manhattan that counsels and
represents groups and individuals concerned with the preservation and
improvement of community environmental conditions. NYELJP works to help
New Yorkers protect themselves and their communities and workers from
dangerous and burdensome environmental hazards through the provision of
information, data analysis and facilitating the provision of effective and affordable
legal and advocacy resources, regardless of race, gender, age or income. NYELJP
has been at the forefront of ensuring that the public has information about toxic
chemical exposures, including leading efforts to force disclosure of U.S. EPA,
New York State and New York City data measuring the contaminants, including
asbestos, lead and benzene, at and near the World Trade Center Ground Zero site
after 9/11.
The TRAUMA FOUNDATION was founded in 1981 at San Francisco General
Hospital. The organization was established and continues to be directed by
Andrew McGuire, a nationally recognized injury prevention expert and advocate.
The Trauma Foundation's mission includes the prevention and reduction of all
traumatic injuries, including those related to bums, domestic violence, firearms,
transportation, the workplace, youth violence and those involving excess alcohol
use. The Trauma Foundation's recent work includes helping lead the successful
Page 9
effort to change California's consumer product testing regulation, which promoted
the use of toxic flame retardants, a particular health risk for firefighters and
children.
ARTS, CRAFTS AND THEATER SAFETY ("ACTS") is a not-for-profit
organization dedicated to providing health, safety, industrial hygiene, technical
services, and safety publications for the arts, crafts, museums, and theater
communities. Led by founder and President Monona Rossol, a chemist, industrial
hygienist and author, ACTS focuses on assisting the arts, crafts, museum and
theater communities in creating and maintaining safe environments and using safe
materials to protect artists and patrons. ACTS also publishes a monthly newsletter
on health and safety regulations and research that affect the arts and theater.
ACTS also educates the general public about the prevalence of toxic chemicals in
common consumer products creating exposure risks in the home, workplace and
studio, and the links between these chemicals and serious health consequences,
including cancer, autism and asthma.
The HEALTHY SCHOOLS NETWORK, INC., is a 501(c)(3) not-for-profit
environmental health organization and the leading national voice for children's
environmental health at school. Healthy Schools Network's policy campaigns
address three core facets of environmental health at school: 1) child-safe standards
Page 10
for school design, construction, and siting; 2) child-safe policies for housekeeping
and purchasing-targeting indoor air pollutants, mercury, pesticides and other
toxics, and the use of safer substitutes; and 3) environmental public health services
for children in harm's way. Keeping schools clean and cleanable, and reducing
chemical exposures-which are associated with long-term health problems,
including asthma and cancer-are all critical to promoting attendance and
learning.
As such, Amici are fully interested in this appeal, and also with particular
regard to the duty issue.
BACKGROUND
This case arises from Mr. Dummitt's grievous injuries and death caused by
his exposures to ultrahazardous asbestos dusts emanating from the industrial
products manufactured and supplied by the defendant-appellant Crane Co.
[hereinafter "defendant" or "Crane"] while Mr. Dummitt served as a boiler
technician in the United States Navy. In this appeal, Crane submits, as its
principal claim, that it bears no responsibility for the tragic fate suffered by Mr.
Dummitt solely on the ground that it did not directly or personally place the
Page 11
particular asbestos components to which Mr. Dummitt was exposed "into the
stream of commerce" [D/B, at 5] .1
In dozens upon dozens of decisions in scores of cases, trial and appellate
jurists in New York have already flatly rejected Crane's "no-duty" claim. In doing
so, they have relied upon this Court's unwavering products liability jurisprudence
announced over the course of many decades. The Appellate Division below
adhered to this jurisprudence, correctly ruling that "where a manufacturer does
have a sufficiently significant role, interest, or influence in the type of component
used with its product after it enters the stream of commerce, it may be held strictly
liable if that component causes injury to an end user of the product" under a
failure-to-warn theory of liability. In reNew York City Asbestos Litig., 121
A.D.3d 230, 250 (1st Dep't 2014).
As the Appellate Division emphasized, Crane had an enormous "influence"
upon, and interest in, the Navy's choice of asbestos-laden valve components, and
indeed was directly involved in formulating the content ofNavy specifications
directing and requiring the use of asbestos with precisely the sort of Crane
products with which Mr. Dummitt worked. !d. at 251. Crane provided the Navy
with detailed drawings specifying the use of asbestos-containing replacement
Numbers in brackets following "D/B" refer to pages in the Brief For Appellant.
Page 12
component parts with Crane valves, and indeed extensively sold under its own
name massive amounts of asbestos-laden insulation, as well as asbestos-containing
equipment and replacement component products prior to and during the period of
Mr. Dummitt's exposures. !d. It even supplied some of its valves to the Navy
with its own brand of asbestos gasket as an internal component. !d.
At trial, Crane admitted that it knew asbestos components, like gaskets,
packing, and insulation, would be used with its valves in the field, and specifically
aboard Naval ships. Crane admitted that it knew these asbestos-filled components
required routine replacement by means of scraping or wire-brushing or gouging
out the asbestos material. In reNew York City Asbestos Litig., 36 Misc.3d
1234(A) at 2 (Sup. Ct., N.Y. County, Aug. 20, 2012). It published manuals
showing and specifying the use of asbestos insulation on valves to prevent heat
loss, and its valves were tested in its manufacturing plant with asbestos insulation
prior to sale. !d. Crane further admitted that it was the normal, expected and
intended use of its valves, in conjunction with the asbestos-filled components, that
caused the release of ultrahazardous asbestos fibers into the worker's respirable
zone, thereby endangering the lives and well-being of workers using such
products. Id.
Crane also had access to and knowledge of the dangers of asbestos dating
Page 13
back to the 1930s due to its employees' membership in various trade associations
where the dangers were discussed and published in journals, including the Illinois
Manufacturers' Association, American Association of Industrial Physicians and
Surgeons ("AAIPS"), National Safety Council ("NSC"), American Society of
Mechanical Engineers ("ASME"), and Industrial Hygiene Foundation ("IHF"). !d.
at 2, 16. Crane's employees in these associations, which included its President,
Medical Director, and other corporate officers, served in committee and executive
positions in these associations and even authored articles in certain trade
association journals identifying the hazards of asbestos exposure to workers. !d. at
16.
Possessed of such knowledge of the extreme occupational and
environmental dangers posed by its products to workers such as Mr. Dummitt, and
thereby charged with a firm legal and moral duty to issue effective and adequate
warnings, Crane wholly failed to do so. Nor was Crane aware of any Navy
regulation, specification or publication that would have ever prevented it or any
other equipment manufacturer from warning about the dangers of asbestos in their
products. !d. at 13.
Instead, Crane embarked on the calculated nonfeasance of burying its head
in the sand for close to one full century in which it marketed asbestos-containing
Page 14
products and products intended to be used with extremely dangerous asbestos
component parts. Toward this end, although possessed of immense sophistication
and state-of-the-art research capabilities, Crane never once sought to test its
asbestos products to determine health risks that would attend the use of those
products. Id. at 16.
As next shown, well-settled law in New York establishes that, by virtue of
all of the above circumstances, as well as those more fully marshaled in the
plaintiffs main brief, Crane bore a duty to warn end product users such as Mr.
Dummitt, and its failure to have issued any sort of warning whatsoever constituted
a breach of that duty. For this reason, the trial court and the Appellate Division
correctly rejected Crane's no-duty claims, and its efforts at overturning the verdict
and the judgment properly rendered against it.
Page 15
ARGUMENT
CRANE HAD A DUTY TOW ARN UNDER NEW YORK LAW
A. The Appellate Division's Ruling Is Based on Well-Established New
York Law
The Appellate Division's ruling, like that of the Honorable Joan A. Madden
following the trial of this case, upholds the right ofNew Yorkers to seek a
compensatory remedy for grievous harm caused them by a manufacturer's
complete failure to provide any warning to product users exposed to
extraordinarily toxic environmental hazards intended and certain to be used with
the defendant's product. These decisions did not, of course, emerge in a vacuum,
but rather flowed logically from a long line of cases in which New York's
products liability and toxic tort doctrines developed in a step-by-step manner.
As far back as MacPherson v. Buick Motor Company, 111 N.E. 1050 (N.Y.
1916), Judge Cardozo rejected the position that manufacturers have no duty to
warn about others' products, noting that the injurious component in that case "was
not made by the defendant; it was bought from another manufacturer." Id., at
1051.
Following MacPherson, this Court made clear that a product seller would
not be immunized from accountability depending merely upon whether the
Page 16
particular, injurious third-party component was installed pre- or post-sale by third
parties. In the analogous design defect context, in Sage v. Fairchild-Swearingen
Corporation, 70 N.Y.2d 579 (1987), the plaintiff was injured by a replacement
hanger or hook installed in defendant's aircraft. !d., at 582. The Sage Court
analyzed the legal issue as follows:
That the hanger actually involved in the accident was a replacement
and not the original is not dispositive because in fabricating and
installing a new part Commuter's employees, as the jury found, did
no more than perpetuate defendant's bad design as defendant's
representatives foresaw they might.
The burden of plaintiffs accidental injuries should be placed on the
manufacturer because it designed the defective product and placed it
in the stream of commerce knowing that if the part broke it might be
copied and replaced by the purchaser relying on the original design.
Inasmuch as the defect was in the design, the manufacturer was the
logical party in a position to discover the defect and correct it to
avoid injury to the public. Placing the economic burden on the
manufacturer under these circumstances does no more than induce it
to design quality equipment at the outset and "[discourages]
misdesign rather than [encourages] it."
!d., at 587 (quoting Micallefv. Miehle Co., Div. of Miehle-Goss Dexter, Inc., 39
N.Y.2d 376, 384 (1976)); see also Call v. Banner Metals, Inc., 45 A.D.3d 1470,
1471 (4th Dep't 2007) (post-sale "modifications consisted of nothing more than the
installation of replacement parts that did no more than perpetuate [defendant's]
Page 17
bad design as [defendant's] representatives foresaw [it] might").
The logic underlying this Court's reasoning in Sage, placing the burden of
plaintiffs product-related injuries on the manufacturer that placed the overall
product in the stream of commerce knowing that any defective or unreasonably
dangerous component part would naturally be "copied and replaced by the
purchaser relying on the original design," Sage, 70 N.Y.2d at 587, has been
adopted by courts in other jurisdictions. E.g., Brdar v. Cottrell, Inc., 867 N.E.2d
1085, 1099 (Ill. App. 2007) ("defendant expected that its customers would need to
replace chains and anticipated that they would purchase replacement chains from
[third parties]. In a products liability case, the manufacturer remains liable if the
product is modified in a manner that is foreseeable after it leaves the
manufacturer's control") (Court's emphasis).
Liriano v. Hobart Corporation, 92 N.Y.2d 232 (1998), followed in the
failure-to-warn setting, explaining that "a manufacturer may have a duty to warn
of dangers associated with the use of its product even after it has been sold. Such
a duty will generally arise where a defect or danger is revealed by user operation
and brought to the attention of the manufacturer." 92 N.Y.2d at 240. Liriano
made clear that failure-to-warn liability was broader than design defect liability.
The Court of Appeals' prior ruling in the design defect case Robinson v. Reed-
Page 18
Prentice Div. of Package Mach. Co., 49 N.Y.2d 471 (1980), was that "substantial
modifications of a product from its original condition by a third party which
render a safe product defective are not the responsibility of the manufacturer." 49
N.Y.2d at 479.
In Liriano, this Court announced clearly and unequivocally that, "[w]hile
this Court stated [in Robinson] that principles of foreseeability are inapplicable
where there has been a substantial modification of the product, that discussion was
limited to the manufacturer's responsibility for defective design where there had
been a substantial alteration of a product by a third party." 92 N.Y.2d 232, 238
(Court's emphasis). However, "[t]he factors militating against imposing a duty to
design against foreseeable post-sale product modifications are either not present or
less cogent with respect to a duty to warn against making such modifications."
!d., at 239. This Court continued:
Unlike design decisions that involve the consideration of many
interdependent factors, the inquiry in a duty to warn case is much
more limited, focusing principally on the foreseeability of the risk and
the adequacy and effectiveness of any warning. The burden of placing
a warning on a product is less costly than designing a perfectly safe,
tamper-resistant product. Thus, although it is virtually impossible to
design a product to forestall all future risk-enhancing modifications
that could occur after the sale, it is neither infeasible nor onerous, in
some cases, to warn of the dangers of foreseeable modifications that
pose the risk of injury.
Page 19
92 N.Y.2d 232, 239-40.
Therefore, it is fully clear that the third-party liability for replacement parts,
as announced in Sage, does not represent the limit of a manufacturer's
accountability for dangers posed by its products as foreseeably modified post-sale
by third parties. It is this aspect ofNew York's product liability jurisprudence that
has engendered the many decisions aligning with Liriano and involving the
foreseeable, and defendant-recommended, post-sale application of ultrahazardous
external insulation products.
Consistently, the concept that someone may be responsible for the
foreseeable misconduct of a third party has deep, historical roots in other areas of
tort law. It is well established, for instance, that "a landlord has a duty to take
preventive action which is within its capacity to protect tenants against criminal
activities of third parties on its premises." Jacobs v. Helms ley-Spear, Inc., 121
Misc. 2d 910, 911 (Civ. Ct., Queens County, 1983); Nallan v. Helmsley-Spear,
Inc., 50 N.Y.2d 507, 519 (1980) ("the history of criminal activities in the Fisk
Building gave rise to an obligation on the part of the building's owner"); see also
In re World Trade Center Bombing Litig., 17 N.Y.3d 428, 466 (2011) ("If a danger
is foreseeable, a landlord has a duty to employ reasonable measures to protect
Page 20
visitors from such risks, including danger posed by third parties"). The law also
imposes a related liability upon a prior premises owner, who has previously sold
and released control over the premises. See RESTATEMENT (SECOND) OF TORTS§
353 (1965) ("A vendor of land who fails to disclose to his vendee any
unreasonably risky condition is subject to liability to the vendee and others upon
the land .. . ");Fisher v. Braun, 227 A.D.2d 586, 587 (2d Dep't 1996).
But the present case does not rest on a "mere" foreseeability to Crane that
its valve products would be used with replacement asbestos components and
asbestos insulation materials. Accordingly, Justice Madden emphasized that
"[u]nder these circumstances, [Crane's] duty is not based solely on foreseeability,
or the possibility that a manufacturer's sound product may be used with a
defective product so as to militate against a finding of a duty to warn. Rather,
these circumstances show a connection between Crane's product and the use of the
defective products, and Crane's knowledge of this connection ... " 36 Misc.3d at
5.
In the same vein, the Appellate Division similarly stressed that, "where a
manufacturer does have a sufficiently significant role, interest, or influence in the
type of component used with its product after it enters the stream of commerce, it
may be held strictly liable if that component causes injury to an end user of the
Page 21
product." 121 A.D.3d at 250. The Court further noted that, "[i]ndeed, considering
the substantial interest Crane showed in having asbestos become the standard
insulation in the components to be placed in its valves, it was entirely appropriate
for the jury to find that Crane had the burden of warning workers such as Dummitt
of the hazards of asbestos exposure." I d. at 251.
Indeed, the Appellate Division continued: "There is a place for the
notion of foreseeability in failure to warn cases where, as here, the manufacturer of
an otherwise safe product purposely promotes the use of that product with
components manufactured by others that it knows not to be safe. To be sure, mere
foreseeability is not sufficient." Id. at 252.
Amazingly, as was true in the Appellate Division, Crane does not even
mention, let alone grapple with, this Court's Opinion in Liriano, or acknowledge
that it might have the slightest relevance here. Giving Crane the benefit of any
doubt, however amply warranted that doubt may be here, it is conceivable that
Crane omits Liriano because it views the case as being somehow limited to
situations in which a product has been modified by removal of an original part.
Drawing a distinction between removing a component and adding a component,
however, is an insupportably narrow reading of the rule in Liriano, one clearly not
intended or stated by this Court.
Page 22
The most sensible way to interpret Liriano is that a duty to warn is owed
whether the modification results from eliminating a component part, replacing
one, or adding one to the product where the use of the product as modified is
known to the seller to present a deadly hazard to product users. That should be
especially true where, as here, the modified use is intended, foreseen, endorsed,
recommended, or specified by, or otherwise known to, the product seller.
Indeed, prior to the attempts of Crane and similarly-situated asbestos
defendants to conjure its no-duty defense, New York law has always routinely
followed the Restatement (Second) of Torts products liability rule (Section 402A)
that, where the seller has reason to anticipate that a serious danger may result from
a foreseeable product use, it will have a duty to warn product users of that danger.
RESTATEMENT (SECOND) OF TORTS§ 402A (1965), cmt. h; see also RESTATEMENT
(THIRD) OF TORTS: PRODUCTS LIABILITY§ 2, cmt. p (1998) ("[p]roduct misuse,
modification, and alteration are forms of post-sale conduct by product users or
others that can be relevant to the determination of the issues of defect, causation,
or comparative responsibility. Whether such conduct affects one or more of the
issues depends on the nature of the conduct and whether the manufacturer should
have ... provided a reasonable warning to protect against such conduct")
(emphasis added).
Page 23
As one example, in this Court's well-known choice-of-law decision in
Cooney v. Osgood Machinery, Inc., 81 N.Y.2d 66 (1993), the issue was whether a
Missouri statute barring contribution claims against an employer should be
applied. The product seller's liability was never in doubt, and was taken as a
given. In Cooney, the defendant sold a metal-bending machine to plaintiffs
employer. The employer "subsequently modified it by adding a foot switch," and
that foot switch caused plaintiffs injuries. 81 N.Y.2d 66, 70. The product seller,
of course, sought contribution from that employer, but only from the starting point
of its own liability. In short, Liriano cannot reasonably be construed to apply only
narrowly to the post-sale removal of a component from the original product.
Consistently, the product modification decision in Liriano relied on this
Court's Opinion in Cover v. Cohen, 61 N.Y.2d 261 (1984), wherein this Court
instructed that, "[a]lthough a product 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, 61
N.Y.2d 261, 274-77; see generally RESTATEMENT (THIRD) OF TORTS: PRODUCTS
LIABILITY§ 10, Reporters' Note to comment a (1998) ("A growing number of
jurisdictions have taken the position that a post-sale duty to warn is warranted
Page 24
under appropriate circumstances").
The products at issue in the present action provide an even stronger case for
failure-to-warn liability than in Cover v. Cohen. That is so because here Crane's
products were shipped with original, hazardous asbestos components but no
warning. Hence, those products were defective at that time because they already
contained "known risks of which warning need be given." Cover, 61 N.Y.2d at
275.
Indeed, the Appellate Division addressed that exact circumstance in Rogers
v. Sears, Roebuck & Co., 268 A.D.2d 245 (1st Dep't 2000)- a decision strongly
relied upon by the Appellate Division below. 121 A.D.3d at 250-51. There, the
Appellate Division held that, "even assuming the accident was caused by a defect
in a valve incorporated into a propane tank neither of which [defendant]
manufactured, we are unpersuaded by [defendant]'s argument that it was under no
duty to warn of the dangers presented by such a defect, where [inter alia] its grill
could not be used without the tank ... " Rogers, 268 A.D.2d 245, 245-46.
The Appellate Division in the Decision below further noted Crane's heavy
reliance upon this Court ruling in Rastelli v. Goodyear Tire & Rubber Co., 79
N.Y.2d 289 (1992). However, speaking of Rastelli, and the other cases upon
which Crane has relied, the Appellate Division stated, "These cases, and others
Page 25
cited by Crane, together stand for the rather unremarkable proposition that where
there is no evidence that a manufacturer had any active role, interest, or influence
in the types of products to be used in connection with its own product after it
placed its product into the stream of commerce, it has no duty to warn." 121
A.D.3d at 250. But here, by contrast, there is extensive evidence showing Crane's
"active role, interest and influence" with regard to the specified and necessary use
of hazardous asbestos component parts with its products after it placed such
products into the stream of commerce.
Indeed, defendant gains no support from this Court's Opinion in Rastelli,
which reaffirmed the rule that "[a] manufacturer has a duty to warn against latent
dangers resulting from foreseeable uses of its products of which it knew or should
have known." Rastelli, 79 N.Y.2d 289, 297.
In Rastelli, a third party had installed a defective rim on one of defendant
Goodyear's tires, that rim representing one of "24 different models of multi piece
rims, out of the approximately 200 types of multipiece rims sold in the United
States." 79 N.Y.2d at 294 n.1. Nor was there any mention in Rastelli of evidence
of even a single prior explosion or injury caused by the use of a multi piece rim
with a Goodyear tire. This Court concluded that, under the "circumstances of this
case," Goodyear did not have a duty to warn about the other manufacturer's
Page 26
product. Id. at 297-98.
Equally significant, in Rastelli it could not be said that defendant Goodyear,
which had manufactured the truck tire, knew or had reason to know that its
product would likely be combined with a dangerously defective tire rim.
Goodyear's truck tire was merely "compatible" with such a defective multi piece
rim, 79 N.Y.2d at 293, and there was nothing about Goodyear's conduct to suggest
that it had actual, or even constructive, knowledge that its tire would, as in the
present case, routinely be used with a defective rim, or that it promoted, expected,
or specified the use of such a rim. As the Appellate Division therefore stated in
the present case, Rastelli stands "for the rather unremarkable proposition" that
slight foreseeability will not suffice to charge a product seller with a duty to warn.
The instant amici curiae strongly believe that, under circumstances in
which, in contrast to Rastelli, a product seller indeed vigorously and affirmatively
promoted and specified the use of ultrahazardous components, knew with clear
certainty that such components would in fact be used, and nevertheless wholly
failed to take the obvious steps of testing or issuing any sort of warning or
guidance to product users, that seller should be deemed to have breached its duty
owed to those users.
In a similar vein, the Appellate Division in Rogers likened the facts in that
Page 27
case to Liriano, and expressly contrasted the circumstances in Liriano to those in
Rastelli. Rogers, 268 A.D.2d at 246; see also Baum v. Eco-Tec, Inc., 5 A.D.3d
842, 844-45 (3d Dep't 2004) ("regardless of whether Eco-Tec manufactured or
supplied the actual air pipe involved in the accident, a question of fact remains as
to whether the alleged modification or misuse of air pipes as probe bars when
using the crystallizer system was foreseeable giving rise to a duty to warn of
potential dangers associated therewith").
The Appellate Division then logically applied the same products liability
principles as articulated in Liriano and Rogers in the asbestos context, in its
original decision in Berkowitz v. A. C. & S., Inc., 288 A.D.2d 148 (1st Dep't 2001)
("Nor does it necessarily appear that Worthington had no duty to warn concerning
the dangers of asbestos that it neither manufactured nor installed on its pumps").
The eight plaintiffs appearing as respondents in the consolidated Berkowitz appeal
were exposed to new insulation being applied to Worthington pumps. To the
extent that such insulation posed an unreasonable danger, and because the
manufacturer knew its product would be modified in this way, the Berkowitz panel
deemed Liriano to instruct a duty to warn under such circumstances. See
Berkowitz, 288 A.D.2d at 149 (expressly contrasting Rogers with Rastelli).
Additionally, while Crane continues to present a distorted "stream-of-
Page 28
commerce" interpretation of Rastelli, what it continually fails to acknowledge
about that case is that this Court emphasized that Goodyear advanced undisputed
evidence that it never manufactured or marketed the RHS rim assembly model or
its component parts. Rastelli, 79 N.Y.2d 289, 294. Accordingly, the Rastelli Court
was not principally concerned with whether Goodyear placed the specific and
particular RHS rim that injured plaintiff into the stream of commerce, but rather
with Goodyear's lack of commercial connection to and awareness of the RHS rim
assembly model generally. By contrast, that commercial connection and
awareness, hence strong foreseeability, exists when it comes to defendant Crane's
relation to the hazardous asbestos-containing components of its products. See also
Berkowitz v. A. C. & S., Inc., 288 A.D.2d 148 (1st Dep't 2001) ("Nor does it
necessarily appear that Worthington had no duty to warn concerning the dangers
of asbestos that it neither manufactured nor installed on its pumps").
B. Policy Considerations Fully Support the Rulings Below
The distinction between the outcomes in Rastelli and cases such as Berkowitz,
In re Eighth Judicial District Asbestos Litig.: Suttner v. A. W Chesterton Co., 115
A.D.3d 1218 (4th Dep't 2014) ("Suttner"), and the instant case (as well as dozens
upon dozens of decision that have been issued in accord with Berkowitz over the
Page 29
past several years), also directly implicates critical public policy concerns for
economic and societal efficiency. The traditional "Hand formula," for instance,
decidedly reveals both the need for a protective standard of care in Berkowitz,
Suttner and Dummitt, and for nonliability in Rastelli. See In re City of New York,
475 F. Supp. 2d 235, 242 (E.D.N.Y. 2007) ("'The cost of prevention is what Hand
meant by the burden of taking precautions against the accident ... If on the other
hand, the benefits in accident avoidance exceed the costs of prevention, society is
better off if those costs are incurred and the accident averted'") (quoting Richard
A. Posner, A Theory ofNegligence, 1 J. LEGAL STUD. 29, 38 (1972)).
More specifically, since there were two dozen alternative tire rims in
Rastelli, the cost to the tire manufacturer of preventing accidents related to the use
of every single potential rim far exceeded the benefit in accident avoidance for
such a socially important product. Society thus did not benefit from a duty on the
part of the tire manufacturer to warn about every danger that could have been
presented by the use of any possible rim with its tire. The scenario in the instant
case and similar cases is, and was during the relevant product distribution periods,
quite a bit different. When it comes to such industrial products as valves, pumps
and boilers, the hazardous asbestos components were specified, recommended,
and endorsed by the equipment manufacturers for use with their products. The cost
Page 30
of warning about such conspicuously hazardous components, where their use was
a known certainty, was minimal compared to the benefits of avoiding lethal injury
to thousands of workers. Under such circumstances, society benefits greatly from
imposing a duty to warn on manufacturers.
Also critical with respect to society's efficiency concern is the information
factor: the ordinary vehicle purchaser or user is attuned to the need regularly to
safety-check the vehicle, its brakes, tires, lights, safety features and so forth. The
cost of this routine search for information has long been absorbed into the
normally expected cost of ownership. Circumstances are diametrically different
when it comes to hidden or otherwise non-obvious product dangers. Here it is the
manufacturer that is in the best position to spread the costs of investigation of the
risks, whereas saddling such costs upon product users would be prohibitively
costly and inefficient.
Imposing a duty in these circumstances actually benefits business by
creating a more sustainable and fair marketplace, and a more knowledgeable
consumer base. It ensures that one manufacturer does not gain an unfair
marketing advantage over its competitors by consciously choosing not to warn so
as to avoid a potential decrease in marketability of its product due to an attendant
warnmg. A manufacturer's decision to act reasonably by providing a warning
Page 31
should not work to its detriment in the marketplace. Nor should a manufacturer be
deterred from warning because its competitors are afforded an advantage by not
warning. A duty to warn here, therefore, provides clarity and uniformity in the
obligations of manufacturers to provide safe products, it promotes good will and
public trust, and it permits businesses that purchase such products to better assess
the risks and benefits of each particular product, which in tum advances safety in
the workplace.
Importantly, this Court has long assumed that liability under the present
circumstances, in the asbestos context, is correct and just under New York law.
For instance, in its insurance coverage decision in Appalachian Ins. Co. v. General
Electric Co., 8 N.Y.3d 162, 170 (2007), this Court recited, just as a matter of fact,
that defendant GE had been subject to numerous "asbestos-related personal injury
claims ... in the early 1990's" as a result of exposures to its custom turbines. This
Court explained that, "[a]lthough GE did not produce the asbestos-related
products, for decades it designed, manufactured and, in some cases, installed
custom turbines that were insulated with asbestos-containing products
manufactured by others." 8 N.Y.3d 162, 166. Also critically significant, the
Appalachian decision establishes that defendants have had the opportunity to
insure against precisely the sort of risks at issue in this case, and did indeed insure
Page 32
against those risks and thereby spread the cost.
C. Scores of Asbestos Cases Have Relied Upon and Applied the Liriano-
Berkowitz Jurisprudence
As partially catalogued below, scores of New York rulings have construed
Liriano to support the imposition of a duty to warn in instance involving asbestos
components that were used with a piece of equipment after it was placed into the
stream of commerce, such as in Berkowitz. Of special import has been the
reasoning of the Honorable Sherry K. Heitler in Sawyer v. A. C. & S., Inc., 32
Misc.3d 1237(A), 2011 WL 3764074 (Sup. Ct., NY County, June 24, 2011). In
that opinion, Judge Heitler held that Crane's claim "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" was without merit. 2011 WL 3764074, at *2.
In reaching that conclusion, Judge Heitler emphasized New York's
foundational jurisprudence cutting directly against Crane's claims:
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[, supra]; see also Rogers[, supra]; Baum[, supra].
Although a product may "be reasonably safe when manufactured and
Page 33
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[, supra].
2011 WL 3764074, at *2.
Justice Heitler further noted Crane's reliance upon Rastelli, and concluded
that "Rastelli and Berkowitz are not mutually exclusive nor are they in conflict[,
and indeed] rest on consistent applications of the same foreseeability principle ....
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 ofknown dangers attached to such use. !d., at *3
(omitting citations); accord DeFazio v. A. W. Chesterton, Index NQ 127988/2002,
2011 WL 3667717 (Sup. Ct., NY County, Aug. 12, 2011); Curry v. American
Standard, slip op., NQ 7:08-cv-10228, 2010 U.S. Dist. LEXIS 142496 (S.D.N.Y.
Dec. 6, 2010) (Hon. James S. Gwin) (emphasizing that Rastelli and Berkowitz rest
"on consistent application of the same foreseeability principle"); Gitto v. A. W.
Page 34
Chesterton, slip op., NQ 7:07-cv-04771, 2010 U.S. Dist. LEXIS 144568 (S.D.N.Y.
Dec. 7, 2010) (Hon. James S. Gwin) (same).
More recently, in a post-trial decision denying Crane's motion to set aside
the verdict, also alleging that as a matter of law it had no duty to warn, the
Honorable Martin Shulman marshaled the facts proffered against Crane in a
substantially similar case, albeit in the context of Crane's boiler products rather
than valves. In reNew York City Asbestos Litig.: Peraica v. A. 0. Smith Water
Prods., Inc., Index NQ 190339/2011, 2013 NY Slip Op 32846(U), 2013 N.Y. Misc.
LEXIS 5173 (Sup. Ct., N.Y. County, Nov. 7, 2013) ("Peraica").
Justice Shulman noted that the trial record revealed, inter alia, that Crane
"aggressively promoted the sale of asbestos" components to be used with its
products, "making the benefits of asbestos insulation an integral part of its
marketing scheme," "designed and supplied its products with asbestos containing
gaskets, packing, insulation and cement," and "this multi-national company was a
dominant player manufacturing and/or distributing equipment (e.g., boilers,
pumps, etc.), industrial components (i.e., valves) and associated insulation
products (e.g., asbestos-containing pipe covering, block, cement, cement pipe,
millboard, gaskets, packing and rope, etc.)." 2013 N.Y. Misc. LEXIS 5173, at *6-
8. Accordingly, concluded the Peraica court, Crane "had a duty to warn about the
Page 35
conspicuous hazards of ACMs [asbestos-containing materials] third-parties
foreseeably manufactured and/or used therewith subsequent to that sale, and
Crane's failure to warn was a basis for liability to Peraica, who was injured and
ultimately killed from toxic exposure to ACMs applied to/installed on" its
products. !d., at * 8.
Scores of additional rulings in numerous New York counties have
concluded that a product manufacturer- and in many instances Crane itself-
owed a duty to warn of the dangers attendant to the use of asbestos components in
connection with the manufacturer's product after it was placed into the stream of
commerce, based on facts consistent with a showing of the manufacturer's active
role, influence, or interest in the use of such asbestos components with its
equipment, including in military, industrial, manufacturing, commercial and
residential settings. E.g.:
-Kersten v. A.O. Smith Water Prods., Inc., Index .NQ 190129/2010, 2011 WL
1096996 (Sup. Ct. NY County, Mar. 14, 2011) ("in New York where a defendant
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");
Page 36
-Brinson v. Aurora Pump Co., Index N~ 51789, slip op. (Sup. Ct., Warren County,
Sept. 11, 2009) (Hon. RichardT. Aulisi) (relying on Berkowitz and Rogers,
denying defendant's summary judgment motion and noting the dangers associated
with changing asbestos-containing gaskets, packing and external insulation "with
regard to the customary usage of the defendant's pumps");
-Tuttle v. A. W. Chesterton Co., Index NQ 5602-2006, slip op. (Sup. Ct., Oswego
County, Nov. 15, 2007) (Hon. James W. McCarthy) (applying Berkowitz where
pumps were used with asbestos components, denying summary judgment);
- Skindell v. Air & Liquid Sys. Corp., Index NQ 2010-2411, slip op. 2011 WL
12539493 (Sup. Ct., Erie County, Mar. 22, 2011) (Hon. John P. Lane) (noting that
it was clear to defendants that their equipment "would be insulated with asbestos-
containing insulation ... New York's product liability law as it applies in
asbestos litigation is well established. Citations to decisions in other states on that
subject are not helpful");
-Cobb v. A.O. Smith Water Prods., Index NQ 10-3677, slip op., at 4 (Sup. Ct.,
Oswego County, Mar. 30, 2011) (Hon. James W. McCarthy) (relying upon
Berkowitz, reaffirming that "the fact that the alleged exposure was to
'replacement' parts is, standing alone, insufficient to absolve defendant of
liability");
Page 37
-Cobb v. A.O. Smith Water Prods., Index N~ 10-3677, slip op., at 4 (Sup. Ct.,
Oswego County, Apr. 13, 2011) (finding that defendant Crane "has failed to
distinguish the Appellate Division's decision in Berkowitz, as well as trial court
decisions from this court and others throughout New York State");
-Forth v. Crane Co., Index N~ 2008-0491 (Sup. Ct., Schenectady County, Sept.
12, 2011) (Hon. RichardT. Aulisi) (relying upon the Appellate Division rulings in
Rogers and Berkowitz, denying Crane's summary judgment motion based on its
"bare metal" defense);
-Good v. A.O. Smith Water Prods., Index N~ 190263-2010, slip op., 2011 WL
11038775 at 2 (Sup. Ct., NY County, Sept. 23, 2011) (Hon. Sherry K. Heider)
(holding that, as in Sawyer and DeFazio, "Crane's assertions that its valves did not
require asbestos-containing insulation and gaskets to operate properly and that it
did not specify the use of asbestos-containing insulation and gaskets on its
products are insufficient to shield it from liability");
-In re Eighth Judicial District Asbestos Litig.: Potter v. A. W. Chesterton, Index
N~ 138620 (Sup. Ct., Niagara County, Mar. 31, 2011) (Hon. John P. Lane)
("Crane's suggestion this court follow out of state precedents is rejected" on the
issue of Berkowitz accountability);
- In re Sixth Judicial District Asbestos Litig.: Schmerder v. A. W. Chesterton Co.,
Page 38
Index NQ CA20 10-000927, slip op., at 3 (Sup. Ct., Broome County, Sept. 26, 2011)
(Hon. Robert C. Mulvey) ("with respect to the issue of whether Crane had a duty
to warn of the hazards associated with asbestos, Crane's motion for summary
judgment must be denied since the Court finds that the holding in Berkowitz [] is
applicable and controlling in this instance. In denying the motion herein, this
Court also relies upon the decisions in Sawyer and DeFazio which cite Berkowitz,
supra, and denied motions for summary judgment made by Crane in asbestos cases
which involved nearly identical issues and facts");
-Mosher v. A. W Chesterton Co., Index NQ 2010/7914, slip op. (Sup. Ct., Monroe
County, Oct. 4, 2011) (Hon. Ann Marie Taddeo) ("[t]he Court agrees with
Plaintiffs counsel that the facts of this case are more analogous to Rogers than
Rastelli");
-Franck v. 84 Lumber Co., Index NQ 5716/2010, slip op., at 22-23 (Sup. Ct.,
Orange County, Oct. 20, 2011) (Hon. Robert A. Onofry) (reasserting the rule in
Liriano, Cover, and Berkowitz, contrasting Berkowitz with Rastelli, and ruling that
Crane "failed to demonstrate, prima facie, that it had no duty to warn the decedent
about the use of its valves with asbestos-containing products. Contrary to the
contention of Crane, it is not necessarily absolved of the duty to warn merely
because its valves did not require such products to function, and it did not direct
Page 39
its customers to use the same");
-Gogel v. A.O. Smith Water Prods., Index N~ 190332/2010, slip op. 2011 WL
11048029 (Sup. Ct., NY County, Nov. 2, 2011) (Hon. Sherry K. Heitler) ("As in
Sawyer, supra, and Defazio, supra, the submissions on this motion show that
Crane designed and supplied its products with asbestos-containing gaskets,
packing, and insulation. Accordingly, for the same reasons stated in Sawyer,
supra, and Defazio, supra, this court finds that Crane had a duty to warn Mr.
Gogel of the hazards associated with asbestos");
- Celella v. Crane Co., Index N~ 2009-1158, slip op. (Sup. Ct., Schenectady
County, Nov. 7, 2011) (Hon. RichardT. Aulisi) ("this Court finds that the
defendant has failed to adequately distinguish Berkowitz. Under the facts of this
case, the Court finds that the defendant has failed to establish, as a matter of law,
that it had no duty to warn plaintiff with respect to the products identified by
him");
- Maringione v. A.O. Smith Water Prods., Index N~ 109016/2001, slip op. 2011
WL 11222014 (Sup. Ct., NY County, Nov. 14, 2011) (Hon. Sherry K. Heitler)
("Here too, ... Crane had a duty to warn");
-Michalski v. A.O. Smith Water Prods., Index N~ 10002112007, slip op. 2011 WL
11221893 (Sup. Ct., NY County, Nov. 18, 2011) (Hon. Sherry K. Heitler) ("Here
Page 40
too, ... Crane had a duty to warn");
- Zoyhofski v. A. C. & S., Inc .. 0. Smith Water Prods., Index N~ 106242/2002, slip
op. 2011 WL 11535875 (Sup. Ct., NY County, Nov. 14, 2011) (Hon. Sherry K.
Heitler) ("Crane had a duty to warn");
-Reals Asbestos Matter, Index N~ 2010-1847, slip op. at 3, fn. 2 (Sup. Ct.,
Oswego County, Aug. 8, 2011) (Hon. James W. McCarthy) (emphasizing that
"this court has issued [several] opinions in which summary judgment was denied
to defendants arguing that they were not responsible for external insulation or
replacement parts");
-Palazzo v. A.O. Smith Water Prods., IndexN~ 123182/2001, slip op. 2012 WL
9570551 (Sup. Ct., NY County, Jan. 10, 2012) (Hon. Sherry K. Heitler) (a post-
Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797 (2011)2 decision noting, again,
that precedents such as Liriano and Berkowitz impose a duty upon Crane because
the evidence "showed that Crane recommended that asbestos-containing materials
2 Surre involved "Pacific" boilers, not Crane boilers, based on exposures occurring shortly
after Crane had acquired the National-U.S. Radiator Corp. (Pacific Division). Hence, quite
unlike the evidence in most of the Crane cases, it is unlikely that the Pacific boiler purchaser
would have acquired this product directly from one of the Crane branch houses, which also
promoted and sold, side by side, massive amounts of asbestos-containing products and
component parts. Moreover, Crane involved the summary judgment context and a limited
amount of exhibits consisting mostly of early catalogues, but no testimony on the part of Mr.
Pantaleoni or any other Crane representative. Thus, Surre has either not been considered in the
subsequent New York actions, or has been deemed fully distinguishable from the subsequent
cases litigated against Crane on a fuller record.
Page 41
be used in conjunction with its [pump] products and in tum had a duty to warn
against same");
- Zachmann v. A.O. Smith Water Prods., Index N~ 190140/2001, slip op. 2012 WL
9436158 (Sup. Ct., NY County, Jan. 26, 2012) (Hon. Sherry K. Heitler) (post-
Surre, holding that, "[h]ere, too, Crane's assertions that its valves did not require
asbestos-containing packing to operate and that it did not specify the use of same
on its pumps are insufficient to shield it from liability");
- Tansosch v. A.O. Smith Water Prods., Index N~ 190382/2010, slip op. 2012 WL
9391737 (Sup. Ct., NY County, Jan. 30, 2012) (Hon. Sherry K. Heitler) (post-
Surre, holding that, "[h]ere, too, Crane's assertions that its boilers did not require
asbestos-containing insulation or that it did not specify the use of same on its
boilers are insufficient to shield it from liability");
-Contento v. A.C.&S., Inc., Index N~ 121539/2001, slip op. 2012 WL 910305
(Sup. Ct., NY County, Mar. 13, 2012) (Hon. Sherry K. Heitler) (post-Surre,
concluding that "Crane designed and supplied its products with asbestos-
containing gaskets, packing, insulation and cement");
-Erikson v. A. 0. Smith Water Prods., Index N~ 190123/2011, slip op. 2012 WL
9436156 (Sup. Ct., NY County, Mar. 9, 2012) (Hon. Sherry K. Heitler) ("Crane
had an affirmative duty to warn [because] Crane recommended the use of
Page 42
asbestos-containing insulation and packing in conjunction with its products, and in
particular valves and pumps");
- Schuerch v. A.O. Smith Water Prods., Index .N~ CA2011-000589, slip op. at 3
(Sup. Ct., Broome County, Apr. 12, 2012) (Hon. Robert C. Mulvey) (noting
plaintiffs reliance on "evidence in the record from Crane's own supply catalogs
and manuals that Crane offered for sale asbestos-containing insulating materials
for use in conjunction with its valves and recommended that asbestos-based
insulations be used," concluding that "the holding in Berkowitz . .. is applicable
and controlling in this instance");
-Pringle v. A.C.&S., Inc., Index .N~ 102509/2002, slip op. 2012 WL 9944411
(Sup. Ct., NY County, Apr. 19, 2012) (Hon. Sherry K. Heitler) (holding that Crane
had a duty to warn, based on Liriano, Berkowitz, and the Court's prior decision in
Sawyer);
-In re Eighth Judicial District Asbestos Litig.: Zimmerman v. Air & Liquid Sys.
Corp., Index .N~ 2011-880, slip op., 2012 WL 11963137 at 6 (Sup. Ct., Erie
County, Aug. 23, 2012) (Hon. John P. Lane) (same);
-Romero (McCarthy) v. A. C. & S., Inc., Index .N~ 1123260/01, slip op. 2012 WL
1776984 (Sup. Ct., NY County, May 11, 2012) (Hon. Sherry K. Heitler) ("Crane
recommended the use of asbestos-containing products in conjunction with its
Page 43
valves and other equipment");
- Peraica v. A.O. Smith Water Prods., Index .N~ 190339/11, slip op. 2012 WL
9436163 (Sup. Ct., NY County, Nov. 16, 2012) (Hon. Sherry K. Heider) ("Crane's
assertions that its boilers did not require asbestos-containing insulation to operate
properly and that it did not specify the use of same on its products are therefore
insufficient to shield it from suit");
- Vespe-Benchimol v. A.O. Smith Water Prods., Index .N~ 190320/2010, slip op.,
2011 WL 12306673 at 3-4 (Sup. Ct., NY County, Nov. 15, 2011) (plaintiffs
"submit multiple undated Crane catalogs in which the company describes the
benefits of using asbestos insulation on its boilers. These show that Crane was not
only long aware of the fact that asbestos insulation would be used with its boilers,
but also that it supplied and endorsed asbestos, making the benefits of asbestos
insulation an integral part of its marketing scheme");
- Battipaglia (Susino) v. A.O. Smith Water Prods., Index .N~ 190303/11, slip op.
2012 WL 9515266 (Sup. Ct., NY County, Dec. 21, 2012) (Hon. Sherry K. Heider)
(relying on Sawyer and Benchimol, as well as Berkowitz and Liriano, to hold
Crane responsible for asbestos-related exposures arising from its pumps, valves
and boiler products);
- Ritucci v. Burnham, LLC, Index .N~ 190124/2012, slip op. 2012 WL 1009625 5
Page 44
(Sup. Ct., NY County, Apr. 24, 2013) (Hon. Sherry K. Heitler) (relying on Sawyer
and Benchimol, as well as Berkowitz and Liriano, to hold Crane responsible for
asbestos-containing pump insulation products);
-In re Eighth Judicial District Asbestos Litig.: Tucholski v. A. W. Chesterton Co.,
Index .N~ 2012-800161, slip op. 2013 WL 4771727 (Sup. Ct., Erie County, June
17, 2013) (Hon. John P. Lane) (noting that "Crane argues, once again, as it has
done unsuccessfully many times, that it is not legally responsible for the
insulation, gaskets and packing used with its valves," and relying on Liriano,
Dummitt, Sawyer et al., to reject Crane's position); and
-Crescenzi v. Azrock Indus., Index .N~ 190270/2012, slip op. 2013 WL 6638023
(Sup. Ct., NY County, Dec. 9, 2013) (Hon. Sherry K. Heider) (Crane accountable
where nearby workers installed "asbestos, the loose powder stuff' as "external
insulation" on Crane valves and pumps).
Nor has this been an exhaustive listing of all the rulings upholding a duty to
warn under circumstances paralleling those in the instant case, and rejecting the
very sort of no-duty claims Crane raises before this Court. We respectfully submit
that, like the Appellate Division's decision below, all of the above-referenced
rulings, by these many esteemed New York jurists, accurately and faithfully reflect
New York law.
Page 45
Accordingly, we believe that New York's longstanding solicitude for the
welfare of citizens and working people endangered by ultrahazardous toxic
substances connected to a manufacturer's product supports affirmance of the
Appellate Division's holding that, indeed, Crane had a duty to warn Mr. Dummitt.
Page 46
CONCLUSION
Based on the foregoing, it is respectfully submitted that this Court should
affirm the Appellate Division's ruling affirming the judgment entered in favor of
plaintiff Doris Kay Dummitt.
Dated: New York, New York
September 15, 2015
Respectfully submitted,
By: /f-f"?~ c · 1-k.qy.....c---c ---
Stephen Halpern, Esq.
20 Argyle Park
By:
Buffalo, New York 14222
716.867.7217
Russ Haven, sq.
New York Pu lie Interest Research Group, Inc.
107 Washington A venue, 2nd Floor
Albany, New York 12210
518.436.0876
Attorneys for Amici Curiae Environmental
Working Group, et al.
Page 47
APPENDIX
STATE OF NEW YORK
SUPREME COURT
HOWARD BRINSON, JR.,
and MICHELLE BRINSON,
-vs-
COl.JNTY OF WARREN
Plaintiffs,
AURORA PUMP COMPANY, et al.,
Defendants.
DECISION
AND ORDER
Index #51789
RJI #56-1-09-0014
The plaintiff, Howard Brinson, Jr., commenced the within action to recover damages for
personal injuries allegedly resulting from his exposure to various asbestos containing products.
The plaintiff commenced this action on January 16, 2009, by filing a summons and complaint in
the Warren County Clerk's Office. Issue was subsequently joined and discovery has been
conducted pursuant to an expedited schedule. The trial is scheduled to commence on September
14, 2009.
The defendant, Aurora Pump Company, (the defendant) has now made a motion for
summary judgment dismissing the plaintiffs' complaint and all cross-claims asserted against it
pursuant to CPLR §3212. The defendant seeks summary judgment on the theory that it is not
liable for any gaskets, replacement parts or external insulation which was manufactured,
designed or installed by others with Aurora pumps. The defendant claims that it simply
manufactured the pumps and different entities manufactured the alleged asbestos containing
components which were incorporated into the pumps or the external insulation which surrounded
the pumps.
A-1
The plaintiff was born on 1955, and is currently 55 years of age. The plaintiff
asserts that he was exposed to various asbestos containing products while he was serving in the
United States Navy (1973- 1975), while working as a draftsman at American Ship Building
(1977- 1978), and while he was working as a Field Technician and Pipe and Systems Designer
for Kamyr, Inc. (1978-1985).
The plaintiff specifically asserts that with respect to Aurora Pump Company, he was
exposed to asbestos containing gaskets, packing and external insulation in connection with work
he performed on defendant's pumps during his service on the U.S.S. Santa Barbara and the
U.S.S. Sellers from 1973 to 1975 and while working at the lab at the Machinist Mate's School in
the Great Lakes.
The defendant asserts that its products (Aurora pumps) are not defective. The defendant
claims that the alleged defective products (gaskets, packing and insulation) were not marketed,
sold or distributed by Aurora Pump Company, thus the defendant does not have a duty to warn of
a product that it did not manufacture, supply or specify.
A proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issue of fact, Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). In
the context of an asbestos case, the defendant must make a prima facie showing that its product
could not have contributed to the causation of plaintiff's injury. Comeau v. W.R. Grace & Co.,
216 AD2d 79,80 (1 51 Dept. 1995); Reid v. Georgia-Pacific Com., 212 AD2d 462 (1 51 Dept.
1995).
The Court also notes that since this is a summary judgment motion, it must view the
A-2
evidence in a light most favorable to the non-moving party, drawing all reasonable inferences in
favor of the non-moving party. Salerno v. Garlock, Inc., 212 AD2d 463, 464 (1st Dept. 1995);
Greco v. Boyce, 262 AD2d 734 (3'd Dept. 1999).
The plaintiffs contend that the instant case involves a failure to warn theory which has been
asserted against the defendant, Aurora Pump Company. The plaintiffs take the position that the
defendant had a duty to wa,.-n about the dangers associated with changing gaskets, packing and
external insulation with regard to the customary usage of the defendant's pumps. The plaintiff
argues that the defendant designed its pumps in a manner which would necessitate continued
replacement of the gaskets, packing and external insulation. The plaintiffs assert that the
defendant had a duty to warn because ofthe inherent design features of its pumps. The plaintiff
insists that the defendant's pumps could only function properly if the dangerous asbestos
containing components were utilized and, thus, the defendant had a duty to warn about the
dangers associated with repair and maintenance of its pumps.
In Berkowitz v. A. C.& S., Inc .. 288 AD2d 148 (1 '1 Dept. 2001), the Court denied a pump
manufacturer's motion for summary judgment by finding a material issue of fact as to whether
the defendant had a duty to warn concerning the dangers of asbestos which it had neither
manufactured nor installed on its pumps. The Court also notes that "failure-to-warn liability is
very fact specific, including such issues as obviousness of the risk and proximate cause". Rogers
v. Sears. Roebuck and Co., 268 AD2d 245 (I '1 Dept. 2000). In the Rogers case, the Court was
not persuaded by the defendant's argument that it had no duty to warn about the hazards of
propane where its gas grill could not be used without a propane tank.
As stated in the Rogers case, failure-to-warn cases are very fact specific and will tum upon
A-3
the unique factual patterns which are presented in each individual case. In the case at bar, the
plaintiffs have raised a sufficient issue of material fact which necessitates the denial of the
defendant's motion for summary judgment.
This writing constitutes the Decision and Order of the Court.
Signed this /1 10 day of ;ur~ , 2009, at Johnstown, New
York.
HON=tr:: T. AUUSI
Justice of the Supreme Court
ENTER
A-4
/UPP,.E'11E COURT CH.4JfBER.,)
Oswego, New York
James W. McCarthy
A.S.C.J.
Joseph W. Bellu.ck, Esq.
Be.Jluck & Fox, LLP
2 95 Madison A venue, 3 7lh Floor
New York, New York l OOi 7
Arlene F. Gbarabeigie, Esq.
Oswego County Courthouse
25 E Oneida Street
Oswego, New York 13126
Telephone.: (315) 34 9-3 286
Fax.: (31 S) 349-8525
November 15, 2007
Segal, McCambridge, Si.t:ge.r & Mahoney
830 Third A venue, Suite 400
New York, New York 1 00.22
Re:· Tu.ule et al v. A. W Cr,esterton Co., et al
Jn.dex. No. 2006-5602
LE.TTER DECISION
· Andrew T . Wolfe
?rincipal Coun Anom::y
Kim N. Cloonan
Se:;retary
Toe above-referenced matter is before this courtyursuant to defendant, Gardner Denver's motion
for summary judgment [Ne.w York Civil Practice Law and Rules§ 3212). Opposition to th~ motion
was received by the court on October 11, 2007, a repiy a:ffumation from defendant's counsel was
received on October 23, 2007 and sur-reply consented to by defense counsel was received on
October 26, 2007 after which decision was reserved without oral argument. Having reviewed tbe
submissions of the panies1 for the reasons sei forth below, this court makes the. fol1'owing Findings
of Fact and Conclusions of Law.
Finciin!!s ofFact:
-· Tn~ f' ct- nna' .. ·,,,.; (T r·np \n"'tani -nT""": :::.. It ti~ ~ of 4.. :;:t,...\ - !"'\, t fth· I . t·.;:.::-;_ ~01"'0. 'P1""'t p .,,1 - _,.,.a ~ ... , ~r y•n,. - .. :.> • ::.-.-!!1-'JJU-=··'l~D• ffiOUOD .:a.S ... v!l. O. . ~ p am .lu ::. --~~-0-~ , • a:o.u
Tuttle's aile.ged exposure to asbestos ciuring his service b the. United States Navy aboard the USS
Wasp, an aircraft ~arrier from 1963-1965. lJJI. Turtie died prior to providing deposition testimony,
a11d the sole testimony concemil'l£ !vir. Turtle's se;vice and alleged exposure to asbestos aboard tbe
USS Wasp comes from the deposition of a cc-· .. :vorker, Bruce Daigneau. Mr. Daigneau testified that
he and the decedent repaired and maintained pu.TUps aboard the USS Wa:."P, including pumps
manufactured by "Warren-Denver"
In support of its rno-.ion for sumrna.;·')'judgment, counsei for the mov.ng defendant initially argues
in sum and substance that plaintiffs co-worker identified Warren Denver rather than Gardner
Denver as the manufacturer of t1-:e pumps to which the piainriffs' decedent was allegea1y exposed ..
.In esse.nGe., conceding tbe mi;;taken identity of its product for tbe purposes of this motion, counsel
A-5
for the moving defendant .r.her arrues:
Hm•.~ever, Gardner Denver, nevertheless refutes the allegations made by Wu.
Daigneau with respect to the '\ihu:ren Denver' pumps to which Plaintiff was
allegedly exposed.
!Vli. Daigneau testified that he was certain that the gaskets Plaintiff touched
on the USS Wa,"P were rfiacement gaskets made by another defendant
manufacturer.
lVJI. Daigneau testified that Plaintiff's only exposure to asbestos from 'War:en
Denver' pumps would have been from replacement asbestos gasketsJfootnote
omitted). Tbese gaskets replaced the original gaskets that originally carne with the
pumps.
As set forth in the annexed a.f:fidavit of :u.avaJ expert Tom McCaffery, the
Gardner Denver pumps aboard the USS Wasp were water and fire pumps. Tnese
pumps were not insulated with external insulation since they were not used for hot
applications and the Navy did not, therefore, require that they be insulated.
AdditionaDy, as stated by Mr. McCaffery, contrary to tvJI. Daigneau's testimony
regarding 'Warren Denver' pu..TTips, there were no Gardner Denver pumps in tbe.
boiler room of tbe USS Wasp.
Plaintiff has failed to come forward with admissible evidence to supply a
factual basis for his claims against Gardner Denver. On the basis of the evidence,
Plaintiff is unable to prove that any product manufactured or sold by Gardner Denver
was a proximate cause of Decedent's alleged asbestos-related injury. Gardtier
Denver is, therefore, entitled to summary judgment as a matter of law.
[Defendam's Counsel's f..._""fumation in Support of Su..'"!liiiary Judgment"at ~~10-13).
Plairitiff s counsel's opposition to the instant motion prin1arily consists of citation to the d.eposition
testimony of Bruce Daigne.au who observed plai~tiffs' decedent: " ... maintain[ing} and repair[ing] ...
the pump, :leaning and brushing the flange gaskets as required[,]" in the " ... evaporator space in the
nu<"11Der two fire room on the upper ievel [of the USS Wasp)." [Piaimi.L-=fs' Counsel's A.u=um.ation ir1
Opposition to Summary Judgment at~ 15}. According to the testimony of :tvir. Daigneau:
Q. Do you associate any asbestos materials with the ptL.-np structure?
A Yes, some of the packing was asbestos related and some of the flange gaskets .
of the intemal pw-ts of the pump its.elf were asbestos flange gaske:s. ··
[Plaintiffs' Couruel's Affirmation in Opposition to Summa.)' Judgment at~ l5). CoUilse1 for the
piaintiffs further argues:
Defendant carmot escape liability by arguing that the gaskets removed and replaced
by the decedent were not those originally placed in the pumps by Defenda,1t Under
a failure tO Ww"'"TI theory, Defendant may be liable because it placed its product into
tbe market v.rith know1edge that asbestos components wouid be internally or
externally required and utilized for safe and-proper operation, yet it failed to warn
end-users of the same. Cf. Berkowitz v A. C. & S .. Inc., 288 A.D2d 148, 733 Nl'S2d
410 (1st Dept 2001); Simone-r-t.a v Viad Co., 137 \1hsh App 15, 26 (lst Div 2007);
· Restatement Second ofTorts § 388. Therefore, issues of fact e>:ist as to Defe-ndmt' s
liability.
[P1aintiffs' Counsel's .A-.fiirmation in Opposition to Summat)' Judgment at~ 16). In conclusion,
piaintiffs' counsel avers:
As Defenda::1t concedes, it manufactured Fresh Water Pumps, rresb Water
Booster Pumps, and F~e Pumps aboard the USS Wasp (see Exhibit 3 hereto
[Defendant's production ofpuwps on va.-:ious ships]; Exhibit D to Movant Aff, ~ 5).
Moreover, ship records coniim1 that these pumps were located on the USS Wasp (see
2
A-6
'F_~hih1t r. 'hP~Pt0\ ota.b1y, the Gcrrdner Denver fire pump\. ~ocated in the fu-~
room, and W.tr. Daign~au testified that he obser.,~d the d.ecedent repai.-i.ng and
overhauling pumps in the fue room (Ex:h.o\, Page 155: 14-17).
Mr Daigneau also stated that be kr.ew these pumps contained asbestos
~ompon~nts because it was listed in the instruction manuals. The affidavit of
Tnom.as F. l\1cCa:ffery only offers competing evidence in a conc1usory fashion. See
Alexand.erv Eldred. sunra. Indeed, Gardner Denver steam pumps contained asbestos
packing (see Exhibit D hereto, Page 1 0). Thus, issues of fact exist as to whether tbe
decedent was exposed to asbestos from Gardner Denver pumps located on the USS
Wasp.
[Plaintiffs' Counsel's Affirmation in Opposition to Surnma.;-y Judgment at 'il~ 19-20].
In repiy, defendant's counsel argues: 1
Tne remaining claim of asbestos exposure from a "Warren Denver" pump,
on tb.e basis of the testimony of M.r. Daigneau referenced by plaintiffs counsel in
opposition to this motion, asserts tb.at Mr.· Tuttle ·was exposed to asbestos from
changing gaskets inside of ''Wa.."Ten Denver" pumps. "hnportantly, lv'.tr. Daigneau
made dear in his testimony that the gaskets· inside these pumps were not original
with the pump but, rather, w:=re replacement gaskets. He identified another
manufacturer, Garlock, as tbe rr..a.nufacturer of the gaskets which were used in
connection ""'ith 'Wa...'Ten Denver' pumps. Gardner Denver has no corporate
affiliation with Garlock. Tnere is no evidence before the Court that Gardner Denver
supplied or recommended tbe use of Garlock Gaskets for its centrifugal water pumps.
Annexed hereto as Exhibit A are specifications for Gardner Denver water
pumps which were used aboard tbe Essex Class of vessel including the US S Wasp.
These specifications include the components of the water pu.-nps to which Plaintiff's
·co-worker referred. As attested to by Thomas McCaffery, naval expert, in the
affidavit provided with Gardner Denver's original motion papers, since Gardner
Denver's pumps vnre used to pump water at ambient temperature, the Navy did not
require tha.t they be insulated. ·
Plaintiff's co-worker expressly testified that Plaintiff would not have had
occasion to change ori~..nal gaskets which may have come with the Gardner Denver
pump. Rather, the manufacturer of the gasket material utilized by Mr. Tuttle was
made by another manufacturer, Garlock. See Exhibit C at 14 9 annexed to Gardner
Denver original motion papers. Mr. Daigneau, Plaintiff's co-worker, made a point
oftestifyi.ngthatthegaskets 'wouldn't be the original gasket material thatvlas on that
pump when it was installed.' See Exhibit C at 149 annexed to Gardner Denver
original motion papers.
Tbeoniy factually substantiated basis for a claimpfasbestos expos-:rreagainst
Gardner Denver, therefore, accepting that Plaintiffs co-worker was re·frrring to
Gardner Denver when be named 'Vh .... "'Ten Dej}ver' as a pump manufacturer, is the
ciaim that Mr. Tut"Je was exposed to internal asbestos-containing gaskets made by
another manufacturer.
[Defense Counsel's Reply Memorandum in Support of Su...TID.nai--y Jud~ent at pp.2-3). Attempting
to distinguish the decision of the Appellate Division, First Department in Berkowicz v. A.C.&S ., 288
Tne. court agrees with defendant's counsel's assertion that the re::ord before this court is devoid of any evid'ence that tbe
plaintiffs' decedent was e1....Posed to any lagging or exter7.a1 insuiation on Garciner Denver pumps, and a::~ordingly will
not consider such e'~posure in rendering its decision..
3
A-7
A.D.2d 148 (P' Dept. 2001), counsel alleges, in sum and substance that ber client owes no duty to
the plaintiffs' decedent insofar as:
... [I]n the conteh."t of product iiabilizy iaw, a manufacturer's duty of care
extends to products it manufactures and sells. New York case law is consistent with
· the Restatement ofTOJ"1'.s 3d which prtvides that a manufacturer owes a duty of care
with respect to the products it rr...anufacturers. Gardner Denver, a pump manufacturer,
owed a duty with respect to its water and fire pumps. No such dury was owed with
respect to replacement parts which may have been purchased by the Navy and used
in connection with pumps sold by Gardner Denver.
An important distinction between the facts ofBe1·kowitz and those before this
court is that B erk.owirz .involved a product for which naval specification required the
use of asbestos-containing material in connection \vith the manufacrurer's product.
The Berkowitz Court premised the holding tha.! Worthington owed a· duty to warn on
the finding that Wor"Lhington should have foreseen the use of asbestos insulation in
connection with its pumps even though it neither manufactured nor installed tbe
asbestos insulation itself.
[Defense Counsel's Reply Memorandum in Support of Summary Judgment at pp.S-6).
In sur-reply, counsel for tbe plaintiffs argues that the drawings and specifications ·attached to
defendant's counsel's repiy papers indicate that the pumps in question were supplied with two
asbestos ~asing gaskets and that the "Method ofMaking Joints Hull Piping" also at+..ached to Gardner
Denver's reply papers lists asbestos packing for "numerous applications." [Plaintiffs' Counsel's Sur-
Reply Affirmation at~ 3]. Counsel conciudes: "Thus, Defenda..."1t's mvn submissions establishes that
the pumps contained asbestos when sold to the Navy an:d it was foreseeable to Gardner Denver that
they would contain asbestos gaskets when Mr. Tuttle was on the ship." '[Plaintiffs' Counsel's Sur-
Reply .A..ffirmation at~ 3].
Conclusions ofLaw:
Tn the instant action., the court, in deciding the motion for SU.."!l.mary judgment, has been left witb an
exer::ise akin to hitting a moving target, v.rith each submission by the parties setting forth new
arguments vJitb respect to their positions. However, distilled to its essence, the court is left with the
a single issue, to wit, the duty owed by tbe moving defendant to plaintiff for asbestos it nejtber
instail ed or manufactured in its pumps. At the center of each counsel's argumem is an interpretation
oftbe .b·.ppellate Division, First Depa:.-tment's decision in Berko·,,rjtz v. A.C.&S .. et al, ~88 _A. •• D.2d
188 (1'' D~pt. 2001).
Jn Berkowitz v. A.C.&S. et al. sur;ra, the A:pnel1ate Division First De;~~e:J.t affirmed the denial .. . .. .
of summary judgment to Wor":.b.ington, a pump manufacturer holding:
.... A..n issue of fact as to whether these plli"DpS contained asbestos is raised by .
defendants' admission that Worthington sometimes used gaske~s and packing
containing asbestos; plaimiffTancredi's production of a Worthington manual for the
power pi ant v,rhere be worked ref~rring to an asbestos component in one of its puinps
at the p1ant; the testiinony Df defendants' ·v-Jitness that Worthington had
'specifications for sale of product to the government which required asbestos use';
the absence of evidence that Worthington deviated from the government's
specifications in the pumps it installed in ships duri.ng the relevant time periods; and
4
A-8
the testimony of cercain of plaintiffs that they observed the nand making of asbestos
gaskets. Nor does it necessarily appear that Worthington bad no duty to warn.
concerning the d.a..TJ.gers of asbestos that it neither manufactured nor installed on its
pumps. While it maybe tecbni:::al1ytrue that its pumps couJd run without insulation,
defendants' O""V-:n witness indicated that the government provided cenain
specifi:::atior.s involving insulation, and it is at least questionabie whether pU..TJ.l.pS
tra..~sporting steam and hot liquids on board a ship could be operated safely without
insulation, which Worthington knew wou)d be made out of asbestos (comnare. ·
Ro~rers v Sears. Roebuck & Co .. 268 AD2d 245, with Rastelii v Goodvear Tire &
Ruhber Co., 79 N"lr2.d 289).
Berkowitz v. A. C. and S .. Inc supra, at 149-150.
In arguing that the ho1ding in Berkowitz is inappiicab1e to tbe ir..stan.t action, cour..sel for the
defend.a..'1t posits in her reply memorandum:
The Berkowizz Court made two assumptions critical to its decision. First, it
assumed Worthington's pumps could not be operated safely without insulation.
Second, it assumed that Worthington should have known that asbestos-containing
insulation would be utilized in connection with its pumps. On tbe basis of both
assumptions, the Court :::onduded Worthington had a duty to ww.""!l.
The assumptions which were the basis of the Cou..-t' s imposition of a duty to
""am make Berkowitz factually inapposite. First, Gardner Denver's water pumps did
not require asbestos ir.sula.tion for safe operation as attested to by 1V.t.r. McCaffery,
navai e)~pert whose affidavit is submitted \Vitb Gardner Denver's·origimi.l motion
papers. Second, with respect to the use of anotber manufacmrer's asbestos-
containing gaskets, Gardner Denver had no way of knowing such gaskets would be
used in connection with its pumps since such replacement gaskets were installed,
according to lvu. Tuttle's co-worker, many years after initial insta11ati on of the pumps
in issue. Further, there is no evidence to suggest that such asbestos-containing
gaskets were required for use with Gardner Dem~er wate.r pumps. Tnus, tbe
Berkowitz Court's imposition of a duty to wa..-n based on the manufacturer's
knowledge that asbestos insu1ation wouid be used in connection with the product in
issue would not be true in this case. Gardner Denver had no control over the
selection of the gaskets for the pumps in issue.
[Defense Counsel's Reply Memorandum in Support of Summary Judgment :,t pp.6-7]. \l\7b.i}e
initially persuas1ve, the argument with resnec.t. to e-askets advanced by def~nuant, through its
counsel are beiied by tbe re::ord before this com,,. ·
Defense counsel first alieges that: "First, Gardner Denver's water pumps did ::10t require asbestos
insulation for safe ope;-ation as attested to by 1v1r. lvf::Caffery, naval expert ·v.:hose affidavit is
Sllbmitted with Gardner Denver's original motion papers"[Defer.se Counsel's Reply Merno:randum
in Support of Sumrna.:-y Judgment at p.6]. In his affidavit, Jvlr. McCaffery identified four pumps
ma::mfactured by Gardner Denver aboard the USS Wasp, two freshwater booster pumps and tv.'O
emerge11cy fire pumps. With respect to tbese four pumps, " ... naval specifications did not require
thermal insulation for the exterior of the pumps since they did not pump water exceeding 125
5
A-9
In the instant action, co'.msel in ber Reply Memorandum arg-J.es that: "Furt.her, there is no evidence
to suggest that such asbestos-containing gaskets were required for use with Gardner Denver water
pumps." (Defense Counsers Reply Memorandum in Support of Summary Judgment at pp.6-7].
However, in defendant's expert's affidavit in support of summa..)' judgment, Thomas McCaffery
avers: "The US Navy plans for Emergency Fire and Fresh Water Booster Pumps called for casin£
!'"askets comoosed of comnressed asbestos sheet."[.A..ffidavit of Thomas McCaffery at ~. 8]
[ em.pb.asis added). Further, attached to defendant's reply papers are drawings for fresh water booster
pumps, which include in tl)e materials' list, asbestos gaskets as part of the original design of the
pump, as well as asbestos casing gaskets as part of materials' iist entitled "Method ofMaking Joints
Hull Piping." [see, Exhibit A to Defense Counsel's Reply MemOiandum in Support of Summary
Judgment).
Tnus, in light of tbe foregoin.g, the cou."L finds, despite defendant's counsel's protestations to the
contrary, that there are ·issues of fact with respect to defendant's liability, preciuding entry of
Slli"1.1ffiary judgment in favor of the defenda..."lt, and accordingly, defendant, Gardner Denv~r· s motien
for summary judgment is, in all respects denied..
The_ fo.regoing_ constitutes ~be Lett~r Decisio~ o~ ti;_e.~ounsel for the plaintiffs is to submit
an Uraer conSIStent herewrth for Slgnature 7'ii7_: _..
\.z:£F' /ld~
~'l' . .I.zdnes W. McCarthy ."-g Supreme Court Justice
Dated: November 15, 2007
at Os-vi'ego, New York.
degrees Fahrenheit." [Affidavit ofTnomas McCaffery at~ 7). However, this is not, as defendant's
cour:.se1 wouid perhaps urge the end of the court's analysis and inquiry.
6
A-10
James \V. McCurthy
Supreme Cnurt .J usficc
Seth A. Dymond. Esq.
13el\uck & Fox
SUPREME COURT CHAfl!IBERS
Oswego, New York
Oswego County Conrthouse
25 East Oneida Street
Oswego, 1'-icw York 13 126
Telephone: (315) 349-3286
Fax: (315) 349-8525
April l3, 20 II
Andrew T. Wolfe
Principal J.aw Clerk
Kill\ N. CI(HllHIII
Sccn;lary lo Justice
546 Fifth Avenue, 4'" Floor
New York, New York 10036 COURT COPY
Tara L. Pehush, Esq.
K&L Gates, LLP
599 Lexington Avemtc
New York, New York 10022-6063
Re: Cobb 1'. A.O. Smith Water Products, d a/
Index No. /0-3677
LETTER DECTSI.ON AND ORDER
The above-referenced matter is before tbis courr pursuant ro defcndanr, Crane Co.'s motion Li.)r
summary judbrm.ent. [New York Civil Practi0c Law and Rules § 3212). Llp011 receipt of the reply
paper.s, this matter was taken on submission without oral argument. Hnving rcvie\ved the
submissions of the parties, for the reasons set forth below, this court make!; the following l'indings
of Fact and Conclusions of Law.
Findings of F~ct:
The facts underlying the instant motion arise out of plainri ff's .James Cobb's alleged exposure to
nsbes10s containing products during the course of his employment at the Schoeller Paper Mill in
Pttl<~ski, New York where he was employl!d from 1%6 to 2006. Mr. Cobb worked on the cook's
crew, coatcr (:rcw. service I iii !.ruck operator, and beginning in 1972 he worked in the warehouse its
a forklifl driver and nnv material coordinator.
In suppot1 of its motion fi>r s\Hllmaty judgment, counsel for the defendant conced<.--s, for the purposes
of this motion that Mr. Cobb was exposed to asbcslo~ from mechanics removing asbestos containing
packing fi·om Crane Co. va lves. Counsel for the defe11dant nrgues, however, insofar as Crane Co.
'' ... did not manufact11rc or supply any product that· released asbestos fibers to \vhich Mr. Cobb may
have been exposed[.]" [Defense Counsel's Affirmation in Support of Summary Judgment at ~I h] ,
it is not liable to the plnintiff. More speci fienlly, counsel argues that it did not supply the packing
A-ll
in the Crane Co. valves, did not design the system into which the valves were integrated, and did not
specify that replacement packing for valves be composed of asbestos, that therefore, as a matter of
law, it cannot be held responsible for the alleged injuries suffered by Mr. Cobb. Counsel further
avers:
As supplied originally, certain Crane Co. valves may have contained internal seals,
such as packing materials, which may have incorporated some asbestos as part of
their chemical composition ... Nevertheless, those seals would have been changed
overtime and replaced with seals of the customer's choosing, which, since the valves
did not require asbestos containing seals to function properly, could have or could not
have contained asbestos, depending on what the customer chose.
[Defense Counsel's Affirmation in Support of Summary Judgment at 'i[10].
In opposition, counsel for the plaintiff, argues in sum and substance that the record before this court
establishes both the existence of the defendant's valves at Schoeller Paper, and also plaintiff's
exposure to asbestos containing packing materials in both new and replacement valves manufactured
by the moving defendant. Counsel argues that Mr. Cobb specifically identified Crane Co. as the
manufacturer of valves to which he was exposed, and that he was in the presence of mechanics when
they maintained [tore down], replaced existing valves by installing new valves manufactured by the
moving defendant, and that such work exposed him to asbestos. With respect to the argument that
defendant owes no duty for exposure to asbestos containing packing materials it neither
manufactured or supplied, counsel for the plaintiff relies on the Appellate Division, First
Depm1ment's decision in Berkowitz v. A.C.& S .. 288 A.D.2d 188 (P' Dept 2001), and several
unreported trial court decisions from this state, including this court, establishing moving defendant's
responsibility under the circumstances of the instant action.
In reply, counsel for the moving defendant reiterates her position that it bears no responsibility for
gaskets and packing materials it neither manufactured, designed supplied or was installed by others
in conjunction with its product, and to hold defendant liable under such circumstances would run
afoul of well established New York appellate precedent as well as an emerging national trend
absolving manufactures from liability for replacement parts.
Conclusions of Law:
It is well settled that on a motion for summary judgment, the defendant bears the initial burden of
establishing that its product: " ... could not have contributed to the causation of the plaintiff's
injuries." Shuman v. Abex Corporation, et al., 267 A.D.2d 1077 (41h Dept. 1999) citing, Shum!!n
v. Abex Corp .. 266 A.D.2d 878 ( 4'h Dept. 1999); Matter of Eighth Judicial Dist. Asbestos Litigation
[Takacs v. Asbestospray Corporation, et afj. 255 A.D.2d 1002 (4'h Dept. 1998); see also, Root v.
Eastern Refractories Co., Inc, 13 A.D.3d 1187(4th Dept. 2004); In reNew York City Asbestos
Litigation (Comeau v. W.R. Grace & Co., et all. 216 A.D.2d 79 (1"1 Dept. 1994);1 Reid v.
"To go forward with a motion for summary judgment, the defendant had to make a prima facie
showing that its product could not have contributed to the causation ofplaintifl's injury [citation
omitted]" In reNew York City Asbestos Litigation [Comeau v. W.R. Grace & Co .. et all. supra at
80.
2
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Georgia-Pacific Cornoration, 212 A.D.2d 462 (ls1 Dept. 1995).
In support of its motion for summary judgment, Crane Co. does not argue that the plaintiff was not
exposed to asbestos in the vicinity of its product, nor does it argue that its products to which the
plaintiff was exposed did not contain asbestos, rather it argues that the asbestos to which plaintiff
was exposed was neither manufactured, or snecified by it. In Berkowitz v. A.C. and S., Inc. 288
A.D.2d 148, lSO(lst Dept. 2001), the Appellate Division First Department held:
An issue of fact as to whether these pumps contained asbestos is raised by
defendants' admission that Worthington sometimes used gaskets and packing
containing asbestos; plaintiffTancredi's production of a Worthington manual for the
power plant where he worked referring to an asbestos component in one of its pumps
at the plant; the testimony of defendants' witness that Worthington had
"specifications for sale of product to the government which required asbestos use";
the absence of evidence that Worthington deviated from the government's
specifications in the pumps it installed in ships during the relevant time periods; and
the testimony of certain of plaintiffs that they observed the hand making of asbestos
gaskets. Nor does it necessarily appear that Worthington had no duty to warn
concerning the dangers of asbestos that it neither manufactured nor installed on its
pumps. While it may be technically true that its pumps could run without insulation,
defendants' own witness indicated that the government provided certain
specifications involving insulation, and it is at least questionable whether pumps
transporting steam and hot liquids on board a ship could be operated safely without
insulation, which Worthington knew would be made out of asbestos (comnare.
Rogers v Sears. Roebuck & Co., 268 AD2d 245, with Rastelli v Goodyear Tire &
Rubber Co .. 79 NY2d 289).
Id. at150.
In the instant action, counsel for the defendant attempts to distinguish the Berkowitz decision,
arguing in part that the decision is distinguishable from the instant action insofar as it did not supply
the packing in the Crane Co. valves, did not design the system into which the valves were integrated,
and did not specify that replacement packing for valves be composed of asbestos. As more fully set
forth above, counsel concedes that certain valves manufactured by the moving defendant may have
contained internal seals [packing materials J composed of asbestos, however, she argues that such
seals would have been changed. over time and replaced by seals of the customer's choosing.
However, the assumption that the asbestos containing packing to which the plaintiff was exposed
during the maintenance, repair and replacement of valves manufactured by Crane Co. is not based
on any evidence in the record, only conjecture and surmise that any original packing must have,
through routine maintenance, been replaced prior to Mr. Cobb's exposure2.
2
On the record before this court there is no evidence as to the frequency with which the valves were
replaced at Schoeller Paper, and thus whether the packing to which he was exposed was original to
a valve, and thus supplied by the moving defendant. Most recently, the same observation was made
concerning the sufficiency of identical evidence by Justice Lane [see, Lawrence J. Potter v. Crane
Co., et al, -Misc.2d-, Supreme Court, Erie Co. March 31,2011 [Index No. 138620) [NOR]].
3
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In light of the foregoing, the court finds that plaintiffs have clearly established that the decedent was
exposed to asbestos packing materials while working in the vicinity of valves manufactured by the
moving defendant. Furthermore, defendant bas failed to distinguish the Appellate Division's
decision in Berkowitz. as well as trial court decisions from this court and others throughout New
York State3• Therefore, the defendant has failed to establish as a matter oflaw that it had no duty
to warn plaintiff with respect to its identified products, specifically with respect to packing materials
and accordingly denies defendant's motion for summary judgment.
The foregoing constitutes the Letter Decision and Order of the Court. Counsel for the plaintiffs is
to file and serve this Letter Decision and Order together with Notice of Entry on remaining defense
counsel of record.
Dated: April 13, 2011
at Oswego, New York.
ENTER,
This court notes that counsel for the defendant does not attempt to distinguish the instant action from
this court's previous decision in McCann Asbestos Matter.-Misc.3d-, (Onondaga County Index
No. 2008-7986) January 28, 2010 (N.O.R.), rejecting an almost identical claim, or Justice Lanes'
decision in Webb v. A.O. Smith Water Products. et al. -Misc.3d- (Erie County Index No. 2008-
9199) January25, 2010, (N.O.R.). While this court is cognizant of a number of other jurisdictions
supporting defendant's argument in the instant action, it finds that Berkowitz, until ovenuled is still
controlling.
4
A-14
SUPREME COURT CHA1~1BERS
Oswego, New York
James W. McCarthy
Supreme Court Justice
Joseph Belluck, Esq.
Bel luck & Fox
546 Fifth Avenue, 4'" Floor
New York. New York l 0036
Paula M. Eade Newcomb, Esq.
Bouvier Partnership, LLP
350 Main Street, Suite 1400
Buffalo, New York 14202-3714
Oswego County Courthouse
25 East Oneida Street
e swego, New York 13 126
Telephone: (315) 349-3286
Fax: (31 5) 349-8525
March 30, 20 I I
Re: Cobb v. A.O. Smith Water Products. eta/
Index No. 10-3677
LETTER DECISION AND ORDER
Andrew T. Wolfe
Principal Law Clerk
Kim N. Cloonan
Secretary to Justice
The above-referenced matter is before this court pursuant to defendant, Clark Reliance Corporation's
(hereinafter Clark Reliance) motion for summary judgment [New York Civi I Practice Law and Rules
§ 3212). Upon receipt of the reply papers, this matter was taken on submission without oral
argument. Having reviewed the submissions of the parties, for the reasons set forth below, this court
makes the following Findings of Fact and Conclusions of Law.
Findings of Fact:
The facts underlying the instant motion arise out of plaintiff James Cobb's alleged exposure to
asbestos containing products during the course of his employment at the Schoeller Paper Mill in
Pulaski, New York where he was employed from 1966 to 2006. Mr. Cobb worked on the cook's
crew, coater crew, service lift truck operator, and beginning in 1972 he worked in. the warehouse as
a forklift driver and raw material coordinator.
ln support ofi ts motion for summary judgment, counsel for the defendant Clark Rei iance argues that:
Despite comprehensive testimony elicited and the specific identification of several
manufacn1rers and suppliers by name, Mr. Cobb absolutely failed to identify any
contact with or exposure to any asbestos containing product manufactured, sold or
distributed by this defendant.
[Defendant's Counsel's Affirmation in Support of Summary Judgment at ~7). In further support,
counsel for the moving defendant argues that Mr. Cobb's testified that he never personally worked
A-15
on any equipment in the boiler room, where its product was allegedly located, and that there is no
specific testimony with respect to exposure to asbestos from a product it manufactured sold or
distributed. Lastly, counsel argues that it is not disputed that the moving defendant was not
identified by name by plaintiff in response to interrogatories, thus satisfying the moving defendant's
burden on the instant motion.
In opposition, plaintiffs' counsel first citing to the deposition testimony of Mr. Cobb argues that the
record before this court establishes his exposure to asbestos in the boiler room at Schoeller Paper.
Specifically, counsel alleges that Mr. Cobb received and delivered asbestos containing valves and
pumps to various places in the plant. In addition, Mr. Cobb worked two weeks a year ofovenime
in what he referred to as a shutdown including work in the boiler room. Mr. Cobb further testified
that he was exposed to asbestos when he delivered and removed parts from the boiler room during
the shutdowns, and that during this time, equipment was shut down, torn apart and overhauled in his
presence. This work included work on valves using gaskets and packing, and that this shutdown
took place viJiually each year during his tenure C)t Schoeller.
In addition to the foregoing, counsel for the plaintiffs proffers several documents produced by
plaintiffs former employer Schoeller Paper, which he alleges establishes the presence of moving
defendant's asbestos containing products in the boiler room at the plant. Lastly, counsel proffers the
affidavit of Douglas Towles, who specifically identifies Clark Reliance as the manufacturer of
asbestos containing valves, regulators and gages utilized on the boilers at Schoeller Paper, as well
as affirming Mr. Cobb's presence during the shutdown and his exposure from dust created by
maintenance on the moving defendant's product.
Defendant's reply is both procedural and substantive. Counsel first argues that this court should not
consider the affidavit of Mr. Cobb's co-worker, insofar as plaintiffs counsel failed to identify him
in conformance with this court's scheduling order, or in response to a specific demand in the
standard interrogatories. Further, counsel argues that plaintiffs filed the Trial Note of Issue on
December 30, 2010, certifying that all discovery was complete. In light of this counsel argues that
to allow consideration of the proffered affidavit would allow plaintiffs to ambush the moving
defendant. In the alternative, counsel argues that if this court were to consider the affidavit, that
Clark Reliance is neve11heless entitled to summary judgment insofar as there is no evidence that the
plaintiff was exposed to any asbestos-containing products manufactured by the moving defendant.
only replacement asbestos containing packing and gaskets that were not manufactured by it.
Conclusions of Law:
As defense counsel correctly posits, in deciding the motion before it, it is axiomatic that:
... [The] failure of plaintiffs to name IDI as a supplier in their response to
interrogatories constitutes an admission that IDI was not a source of an asbestos-
containing product to which plaintiff was exposed (see Bigelow v. Acands.lnc., 196
A.D.2d 436, 439; see also United Bank Ltd. v. Cambridge Sporting Goods Corp., 41
N.Y.2d 254, 264; Smith v. Kuhn, 221 A.D.2d 620), and TDI thus established that
plaintiffs' action against it has no merit (see generally CPLR 3212 [b] ).
Gorzka v. Insulation Distributors, Inc., 28 A.D.3d 1191, 1192 ( 4'h Dept. 2006). In the instant action,
it is not disputed by plaintiffs' counsel that the moving defendant was not identified in his client's
discovery responses, nor was either identified either during Mr. Cobb's examination before trial or
2
A-16
de bene esse video dt:position, thus shifting the burden to the plaintiff to: '"show facts sufficient
to require a trial of any issue of fact' (CPLR 3212[b]; see, Zuckerman v. City of New York. 49
N.Y.2d 557, 562)." In re Eighth Judicial Dist. Asbestos Litigation, 269 A.D.2d 749,750 (4111 Dept.
2000). To that end, '' ... [P]laintiff must allege facts and conditions from which the defendant's
liability may reasonably be inferred, that is, that plaintiff worked in the vicinitv where
defendant's products were used, and that plaintiff was exposed to defendant's product (Cawein
v. Flintkote Company, 203 A.D.2d 105, 105-106)." In reNew York City Asbestos Litigation
[Comeau v. W.R. Grace & Co., et all, 216 A.D.2d 79,80 (1'1 Dept. 1994)[emphasis added].
As more fully set forth above, it cannot be disputed that Mr. Cobb worked in the vicinity of boilers
at Schoeller Paper during time periods when the boilers were shut down, torn apart and overhauled,
and that in his opinion such work exposed him to asbestos during the replacement of packing and
valves. While he was unable to specifically identify the manufacturer of the valves, this court does
not find that such failure is fatal to his claim, insofar as documents produced by his former employer
identify the moving defendant as the manufacturer of asbestos containing components of the boilers
at Schoeller Paper. [see, Lonnen v. A.O. Smith Water Products, et al,- Misc.3d-, [Supreme
Court, Erie County May 24,2007, Index No. 54149[NOR]], Young v. A.O. Smith Water Products,
et al., -Misc. 3d- [Supreme Court, Chemung Co., Febmary 1, 2005, Index No. 2003-1506 ]. Thus
in light of the foregoing and two well reasoned decisions cited above, on the record before it, this
court finds that the plaintiffs' opposition papers raise a reasonable inference that" ... plaintiff worked
in the vicinity of where the products of defendant[] ... were being used, and that he was exposed to
defendant's product [citation omitted]." In re New York City Asbestos Litigation [Salemo v.
Garlock, Inc.]. 212 A.D.2d 463, 464 (1'1 Dept. 1995); see also, Berkowitz v. A.C. and S., Inc .. 288
A.D.2d 148 (1 51 Dept. 2001); Lloydv. W.R. Grace &Co.-Conn.,215 A.D.2d 177 (1st Dept. 1995);
Petteys v. Georgia Pacific Corp., 214 A.D.2d 363,(1 st Dept. 1995).
In the alternative, counsel for the moving defendant argues that summary judgment is appropriate
insofar as the record is bereft of any evidence that Mr. Cobb was exposed to any asbestos
components that it either manufactured or supplied. In essence, counsel argues that any exposure
to packing and gaskets by the plaintitTwere to replacement parts, and as such, as a matter of law, it
bears no responsibility to the plaintiff. In Berkowitz v. A.C. and S., Inc. 288 A.D.2d 148, 150(lst
Dept. 200 I), the Appellate Division First Department held:
An issue of fact as to whether these pumps contained asbestos is raised by
defendants' admission that Worthington sometimes used gaskets and packing
containing asbestos; plaintiffTancredi's production of a Worthington manual for the
power plant where he worked referring to an asbestos component in one of its pumps
at the plant; the testirnpny of defendants' witness that Worthington had
"specifications for sale of product to the government which required asbestos use";
the absence of evidence that Worthington deviated from the government's
specifications \n the pumps it installed in ships during the relevant time periods; and
the testimony of certain of plaintiffs that they observed the hand making of asbestos
gaskets. Nor does it necessarily appear that Worthington had no duty to warn
concerning the dangers of ~sbestos that it neither manufactured nor installed on its
pumps. While it may be technically tme that its pumps could run without insulation,
defendants' own witness indicated that the government provided certain
3
A-17
specifications involving insulation, and it is at least questionable whether pumps
transporting steam and hot liquids on board a ship could be operated ~afely without
insulation, which Worthington knew would be made out of asbestos (compare.
Rogers v Sears, Roebuck & Co., 268 AD2d 245, with Rastelli v Goodyear Tire &
Rubber Co., 79 NY2d 289).
Td. at l50.
In the instant action, there is no citation to or mention of the Berkowitz decision by defendant's
counsel in his reply papers, rather counsel rel ies on three unreported trial court decisions in support
of his position. Here, the records produced by plaintiff demonstrate both the existence of
defendant's products in the vicinity of Mr. Cobb and that such products contained asbestos. As the
court has previously repeatedly ruled in the past, the fact that the alleged exposure was to
"replacement" parts is, standing alone, insufficientto absolve the defendant of liability [see, See, Dec
v. 84 Lumber Company. et al..- Misc.3d.-, Onondaga County Index No. 2008-7223, June 15,
2010 [NOR]; See. Tuttle v. A.W. Chesterton. et al.- Misc.3d-, Onondaga County Index No.
2006-5602, November IS , 2007 [NOR], Pokorney v. Foster Wheeler, -Misc.3d-, Onondaga
County Index No. 2006-3087, December 4. 2008 [NOR]].
In light of the foregoing, the coutt tinds that plaintiffs have clearly established that the decedent was
exposed to asbestos packing materials while working on valves manufactured by the moving
defendant. Furthermore, defendant has failed to distinguish the Appellate Division's decision in
Berkowitz. and to establish, through admissible evidence that it had no duty to warn Mr. Cobb with
respect to its identified products, specifically with respect to gaskets and packing materials, and
accordingly denies defendant's motion with respect to the two identified components.
Thus, defendant, C lark Reliance Corporation's motion for summary judgment [New York Civil
Practice Law and Rules§ 3212) is in all respects DENIED.
The foregoing constitutes the Letter Decision and Order of the court, to be fi led and served by
plaintiffs' counsel with Notice of Entry on remaining defense counsel of record.
Dated: March 30, 20 II
at Oswego, New York.
ENTER,
Supreme Court Justice
4
A-18
STATEOFNEWYORK
SUPREME COURT
ANNE M. FORTH, Individually and
COUNTY OF SCHENECTADY
as Executrix of the Estate ofMAURlCE
P. FORTH, Dec.eased,
Plaintiffs,
-vs-
CRA:'\JE CO., et al.,
Defendants.
DECISION
AND ORDER
Index #2008-0491
RJI #46-1-08-0405
The plaintiff, Mauric.e P. Forth, conunenced the within action to recover damages for
personal ir\iuries resulting from his exposure to various asbestos containing products. The
plaintiff commenced this action on March 18, 2008, by filing a summons and complaint in the
Schenectady County Clerk's Office. Issue was subsequently joined and discovery has been
conducted pursuant to an expedited discovery schedule.
The plaintiff, Iv1aurice P. Forth, died on April I 3, 2008. Anne M. Forth was substituted as
Executrix of the Estate ofMamice P. Forth.
The defendant, Crane Co., has now made a motion for summary judgment dismissing
plaintiffs' complaint and all cross claims asserted against it pursuant to CPLR §3212. The
defendant seeks summary judgment on the theory titat it is not liable for products it did not
manufacture, supply or specify for use with its valves. The defendant asserts that it merely
manufactured valves and pumps which were made of metal, and different entities manufactured
the asbestos containing components which were incorporated into the pumps and valves, or the
external insulation which sunounds the pumps and valves.
A-19
The plaintiff's decedent, Maurice P. Forth, was born on 1939, and was
approximately 68 years of age at the time of his death. For the purposes of this motion the
plaintiffs have alleged that he was exposed to asbestos containing materials while working at the
Knolls Atomic Power Labs in Schenectady, New York.
The defendant, Crane Co., alleges that its products are not defective. The defendant claims
that its valves and pumps are made of metal and, as such, could not release any asbestos. The
defendant further asserts that the materials described by the plaintiff: exterior insulation; flange
gaskets and packing materials, were not manufactured or supplied by the defendant.
A proponent of a summary judgment motion must make a prima facie shO\ving of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the
absence of any material issue offact, Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986). In
the context of an asbestos case, the defendant must make a prima facie showing that its product
could not have contributed to the causation of plaintiff's injury. Comeau v. W.R. Grace & Co.,
216 AD2d 79, SO (1" Dept. 1995); Reid v. Georgia-Pacific Corp., 212 AD2d 462 (1 51 Dept.
1.995).
The Court also notes that since this is a summary judgment motion, it must view the
evidence in a light most favorable to the non-moving party, drawing all reasonable inferences in
favor of the non-moving party. Salerno v. Garlock, Inc., 212 AD2d 463, 464 (1 tl Dept. 1995);
Greco v. Bo:£ce, 262 AD2d 734 (3'd Dept. 1999).
In response to the defendant's motion, the plaintiff relies upon the deposition testimony of
Patrick A. Cerqua. Mr. Cerqua testified that he "\'laS a co-worker of Mr. Forth and that they
worked together from 1960 to 1967 in the Heat Transfer Group at the Knolls Power facility. Mr.
A-20
Cerqua described Mr. Forth's work with and around the pumps and valves of the defendant
Crane Co .. Mr. Cerqua had specific recollections of the defendant's pumps and valves being in
the high temperatUre systems at Knolls.
T~e plaintiffs contend that the instant case involves a failure to warn theory which has been
asserted against the defendant, Crane Co. The plaintiffs take the position that the defendant had
a duty to warn about the dangers associated with changing gaskets, packing and external
insulation with regard to the customary usage of the defendant's pumps and valves. The plaintiff
argues that the defendant designed its valves in a manner which would necessitate continued
replacement of the gaskets, packing and external insulation. The plaintiffs assert that the
defendant had a duty to wam because of the inherent design features of its product. The plaintiff
insists that the defendant's valves and pumps, which were utilized in high temperature settings,
could only function properly if the dangerous asbestos containing components were utilized and,
thus, the defendant had a duty to wam about the dangers associated with repair and maintenance
of its valves and pumps. The Court notes that the defendant disputes this contention and asserts
that the valves and pmnps can operate ·without asbestos.
In Berko\.\oi.tz v. A.C. & S., Inc., 288 AD2d 148 (Pt Dept. 2001), the Court denied a pump
manufacturer's motion for summary judgment by finding a material issue of fact as to whether
the defendant had a duty to warn conceming the dangers of asbestos which it had neither
manufactured nor installed on its pumps. The Court also notes that "failute to warn liability is
very fac.t specific, including such issues as obviousness of the risk and proximate cause". RQ.gers
v. Sears. Roebuck and Co., 268 Ab2d 245 (lot Dept. 2000). In the Rogers case, the Court was
not persuaded by the defendant's argument that it had no duty to warn about the hazards of
A-21
propane where its gas grill could not be used without a propane tank.
As stated in the Rogers case, failure to warn cases are very fact specific and will turn upon
the unique factual patterns which are presented in each individual case.
In the case at bar, Crane, for the purpose of this motion, acknowledges the inherent dangers
of asbestos products when used in conjunction \v:ith its valves and pumps. Although Crane
claims that its pumps and valves could work without asbestos containing materials, the defendant
has failed to establish that the pumps and valves which Mr. Cirqua described at the Knolls
facility, could operate effectively in the high temperature settings without asbestos containing
materials. The Court also notes that the defendant does not claim that the original pumps and
valves which were described by Mr. Cirqua were free of asbestos containing materials at the time
of their original installation at the Knolls facility. In view of the specific facts of this case, the
plaintiffs have raised a suftlcient issue of material fact which necessitates the denial ofthe
defendant's motion for summary judgment.
This writing constitutes the Decision and Order of the Court.
I 'I ~ day of fl -~r:- tJ · Signed this r- /~~ , 2011, at Johnstown, New York.
ENTER
I HON~. AUUSI
Justice of the Supreme Court
A-22
SUPREME COURT OF THE STATE OF NEW YORK
EIGHTH JUDICIAL DISTRICT
In the Matter of the Eighth Judicial District Asbestos Litigation
STATE OF NEW YORK
SUPREME COURT COUNTY OF NIAGARA
LAWRENCE K. POTTER , as Executor of the Estate of
LAWRENCE IRVING POTTER, deceased and
JANELLE RUTH POTTER, Individually,
Plaintiffs
-v- DECISION AND ORDER
Index No. 138620
A. W. CHESTERTON, et al.,
BEFORE:
APPEARANCES:
Defendants
HON. JOHN P. LANE
Judicial Hearing Officer
BELLUCK & FOX I LLP
Attorneys for Plaintiffs
By: Seth A. Dymond , Esq.
K & L GATES, LLP
Attorneys for Defendant Crane Co.
By: Eric R.I. Cottle, Esq.
A-23
Potter v Crane Co.
Index No. 138620
The Court has considered the following papers: notice of motion,dated July
23, 2010, by defendant Crane Co.; supporting affirmation of Eric R.I. Cottle, Esq.,
dated July 23, 2010 ; affirmation in opposition of Seth A. Dymond, Esq.,· dated
August 6, 201 0; reply affirmation of Eric R.I. Cottle, Esq., dated August 20, 2010.
This is an action for damages arising from Lawrence Irving Potter's exposure
to asbestos brought by Lawrence L. Potter, his son and executor and Janelle Ruth
Potter ,his widow. Defendant Crane Co. (Crane), a m~nufacturer of valves, moves
for summary judgment. 1 To the extent relevant to this motion, decedent was
exposed to asbestos during the course of his employment as a pipefitter helper I
insulation helper at the DuPont plant in Niagara Falls, New York during 1954-1956.
Decedent was deposed for six days days, and his trial testimony was
videotaped 2• As conceded by defendant, decedent testified about his work with
Crane valves, and his resultant exposure to asbestos- containing material, including
packing, gaskets and external insulation. it is clear from the testimony that decedent
worked with asbestos-containing materials on both interior and exterior of the valves.
1 On or about March 11, 2011 , it was agreed to submit this motion, which
had been held in a~eyance, without oral argument.
2 The EBT took place on November 3, 4, 5, 6, 18and 19, August 18, August 19
and August 20, 2009. Fortunately, the transcripts are numbered consecutively. The
video-taped trial testimony took place on October 1, 2009.
Page 2 of 6
A-24
Potter v Crane Co.
Index No. 138620
For example, he testified to performing maintenance work on valves utilizing
asbestos- containing materials, replacing gaskets and repacking valves with new
material. He also testified to insulating valves with asbestos "mud".
Defendant Crane again asks this court to rule, as a matter of law, that "it is not
\
liable for packing, gaskets, and/or external insulation, manufactured, designed,
supplied, and installed by others and used in conjunction with its valves" asserting
that 'it is undisputed that Mr. Potter was never exposed to asbestos fibers emitted
from a product that was manufactured or supplied by Crane Co. " (Cottle aff.
~ 3 ~4) . However, it concedes that II .. certain of those [ Crane] valves may have
incorporated components as shipped originally-- primarily gaskets and packing- that
may have contained asbestos" (id., ~ 4. ) and that " [a)s supplied originally,
certain Crane valves may have contained internal seals , such as gaskets or packing
material, that may have incorporated some asbestos II (id.,~ 1 0).
These arguments have been made to this court several times. In Matter of
Eighth Jud. Dist. Asbestos Litig. [Coon, (Sup Ct, Erie County, Jan.25, 2009, Index
No. I 2008-9199), a near-identical motion for summary judgment made by Crane
was denied . In Matter of Eighth Jud. Oist. Asbestos Litig. [Dickman] (Sup Ct, Erie
County, Sept. 16, 2010, Index No. 12008-12697), in which Crane again asserted
the same argument as made here, concerning exterior insulation (although applied
to pumps not valves) , this court assessed the duty to warn, applicable here
Page 3 of 6
A-25
Potter v Crane Co.
lndex No. 138620
and repeated below. Recently, the relief requested here was denied in Matter of
Eighth Jud. Dist. Asbestos Litig. [K/as] (Sup Ct, Erie County, October 6, 2010,
Index No. 12009-8338) and less exhaustively in Matter of Eighth Jud. Dist. Asbestos
Litig. [Skin dell] (Sup Ct, Erie County, October 6, 2010, Index No. 1201 0-2411) . The
motion is denied for the same reasons and in similar language.
As this court has noted numerous times, 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 Diet v Flintkote Co., 204 AD2d 53 [1994]), or
affirmatively establish the merit of its defense (see Higgins v Pope, 37 AD3d 1086
[2007]; Refermat v A. C. AND S., Inc., 15 AD3d 928 [2005]; Root v Eastern
Refractories Co., Inc., 13 AD 3d 1187 [2004]; Matter of Eighth Jud. Dist. Asbestos
Litig. [Takacs}, 255 AD2d 1 002 [1998]; Reid v Georgia-Pacific Corp., 212 AD 2d 462
[1995]). A party moving for summary judgment cannot meet its burden by merely
noting gaps or weakness in its opponent's proof (see Allen v General Efec. Co., 32
AD 3d 1163, 1165 [2006]. citing Orcutt v American Linen Supply Co., 212 AD2d 979,
980 [1995]; Edwards v Arlington Mall Assocs., 6 AD3d 1136 [2004]).
To shift the burden to plaintiff, defendant must make a prima facie showing
that its products could not have contributed to the causation of decedent's illness
(see Refermat, Root, Matter of Eighth Jud. Dist. Asbestos Litig. [Takacs], 255 AD2d
Page 4 of 6
A-26
Potter v Crane Co.
Index No. 1386?0
1002 [1998) Clearly, Crane does not meet these standards. For example it admitted
that its valves may have contained asbestos as originally shipped and even if it did,
the record is replete with issues offact requiring resolution by a jury. Further, Crane
contends that the original asbestos it supplied in, on or with the valves would have
been changed by the time Mr. Potter worked in repairing or maintaining the valves
and therefore, he was not replacing Crane's product. There is no evidence in the
record to support this theory.
Crane's primary contention on this motion is that it is not responsible for
asbestos- containing replacement parts or external insulation. This contention does
not comport with New York law or this court's prior decisions.
It is well established in New York law that " [a} manufacturer has a duty to
warn against latent dangers resulting from foreseeable uses of its products of which
it knew or should have known" (Liriano v Hobart Corp., 92 NY 2d 232,237 [1998]
citing Rastelli v Goodyear Tire & Rubber Co., 79 NY2d 289, 297 [1992]). 'A
manufacturer also has a duty to warn of the danger of unintended uses of a product
provided those uses are reasonably foreseeable." (Liriano at 237 citations omitted)
"A manufacturer or retailer may ... incur liability for failing to warn concerning
dangers in the use of a product which come to is attention after manufacture or
sale ... " (Cover v Cohen, 61 NY2d 261, 274 [1984]).
As noted in the Dickman decision, "[f]ailure to warn liability is intensely fact-
Page 5 of 6
A-27
Potter v Crane Co.
Index No . 138620
specific" (Liriano at 243). Crane's assertions: that its valVes did not need packing,
gaskets or insulation to operate properly (even though it admits that Crane valves
may have been contained asbestos-containing gaskets and packing as supplied);
that it did not specify the use of insulation on its valves; and that it did not specify
replacement parts are insufficient to relieve it of its obligation to warn on this record.
Crane's suggestion this court follow out of state precedents is rejected.
Persuasive authority in this state includes: Berkowitz v A. C. and S., Inc. , 288 AD2d
148 (2001 ); the decision of Justice Richard Aulisi in Brinson v Aurora Pump( Sup Ct,
Warren County, Sept. 11,2009, Index No. 21789); Justice Ann Marie Tadddeo's oral
ruling in Stadt v Buffalo Pumps, Inc.( Sup Ct, Monroe County , November 20, 2008,
Index no. 08/3680) and Judge James W. McCarthy's letter decision in Tuttle v. A. W
Chesterton (Sup Ct, Oswego County, November 15, 2007, Index No 2006- 5602).
Defendant's motion is denied.
SO ORDERED
Dated: Buffalo, New York
March 31,201 1
:··~ . .
~.. . . .· .... . . ·. ..
Page 6 of 6
A-28
\ ·John P. Lane
Jl.lhicial Hearing Officer
··j
9/26/2011 9o31 ~M NYSOCA · > 2 1234~5461
STATEOFNEWYORK
SUPREME COURT
IN RE: SIXTH JUDICIAL DISTRICT
ASBESTOS LITIGATION
EDWARD R. SCHMERDER,
Plaintiff,
vs.
A.W. CHESTERTON COMPANY, et al.,
Defendant.<~.
BEFORE: HON. ROBERT C. MULVEY
Supreme Court Justice
APPEARANCES: WEITZ & LUXENBERG, P.C.
By: Adam Cooper, Esq.
Attorneys for Plaintiffs
700 Broadway
New York, New York 10003
K & L GATES, LLP
By: Eric R.I. Cottle, Esq.
Attorneys for Defendant Crane Co.
599 Lexington A venue
New York, New York 10022
IDSCOCK & BARCLAY
By. Linda J. Clark, Esq.
Liaison Counsel for Defendants
80 State Street
Albany, New York 12207
COUNTY OF BROOME
lndex No. CA2010-000927
DECISION &. ORDER
A-29
9/26/2011 9:31AM NYSOCA ·> 2123445461
Mulvey, Robert C., J.
In this personal injury action arising out of alleged exposure to asbestos, the defendant
Crane Co. has moved pursuant to CPLR 3212 for summary judgment dismissing the complaint
and all other claims asserted against it The plaintiff has submitted papers in opposition to said
motion.
The record reflects that, from 1975 to 1978, the plaintiff, Edward Schmeroer, worked as a
boiler tender at the Goudey Power Plan for New York State Electric Corporation. His duties
included repair and replacement of valves used in connection with the boilers. Mr. Schmerder
testified that he· believed that he was exposed to asbestos from installing and removing external
insulation (cement) and working with packing rope and flange gaskets associated with valves
manufactured by Crane Co. and Pacific Valves, .a predecessor.
Defendant Crane Co. (hereinafter "Crane'') contends it is entitled to summary judgment
on the ground that the plaintiff has failed to come forward with any admissible evidence that he
was exposed to asbestos fibers released hy a Crane product. Crane also argues that it is not liable
for flange gaskets, packing and external insulation manufactured, designed or supplied by a third-
party and installed or used and handled by the plaintiff in connection with work that he
performed on Crane valves that were present at his work site, the Goudey Power Plant.
Crane asserts that there is no evidence that the plaintiff was exposed to asbestos fibers
emitted from a product that was manufactured or supplied by Crane or that any other gaskets,
packing or external insulation used by the plaintiff in connection with the repair and replacement
work he performed on Crane valves actually contained asbestos. Crane points to deposition
testimony of the plaintiff where he acknowledged that, during the time he performed work on
Crane valves, he did not have any first hand knowledge that the gaskets, packing and insulation
materials that he used contained asbestos. Crane argues that any suggestion that the materials
identified by the plaintiff exposed him to asbestos is purely speculative and inadequate to support
the plaintiff's claim against Crane and that such lack of evidence on a material point warrants
that Crane's motion for summary judgment be granted, citing Brisco-Reed v. Silicon Valley
Group, 6 A.D.3d 564.
Crane also contends that, even if the plaintiff has established that he worked with
asbestos causing materials, Crane is not liable, since it did not manufacture or supply any product
that may have released asbestos fibers to which the plaintiff claims he was exposed. Crane
makes reference to portions of the plaintiff's deposition testimony where he acknowledged that
he did not know the manufacturer of the gaskets, packing and insulation materials that he used in
connection with his repair and replacement work on the Crane and/or Pacific valves, that the
materials he used were given to him by his employer, that decisions regarding what materials he
would use and how to apply them were made by his employer and that he was not aware of the
1
A-30
9/26/20ll 9r3l AM NYSOCA ·> 2l2344546l Paqe 4g_.g s
age, maintenance history or service history of the valves that he worked on at the Goudey Power
Plant. Crane asserts that the question of whether one owes a legal duty is a question oflaw for
the courts and argues that it has no liability in this instance since a manufacturer of industrial
equipment owes no legal duty with respect to asbestos-containing materials made or supplied by
third-parties that are used with the manufacturer's equipment post-sale, relying primarily upon
Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289; Braaten v. Saberhagen, 165 Wash.2d
373, 385-388; and Kosowski v. A.O. Smith Water Products, et aL, Index No. 000128/2010 [Sup.
Cl, Oneida Co., McCarthy, J., Jan. 5. 2011 ].
Plaintiff opposes Crane's motion for summary judgment and contends that Crane has
failed to demonstrate its entitlement to summary judgment as a matter oflaw. The plaintiff
argues that the record contains evidence that is sufficient to raise questions of fact as to whether
he was exposed to asbestos from asbestos-containing products manufactured or supplied by
Crane and/or from asbestos-containing products that were manufactured or supplied by third-
parties that were used in conjunction with Crane valves. The plaintiff points to his deposition
testimony that he performed repair and replacement work on valves manufactured by Crane and
Pacific and that he believed that the flange gaskets, packing rope and exterior insulation cement
all contained asbestos. The plaintiff also points out that the record contains answers to
interrogatories given by Crane in another asbestos case (Murphy v. Owens Coming, et al. Texas,
March 16, 2000, case No. CC-99-08033-B) which state that "Certain of the valves had enclosed
within their metal structure a,sbestos containing gaskets, packing and discs," as well as
documentary evidence that Crane sold asbestos-containing Cranite gaskets, packing and discs
until sometime in the 1970's or 1980's.
The plaintiff further points to evidence in the record from Crane's own supply catalogs
and manuals that Crane offered for sale asbestos-containing insulating materials for use in
conjunction with its valves and recommended that asbestos-based insulations be used to insulate
their valves in high temperature applications. Based upon such evidence, the plaintiff argues that
the defendant Crane knew or should have known that its valves would be used in conjunction
with asbestos-containing materials, that it had a duty to warn of the hazards associated with
asbestos and that, accordingly, Crane's motion for summary judgment should be denied, citing
Berkowitz v. A. C. & S., Inc., 288 A.D.2d 148.
Summary judgment may be awarded when no issues of fact exist. (see, CPLR 3212 [b ];
Andre v. Pomeroy, 35 N.Y.2d 361, 362). In order to be successful on a motion for summary
judgment, the moving party must make a prima facie showing of entitlement to judgment as a
matter of law by providing sufficient evidence to demonstrate the absence of any material issues
of fact. Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853. Failure on the
part of the moving party to make such a prima facie showing requires a denial of the motion,
regardless of the sufficiency of the opposing papers. Alvarez v. Prospect Hospital, 68 N.Y.2d
320, 324. However, once such a showing has been made, the burden shifts to the party opposing
the motion to produce evidence in admissible form that is sufficient to establish that material
2
A-31
9/26/2011 9;31 AM NYSOCA -> 2123445461
issues of fact exist which require a trial. Alvarez v_ Prospect Hospital, supra, 68 N.Y.2d at P-
324; Zuckennanv. CityofNew York, 49 N.Y.2d 557,562.
Upon review and consideration of the papers submitted, the Court has determined that
Crane's motion for summary judgment must be denied.
Paqe Sg.I'QS
Assuming that Crane made a prima facie showing of entitlement to summary judgment,
the Court finds that the plaintiff has come forward with evidence through the plaintiff's
deposition testimony, Crane's answers to interrogatories from another asbestos case and Crane's
own supply catalogs and manuals that is sufficient to raise questions of fact as to whether he was
exposed to asbestos from asbestos-containing products manufactured or supplied by Crane and/or
asbestos-containing products that were made or supplied by third-parties but were intended by
Crane to be used in co~junction with its valves. Plaintiffs papers raise a reasonable inference
that he was exposed to asbestos while working on valves manufactured by Crane. (see, Salerno
v. Garlok Inc., 212 A.D.2d 463; Lloyd v. W.R. Grace & Co.-Conn., 215 A.D.2d 177; Cobb v.
A.O. Smith Water Products, et al., Index No. 10-3677, [Sup. Ct., Oswego Co., McCarthy, J.,
March 30, 2011 ]). The Court also finds that Brisco-Reed v. Silicon Valley Group, cited by the
defendant is distinguishable on its facts since, in that case, the plaintiff failed to identify the
chemical of substance to which she was exposed or the entity from which it was released into her
workplace.
Further, with respect to the issue of whether .Crane hrui a duty to warn of the hazards
associated with ashestos, Crane's motion for summary judgment must be denied since the Court
finds that the holding in Berkowitz v. A.C. & S., Inc., 288 A.D.2d 148, is applicable and
controlling in this instance. In denying the motion herein, this Court also relies upon the
decisions in Sawyerv. A.C. & S., Inc., 32 Misc.3d 1237(A) and Defazio v. A.W_ Chesterton, 32
Misc.3d 123 S(A) which cite Berkowitz, supra, and denied motions for summary judgment made
by Crane in asbestos cases which involved nearly identical issues and facts. (see also, Cobb v_
A.O. Smith Water Products, et al., Index No. 10-3677 [Sup. Ct, Oswego County, McCarthy, J.,
Letter Decisions dated Aprill3, 2011 and March 30, 2011]).
Accordingly, for the reasons set forth above, it is
ORDERED, that the motion of the defendant Crane Co. seeking summary judgment and
dismissal of the plaintiff's complaint and all cross-claims as against it is hereby denied in its
entirety.
This shall constitute the Decision and Order of the Court. No costs are awarded on the
motion_
Hon. Robert C.
Mulvey
3
A-32
·: ~~ .... ..,...._~c~..,
: DN"-I'I day oi_ ~r , 2011, ~Johnstown, New York.
H~_T __ A_IJ_L_IS_I ______ _
Justice of the Supreme Court
ENTER
A-66
SUPREME COURT CHAMBERS
Oswego, New York
James W. McCarthy
Supreme Court Justice
John Comerford, Esq.
Lipsitz and Ponterio, LLC
135 Delaware Avenue, Suite 210
Buffalo, New York 14202-2410
Sania Malikzay, Esq.
Barry, McTiernan & Moore
2 Rector Street, 14th Floor
New York, New York 10006
Re: Reals Asbestos Matter
Index No. 2010-1847
Oswego County Courthouse
25 East Oneida Street
Oswego, New York 13126
Telephone: (315) 349~3286
Fax: (315) 349-8525
August 8, 2011
LETTER DECISION AND ORDER
AndrewT. Wolfe
Principal Law Clerk
Kim N. Cloonan
Secretary to Justice
The above-referenced matter is before this court pursuant to defendant, Nicholson Steam Trap's
[hereinafter Nicholson) motion: for summary judgment [New York Civil Practice Law and Rules
§3212]. }"ollowing receipt, the matter was taken on submission without oral argument. Having
reviewed the submissions of the parties, for the reasons set forth below, this court makes the
following Findings of Fact and Conclusions of Law.
Findings of Fact:
The facts underlying the instant motion are, for the most part, not in dispute and arise out of plaintiff,
Russell Reals alleged exposure to asbestos during his tenure at Alpha Portland Cement [ 1957-1961,
1963-1981], United States Anny [1961-1963] and Syracuse University [1983-1991). With respect
to the moving defendant, Mr. Reals alleges that he was exposed to steam traps manufactured by
Nicholson. Following completion of discovery, defendant moved for summary judgment dismissing
the complaint and any cross claims against it. In support of its motion for summary judgment,
Nicholson alleges in sum and substance that while Mr. Reals identified the defendant as the
manufacturer of steam traps to which .he was exposed, the plaintiffs cannot prove that he was
exposed to asbestos from the identified product.
Specifically, counsel for the moving defendant alle~es that plaintiff began work at Syracuse
University as a steam fitter, initially troubleshooting thennostats and performing mainten{Ulce on
A..()7
steam traps. Thereafter, the plaintiff worked removing steam traps as part of the university's
conversion from steam to hot water heat. With respect to plaintiff's alleged exposure to asbestos
from steam traps, counsel for the moving defendant alleges in sum and substance tha:t plaintiff
testified that his exposure was from asbestos insulation on pipes leading to the traps, and not the
traps themselves. While he testified that some of the traps were covered with asbestos to protect
students, counsel argues that he " .. .later clarified this testimony admitting that a steam trap covered
in asbestos would not be able to perform its function ... " [Counsel's Affirmation in Support of
Summary Judgment at ~ 13].
Counsel further argues that:
Lastly, Mr. Reals stated 90% ofthemaintenance he performed on steam traps
consisted of replacing the entire trap itself, rather than fixing or repairing it. ffit at
361-362]. Any gasket or trap would have been entirely encapsulated. Id. Therefore,
even assuming that a trap contained an asbestos gasket, the plaintiff would not have
been exposed to the asbestos containing part of the trap.
As for NICHOLSON, plaintiff did not testify that he was exposed to asbestos
from a NICHOLSON steam trap itself, nor did he see any instructions requiring the
application of insulation on the traps or the lines connecting t<;> the traps. Thus the
steam trap was the only non-asbestos coated product with which he worked.
[Affirmation of Counsel in Support of Summary Judgment at~ 17]. Lastly, counsel provides the
deposition testimony of John Artuso, Esq. identified as a corporate representative of the moving
defendant from an unrelated action, in which he testified " ... that he had no lmowledge of
NICHOLSON products ever containing asbestos." (Counsel's Affirmation in Support of Summary
Judgment at~ 18V
Based on the foregoing, counsel concludes:
It is undisputed that plaintiffs deposition testimony fails to establish that he was
exposed to asbestos as a result of any products manufactured by NICHOLSON.
Instead, he testified that he was exposed to asbestos on steam pipes leading up to the
steam traps. He would disturb this asbestos insulation leading to the traps. The traps
themselves would not have been covered in asbestos, otherwise they would not
properly function.
[Counsel's Affirmation in Support of Summary Judgment at~ 22].
In opposition, counsel for the plaintiffs argues that the plaintiff testified that during the course ofhis
employment with Syracuse University, he regularly worked around steam traps, including products
manufactured by the moving defendant and that the steam traps were sometimes covered with
asbestos insulation and utilized asbestos containing gaskets, and that the traps were insulated to
protect students from being burned.
Plaintiffs' counsel further proffers an unauthenticated copy of a patent issued to W .H. Nicholson and
The court notes that it was provided with a sixty six page transcript without specific citation to the
testimony upon which counsel's sworn statement is based.
2
A-68
Company, and argues "[t]his patent further corroborates Mr. Real's testimony that Nicholson
manufactured steam traps that utilized asbestos containing gaskets" [Counsel's Affirmation in
Opposition to Summary Judgment at 1 1 OJ. Counsel further avers:
Gaskets were inside the Nicholson Steam Traps and Mr. Reals testified to being
exposed to the gaskets. See, Exhibit Cat page 103. It is reasonable to assume that
over time, the gaskets in the Nicholson Steam Traps would be replaced. This is
confirmed by Nicholson's own catalogs that list replacement gaskets for sale ....
Furthermore, Nicholson through its catalog, confirms that replacement gaskets [page
4] were available for Nicholson Steam Traps and that Nicholson utilized asbestos
gaskets in its steam traps ...
[Counsel's Affirmation in Opposition to Summary Judgment at 1 10 [emphasis original]].
Based on the foregoing, counsel argues that moving defendant has failed to meet its initial burden
of proof insofar as it has failed to show that its product could not have contributed to the cause of
plaintiff's injury, and that the moving defendant cannot simply point to gaps in plaintiffs' proof to
satisfy its burden. Lastly, counsel for the plaintiffs alleges that defendant cannot rely on the
deposition of its "corporate representative" which is not based on personal knowledge.
In reply, counsel argues in sum and substance that plaintiff's opposition is based upon speculation
insofar as only one in four steam traps depicted in the catalog proffered by plaintiff specified
asbestos gaskets, and avers: "Plaintiff would have your honor believe that Mr. Reals only worked
with 25% of the steam traps that may have contained asbestos." [Reply Affirmation at 1 4]. With
respect to the patent provided by plaintiffs' counsel, counsel for the defendant correctly asserts that
the patent only mentions gaskets, not their composition. Next counsel argues, for the first time in
reply, citing to this court's unreported decision in Kosowske. that Nicholson is not responsible for
external insulation used in conjunction with its product. Lastly, again for the first time in reply
counsel argues that any exposure to its product, assuming that such exposure took place was de
minimus in light of Mr. Reals' work and exposure history.
2
,,
Citing to this court's decision in Kosowski, counsel for the moving defendant specifically avers: "As
recently as January 5, 2011, Your Honor specifically found that a defendant is not responsible for
external insulation manufactured, supplied and installed by another and used in conjunction with the
defendant's product." [Reply Affirmation at'1!6]. However, counsel reads the decision too broadly
to apply to any and all cases in which external insulation is at issue. In Kosowski, this court
specifically limited its decision to: "the limited factual circumstances of[the] case ... " not a blanket
ruling with respect to all external insulation or replacement parts cases as defendant's counsel
argues. Since that decision, this court has issued other opinions in which summary judgment was
denied to defendants arguing that they were not responsible for external insulation or replacement
parts. [See, James Cobb, [Clark Reliance] [Crane Co.], Supreme Court, Onondaga County, 2011
[NOR]. In addition, this court has, with the exception of the unique facts presented in Kosowski,
consistently followed the Appellate Division, First Departments' decision in Berkowitz v. A. C. and
S., Inc. 288 A.D.2d 148 (1st Dept. 2001), see, e.g. McCann Asbestos Matter, - Misc.3d-,
(Onondaga County Index No. 2008-7986) January 28, 2010 (N.O.R.), see also, Justice Lanes'
decision in Webb v. A.O. Smith Water Products, et al, -Misc.3d- (Erie County Index No. 2008-
9199) January 25, 2010, (N.O.R.).
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Conclusions of Law:
In support of its motion for summary judgment, Nicholson, citing to Mr. Reals' testimony, and the
well worn decision of the Appellate Division First Department in Cawein v. Flintkote. Co., 203
A.D.2d 105 (P1 Dept. 1994) and Diel v. Flintkote Co .. 204 A.D.2d 53 (1 61 Dept. 1994), counsel
argues that, on the record before this court that the plaintiffs cannot prove that Mr. Reals was
exposed to asbestos from products produced by it.
It is well settled that on a motion for summary judgment, the defendant bears the initial burden of
establishing that its product: " ... could not have contributed to the causation of the plaintiff's
injuries." Shuman v. Abex Comoration, et al., 267 A.D.2d 1077 (4th Dept. 1999) citing. Shuman
v. Abex Com., 266 A.D.2d 878 (4th Dept. 1999); Matter ofEighth Judicial Dist. Asbestos Litigation
[Takacs v. Asbestospray Corporation, et aD, 255 A.D.2d 1002 (4th Dept. 1998); see also. Root v.
Eastern Refractories Co., Inc., 13 A.D.3d 1187(4th Dept. 2004); In reNew York City Asbestos
Litigation [Comeau v. W.R. Grace & Co .. et al], 216 A.D.2d 79 (1"1 Dept. 1994);3 Reid v.
Georgia-Pacific Corporation, 212 A.D.2d 462 (1 51 Dept. 1995).
In the instant action, rather than affirmatively demonstrating that its product could not have
contributed to the causation of the plaintiffs' injuries, defendant's voluminous submissions do little
more that attempt to poke holes in and discredit Mr. Reals' testimony, which as plaintiffs' counsel
correctly points out, is clearly insufficient to meet its burden of proof. In, Turnmire v. Concrete
Applied Technologies Corp., 56 A.D.3d 1125 (4th Dept. 2008) the Appellate Division, Fourth
Department held:
As we have repeatedly stated, a party cannot meet its burden on a summary judgment
motion by noting gaps in its opponent's proof( see e.g. Higgins v. Pope. 37 A.D.3d
1086, 1087; Orcuttv. American Linen Supply Co .. 212A.D.2d979, 980). Inasmuch
as each defendant failed to meet its initial burden of establishing its entitlement to
judgment as a matter of law, the burden never shifted to plaint~ffto raise a triable
issueoffact (see generallyWinegrad v. NewYorkUniv. Med. Ctr .. 64 N.Y.2d 85l,
853).
Id. at 1128 (4th Dept. 2008); see also. Tullyv. Anderson's Frozen Custard, Inc .. 77 A.D.3d 1474(41h
Dept. 2010); DiBartolomeo v. St. Peter's Hospital of City of Albany, 73 A.D.3d 1326 (3rd Dept.
2010); Atkins v. United Refining Holding, Inc., 71 A.D.3d 1459 (4th Dept. 2010). Furthermore, as
the Appellate Division, Second Department observed in Flynn v. Fedcap Rehabilitation Services,
Inc. 31 A.D.3d 602 (2nd Dept. 2006):
'A party moving for summary judgment must first make out a prima facie case
showing its entitlement to summary judgment. A1Jsent such a showing, the motion
must be denied irrespective of the sufficiency of the opposing papers ... If its own
papers are insufficient, a party cannot establish entitlement to summary judgment
"To go forward with a motion for summary judgment, the defendant had to make a prima facie
showing that its product could not have contributed to the causation of plaintiff's injury [citation
omitted]" In reNew York City Asbestos Litigation [Comeau v. W.R. Grace & Co., et al], supra at
80.
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j
merely by pointing to gaps in the opponent's proof (McArthur v. Muhammad, 27
A.D.3d 532 [citations omitted] ).
ld. at 603.
Further, even ifthis court were to find that the moving defendant had met its initial burden, as more
fully set forth above, defendant's counsel avers that Mr. Reals testified that his exposure was from
asbestos insulation on pipes leading to the traps, and not the traps themselves. However, Mr. Reals
testified to exposure from asbestos insulation on the outside ofthe steam trap,4 as well as asbestos
containing gaskets while performing maintenance on the traps. 5 With respect to the testimony of
deposition testimony of John Artuso, Esq. identified as a corporate representative of the moving
defendant from an unrelated action, Mr. Artuso specifically testified:
Q. Do you have any knowledge that Nicholson Steam Traps had or
manufactured asbestos containing products?
A. I have no knowledge that they had any asbestos containing products or
manufactured any asbestos.
Q. Is there anyone that you ever worked with at Datron who would have
knowledge of this information?
A. I have never-as I said, I been with Datron since 1998. I have never met
anyone to the best of my knowledge that ever knew that Nicholson
Division existed, nor to the best of my knowledge have I have talked [to]
or met anyone who·ever worked in the Nicholson Division.
[Examination Before Trial of John Artuso at p. 13]. Mr. Artso goes on to testify:
Q. ...[D]o you have any knowledge with respect to the corporate history of the
Nicholson Division?
A. My understanding was that it was not a corporation. It was, I believe a
4
Q. Okay. The trap itself was not covered?
A. No.
Q. That's correct?
A. In most incidents, yes.
Q. Because if you cover the trap, then you would affect the efficiency of the
trap?
A. Right, the heat, yes.
5
While counsel for the moving defendant is correct in his assertion that "90% of the time" the steam
traps would be replaced and that such replacement would not have exposed plaintiff to gaskets,
plaintiff testified:
Q. And of that ten percent that was repaired, on how many occasions, or what
percentage of time did you replace a gasket?
A. I have no idea percentage wise. If it needed it, we replaced it.
[De Benne Esse Video at p. 364).
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wholly owned subsi.tiary ....
Q. So you have no information or anything to provide today with respect to
Nicholson Steam Traps, Incorporated?
A. Correct.
[Examination Before Trial ofJohn Artuso atp. 26-27]. Such testimony does not appear to be based
on any personal knowledge and the attempt by defense counsel to bootstrap Mr. Artuso' statement
that: " [He has} no knowledge that [Nicholson] had any asbestos containing products or
manufactured any asbestos[,]" to an affinnative statement that Nicholson's products never contained
asbestos a statement belied by its own catalog submitted by plaintiffs in opposition to the instant
motion.
Thus in light of the foregoing, this court finds that insofar as the defendant has failed to meet its
initial burden of proof, defendant, Nicholson Steam Trap's motion for summary judgment [New
York Civil Practice Law and Rules§ 3212] is, in all respects DENIED.6
The foregoing constitutes the Letter Decision and Order of this Court, for entry and service with
Notice of Entry with remaining counsel of record.
Dated: August 8, 2011
at Oswego, New York.
6
ENTER,
ames W. McCarthy, Supr~me Court Justice
However, this court is further mmdful that upon trial in this matter, plaintiffs will bear the initial
burden of proof.
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r
4/12/4012 l•28 PM NY50Cll ·• > Fax
STATEOFNEWYORK
SUPREME COURT
RICHARD W . SCHUERCH, JR. and
MARYANN SCHUERCH,
Plaintiffs,
vs.
A.O. SMITH WATER PRODUCTS, et al.,
Defendants.
BEFORE: HON. ROBERT C. MULVEY
Supreme Court Justice
APPEARANCES: BELLUCK & FOX, LLP
By: Seth A. Dymond, Esq.
Attorneys for Plaintiffs
546 Fifth Avenue, 41h Floor
New York, New York 10036
K & L GATES, LLP
By: David Oxamendi, Esq.
Attorneys for Defendant Crane Co.
599 Lexington A venue
New York, New York 10022
DECISIO N & ORD ER
Paqe ~ of 7
COUNTY OF BROOME
Index No. CA2011 000589
4/~~/20~2 3:~8 PM NYSOt..:A ->Fa%
Mulvey, Robert C., .J.
In this personal injury action arising out of alleged exposure to asbestos, the
defendant Crane Co. has moved pursuant to CPLR 3212 for summary judgment
dismissing the complaint and all other claims asserted against it. The plaintiffbas
submitted papers in opposition to said motion Fax Paqe 4 of 7
Garlock and the lagging pads he associated with the valves and other equipment was
made and supplied by the United States Navy. Crane further points out that Mr. Schuerch
acknowledged in his deposition testimony that he did not know when any Crane valve
was installed on the USS. Saratoga and did not know the maintenance history of any of
the valves. Crane asserts that the question of whether one owes a legal duty is a question
of law for the courts and argues that it has no liability in this instance since a
manufacturer of industrial equipment owes no legal duty with respect to asbestos-
containing materials made or supplied by third-parties that are used with the
manufacturer's equipment post-sale, relying primarily upon Rastelli v. Goodyear Tire &
Rubber Co., 79 NY.2d 289; Braaten v. Saberhagen, 165 Wash.2d 373, 385-388; O'Neil
v. Crane Co., 266 P.3d 987; Taylor v. Elliott Turbomachinery Co., Inc., 171 Cal. App. 4th
564; and Kosowski v. A.O. Smith Water Products, et al., Index No. 000128/2010 [Sup.
Ct., Oneida Co., McCarthy, J., Jan. 5, 2011].
The plaintiff opposes Crru1e's motion for summary judgment on grounds that
Crane has failed to meet its initial burden as the moving party arguing that it has not
proffered competent evidence in admissible form to support its motion. The plaintiff also
argues that, even if Crane has made a prima facie showing of entitlement: to summary
judgment, the record contains evidence that is sufficient to raise questions of fact as to
whether he was exposed to asbestos from asbestos-containing products mrumfactured or
supplied by Crane and/or from asbestos-containing products that were manufactured or
supplied by third-parties that were used in conjunction with Crane valves.
As to its claim that Crane has not made a prima facie showing of entitlement to
summary judgment, the plaintiff contends that deposition testimony of Crane witnesses
from unrelated actions to which the plaintiff was not a party is not admissible in
connection with this motion pursuant to the provisions of CPLR 31 t 7 and that an
affidavit given by a Crane representative and an unsworn expert report submitted in
connection with m1related actions are likewise not admissible in com1ection with this
motion.
With respect to the merits ofCrru1e's motion, the plaintiff points to his deposition
testimony that he performed repair fmd replacement work on valves manufactured by
Crane ru1d that the packing material he removed and replaced in the Crane valves all
contained asbestos. The plaintiff also points out that the record contains answers to
interrogatories given by Crru1e in ru1other asbestos case (Kuczynski v. A.W. Chesterton,
Inc., ct al. Supreme Court, All Counties Within New York City- Asbestos Litigation,
Attachment I, pages 100-101, Index No. 106967 -06) which state that "Certain of the
valves had enclosed within their metal structure asbestos containing gaskets, packing and
discs", as well as documentary evidence that Crane's corporate drawings for its globe
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4/12/2012 3o26 PM - NY30C~ Fax Pc.q~ !i of 7
valves identified asbestos packing as original, specified components and that the Navy's
QuaHtled Products List for gaskets and packing required that such components contain
asbestos for use in valves in boiler systems on Navy ships.
The plaintiff further points to evidence in the record from Crane's own supply
catalogs and manuals that Crane offered for sale asbestos-containing insulating materials
for use in conjunction with its valves and recommended that asbestos-based insulations be
used to insulate their valves in high temperature applications. Based upon such evidence,
the plaintiff argues that the defendant Crane knew or should have known that its valves
would be used in conjunction with asbestos-containing materials, that it had a duty to
warn of the hazards associated with asbestos and that, accordingly, Crane's motion for
summary judgment should be denied, citing Berkowitz v. A. C. & S., Inc., 288 A.D.2d
148.
Summary judgment may be awarded when no issues of fact exist. (see, CPLR
3212 [b); Andre v. Pomeroy, 35 N.Y .2d 361, 362). In order to be successful on a motion
for summary judgment, the moving party must make a prima facie showing of entitlement
to judgment as a matter of law by providing sufficient evidence to demonstrate the
absence of any material issues of fact. Winegrad v. New York University Medical
Center, 64 N. Y .2d 851, 853. Failure on the part of the moving party to make such a
prima facie showing requires a denial of the motion, regardless of the sufficiency of the
opposing papers. Alvarez v. Prospect Hospital, 68 N.Y .2d 320, 324. However, once such
a showing has been made, the burden shifts to the party opposing the motion to produce
evidence in admissible form that is sufficient to establish that material issues of fact exist
which require a trial. Alvarez v. Prospect Hospital, supra, 68 N.Y.2d at p. 324;
Zuckerman v. City of New York, 49 N.Y.2d 557, 562.
Upon review and consideration of the papers submitted, the Court has determined
that Crane's motion tor summary judgment must be denied.
First, with respect to the plaintiffs claim that Crane has failed to meet its initial
burden of maldng a prima facie showing of entitlement to summary judgment, the Court
finds that Creme has adequately met that burden. Although an lmsworn expert report,
such as the one prepared by Frederick Boelter and submitted by Crane in support of its
motion, generally should not be considered on a motion for summary judgment (see Frees
v. Frank &Walter Eberhart L.P. No.1. 71 A.D.3d 491, 492; Bendikv. Dybowski, 227
A.D.2d 228, 229; Pagano v. Kingsbury, 182 A.D.2.d 268, 270), the deposition testimony
given by Crane witnesses in unrelated asbestos cases that has also been submitted by
Crane in support of its motion herein, may, in this Court's view, be considered by the
Court in connection with this motion. (see State of New York v. Metz, 241 A.D.2d 192;
3
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..... ..,.... • •£ ..,
CPLR 3212 [b ]). Upon reviewing the deposition testimony proffered by Crane in support
of its motion, including excerpts from the plaintiffs deposition and portions of testimony
given by Anthony Pantaleoni and Richard Hatfield in Wllelated asbestos cases, as well as
the affidavit given by Mr. Pantaleoni in an Wlrelated case, the Court finds that Crane
submitted suffident evidence to meet its initial burden.
Although the Court has detennined that. Crane made a prima facie showing of
entitlement to summary judgment, the Court fmds that the plaintiff has come forward
with evidence through other portions of the plaintiff's deposition testimony, Crane's
answers to interrogatories and testimony of Crane witnesses from other asbestos cases,
Crane's own drawings, supply catalogs and manuals and Qualified Product Lists prepared
by the Navy that is sufficient to raise questions of fact as to whether he was exposed to
asbestos from asbestos-containing products manufactured or supplied by Crane and/or
asbestos-containing products that were made or supplied by third-parties but were
intended by Crane and/or the Navy to be used in conjunction with the Crane valves.
Plaintiff's papers raise a reasonable inference that he was exposed to asbestos while
working on valves manufactured by Crane which initially had asbestos-containing
components and were intended to have asbestos-containing replacement components in
connection with their use. (see, Salerno v. Garlok Inc., 212 A.D.2d 463; Lloyd v. W.R.
Grace & Co.-Conn .. 215 A.D.2d 177; Cobb v. A.O. Smith Water Products. et al., Index
No. 10-3677, [Sup. Ct., Oswego Co., McCarthy, J., March 30, 2011]). The plaintiff need
not show the precise causes of his damages but only show facts and conditions from
which the defendant's liability can be reasonably inferred. Reid v. Georgia Pacific Com.,
212 A.D.2d 462, 463; Matter of New York City Asbestos Ligation, [Brooldyn Navy
Shipyard Cases], 188 A.D.2d 214,225, affd 82 N.Y.2d 821.
Further, with respect to the issue of whether Crane had a duty to wam oftbe
hazards associated with asbestos, Crane's motion tor summary judgment must be denied
since the Court finds that the holding in Berkowitz v. A. C. & S., Inc., 288 A.D.2d 148, is
applicable and controlling in this instance. In denying the motion herein, this Court also
relies upon the decisions in Sawyer v. A.C. & S., Inc., 32 Misc.3d 1237(A) and Defazio
v. A.W. Chesterton, 32 Misc.3d 1235(A) which cite Berkowitz, supra, and denied
motions for summary judgment made by Crane in asbestos cases which involved nearly
identical issues and facts. (see also, Celella v. Crane, Co., et al., Index No. 2009-1158
[Sup.Ct., Schenectady County, Aulisi, J., Decision and Order dated November 7, 2011);
Cobb v. A.O. Smith Water Products, et al.. Index No. 10-3677 [Sup. Ct., Oswego County,
McCarthy, J ., Letter Decisions dated April 13, 2011 and March 30, 2011 ]).
Accordingly, for the reasons set forth above, it is
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4/1~/~012 ~.ae PH NY:;QCA -> PaX Paqe 7 ot 1
ORDERED, that the motion of the defendant Crane Co. seeking summary
judgment and dismissal of the plaintiffs complaint and all cross-claims as against it is
hereby denied in its entirety.
This shall constitute the Decision and Order of the Court. No costs are awarded on
the motion.
Dated this 12th day of April, 2012 at Ithaca, New York.
H R be t f; OiqitallysigoledbyHon.RobertC.Mulvey on. 0 r ~;; ON:cn•Hon.RobertCMulvey,CI"'New r;;,_ York State Supreme Coamb<'r~nycourts.g u v ey /· ...... -... :·c-.. v.;
• :~:~~;::· Date: 2012.04.12 09:57:56 ·04'00'
5
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