Court: Supreme Court of New York, New York County

Defendant Mannington Mills Inc. moved for renewal of its previously denied motion for summary judgment, arguing the New York Court of Appeals’ Nemeth decision has since changed the law regarding causation. Under New York law, a party may move for leave to renew a decision to assert  “new facts not offered on the prior motion that would change the prior determination or . . . demonstrate that there has been a change in the law that would change the prior determination.” CPLR § 2221(e).

In its motion to renew, Mannington argued the court did not consider defense expert Mark Durham’s quantification of plaintiff’s alleged asbestos exposure based on the Stanford Research Institute study from 1979 regarding asbestos fiber released from sheet flooring installation. Mannington further argued the Dyer standard at summary judgment does not require a defendant to proffer a simulation study using their own product, and that the sheet flooring used in the 1979 study used the same asbestos-felt backing as Mannington sheet flooring, which was a “uniform product used industry wide.” Finally, Mannington argued that plaintiff did not quantify asbestos exposure to the standard necessitated by Nemeth and its progeny.

In response, plaintiff argued that Mannington did not proffer medical witnesses to establish specific causation, unlikethe defendants in post-Nemeth floor tile cases. Plaintiff further argued that its original opposition papers sufficiently rebutted Mannington’s evidence regarding the type of asbestos fibers released from its product, and that Mannington’s second expert, Dominik D. Alexander, relied on a discredited “asbestosis” theory of causation. Plaintiff also cross-moved to include a supplemental expert report in light of the updated case law.

Ultimately, the court determined that Mannington failed to show how its motion would be decided differently under Nemeth. Specifically, the court noted that Mannington misstated plaintiff’s burden in opposing a summary judgment motion as the standard set forth in Nemeth, which “represents an extraordinary post-trial remedy to set aside a jury verdict, rather than the well-settled burden on a motion for summary judgment.” The court further noted that Mannington incorrectly argued that plaintiff failed to provide specific causation in the original motion as “it is well settled that at summary judgment, plaintiff’s opposition need only raise a triable issue of face concerning specific causation.” Finally, the court noted that the appropriate standard in a motion for summary judgment is found in Dyer, where defendants were granted summary judgment not by “simply arguing that plaintiff could not affirmatively prove causation” but by “affirmatively providing, as a matter of law, that there was no causation.” Dyer v. Amchem Products Inc., 171 N.Y.S.3d 498 (1st Dep’t 2022).

According to the court, Mannington failed to meet its burden on summary judgment as set forth in Dyer because it proffered insufficient evidence upon which to base its claim that there was affirmatively no causation. Contrarily, plaintiff provided “clear and unequivocal expert testimony” regarding plaintiff, his exposure history to Mannington products, the level of asbestos fibers at issue, and an opinion on causation based on cumulative exposure thereto, which is “more than sufficient to raise issues of fact as to causation.”

For these reasons, Mannington’s motion to renew was denied in its entirety.

Read the full decision here.