Court: Supreme Court of New York, New York County

Plaintiff-Decedent John Gonder alleged exposure to asbestos during his employment as a Con Edison inspector between the 1970s and 1990s. He died in May 2021 at 86 years old from lung cancer. Defendant Jenkins Bros. filed a motion for summary judgment on the basis that Gonder did not identify Jenkins as a manufacturer of asbestos-containing valves to which he alleged exposure. Jenkins also challenged the sufficiency of the plaintiff’s expert reports with respect to causation.

In opposition, the plaintiff put forth prior deposition testimony wherein Jenkins valves were placed at various Con Edison powerhouses, including locations at which Gonder worked. The plaintiff further argued that contradictory expert opinion as to causation constitutes a question of fact.

The court credited Gonder’s ability to provide “clear and unequivocal details” regarding his employment history despite the fact he was deposed at 85 years old and just one year before his death. Specifically, Gonder testified regarding the locations of specific powerhouses where he worked, his job duties, and categories of products to which he alleged exposure.

The court relied upon the First Department’s treatment of similar issues in other cases. See Koulermos v. A.O. Smith Water Prods., 137 AD3d 575, 576, 27 N.Y.S.3d 157 (1st Dep’t 2016) (“[P]ointing to gaps in an opponent’s evidence is insufficient to demonstrate a movant’s entitlement to summary judgment.”). In addition, the court cited to Krok v. AERCTO International, Inc., et al., 146 AD3d 700, 700 (1st Dep’t 2017), where the First Department noted that “reliance on the decedent’s inability to identify its product as a source of his exposure to asbestos is misplaced” and that “plaintiffs raised an issue of fact by submitting evidence that defendant’s asbestos-containing pumps were present on the ship to which the decedent was assigned as a boiler tender fireman.”

The court further noted that Jenkins failed to meet their initial burden as they did not provide any evidence that their valves “were not located at any of Mr. Gonder’s worksites or that they did not contain asbestos.” Lastly, conflicting expert opinions created a question of fact with respect to causation.

Based on the existence of issues of fact regarding whether Gonder was exposed to asbestos-containing Jenkins valves at Con Edison powerhouses and whether such exposure contributed to his lung cancer, the court denied Jenkins’ motion for summary judgment.

Read the full decision here.