Supreme Court of New York, New York County  

Plaintiff Jane Wixted, individually and as executrix of the estate of decedent Thomas Wixted, filed the instant lawsuit claiming that the decedent was exposed to asbestos in connection with pumps manufactured by Milton Roy. Between 1964 and 1976, the decedent worked in various positions at the Suffolk State School. Daniel Stoffel, hired by the decedent to work as a fireman for the Suffolk State School, testified that the decedent was present when he removed and replaced gaskets from Milton Roy pumps, which were “coated in asbestos.”

Milton Roy filed a motion for summary judgment, arguing, in part, that the plaintiff could not establish that exposure to Milton Roy pumps resulted in the decedent’s illness and death. In support of its argument, Milton Roy relied on the Nemeth decision, in which the New York Appellate Division, First Department, held that the plaintiff “failed to prove that exposure to asbestos in defendant’s product was a proximate cause of decedent’s illness.” In opposing the motion, the plaintiff claimed that Milton Roy failed to satisfy its burden with respect to causation. The court found Milton Roy’s reliance on Nemeth to be “misplaced” as it was their burden to “first establish entitlement to summary judgment before the burden shifts to the nonmoving party to demonstrate genuine issues of facts.” That is, “pointing to gaps in an opponent’s evidence is insufficient to demonstrate a movant’s entitlement to summary judgment.” Next, the court determined that the affidavit of industrial hygienist James Carling, who stated that the pumps to which the decedent was allegedly exposed did not utilize flange gaskets or seals, lacked “personal knowledge of the relevant facts.” Specifically, Mr. Carling was employed by Milton Roy in 1980 and did not identify work records or documents that he reviewed. Finally, the court concluded that Mr. Stoffel’s testimony “demonstrates that decedent may have been exposed to asbestos as a result of Milton Roy’s pumps.” As such, the court denied Milton Roy’s summary judgment motion.

Read the full decision here.