Court: Supreme Court of New York, New York County

In this asbestos action, defendant Dykes Lumber moved for summary judgment, arguing it established a prima facie case for lack of causation under Nemeth v. Brenntag. Plaintiff Raphael Sason opposed the motion.

First, the court set forth the summary judgment standard, including that “the 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 eliminate any material issues of fact from the case.” In addition, the court cites Ugarriza v. Schmieder for the proposition that “summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence.”

Thereafter, the court noted that the Nemeth decision is not the summary judgment standard. Indeed, the court described Nemeth as “an extraordinary post-trial remedy to set aside a jury verdict, rather than the well settled burden on a motion for summary judgment.” Instead, Dyer v. Amchem is the summary judgment standard, where defendants were granted summary judgment not by “simply argu[ing] that plaintiff could not affirmatively prove causation” but by “affirmatively prov[ing], as a matter of law, that there was no causation.”

While Dykes Lumber submitted reports from an industrial hygienist and medical doctor, the court found that Dykes Lumber did not meet its prima facie burden. With regard to Dykes Lumber’s medical expert (Dr. Victor Roggli), the court set forth that plaintiff’s medical expert (Dr. Mark Ginsburg) offered a different opinion, which is “sufficient to raise a question of fact.” Specifically, Roggli opined that exposure to chrysotile asbestos does not cause peritoneal mesothelioma. However, Ginsburg “cites contradicting evidence that chrysotile asbestos contributes to peritoneal mesothelioma.” 

With regard to Dykes Lumber’s industrial hygiene expert (Neva Jacobs, M.S.P.H., C.I.H.), the court set forth that the studies Jacobs relies upon to perform the calculations offered in the report do not meet the Dyer standard. Dyer involved a simulation study that measured the amount of asbestos released from cutting the exact tiles manufactured by them … Further, their study simulated a worker’s exposure in an isolation chamber and with [a]ir sample cassettes … attached to the worker and the helper in each of their breathing zones.” Here, Dykes Lumber’s expert relies on a newsletter report and acknowledged the lack of peer review studies of potential asbestos exposure from using wood putty products. As such, the court found that the report failed to “meet the level of specificity for a simulation study under Dyer.” Therefore, sufficient issues of fact remain to preclude summary judgment. Thus, the court denied Dykes Lumber’s motion.

Read the full decision here.