Supreme Court of New York, New York County

In three asbestos actions (Learmond, Nale, and Torio), a caulk defendant moved for summary judgment, arguing that the respective plaintiffs’ claims regarding the asbestos content of the caulk and that the plaintiffs failed to meet the causation standard. In opposition, plaintiffs contend that the defendant failed to offer any evidence to show that its products could not have caused an asbestos-related illness.
Ultimately, the court denied the defendant’s motions. The court first noted that “summary judgment is a drastic remedy and should only be granted if the moving party has sufficiently established that it is warranted as a matter of law.” Further, “summary judgment is rarely granted in negligence actions unless there is no conflict at all in the evidence.”
The court criticized the defendant’s former employee affidavit as lacking the “requisite personal knowledge to establish that no products containing asbestos were in circulation and used by” the respective plaintiffs. The affidavit also did not address the defendant’s talc or other asbestos-containing products. Instead, he stated that some formulations of the defendant’s caulk contained asbestos.
The court also noted that the defendant’s expert affidavits were not case-specific and did not form any opinions as to the respective plaintiffs’ actual exposure and work timelines, which does not meet the Dyer v. Amchem standard. In addition, the plaintiffs’ respective experts reviewed each plaintiff’s work and medical history.
Finally, the court set forth that reliance on Nemeth v. Brenntag N. Am. at the summary judgment stage is misplaced. Therefore, the court found sufficient issues of fact to preclude summary judgment given that “a reasonable juror could determine that asbestos exposure from [the] products were a contributing cause” of the respective plaintiffs’ illnesses. Thus, the court denied the motions.

Read the full decisions Torio, Nale, and Learmond