Court: Supreme Court of New York, New York County

In this talc action, plaintiff Christina Thomas alleged she was exposed to asbestos from products manufactured by defendant Port Jervis Laboratories Inc., s/h/a Kolmar Laboratories, Inc.

Kolmar moved for summary judgment, arguing plaintiff had not established she was exposed to asbestos from a Kolmar product which caused her illness. Defendant further argued that it manufactured the products per the specifications of Johnson & Johnson. 

Plaintiff opposed Kolmar’s motion, citing defendant’s concession that they manufactured the product and noting their expert evidence contending that the product contained asbestos. In addition, plaintiff argues that defendant can still be held liable for products it manufactured per another company’s specifications. In reply, Kolmar advanced several arguments, including that they were not the only manufacturer of the product, plaintiff used the product both before and after Kolmar manufactured the product, and plaintiff’s expert evidence fails as it does not offer an opinion specific to Kolmar products.

With regard to the motion for summary judgment, 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.” Thereafter, the court explained that Dyer v. Amchem is the appropriate standard for summary judgment in New York. In Dyer, the defendants met their burden “by affirmatively prov[ing], as a matter of law, that there was no causation.”

Here, the court found that Kolmar failed to meet its burden as:

[Kolmar’s] arguments focus largely on plaintiffs evidence and lack of ability to pinpoint the proportion of products used that may have been actually manufactured by [Kolmar], if any, while confirming simultaneously that they were manufacturers of such products and that products of their manufacturing were available prior to plaintiff’s usage period in the 1990s.

The court further stated the following:

[Thomas’] expert reports establish conflicting evidence regarding the dangers of the talc used by [Kolmar] and [Kolmar’s] knowledge of such dangers. Further, [Thomas’] testimony clearly identifies products that [Kolmar] has in fact been a manufacturer of, and described her usage of such products during time periods after [Kolmar’s] confirmed involvement.

Thus, the court denied the motion. 

Read the full decision here.