Jurisdiction: Supreme Court of New York, New York County
Plaintiff Widercrantz alleges his mesothelioma resulted from exposure to various defendants’ asbestos-containing products. He alleges personal and bystander asbestos exposure working as a laborer with American Biltrite Inc.’s (ABI) Amtico floor tiles from 1974 to the late 1980s. Such work included demolition, cutting, sanding, and sweeping up of dust from the tiles. The tiles sometimes had “asbestos” written on the bottom, and ABI affirmed that some of their floor tiles from the 1960s to the 1980s contained asbestos.
ABI moved to dismiss the complaint and all crossclaims against it. ABI, relying on its experts, asserted that Amtico floor tiles did not cause, and could not have caused, the plaintiff’s injury, since any dose of released asbestos from Amtico tiles would have been indistinguishable from ambient levels.
Summary judgment requires the moving party to make a prima facie showing of entitlement thereto. It would only be granted if the party opposing failed to establish the existence of material issues of fact requiring a trial. A defendant in an asbestos action may show prima facie entitlement to summary judgment by either establishing an absence of general or specific causation.
The court found ABI’s experts’ findings too restrictive to prove a lack of general causation. The experts looked only at the incidental disturbance of asbestos from within a tight matrix such as floor tiles and failed to consider aggressive work practices such as sanding. The court found this to raise a material issue of fact as to general causation.
The court also held that genuine issues of material fact were raised by the expert opinion submitted by the plaintiff’s expert, particularly with respect to the bystander exposure the plaintiff testified to in his deposition, in opposition to ABI’s expert.
The court denied ABI’s motion for summary judgment to dismiss all claims against ABI by the plaintiff but granted ABI’s motion for summary judgment to dismiss all crossclaims against ABI.
A copy of the decision can be found here.
