Similar Summary Judgment Standards Yield Different Results Based on Jurisdiction

Over the past six months, the Asbestos Case Tracker has reported on numerous summary judgment decisions throughout the country. The most active jurisdictions included New York, Pennsylvania, California, Texas, Illinois, Delaware, Mississippi and Washington. On review of the decisions we have discussed, Texas, Illinois, Mississippi, Washington and Pennsylvania appear to be the most defendant-friendly jurisdictions, with the courts granting all the summary judgment motions coming before them. New York continues to be the least defendant-friendly jurisdiction when it comes to summary judgment. Of the eight summary judgment decisions based in New York and analyzed by the Asbestos Case Tracker, only one decision was granted.

This pattern of denials for defendants’ summary judgment motions has seen an uptick in NYCAL over the last few months. Judge Silvera has issued a handful of decisions denying summary judgment based on causation. For example, in the El-Sheikh matter (decision can be found here), a brake manufacturer defendant failed to make any showing by way of expert opinion that the product at issue did not create visible asbestos dust to which the plaintiff believed he was exposed. Without any such evidence, the court stated that the defendant merely pointed to gaps in the plaintiff’s proof and failed to provide evidence to prove that the plaintiff was not exposed to asbestos through one of the defendant’s products. In NYCAL, defendants “relying solely on gaps in plaintiff’s proof in an attempt to meet [the] MSJ burden” will not be successful on their motions.

Similarly, a floor tile manufacturer defendant who provided expert support was also unsuccessful in another case out of NYCAL, Joungblood (decision can be found here). In that case, the plaintiff’s and the defendant’s experts disagreed on the underlying science at issue. There, the court found that this difference in expert opinion raised a credibility issue that could not be resolved without jury consideration. “The fact that plaintiff and defendant’s experts disagree on the underlying science raises a credibility issue that cannot be resolved without jury consideration. Conflicting testimony raises credibility issues that cannot be resolved on paper and is a basis to deny summary judgment.”

In contrast to NYCAL, as previously reported on Asbestos Case Tracker in the Wineland, Dunlap and Dickens matters, for example, defendants in other jurisdictions have been more successful on summary judgment motions. The standard in other jurisdictions is similar to that in NYCAL: plaintiffs must show that exposure to a defendant’s product “was a substantial contributing factor in causing a plaintiff’s injuries, that is, more is needed than simply placing a defendant’s products in the workplace and showing that a plaintiff was occasionally exposed to asbestos dust from those products” or the “use of a defendant’s product exposed the plaintiff to airborne asbestos fibers and that this exposure occurred with sufficient frequency, regularity, and proximity such that a fact-finder may infer that the plaintiff’s exposure was a substantial factor.” Unlike in NYCAL, in some of these cases, even where a plaintiff provided expert opinions to support their causation argument, the courts found that the expert support was not enough to satisfy the above standards and the defendants’ motions were granted.

It will be interesting to see if any expert proof provided by defendants, or lack thereof on a plaintiff’s part, will be sufficient to obtain summary judgment in NYCAL. For now, it appears summary judgment is more feasible in other jurisdictions.