Defendant Granted Summary Judgment Despite Allowance of Late Evidence of Product on Site U.S. District Court for the Southern District of New York, July 30, 2015
In this federal court case, the decedent, Wayne Perkins, alleges exposure to various asbestos products while working as a merchant mariner between 1952 and 1973. Defendant Honeywell International Inc., successor-in-interest to Bendix Corporation, moved for summary judgment, arguing there is no evidence of the decedent being exposed to asbestos from a product manufactured by it or its predecessor.
Despite discovery being closed, the court allowed affidavits of individuals who worked with the decedent, which were submitted by the plaintiff in opposition to Honeywell’s motion. However, the court still granted the motion, holding: “Perkins cannot prevail, under either New York or maritime law, simply by showing that Mr. Perkins was present on a ship that contained Honeywell products that were wrapped in asbestos. ‘[A] mere showing that defendant’s product was present somewhere at plaintiff’s place of work is insufficient. . . . [T]he plaintiff must show a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.’ Lindstrom, 424 F.3d at 492; see also Diel v. Flintkote Co., 204 A.D.2d 53, 54 (1st Dep’t 1994). Both affidavits ultimately suffer from the same defect. Read alone or taken together, they offer no evidence that Mr. Perkins was exposed to Honeywell’s asbestos-containing products, much less that any exposure to Honeywell’s products was a ‘substantial factor’ in Mr. Perkins’ injuries. There is no other evidence in the parties’ summary judgment papers that tends to show Mr. Perkins was exposed to Honeywell’s asbestos-containing products. Therefore, taking the evidence in the light most favorable to Perkins, a reasonable jury still could not find in her favor against Honeywell.”